SURJOO Vs. DEPUTY DIRECTOR OF CONSOLIDATION AND OTHERS

JUDGEMENT

(1.) REVIEW applications are becoming order of the day, Sad part of it, however, is that some of the members of the Ear are not only tiling it without responsibility, required of a learned counsel, but even argue in respect of facts which were either not pressed or conceded but not recorded in the order for sake of counsel. Even this case is not being taken if the counsel who conceded earlier was a senior counsel, what to say of retaining him or even ascertaining from him if facts stated in judgment were correct or not. All this is amply demonstrated by this application for recall of order dated 16th April, 1982 passed by this Court in Civil Misc. Writ No. 1714 of 1972. The petition was allowed ex parte on 23rd February, 1982 in respect of plot No. 50 only. Order of consolidation authorities for other plots was maintained. The learned counsels for petitioner were Sri G.P. Bhargava and Sri A.N. Bhargava. Subsequently an application was filed on behalf of opposite parties that their counsel had been elevated to the bench and they had engaged Sri K.N. Singh, Advocate whose vakalatnama was also filed but his name was cot printed in the cause list. As the order had been passed without hearing learned counsel for opposite parties due to printing mistake in the cause -list, the order was recalled and after hearing learned counsel for parties the petition was decided again on 16th April, 1982. In effect same order was maintained except instead of allowing petitioner's claim for plot No. 50 straight away the Deputy Director was directed to decide it on merits. In this order it was mentioned that petitioner had confined this claim to three plots. On 2nd August, 1982 an application was filed on behalf of petitioners for clarifying operative portion of the order. Affidavit of this application was sweared by Mani Ram son of Polai petitioner No. 2. Counsel was Sri H.M. Srivastava. It was allowed on 7th August, 1982. Present application was filed on 5th November, 1982 for recall of order dated 16th April, 1982. Affidavit of this application has been sweared by Tilak son of petitioner No. 1 who is since dead and was real brother of petitioner No. 2. Now Sri Uma Kant has been engaged. It is alleged that, 'applicants had instructed their lawyer to file review petition against the order on ground that dispute related to two Khatas, Khata No. 325/1 comprising of plots 18,50, and 642 Khata No. 325/2 comprising of plot Nos. 15 and 640. But the writ petition had been decided in respect of plot Nos. 15, 640 and 50 only. 'But the counsel for applicants', on his motion under misconception moved an application for clarification of the order dated 16 -4 -1982 for removal of doubts which was allowed. What the learned counsel did not do earlier is sought to be achieved by this application, namely, recall of order as this Court was, under impression of plot Nos. 15 and 640 and plot No. 50 only. When, in paragraphs 1 and 4 and grounds of petition it has been specifically averred that dispute relates to plot Nos. 18,50,642,15 and 640.

(2.) AS is clear from above narration petitioners have been acting unfairly. First claim on their behalf was confined by Sri Bhargava to three plots on both occasions that is when the petition was allowed on 23 -2 -1981 and 26 -4 -1982. No averment has been made contrary to it yet it is claimed that Court committed error in deciding claim for three plots only. Why was it not argued by Sri Bhargava. Not without reason. In the petition no doubt claim was advanced for six plots but neither the Settlement Officer (Consolidation) nor the Deputy Director of Consolidation had recorded any finding on it. As regards consolidation officer on whose order reliance had been placed by learned counsel for issues were framed, (1) whether Sarjoo and Polai that is petitioners were co -tenants with Sarjoo? (2) Whether disputed land was sold acquisition of Sarjoo? (3) Whether petitioners were co -tenants with Karedin, and Ram Pher? and (4) Whether Karedin and Ram Pher were Bhumidhars? Issue No. 2 was decided in negative, Issue No. 2 in affirmative and issues 3 and 4 were decided together. It was held that sale -deed in favour of Karedin and Ram Pher executed by Sarjoo was not valid for more than 1/3, therefore petitioners were co -tenants with them. In operative portion petitioners were held co -tenants with Sarjoo over plot No. 325/1 and over plot No. 325/2, petitioners, Sarjoo and Kare Din and Ram Pher were given one third. Nowhere plot numbers 18, 56 and 642 are mentioned. From discussing issue No. 2, it is clear that it related to plot No. 50 only. Claim of opposite parties that they were sole owners was repelled. Consequently, issue No. 1 was decided in favour of petitioners. Similarly discussion on issue Nos. 3 and 4 relate to plot numbers 640 and 15A only.

(3.) It is thus clear that dispute related to three plots only. No copy of objection of memorandum of revision had been filed to substantiate the claim. Petitioner appears to have been persuaded to take this plea in writ petition because the Deputy Director of Consolidation while narrating facts had mentioned these plots. But when at time of hearing Sri Bhargava realised futility of arguing for plot Nos. 18, 56 and 642 he confined his claim to three plots only. And yet the petitioners moved second review application alleging that there was apparent mistake on record. Normally it was not necessary to say all this as in view of recital in the order that petitioners confined his claim to three plots and the same having not been refuted the application could have been dismissed straight away. But it became necessary to mention these plots to demonstrate that the learned counsel did not care even to read the order of consolidation officer on which entire argument was attempted to be built. One can understand that for purposes of admission of writ petition one may take advantage of erroneous recital here and there but it is unpardonable to move application for review. In the result this application fails and is dismissed with costs which is assessed at Rs. 500/ -.