Lalta (Dead) Through LRs. vs Dy.Director of Consolidation, Varanasi and others

S.K. Singh, J.—Heard Sri Namwar Singh, learned advocate in support of this petition.

In the revision of list, no one appears for the respondents. In the past also, it happened several times.

Proceedings are under section 9A(2) of UPCH Act which relates to adjudication of right /title between the parties.

For disposal of the writ petition, mention of facts in brief will suffice.

In the basic year record, name of contesting respondent was recorded as Sirdar and petitioner was recorded to be in possession. An objection was filed by petitioner claiming rights on the ground that the land was taken by him from Hasan, husband of respondent during his life time and since then he is in continuous possession. Petitioner in support of his case examined himself and Ram Ugra. Respondent in support of her case examined Abdul Aziz and Sahbuzzaman. Revenue extract showing possession was filed by petitioner. Consolidation Officer on consideration of facts accepted possession of petitioner from life time of Hasan and accepted him to be Sirdar. Appeal was filed by the respondent and that was partly allowed and the petitioner was held to be Aasami. On filing revision by petitioner, that met to the same fate and thus to challenge both orders, this petition.

Submission of learned Counsel for petitioner is that it was the case of respondent that petitioner is not in possession over the land but that was not accepted by either of the Courts and in fact. Settlement Officer, Consolidation and the Deputy Director, Consolidation had given judgment against petitioner but accepted possession of petitioner throughout but by making out a new case, i.e. start of possession of the petitioner through respondent wrongly held the petitioner to be Aasami of the land. Submission is that it was never the case of respondent that the land was taken by petitioner from respondent or he came into possession as pleaded by respondent and therefore, on rejection of the contention of respondent about her own possession, on the findings so given, judgment of the Consolidation Officer was liable to be accepted but two Courts in holding otherwise have committed error. Submission is that although Consolidation Officer has not given a clear finding about date of denih of Hasan but appellate authority has given a clear finding that Hasan died on 20.4.1950 and thus, in view of finding given by the Consolidation Officer that possession of petitioner started during life time of Hasan, reversal of judgment without reversing that finding on the basis of any positive evidence, cannot be said to be justified. Submission is that matter needs fresh attention in the light of submission as made.

In view of aforesaid, this Court has to decide the matter.

There is no dispute about the fact that possession of petitioner was hotly contested and it was claimed by respondent that petitioner is not in possession and otherwise also, entry of possession is not in accordance with law. Appellate Authority and Revisional Court both have considered the oral evidence given from both sides and the documentary evidence as filed by petitioner''s side and have recorded a clear finding that respondent has not come in the witness box and on the basis of evidence on record, possession of petitioner as of right is accepted. After recording that finding petitioner has been held to be assami solely on the ground that possession of petitioner started after Hasan. Thus, the contention of petitioner that it was never the case of respondent nor evidence was in accordance with that deserves to be taken note. Consolidation Officer has given clear finding that possession of petitioner started from the time of Hasan and the land was taken as such and thus, on acceptance of possession, status is to be accepted as Sirdar. Conclusion so arrived at by Consolidation Officer appears to have been varied without properly noticing the pleadings of parties and the stand of respondent. If that is so then that has to be clearly mentioned and that is to be referred. Thus, on these facts, this Court is convinced that question in relation to status of petitioner as held by the Consolidation Officer and as varied by two Courts, needs fresh attention by the Revisional Court by applying its independent discretion without being influenced by any observation, if it has come in the judgment of this Court.

Accordingly, writ petition succeeds and is allowed. The impugned judgment of the Deputy Director, Consolidation is hereby quashed. Revisional Court is to revive the revision to its original number for fresh decision on merits, in accordance with law, after due notice and opportunity to both sides, preferably within three months from the date of presentation of a certified copy of this order.