Mohd Sayeed and Others Vs Deputy Director of Consolidation Faizabad and Others

Heard Sri Shaswat Srivastava, Advocate holding brief of Sri U.S. Sahai, learned counsel for the petitioners and Sri Badrish Kumar Tripathi, learned Additional Chief Standing Counsel along with Sri Mohd. Kaseem, learned counsel for the State-opposite parties.

¶13

By means of present writ petition, the petitioners have assailed the order dated 07.02.1981, passed by opposite party no.1/Deputy Director of Consolidation, Faizabad, in Revision No. 1695/842 arising out of proceedings under the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as the ‘Consolidation Act’). The petitioners seek the quashment of the impugned order dated 07.02.1981 passed by the Deputy Director of Consolidation (hereinafter referred to as DDC) and restoration of the orders passed by the Consolidation Officer (hereinafter referred to as CO) and the

¶14

1

¶15

Assistant Settlement Officer Consolidation (hereinafter referred to as ASOC) dated 28.03.1979 & 30.09.1980, respectively which were in their favour.

¶16

None of the opposite parties have filed counter affidavit, however, Vakalatnama on behalf of opposite parties No. 2, 3 and 4/1 is available on record.

¶17

The facts in nutshell as culled out from the material available on record is that the dispute pertains to Plot No. 2113, situates at Village Bhiyaso, Pargana Surhurpur, Tehsil Akbarpur, District Faizabad that was recorded in the name of one Bangur son of Sheoraj in the basic year record. The private respondents, claiming succession from Bangur, asserted title and possession over the land.

¶18

The petitioners, claiming to be the heirs and successors of Mehmood Ali and Murtaza Hussain, who were their predecessorsin-interest, filed an objection under Section 9-A of the UP Consolidation of Holdings Act, 1953. They contended that their predecessors and subsequently they themselves, had been in continuous possession of the land in question. They further contended that the aforesaid Bangur has never been in possession of the said land and the entry of his name in the revenue records was erroneous and unjustified. In support of their claim, they produced Khatauni extracts pertaining to the year 1360 Fasli and 1366-1368 Fasli, consistently showing the name of their predecessor-in-interest Murtaza Hussain.

¶19

The opposite parties, who are the heirs of Bangur, resisted the claim of the petitioners. In support of their case, they adduced irrigation slips and a Khatauni extract pertaining to the year 1368 Fasli, showing the name of Bangur recorded in Class-9 (वर्ग � 9).

¶20

2

¶21

Their primary contention was that Bangur had matured his sirdari rights on the basis of ‘adverse possession’.

¶22

The Consolidation Officer, on the basis of the oral as well as documentary evidences adduced by the parties found that the opposite parties or their predecessor were not in possession of the disputed land and vide order dated March 28, 1979 allowed the aforesaid objection filed by the petitioner under Section 9 of the Consolidation Act and directed that the name of the petitioners be recorded in respect of the plots in question.

¶23

While deciding Issues No. 2, 3, 4, 7, 8 and 9 the Consolidation Officer held that the entry in the remark’s column of the Khasra is of no significance and the defendants cannot derive any right on the basis of such entries, moreover, the said amal-daramad of the order was wrongly made by the Lekhpal. It was observed by the CO that the reference of the relevant order ought to have been mentioned in the CLRD records or at least the date of the order passed by the SDO, if any, would have been noted during its execution.

¶24

The opposite parties, against the order of Consolidation Officer filed an appeal. The said appeal came to be dismissed by the learned ASOC on September 30, 1980 by upholding the findings of the Consolidation Officer. The ASOC recorded a categorical finding that there was no valid entry in the name of Bangur or the opposite parties in the records that could confer any rights upon them. He also noted that the entries of possession, if any, were not continuous and therefore the same cannot, confer any right upon them. While rejecting the said appeal, the ASOC categorically recorded that there is no pleading by any of the appellants as to the right based on adverse possession and that the entry of CLRD is illegal and further

¶25

3

¶26

held that the Appellants do not acquire sirdaari rights, and the entry in their favour in the basic year is irregular.

¶27

Challenging the aforesaid order passed by ASOC, the opposite parties preferred Revision under Section 48 of the Consolidation Act before the DDC. The said revision came to be allowed vide the impugned order dated 07.02.1981 passed by the learned DDC whereby the concurrent findings recorded by the CO and the ASOC were reversed.

¶28

The learned DDC vide the impugned order dated 07.02.1981 returned its own findings to the effect that the name of the aforesaid Bangur is entered in the Khatauni of Fasli years 1366 to 1368 under Class 9 (वर्ग �9) in respect of Gata No. 2113 and as far as the entry under the CLRD is concerned, although the same does not confer ownership but reflects possession of the Revisionist over the land in dispute and that the continuous entry of his name since Fasli year 1366 establishes his possession even if the said entry does not create ownership. The learned DDC also observed that though in oral statements the opposing party asserted their possession, but have failed to clearly describe the boundaries of the land in dispute. For ready reference, the relevant portion of the judgment dated 07.02.1981 is extracted below:

¶29

"………..बलि�करन की ओर से अपने कथन के समथ�न में 1366, 1371, 1368, 1377, 1382, 1378, 1372, 1373, 1375 की सिंसचाई की पर् च ियां दालि%� की गयी हैं। बहस में उल्लि-लि%त %तौनी का उद्धरण भी दालि%� है। 1366 से 1368 फस�ों का %तौनी में बांगुर का नाम गाटा संख्या 2113 पर वग� 6 की प्रविववि< है। जहां तक सी०ए�०आर०डी० की काय�वाही के अन्तग�त नाम अंविकत होने का प्रश्न है, उसे कोई स्वत्व नहीं प्राप्त होता, विकन्तु इस तथ्य की पुवि< अवश्य होती है विक विनगरानीकता� का विववाविदत आराजी पर अध्यासन है

¶30

4

¶31

और उसका नाम 1366 फस�ी से �गातार अंविकत च�ा आ रहा है। उस अंकन के आधार पर भ�े ही उसे कोई स्वत्व न प्राप्त होता हो विकन्तु उसका अध्यासन ल्लिसद्ध है। प्रत्यथO की ओर से जो मौलि%क साक्ष्य विदया गया है उसमें वे अपना कब्जा बताते अवश्य हैं विकन्तु विववाविदत आराजी की चौहद्दी आविद वे बताने में असफ� रहे हैं। …….."

¶32

Aggrieved by the aforesaid judgment and order dated 07.02.1981, the petitioners herein preferred the instant writ petition. This Court vide order dated 31.03.1981 admitted the present writ petition and issued notice and also granted the following interim relief to petitioners on the C.M. Application No. 2676 (w) of 1981.

¶33

“Issue notice, returnable within four weeks. In the meantime so far as possssion is concerned, the parties shall maintain status-quo as it existss today.”

¶34

The aforesaid interim order was extended vide order dated 17.09.1982, which reads as under:

¶35

“No counter affidavit has been filed. Hence the ad interim order of stay dated 31.03.1981 shall continue till further orders of this Court.”

¶36

It has been very emphatically argued on behalf ot the petitioner that the impugned order passed by the learned DDC is unsustainable as the same has been passed beyond the scope of Section 48 of the Consolidation of Holdings Act, 1953. The contention of the learned counsel is that in the present case, the Revisional Court while passing the impugned order dated 07.02.1981, travelled beyond the scope of Section 48 of the Consolidation Act by assuming to itself the jurisdiction of origianl and Appellate Courts and acted as fact finding authority by appreciating for itself the facts de novo and

¶37

5

¶38

consequently in the most arbitrary manner upset the well settled concurrent finding of facts recorded by the learned lower courts.

¶39

Learned counsel for the Petitioner categorically asserts that there was no valid Khasra entry in favour of Bangur or the opposite parties, nor was any PA-10 evidenced or noted in the Khasra extract, as such, Bangur or his successors could not be said to be in adverse possession and such entries could not confer any rights or title upon them.

¶40

The next submission advanced by the learned counsel appearing on behalf of the petitioners is that the learned DDC was misled by the Class-9 (वर्ग � 9) entry of the name of Bangur, overlooking the settled law that such an entry could not confer Sirdari rights without continuous possession and adherence to legal requirements/formalities. The finding by the CO and SOC that the Patwari made a fraudulent entry regarding the land records was crucial, and the learned DDC failed to give due weight to the said finding. The absence of the date of the order passed by the competent authority further points out a glaring irregularity in the relevant record, even otherwise also the Patwari did not follow prescribed rules for recording possession. Moreover, the learned DDC has erred in relying on irrigation slips, which were neither duly proved nor related to the land in dispute, and that apart no receipts for payment of irrigation charges were ever brought on record.

¶41

The contention of the learned counsel for the petitioners is that the impugned order passed by the learned DDC is patently erroneous and unsustainable in the eye of law having been passed in excess of his limited jurisdiction conferred under Section 48 of the Consolidation Act, to upset the well considered concurrent findings

¶42

6

¶43

of facts recorded by the two courts below and acting like the court of first instance.

¶44

Sri Badrish Kumar Tripathi, learned Additional Chief Standing Counsel appearing on behalf of the State-opposite parties strongly opposed the writ petition by defending the impugned order dated 07.02.1981. His contention is that the learned Deputy Director of Consolidation has very rightly reversed the findings recorded by the lower authorities by taking into consideration the relevant material available on record and on being satisfied that the legally admissible evidence has not been properly appreciated by the courts below that resulted into erroneous conclusion. He further contended that Explanation-3 added to the Section 48 of the U.P. Conlidation of Holdings Act, 1953 vide U.P. (Amendment) Act No. 3 of 2002 w.e.f. 10.11.1980 gives power to the DDC to examine any finding, whether of facts or law and to re-appreciate any oral or documentary evidence. As such in view of the aforesaid amended Explanation-3, the impugned order dated 07.02.1981 passed by the learned DDC is perfectly just and in accordance with law.

¶45

This Court, after having perused the records and hearing the learned counsels, finds the following questions relevant to be considered by this court for the proper adjudication of the matter.

¶46

(i) Whether the DDC exceeded its jurisdiction under Section 48 of the Consolidation of Holdings Act, 1953 in reversing concurrent finding of facts recorded by the court of first instance i.e. Consolidation Officer and the Appellate Court i.e. Assistnat Settlement Officer Consolidation.

¶47

7

¶48

(ii) Whether the isolated Class 9 (वर्ग �-9) entry and certain irrigation slips were sufficient to displace the long-standing possession established by the petitioners?

¶49

(iii) Whether the essential ingredients of adverse possession were established by the private respondents?

¶50

The scope and ambit of the revisional jurisdiction conferred upon the DDC under Section 48 of the U.P. Consolidation of Holdings Act, 1953 is well defined. The same is reproduced hereinbelow for ready reference:

¶51

“ 48. Revision and reference.- (1) The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order 2[other than an interlocutory order] passed by such authority in the case or proceedings, and may, after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit.

¶52

(2) Powers under sub-section (1) may be exercised by the Director of Consolidation also on a reference under sub-section (3).

¶53

(3) Any authority subordinate to the Director of Consolidation may, after allowing the parties concerned an opportunity of being heard, refer the record of any case or proceedings to the Director of Consolidation for action under sub-section (1).

¶54

Explanation I- For the purposes of this section, Settlement Officers, Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation.

¶55

8

¶56

Explanation II- For the purposes of this section the expression 'interlocutory order' in relation to a case or proceedings, means such order deciding any matter arising in such case or proceeding or collateral thereto as does not have the effect of finally disposing of such case or proceeding.

¶57

Explanation III-The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority, and also includes the power to reappreciate any oral or documentary evidence.”

¶58

The Hon’ble Supreme Court of India in the case of Jagdamba Prasad versus Kripa Shankar , reported in (2014) 5 SCC 707 , has been pleased to consider Section 48 as amended in 1963, following an earlier decision taken in the case of Sher Singh versus Joint Director of Consolidation , reported in AIR 1978 SUPREME COURT 1341 and observed as under:

¶59

"15. According to the legal principle laid down by this Court in the case mentioned above, the power of the Revisional Authority under Section 48 of the Act only extends to ascertaining whether the subordinate courts have exceeded their jurisdiction in coming to the conclusion. Therefore, if the Original and Appellate Authorities are within their jurisdiction, the Revisional Authority cannot exceed its jurisdiction to come to a contrary conclusion by admitting new facts either in the form of documents or otherwise, to come to the conclusion. Therefore, we answer point No. 1 in favour of the appellants by holding that the Revisional Authority exceeded its jurisdiction under Section 48 of the Act by admitting documents at revision stage and altering the decision of the subordinate courts."

¶60

(emphasis supplied by this Court)

¶61

9

¶62

Similar view has been taken by this Court in the case of Chauthi versus Deputy Director of Consolidation & Ors. , reported in 2018 (140) RD 650, wherein the Court observed that while considering the correctness, legality or propriety of the order or correctness of the proceedings the revisional court cannot assume to itself the jurisdiction of the original authority as a fact-finding authority by appreciating for itself of those facts de novo.

¶63

In the case of Ram Dular versus Dy. Director Of Consolidation , reported in AIR Onlilne 1994 SC 718 , the Hon’ble Supreme Court has been pleased to hold as under:-

¶64

"It is clear that the Director had power to satisfy himself as to the legality of the proceedings or as to the correctness of the proceedings or correctness, legality or propriety of any order other than interlocutory order passed by the authorities under the Act. But in considering the correctness, legality or propriety of the order or correctness of the proceedings or regularity thereof it cannot assume to itself the jurisdiction of the original authority as a fact-finding authority by appreciating for itself of those facts de novo. It has to consider whether the legally admissible evidence had not been considered by the authorities in recording a finding of fact or law or the conclusion reached by it is based on no evidence, any patent illegality or impropriety had been committed or there was any procedural irregularity, which goes to the rest (sic root) of the matter, had been committed in recording the order or finding.

¶65

In the case of Gurumukh Singh v. Deputy Director of Consolidation , reported in (1997) 88 RD 276 , this Court held that

¶66

10

¶67

the entries will have no evidentiary value if they are not in accordance with the provisions of Land Records Manual and the burden to prove is on the person who is asserting the possession on the basis of adverse possession. Relevant paragraphs 6 and 7 are extracted below:-

¶68

"6. It is clear from Para A-102C of the Land Records Manual that the entries will have no evidentiary value if they are not made in accordance with the provisions of Land Records Manual. There is presumption of correctness of the entries provided it is made in accordance with the relevant provision of Land Records Manual and secondly, in case where a person is claiming adverse possession against the recorded tenure-holder and he denies that he had not received any P.A. 10 or he had no knowledge of the entries made in the revenue records, the burden of proof is further upon the person claiming adverse possession to prove that the tenure-holder was duly given notice in prescribed Form P.A. 10. Para A-81 itself provides that the notice will be given by the Lekhpal and he will obtain the signature of the Chairman, Land Management Committee as well as from the recorded tenure-holder. It is also otherwise necessary to be provided by the person claiming adverse possession. The law of adverse possession contemplates that there is not only continuity of possession as against the true owner but also that such person had full knowledge that the person in possession was claiming a title and possession hostile to the true owner. If a person comes in possession of the land of another person, he cannot establish his title by adverse possession unless it is further proved by him that the tenure-holder had knowledge of such adverse possession.

¶69

11

¶70

In Jamuna Prasad v. Deputy Director of Consolidation, Agra, this Court repelled the contention that the burden of proof was upon the person who challenges the correctness of the entries. It was observed:

¶71

"Learned counsel for the Petitioner argued that there was a presumption of correctness about the entries in the revenue records and the onus lay upon the Respondent to prove that the entries showing the Petitioner's possession had not been in accordance with law. This contention is untenable Firstly, it is not possible for a party to prove a negative fact. Secondly, the question as to whether the notice in Form P.A. 10 was issued and served upon the Petitioner also is a fact which was within his exclusive knowledge."

¶72

"Petitioner's contention that the burden lay on the Respondents to disprove the authenticity and destroy the probative value of the entry of possession cannot be accepted. In my opinion, where possession is asserted by a party who relies mainly on the entry of adverse possession in his favour and such possession is denied by the recorded tenure-holder, the burden is on the former to establish that the entries in regard to his possession was made in accordance with law."

¶73

It is well settled in law that the illegal entry does not confer title. Mere entry in the records does not confer right, title or interest, if it is not in accordance with law and the prescribed procedure. In the case of Sadhu Saran versus Assistant Director of Consolidation , reported in (2003) 94 RD 535 , this Court has held as under:

¶74

12

¶75

“7. The authorities below have re-corded concurrent findings of fact that in the present case P.A. 10 was not issued. It was held that the entry of clause IX was illegal as the same was made without order passed by any competent authority. It is well settled in law that the illegal entry does not confer title, therefore, the submis-sion of learned counsel for the petitioners to the contrary cannot be accepted. The authorities below committed no error of law in holding that the petitioners have failed to make out a case of acquisition of sirdari rights in the land in dispute and that the entry in question was illegal.”

¶76

In the case of Putti versus Assistant Director of Consolidation, Bahraich , reported in (2007) 2 All LJ 43 , this Court has very elobrately held that the court should be slow to declare the right on the basis adverse possession otherwise it may become a weapon in the hands of mighty persons to acquire the property of the weaker sections of society. It has further held that there shall not be presumption of continuous possession to declare right and title on the basis of adverse possession unless year to year entries made in accordance with law in the Khasra or Khatauni are proved by cogent and trustworthy evidence. The burden to prove is on the person who claims Sirdari or Bhumidhari rights on the basis of adverse possession. Paragraph-41 of the judgment passed in the case of Putti (supra) is extracted below:-

¶77

"41. Right to claim title on the basis of adverse possession is a legacy of British law. Courts should be slow to declare right on the basis of adverse possession. In case liberal approach is adopted to extend right and title on the basis of adverse possession then it may become a weapon in the hands of mighty persons to acquire the property of the weaker sections of the society. Accordingly, it shall always be incumbent upon the

¶78

13

¶79

Courts to do close scrutiny of the evidence and material on record within the four corners of law as settled by Apex Court, discussed herein above. Even little reasonable doubt on the evidence relied upon by a party to claim right and title on the basis of adverse possession may be sufficient to reject such claim under a particular fact and circumstance. There shall not be presumption on continuous possession to declare right and title on the basis of adverse possession unless year to year entries made in accordance to law in the Khasra or Khatauni are proved by cogent and trust worthy evidence. burden of proof of such entries shall lie, as discussed herein above, on the person who claims Sirdari or bhumidhari right on the basis of adverse possession. In the absence of any such proof, presumption shall be in favour of recorded tenure-holder whose name has been recorded in column-1 of the Khatauni."

¶80

The Hon'ble Apex Court, in the case of P.T. Munichikkanna Reddy v. Revamma , reported in 2007 (6) SCC 59 , has held that in case of adverse possession, communication to the owner and his hostility towards the possession is must. The relevant paragraphs 19 to 22 are extracted below:-

¶81

"19. Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (willful) or omission (negligent or otherwise) of right to defend or care for the integrity of property on the part of the paper owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that do not promote litigation and aims at the repose of

¶82

14

¶83

conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence.

¶84

While dealing with the aspect of intention in the Adverse possession law, it is important to understand its nuances from varied angles.

¶85

Intention implies knowledge on the part of adverse possessor. The case of Saroop Singh v. Banto, MANU/SC/1146/2005 : 2005:INSC:500 : (2005) 8 SCC 330 in that context held:

¶86

"29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendants possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak, MANU/SC/0216/2004 : 2004:INSC:151 : (2004) 3 SCC 376).

¶87

Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd Mohd. Ali

¶88

v. Jagadish Kalita, SCC para 21)."

¶89

A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by the Hon’ble Supreme Court in Karnataka Board of Wakf versus Government of India, (2004) 10 SCC 779 in the following terms:

¶90

15

¶91

"Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show : (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession"

¶92

It is important to appreciate the question of intention as it would have appeared to the paperowner. The issue is that intention of the adverse user gets communicated to the paper owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper owner."

¶93

In the present case, both the CO and the ASOC recorded detailed findings based on long-standing entries in the revenue records, corroborated by consistent Khatauni extracts. These entries, spanning several Fasli years, evidenced the possession of the

¶94

16

¶95

petitioners and their predecessor. Crucially, no PA-10 was ever produced in favour of Bengur or his successors.

¶96

The reliance made by the learned DDC on mere irrigation slips without corroborating evidence of payment or its relation with the disputed land is flawed. In the teeth of the fact that the contesting party failed to produce any Khasra extract or the copy of PA-10 to substantiate the legality of the entries or to demonstrate that the recorded tenants had received intimation of PA-10. Such slips, without proper authentication and linkage, cannot be considered conclusive proof of possession or cultivation.

¶97

Further, the DDC's acceptance of Bangur's claim to sirdari rights based on a Class-9 (वर्ग � 9) entry, particularly when there was no continuous khasra entry in accordance with law and even no PA-10 was produced, demonstrates a clear misapplication of legal principles.

¶98

In consolidation proceedings, the determination of rights and possession is highly significant. The Consolidation Officer and the ASOC, being the fact-finding authorities, meticulously examined the evidence and arrived at a concurrent finding that the petitioners and their predecessors were in possession and that the entries in favour of Bangur were not in accordance with law or continuous enough to confer any rights, including that of adverse possession.

¶99

Adverse possession, a claim frequently raised in consolidation cases, requires strict proof of open, hostile, continuous, and uninterrupted possession for the statutory period. In the present case, the lower consolidation authorities rightly found that these conditions were not met by Bangur or his heirs.

¶100

17

¶101

Additionally, the report of the Tehsildar clearly indicated that the entries made by the Patwari were not genuine, as there is no mention of the order on the basis of which the entries were made in the CRLD. The Patwari's failure to adhere to the relevant rules for recording possession further weakens the claim of adverse possession. This grave irregularity, which indicates manipulation of records, was not adequately addressed or given due weight by the learned DDC while passing the impugned order.

¶102

Applying the aforesaid principles to the factual matrix of the present case as already noticed hereinabove, no case is made out in favour of the private respondents that to establish continuous, open, and hostile possession for the statutory period. As there is no evidence on record indicating ouster of the rightful owners, nor any attempt to demonstrate hostile animus. The irrigation slips, even if accepted at its face value, are not specifically proved being in respect of the land in question, which is the subject matter of dispute and no official records establish them as reliable evidence of possession, further, there is nothing on record to show that PA-10 was ever issued to the true owners and was served, hence in absence thereof, the plea of adverse possession being misconceived is hereby turned down.

¶103

The principles established by the Hon'ble Supreme Court regarding the sanctity of land records, the stringent requirements for proving adverse possession, and the limited scope of revisional jurisdiction dictate that revisional authority must not substitute its own view unless the findings of the Courts below are demonstrably perverse or based on no evidence. The learned DDC, in its revisional jurisdiction, should exercise its power judiciously and not

¶104

18

¶105

to interfere with concurrent findings of fact without adverting to compelling reasons or identifying perversity in their findings.

¶106

It is not disputed that Section 48 of the U.P. Consolidation of Holdings Act, 1953 stood amended and Explanation-3 was added by amendment dated 04.09.2002 introduced by the U.P. Consolidation of Holdings (Amendment) Act, 2002 w.e.f. 10.11.1980 retrospectively. The said addition of Explanation-3 has widened the ambit and jurisdictional frame of the Deputy Director of Consolidation conferred under Section 48 of the Consolidation Act. It has given power to the Deputy Director of Consolidation to examine the correctness, legality and propriety of any order includes power to examine any finding, whether on fact or law, reccorded by any subordinate authority and it also includes the power to reappreciate any oral or documentary evidence.

¶107

Even though the scope and ambit of the revisional power of the DDC has been expanded with the addition of Explanation-3 to the Section 48 of the Consolidation Act, yet the same cannot be equated with the powers of a Court of Appeal. The DDC cannot substitute its own finding by appreciating for itself the facts de novo in place of that of the fact-finding authority.

¶108

The Hon’ble Apex Court in the case of Gaya Din (D) through LRs. and others versus Hanuman Prasad (D) through LRs. and others , reported in (2001) 1 SCC 501 has held as under:

¶109

“10. There can be no doubt that under the amended Section 48 of the Consolidation Act, the revisional power of the Director of Consolidation is not confined to errors of jurisdiction as was the position under the unamended provision. The power of the revisional authority now extends to satisfying himself as to the regularity, correctness, legality or propriety of any order other

¶110

19

¶111

than an interlocutory order. It is well settled that conceptually the powers of a revisional authority, even if couched in wide language, cannot be equated with the powers of an Appellate Authority.

¶112

The scope of the powers of the Deputy Director under the amended g provision came up for consideration of this Court in Ram Dular v. Dy. Director of Consolidation, Jaunpur. It was observed that in considering the correctness, legality or propriety of the order or correctness of the proceedings or regularity under Section 48 of the Consolidation Act, the Deputy Director of Consolidation could not assume the jurisdiction of the original authority as a fact-finding authority by appreciating for himself those facts de novo; he had to consider whether the legally admissible evidence had been considered by the authorities in recording a finding of fact or law or the conclusion reached by them was based on evidence or any patent illegality or impropriety had been committed or there was any procedural a irregularity, which would go to the root of the matter. That judgment was relied on in a recent judgment of this Court in Seshmani v. Dy. Director of Consolidation, District Basti, U.P.”

¶113

In the present case, the revisional authroity has neither examined the irregularities of the proceedings conducted by the lower courts nor has examined the correctness and propriety of such orders. In the impugned order there is nothing to indicate that the DDC found the findings of the fact as recorded by the Assistnat Settlement Officer Consolidation perverse or against the weight of evidence. Instead it has on its own examined the facts as if it was considering the matter as the court of first instance and reversed the concurrent findings recorded by both the courts below by substituting hiw own finding on the basis of his independent appraisal of evidence by appreciating for itself the facts de novo and upset the concurrent findings of facts returned by the learned lower courts without

¶114

20

¶115

pointing out any patent illegality or perversity or impropriety or any procedural irregularity and thus, travelled beyond the scope of Section 48 of Consolidation Act, 1953. Even otherwise, as discussed herein above, on merits also, the impugned order dated 07.02.1981 cannot be allowed to stand.

¶116

In light of the foregoing deliberation, this Court is of the considered opinion that the impugned order dated 07.02.1981 passed by the learned DDC suffers from a grave error of law and fact and is liable to be set aside being unsustainable in law.

¶117

Looking into the fact that the present writ petition was filed in the year 1981 and an interim order of ‘status-quo’ was passed on 31.03.1981, there is nothing on record to show that the same has been vacated or has ever been protested by the opposite parties. Even no counter affidavit has been filed by them. Therefore, now at this stage after a lapse of about 44 years, this Court finds no justifiable reason to remand the matter to the learned DDC to pass order afresh.

¶118

Accordingly, the writ petition is allowed . The impugned order dated 07.02.1981, passed by the Deputy Director of Consolidation, Faizabad, in Revision No. 1695/842 is hereby set aside. The order dated September 30, 1980, passed by the Assistant Settlement Officer Consolidation that affirmed the order dated 28.03.1979 passed by the Consolidation Officer, is hereby restored.

¶119

There shall be no order as to costs.

¶120

Order Date :- 08.07.2025/ dk nigam/Abhishek Gupta

¶121

21

¶122

Digitally signed by :- ABHISHEK GUPTA High Court of Judicature at Allahabad, Lucknow Bench

Mohd Sayeed and Others v. Deputy Director of Consolidation Faizabad and Others

Case brief

What is this about?

What did the court decide?

Mohd Sayeed and Others v. Deputy Director of Consolidation Faizabad and Others

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Ram Chandra vs State of U.P. Thru. Prin. Secy. Secondary Education Lko. and 7 Others

Smt. Vasundhara Srivastava vs Ravi Srivastava

Sheetla Prasad and 4 Others vs Mst. Patiraji

U.P. State Industrial Development Authority Thru. Its Project Officer vs Ved Prakash Sharma

Smt. Naincy Mishra vs Tushar Agnihotri

Rashmi Awasthi and 4 Others vs Shri Rakesh Kumar, District Inspector of Schools Lko. and 2 Others