S KALAWATI Vs. DURGA PRASAD

JUDGEMENT

(1.) The appellant is the widow of one Goverdhandass. The l st respondent is her husband's brother. Goverdhandass and the l st respondent are the sons of one Bhojraj. The appellant claimed 11 plots in Khata No. 97 as land in which she was entitled to be joint tenant along with the 1st respondent. She also claimed certain other plots on the ground that they were acquired by Bhojraj and therefore it was joint Hindu family property and she was entitled to inherit those shared also as co-tenant along with 1st respondent. She succeeded in respect of the 11 plots in Khata No. 97 but failed in respect of the other plots.

(2.) The matter first came up before the Consolidation Officer and thereafter on appeal before the Settlement Officer and finally before the Deputy Director, Consolidation in revision. Against the order of the Deputy Director, Consolidation, she filed a petition before the High Court of Allahabad under Article 226. The High Court dismissed it in limine but granted a certificate under Article 133 (1) (a) of the Constitution.

(3.) A preliminary objection was raised on behalf of the 1st respondent that the certificate granted was not valid because the judgment of the High Court was one affirming the judgment of the Deputy Director, Consolidation. One of the questions on which the decision of this question depends is whether the Deputy Director Consolidation as well as the other two officers exercising power under the U. P. Consolidation of Holdings Act, l953 are Courts. However, in the view we take of the decision of the High Court that it is not a judgment of affirmance this question does not arise. The High Court dismissed the writ petition in limine. It did not go into the merits of the case or decide it even within the limited scope of its powers under Article 226 or 227 of the Constitution even if not as Court of Appeal exercising its powers under Section 96 or 100 of the Code of Civil Procedure. It simply refused to exercise its powers under those Articles of the Constitution. Unless the Court had applied its mind to the case and after consideration affirmed it the order cannot be said to be one of affirmance.