Dwarika & Ors. vs Dau (Dead) through LRs. Kashi & Ors.

S.S. Chauhan, J.—This petition has been taken up in the revised list but none is present on behalf of opposite parties No. 1/1 to 1/4 although name of Sri Pankaj Gupta has been shown in the cause list.

Learned Counsel for the petitioners states that on various occasions the case has been taken up but on each and every date the learned Counsel for the opposite parties No. 1/1 to 1/4 has been avoiding to argue the case. The matter in an old one pertaining to the year 1980.

In the wake of the above circumstances, I deem it fit to decide the case irrespective of the fact that the Counsel for the opposite parties No. 1/1 to 1/4 is not present.

The petitioners have challenged the order dated 2631980, contained in Annexure No. 3 to the writ petition, passed by the Deputy Director of Consolidation.

The facts giving rise to the present petition are that upon notification under Section 4(2) of the U.P.C.H. Act on 2861975 consolidation proceedings ensued in the village Keshwa Man, Pargana Korauna, Tehsil Misrikh, District Sitapur. In the basic year Khatauni holding No. 27 was recorded in the name of petitioners but on receipt of Form CH5, the petitioners came to know that Deu, father of opposite parties Nos. 1/1 to 1/4 and Smt. Genda W/o Rupan were shown to be in possession over plot No. 27. The petitioners filed objection before the Consolidation Officer stating therein that Smt. Genda after acquiring Bhumidhari Sanad has gifted the property in favour of the petitioners by a registered gift deed on 211969 and delivered possession and since then they are Bhumidhars in possession of the entire land including holding No. 27 of the village, Keshwa Mau. When the petitioners applied for mutation on the basis of gift deed in the year 1969, Deu father of the opposite parties Nos. 1/1 to 1/4 filed an objection claiming half of the land entered in holding No. 27 of the basic year Khatauni alleging that Rupan husband of Smt. Genda was member of the joint Hindu family and the land in the name of Rupan was recorded as head of the family from whom Smt: Genda had succeeded as Hindu widow. At the time of verification it was pleaded that the names of the petitioners were recorded fraudulently and that the real owner of the land was Smt. Genda W/o Rupan and Deu S/o Baldi and they were having half share each in the said property.

Deu father of opposite parties No. 1/1 to 1/4 filed objection before the Consolidation Officer and the Consolidation Officer on evaluation of evidence and after hearing the parties rejected the objection of Deu by means of order dated 2961977. Thereafter an appeal was filed against the said order before the Settlement Officer Consolidation and the appeal too met the same fate. Thereafter Deu filed a revision before the Deputy Director of Consolidation against the order of the Settlement Officer Consolidation dated 1531978 and the revision was allowed by means of order dated 2631980 and the orders of the Court below were set aside by the Deputy Director of Consolidation. It is, thereafter, that the petitioners have come up before this Court challenging the order dated 2631980 passed by the Deputy Director of Consolidation.

Submission of the learned Counsel for the petitioners is that the proceedings under Section 34 of the U.P. Land Revenue Act (hereinafter referred to as the Revenue Act) were initiated at the instance of the petitioners who claim themselves to be the heirs of Smt. Genda on the basis of the registered gift deed executed on 21 1969. The claim under Section 34 of the Revenue Act filed by the petitioners was allowed, but in the meantime a Regular Suit was filed by him. The suit was dismissed and thereafter an appeal was filed by the father of the opposite parties No. 1/1 to 1/4 namely Deu which was also dismissed. The opposite party feeling dissatisfied with the dismissal of the appeal approached the Board of Revenue by filing Second Appeal. The Second Appeal was also dismissed. In default on 4121972. Thereafter a restoration application was filed and the said restoration application was also rejected on 3081973. The father of the opposite parties thereafter filed a review application on 1891973.

Further submission of the learned Counsel for the petitioners is that the proceedings before the consolidation authorities were without jurisdiction and they could not have been initiated nor gone into and neither the consolidation authorities could have adjudicated upon the same issue arising before them as the litigation has attained finality and the restoration application has also been rejected and thereafter the review application was pending. The pendency of the review application will not come in the way of pendency of the proceedings as contemplated under Section 4(2) read with Section 5(2) of the Act.

Learned Counsel for the petitioners while placing reliance upon Full Bench decision of this Court reported in 1979 Allahabad Civil Journal Page 270, Sakal Singh & Ors. v. Smt. Devi & Anr., and another decision reported in 1981 RD248, Nasir & Anr. v. Board of Revenue, U.P. at Allahabad & Ors., decided in the light of aforesaid Full Bench decision, has stressed that the orders passed by the consolidation authorities are wholly illegal and without jurisdiction and the point in question has not been considered in right perspective by the consolidation authorities. The findings recorded by the consolidation authorities, therefore, are bad in law.

I have heard learned Counsel for the petitioners and perused the record.

Learned Counsel for the petitioners submitted that the pendency of the review application would not be deemed as proceeding pending under the Act on notification being issued under Section 4(2) of the Act appears to be a correct proposition on the strength of the Full Bench decision rendered in the case of Sakal Singh (supra). The said decision has been followed in the case of Nasir (supra). The Full Bench in the above case has held as under:

"The purpose of abatement under Section 5 of the Act is that the matter can be adjudicated by the consolidation authorities afresh. If the matter has already been decided by a competent Court that would not be reopened. Then an appeal is pending then the suit itself will be deemed to be continuing because the appeal is only a continuation of the Suit. But this is not the position in respect of a review application. Normally, the judgment once signed cannot be touched by the Judge of the Tribunal and it is only when the condition contemplated by Order XLVII, C.P.C. are satisfied then and then alone, the order can be set aside or modified by the same Court and till the review application is allowed, the judgment of the appellate authority is not put in jeopardy. In the instant case as only the review application had been admitted and had not been allowed, therefore, the pendency of the review application will not result in the abatement of the suit because the suit had already culminated into a decree by the second Appellate Court."

Section 5(2)(a) of the Act contemplates suits or proceedings pending before any Court or authority, whether at the first instance or on appeal, reference or revision, but it does not contemplate a review petition. But on the admission of the review application the proceedings in the second appeal are revived, then the position would be different. It is to be noted that review is not the same thing as or a substitute for an appeal and they differ in many respects. The reconsideration in the review by the same Judge shall be subjectmatter in certain conditions while an appeal is a rehearing by another Court or Tribunal. A point may be good ground for an appeal, but may not be a good ground for an application for review. Any erroneous view of evidence or of law is no ground for a review though it may be a good ground for appeal.

In the case in hand the petitioners have filed review application which was pending and in fact no application was given as contemplated under Section 5(2) of the Act to abate the proceedings in the said Court.

In the aforesaid circumstances, the order passed by the Deputy Director of Consolidation is against the dictum of Full Bench.

In the result, the writ petition is allowed and the order dated 2681980 passed by the Deputy Director of Consolidation is hereby set aside.

There shall be no order as to costs.