Ram Chandra and Another vs D.D.C. and Others

Poonam Srivastav, J.—List is revised. Counsel for the petitioners is present. None present for the respondents.

Counter and rejoinder- affidavits have been exchanged. At the stage when the writ petition was filed initially, this Court was of the view that the petition should be decided at the stage of admission itself. I proceed to hear the writ petition finally under the Rules of the High Court.

The dispute in the instant writ petition revolves in respect of plot Nos. 82 and 85 in village Ram Nagar, pargana Sikandra, tehsil Phoolpur, district Allahabad. The petitioners are sons of Kallu. By means of a Will dated 27.8.1998, which was registered one, Kallu bequeathed his house at Sahason to Sri Lal Chandra. The entire property save the house situated at Sahason crossing was equally divided between Bhola Nath and Ram Chandra. This Will was subsequently cancelled by another registered Will dated 18.8.1999 which was made in presence of two witnesses. On perusal of the recital of the Will, it transpires that Kallu had stated that Lal Chandra was not taking his care whereas Ram Chandra and Bhola Nath were taking his care in his old age, therefore, he bequeathed the house at Sahason Chauraha to his Nati (grandson) Prem Chandra son of Panna Lal and Smt. Kewala daughter of Sri Kallu. The remaining property was given equally to Ram Chandra and Bhola Nath. The Will is brought on record of the instant writ petition. Kallu had landed property, i.e., plot Nos. 82 and 85 in village Ram Nagar, pargana Sikandra, tehsil Phoolpur, district Allahabad and chak Nos. 31 and 32 in village Kandi, pargana Jhunsi, tehsil Phoolpur, district Allahabad.

An application was moved for entering names of the petitioners on the basis of the Will dated 18.8.1999 in place of Kallu. Objections were preferred by respondent Nos. 4 and 5 which were rejected. Copy of khatauni of village Ram Nagar 1409 to 1414 fasli is Annexure-3 to the writ petition. Kallu expired on 14.10.1999 but prior to his death, he had executed a sale deed on 31.8.1999 in favour of Ram Rati Devi wife of Lal Chandra and Smt. Shyama Devi wife of Bhola Nath. Thus, the claim of the petitioners is that Kallu had revoked the legacy in favour of grandson Prem Chandra. Smt. Savitri Devi claimed 1/4th share of the entire property of Kallu at village Kandi and Will was produced allegedly executed by Kallu which was an unregistered Will dated 3.9.1999, copy of which is Annexure-5 to the writ petition. Criminal proceedings were initiated" in respect of the aforesaid forged Will.

The Consolidation Officer passed an order dated 10.11.2003 for recording names of Ram Chandra, Lal Chand and Bhola Nath in respect of 1/3rd share each over chak Nos. 31 and 32. The order of the Consolidation Officer was challenged before the Settlement Officer. Consolidation in an appeal u/s 11 of the U. P. Consolidation of Holdings Act. The appeal was allowed vide order dated 10.3.2004, the appellate court was of the view that the order has been passed by the Consolidation Officer without taking into consideration the entire evidence and without affording an appropriate opportunity to the petitioners. The matter was remanded for afresh decision in accordance with law.

The respondents preferred a revision u/s 48 of the U.P.C.H. Act, which was allowed. Copy of the order dated 2.8.2004 is annexed as Annexure-16 to the writ petition. Thus, apparently the instant writ petition is against an order of the Deputy Director of Consolidation allowing revision against an order of remand. In the circumstances, the question to be decided is whether the Deputy Director of Consolidation was legally Justified in upsetting the order of the Settlement Officer, Consolidation which was merely a remand order directing the Consolidation Officer for afresh decision on facts and merits. No doubt, the Deputy Director of Consolidation has power to satisfy himself to the legality of the proceedings or as to the correctness and propriety of any order but the revisional court cannot assume jurisdiction of the original authority as a fact finding authority for appreciating itself the facts de novo.

In the instant case, since the facts was thrashed out at the stage of Consolidation Officer thereafter by Settlement Officer, Consolidation and specific finding was recorded that two registered Wills by virtue of which the house at Sahason Chauraha has been willed in favour of Smt. Savitri Devi and landed property was willed in favour of the petitioners. Both the Wills were registered Wills and third case set up by the respondents on the basis of an unregistered Will regarding which criminal proceedings were also initiated and, therefore, findings were to be recorded de novo. The revisional court could not assume jurisdiction as a fact finding authority. In fact the order of the Settlement Officer, Consolidation is only an order of remand and, therefore, I am in agreement with the contention of Sri Arvind Srivastava, learned Counsel for the petitioners that the Deputy Director of Consolidation should have stayed its hands from recording findings of fact after appraising evidence and by cutting short an opportunity of hearing to the petitioners to contest its case before the Consolidation Officer on the basis of disputed facts and the evidence, therefore, I am of the view that the Deputy Director of Consolidation exceeded its jurisdiction.

In the case of Ramzan Ali v. Deputy Director of Consolidation, Azamgarh and Ors. 1997 RD 418 : 1997 (3) AWC 2290 (NOC), it was held that there can be no escape from the conclusion that the jurisdiction with which the Deputy Director of Consolidation stands vested u/s 48 of the Act, cannot be deemed to be equivalent to be an appellate power. In fact ambit of Section 48 of the Act must fall short of the appellate power of interference. Finding of fact depends on the credibility of the evidence and, therefore, if the Settlement Officer, Consolidation has remanded the matter, the Deputy Director of Consolidation should not have entertained the disputed question of fact which was yet to be decided, besides the same being an order of remand.

Similar view has been expressed by the Apex Court in the case of Ram Autar and Ors. v. Ramdhani and Ors. 1996 ALJ 1908 and Narain Prasad v. Deputy Director of Consolidation, Allahabad and Ors. 1997 (88)RD 372 : 1997 (3) AWC 1690. Learned Counsel has also cited a decision of this Court in the case of Virendra Singh v. Joint Director of Consolidation, Agra Camp at Mainpuri and Ors. 2000 (91) RD 639.

In view of all these aspects, I am of the considered view that the order of the Deputy Director of Consolidation cannot stand. The impugned order dated 2.8.2004 and 10.11.2003 are hereby set aside. The writ petition is allowed. The matter is remanded before the Consolidation Officer for afresh decision. However, it is made clear that from the date a certified copy of this order is placed before him, the Consolidation Officer shall decide the matter within a period of four months so that no further delay may be caused.