Court No. - 18
Case :- WRIT - B No. - 7239 of 1999 Petitioner :- Ram Bachan Singh And Others Respondent :- D.D.C. Azamgarh And Others Counsel for Petitioner :-Dr. Vinod Kumar Rai, R.K. Pandey, Vijay Kumar Rai Counsel for Respondent :- C.S.C., G.N. Verma, Nikhil Kumar, R.K. Pandey, R.P. Pandey, Ram Kishore Pandey, S.S.Verma
Hon'ble J.J. Munir,J.
1. This writ petition arises out of the title objection under Section 9-A(2) of the U.P. Consolidation of Holdings Act (in short “the Act”). The objections were filed by respondent Nos. 2 to 4 to this petition before the Assistant Consolidation Officer, which in due course went for determination of the Consolidation Officer. The objections were registered as Case No. 1779, under Section 9-A(2) of the Act before the Consolidation Officer, Azamgarh. These objections were decided on 15.11.1976. It is the decision of Consolidation Officer aforesaid that has given rise to the present writ petition.
2. It has been quite a long journey by now for these proceedings. Before merits of the order of the Deputy Director of Consolidation dated 29th January 1999 passed in Revision No. 36 of 1999, that is under challenge are determined, it would be profitable to examine, in brief, the issue between parties. The dispute between the parties relates to khata No. 81 of Village Kharsahan Kalan and Khata No.17 of village Imadpur, both situated in Tehsil Phoolpur, District Azamgarh. It is the petitioners' case that after commencement of consolidation operations, that is to say in 1380 Fasli, persons, whose names were recorded in the khatauni were Ram Bachan Singh, Lal Sahab Singh both sons of Banshraj Singh and Ram Achal Singh, son of Jang Bahadur Singh. The dispute in respect of these two khatas was raised by respondent Nos. 2, 3 and 4 on the ground that they had purchased a 1/4th share in both khata from one Smt. Shyam Devi @ Shyam Rathi, w/o Brij Bihari. The sale deed was alleged to have been executed on 12.02.1970.
3. The dispute is about the validity of the aforesaid sale deed claimed by respondent Nos. 2, 3 and 4, where the petitioners have contested the claim of the respondents and pleaded that the aforesaid sale deed is a forged and fraudulent document. It is the petitioners' case that sale deed had never been executed by Smt. Shyam Dei @ Shyam Rathi inasmuch as on the date of execution of sale deed, in the year 1970, she was not alive. According to the petitioners, she died on 29.09.1968. As a logical corollary to the said assertion, petitioners pleaded that the sale deed was executed by some imposter. Primarily, it is this issue that was the subject matter of contest in the objections before the Consolidation Officer. It is this issue that now remains to be decided.
4. The Consolidation Officer vide his judgment and order dated 15.11.1976, decided the objections as aforesaid. He framed, on the parties case pleaded as many as forty one issues, many of which relate to other plot numbers and different tenure-holders. Determination of the present issue regarding the validity of the sale deed propounded by respondent Nos. 2 to 4 as one executed by Smt Shyam Dei @ Shyam Rathi, was examined by the Consolidation Officer while deciding issue Nos. 1, 2 3, 9 and 41. The Consolidation Officer held that the sale deed dated 12.02.1970 was a forged and fraudulent document, inasmuch as Smt Shyam Devi @ Smt. Shyam Rathi was already dead on 29.06.1968. The Consolidation Officer relied on different evidence given by parties, including an extract of the Death Register, issued by the Pradhan of the Gaon Sabha, that is maintained under Rule 133 of the U.P. Panchayat Raj Rules, in Form-D. Other oral and documentary evidence was also examined. In the result, the Consolidation Officer dismissed the objections filed by respondent Nos. 2, 3 and 4 to the effect that they are co-sharers of a ¼ share in the two khata on the basis of impugned sale deed dated 12.02.1970, executed by Smt. Shyam Dei @ Shyam Rathi. The said respondents filed Appeal No. 1614/795 from the aforesaid order of the Consolidation Officer to the Settlement Officer Consolidation, which came up for determination on 08.12.1980. The Settlement Officer dismissed the appeal and affirmed the order of Consolidation Officer. Against the said determination, respondent Nos. 2, 3 and 4 have filed a revision before the Deputy Director of Consolidation, which was numbered as Revision No. 247.
5. The Deputy Director of Consolidation by means of his judgment and order dated 02.09.1982 allowed the Revision aforesaid, set aside the orders of the two Authorities below and declared a 1/4th share for respondent Nos. 2 3 and 4 in the two khata, ordering them to be recorded as co-sharers. The sale-deed last mentioned was upheld.
6. The aforesaid order was challenged by the petitioners before this Court through Civil Misc. Writ Petition No. 10707 of 1982. The writ petition came up for hearing before this Court and was heard on 15.04.1993. By an order dated 15.04.1993, the writ petition was allowed, setting aside the order passed by the Deputy Director of Consolidation, with a remand of the case to the Deputy Director of Consolidation. This Court while remanding the matter to the Deputy Director of Consolidation, recorded the following findings and guided the remand, in the following terms:
“In view of the above, the present petition succeeds and is allowed. The impugned order dated 02.09.1982 is hereby quashed. The revision shall be treated to be pending and the Deputy Director of Consolidation is directed to decide the revision within a period of three months from the date a certified copy of this judgment is furnished before him, on the basis of evidence on record and after affording opportunity of hearing to the parties and in the light of the observations made above.”
7. It goes without saying that the remand carried a direction to the Deputy Director of Consolidation to decide the Revision afresh in accordance with what was said in the body of the judgment.
8. Looking at the order that was passed by this Court remanding the matter, it shows that this Court found that the extract of the Death Register that was filed by both the sides, carried the same date of death of Smt. Shyam Devi @ Shyam Rathi, i.e. 29.09.1968. This Court noted that there was a slight change in the column of reason of death. It was observed that materially the same date of death was mentioned, which was clear from Annexure No.CA-1, there. It was a fact inferrable from a document that was relied upon by the contesting respondents. It is then said that it is quite clearly indicated that the date of death was 29.09.1968 and the reason for death was mentioned as "बुखार". In the column relating to “Jati Dharam” it is mentioned “Hindu”. Having noticed these features of the extract of Death Register, this Court said that Deputy Director of Consolidation had gone wrong in rejecting the extract filed by the petitioners and the reasons given by him were insufficient. There is also a remark by the Court that in a case where four witnesses have been examined on behalf of the petitioners and a number of witnesses were also examined for the respondents, there was no justification for the Deputy Director of Consolidation to consider only one witness Surendra Singh. The conclusion of this Court, therefore, was that the entire oral evidence on the material question of fact was not examined in accordance with law, and on all these facts, a remand was ordered after quashing the order of Deputy Director of Consolidation.
9. Now, by the impugned order, the Deputy Director of Consolidation has stuck to his view and allowed the revision in the same terms, as he did way back in the year 1982. Of course, the Deputy Director of Consolidation has added reasons for the conclusion.
10. This Court has perused the impugned order passed by the Deputy Director of Consolidation. Dr. Vinod Kumar Rai, learned counsel for the petitioners has been heard in support of the writ petition and Sri Ram Kishore Pandey on behalf of the contesting respondents.
11. The submission of Dr. Vinod Kumar Rai, learned counsel for the petitioners is that the extract of the Death Register is rightly issued in accordance with the Rule 143 of Panchayat Raj Rules and in Prescribed Form-D. There is a certain inaccuracy that would appear from a copy of the document placed before the Court. Xerox copies of the document are annexed to the writ petition, which this Court has perused. No doubt, the date of death mentioned therein is 29.09.1968 and the cause of death in column-9 as "बुखार", which would mean fever. A perusal of the document shows it to be largely in conformity with the form prescribed under the U.P. Panchayat Raj Rules. The Deputy Director of Consolidation has remarked in the order impugned that he has examined this document, which is an extract of the Death Register issued by the Gram Pradhan, maintained under the Rules. He has noticed that in the column relating to the parentage of the deceased, the name of Brij Bihari has been mentioned. The Deputy Director of Consolidation has said that since Brij Bihari is a man's name, it can be for readily inferred that he is the father of the deceased, who is Brij Bihari's daughter and not wife. He further has remarked that the exact house number has not been mentioned and the column is blank. It is also written that in the column relating to the date of Death Register "बुखार" is written, and by an arrow pointer this word "बुखार" is shown to be referable to the proper column, i.e. column No.9. The Deputy Director of Consolidation has proceeded to record that the column relating to date of death is blank. He has also recorded the fact that the receipt number has not been mentioned, in column No. 7. Caste and religion have been mentioned as “Hindu” and under that column, the date 29.09.1968 is mentioned. It is not at all clear as to what is the purpose of mention of that date there, in the opinion of the Deputy Director of Consolidation. The Deputy Director of Consolidation has referred to an authority of this Court which the learned counsel for the petitioners had relied upon that holds an entry about Births and Deaths conclusive in a document which is a public document. The D.D.C. has proceeded to hold that the entry in the Death Register is not genuine but forged. He has then proceeded to condemn it as a forged document.
12. This Court has considered the aforesaid findings of the Deputy Director of Consolidation, wherein he has condemned as forged the document in question which is an extract of the Death Register. This Court on a perusal of the said document observed that most of the entries are there in the proper columns, and the extract of the Register shows that the original is substantially filled up, in accordance with the rules required. The columns have been filled up largely with relevant particulars. No doubt, slight infractions, some of which the Deputy Director of Consolidation has pointed out are there, indeed. But, it cannot be forgotten that the Register has been filled up at the level of Gram Panchayat, way back in the year 1968-69, and, except for some entries like the house number, the receipt number that are not filled up, all the entries are substantially correct. In the opinion of the Court, the Deputy Director of Education ought not to have done a searching criticism of the document, which was to be considered as a whole, whether it was genuine or forged. The Deputy Director of Consolidation has followed in breach directions that this Court passed in the earlier order of remand, that afford sufficient guidance to the Deputy Director as to the approach he was required to adopt. However, he appears to have stuck by standards of an arithmetical examination of the extract of the Death Register to form an opinion whether the document is genuine or not. This Court has no hesitation to hold that the approach of the Deputy Director of Consolidation in reaching his decision is patently flawed and manifestly illegal.
13. A perusal of the impugned order further shows that conclusions drawn from other evidence, which the Deputy Director of Consolidation has taken into consideration, also suffer from manifest error. He has relied upon the documents that are proceedings in a suit under Section 229-B U.P.Z.A.&L.R. Act, and a restoration, which is made there and a compromise filed in that suit, being Suit No.1705. In that case Shyam Dei @ Shyam Rathi filed a restoration, prior to the year 1972, showing that she was alive on the said date. In the opinion of this Court, it would be a incongruous approach to take into consideration documents relating to another proceeding. The attendant circumstances have not been proved. No body has proved as to who appeared in the suit while the compromise took place, who identified the parties, in what manner were the parties identified and its verification. There is no witness relating to these proceedings in the compromise that have been taken into consideration while arriving at the decision impugned. The Deputy Director of Consolidation has further relied on the oral evidence of parties. He has considered the evidence of one Ram Dular, amongst others, who has been examined as witness on behalf of the respondent Nos. 2 to 4. This witness has said that he was the village Pradhan and has asserted categorically that Shyam Dei @ Shyam Rathi, on the date of her alleged death was alive. She was staying with one Ram Bachan. Now, from this fact the inference that has been drawn by the Deputy Director of Consolidation to conclude that she was alive is certainly on some slender ground. In case, the witness had said during the hearing of the objections that Shyam Dei @ Shyam Rathi, was alive, respondent Nos. 2 to 4 ought to have immediately applied for summoning her as a witness, which would have proved or disapproved the fact whether Shyam Devi @ Shyam Rathi, was alive or not. The said facts had come up to the notice of the Consolidation Courts but that question was not argued before them. Nevertheless, it was the duty of the Court to ascertain the fact whether that person was alive or dead by recording evidence of the witnesses. Now, about that it appears that when the Deputy Director of Consolidation passed the impugned order at that stage, he has passed a wrong order. The Deputy Director of Consolidation ought not to have proceeded on the testimony of witness that she was alive on the that date in the absence of steps being taken to examine Shyam Dei, reported to be alive by the witness at the hearing of the objection before the Consolidation Officer. There is a further finding recorded by the Deputy Director of Consolidation. This is about comparison of thumb impression on the sale deed with that of the specimen of thumb impression of Shyam Dei @ Shyam Rathi. Specimen of thumb the impression as the impugned judgment would show, is a photostat copy drawn from the documents relating to purchase of seeds from Sadhan Sahkari Sangh, Didar Ganj. The said photostat copy taken from the records of the aforesaid Cooperative Society was referred to the examination of a finger print expert, who opined on the basis of the xerox copy comparing it with the thumb impression on the original sale deed. It was certainly a very perilous course to tread for the Deputy Director of Consolidation. Comparison with a xerox copy of a thumb impression is certainly not very dependable evidence. In the second place, the specimen thumb impression that was drawn from the Sandhan Sahakari Sangh, Didar Ganj has not been acknowledged to be the admitted specimen of Shaym Dei @ Shyam Rathi. As such, conclusions drawn by the experts from such doubtful and disputed specimen have been wrongly relied on by the Deputy Director of Consolidation. The remark of the Deputy Director of Consolidation that the petitioners have not availed the opportunity to examine some other expert to report the difference, if any, on a comparison of the deceased's thumb impression lead nowhere. If the admitted specimen are no more than a xerox copy or a photostat drawn from such records as those in this case, no gainful purpose would be served by examining another expert. The Deputy Director of Consolidation has gone all wrong about his approach. On this aspect, it appears that the approach of the Deputy Director of Consolidation suffers from manifest illegality in the consideration of evidence. No doubt, the Deputy Director of Consolidation has jurisdiction, now particularly, after insertion of Explanation (3) to Section 48 of the Act, whereby it is clarified that he can decide all questions of fact and law. The amendment brought by Act No.3 of 2002 (with effect from 10.11.1980) has invested the Deputy Director of Consolidation with wide powers to determine questions of fact and law. This would certainly enable the Deputy Director of Consolidation to examine the matter, which he is empowered to decide vis-a-vis all questions, uninhibited by restrictions associated with the traditional exercise of revisional jurisdiction, but while doing so the Deputy Director of Consolidation is under an obligation to approach the evidence, as it appears and draw reasonable conclusions from it. Perverse conclusion or conclusions that are so incredible that no reasonable could have recorded on that evidence are not permissible. The D.D.C. also could not have taken into consideration irrelevant evidence as done by him and pointed out hereinabove.
13. It has been brought to the notice of this Court that original documents filed by the petitioners are lying in a sealed cover with the Consolidation Officer. The learned counsel for the respondents submits that the Deputy Director of Consolidation before taking a decision must look into the original documents. This Court thinks that it would be imperative that the Deputy Director of Consolidation should do so while deciding a matter of such great importance as title of parties, affecting their valuable rights in the property.
14. In this view of the matter, this petition succeeds and is allowed in part. The impugned order dated 20.09.1999 passed by the Deputy Director of Consolidation in Revision No. 36 of 1999 is hereby quashed. The matter shall stand restored to the file of the Deputy Director of Consolidation for decision afresh after hearing parties. The cause being exceptionally old and based on objections that are almost ancient ought to be decided within a period of six months by the Deputy Director of Consolidation, after affording opportunity of hearing to all the parties concerned, including the petitioners and respondent Nos. 2, 3 and 4. The Deputy Director of Consolidation will bear in mind the guidance in this judgment, but in no way shall it burden him in reaching his conclusion on the evidence as it appears before him.
15. The Deputy Director of Consolidation while deciding the case afresh will summon all original documents, particularly the papers, which are in sealed cover with the Consolidation Officer.
There shall be no order as to cost.
Order Date :- 21.8.2019 Pr/-