RAM RIT Vs. D. D. C. AND OTHERS

JUDGEMENT

(1.) -Admittedly Ram Lakhan, father of opposite party No. 18 and transferor of entire share, in land in dispute, in favour of opposite parties 3 to 17 who are either first or subsequent transferees, was cousin of petitioner who admitted as far back as 1925 in Suit No. 853 of 1925, compromise decree dated 6-8-48 passed in case No. 17 decided on 17-8-48 and in partition suit u/s 176 decided on 14-8-62 that petitioner was co-tenant of half. The title of petitioner, therefore, was unimpeachable irrespective of omission to record his name in revenue records. He could not be denied his right on finding that these decrees were not given effect to in revenue records for half century as once title was established it could not be lost in law except in one of the recognised manners of which omission to record name of one of the co-tenants is certainly not one.1 Nor did the petitioners right extinguish when Ram Lakhan obtained Bhumidhari sanad in his name alone.

(2.) Even revisional authority while reversing appellate order and dismissing petitioners objection u/s 9 of U. P. Consolidation of Holdings Act did not base its decision on these, except of course mentioning them. But what weighed with him was the silence of petitioner when grove plot No. 114 was sold on 10-6-64 by Ram Lakhan to Thakur and others sons of Raghunandan impleaded as opposite party, 12 to 17 and plot Nos. 207 and 172 sold to Shital Prasad opposite party No. 12 since deceased, on 15-7-52, who subsequently sold it to Vishwanath and others, and conduct of petitioner of repurchasing ⅘ share in plot Nos. 207 from Vishwanath. In effect petitioner was non-suited not on lack of title but failure to challenge action of his co-sharer giving rise to estoppel.

(3.) While defending the order Sri Yatendra Singh the learned counsel for opposite party criticised omission to challenge finding on estoppel, in petition, and relying on Tropical Insurance Co. Ltd. Vs. Union of India, (AIR 1955 SC 789) , Sri Durga Gita Vidyalaya Association Vs. State of U.P., (AIR 1962 All 187 ; (1962 All LJ 329) (FB)) and AIR 1956 Pat 228 urged that petitioner should not be permitted to raise it now and the petition should be dismissed. To this extent there can be no exception but to make the argument sharp some remark was made against the counsel who drafted the petition and who is no more a member of the Bar which was not only uncalled for but unnecessary and cannot be appreciated. From the order of Consolidation Officer it does not appear that any specific pleading on estoppel was raised nor any issue was framed. The Deputy Director could not in absence of pleading and evidence decide this controversy. Apart from technicalities why cannot the petitioner, on facts found, demonstrate that order is manifestly erroneous. In a writ of certiorari directed against order of court or tribunal, it is the order which has to be examined unless it is challenged on misreading or ignoring of evidence. If no factual controversy is raised there is no reason to shut out petitioner merely because no specific ground was taken. What is fundamental in a writ of certiorari is the error. If the court is satisfied that the error legal or factual is such that the order deserved to be removed from record the court cannot sit idle and helpless nor can it justifiably refuse to entertain the plea. In the Supreme Court decision constitutional validity of Act under Art. 32 was challenged. But after amendment in the Constitution the petitioners attempted to urge excessive use of power and non-compliance of certain provisions. As the petitions were under Art. 32 Supreme Court did not permit petitioners to raise new points. The decision cannot be of assistance in a case where order of subordinate tribunal or court is challenged on ground of error apparent. The Full Bench in Allahabad case was seized of the entire petition. It held that petitioners were not aggrieved as they were not hurt by any order passed and their petition was incompetent. The petitioners faced with this difficulty attempted to challenge letter sent by Joint Director, Education for cancellation of grant which was on record but the court did not permit as that was beyond ambit of writ petition. The Patna decision has only quoted the Supreme Court decision. It is therefore futile t.o rely on these cases.