BHALLAN Vs. DY DIRECTOR OF CONSOLIDATION VARANASI

JUDGEMENT

(1.) S. K. Keshote, J. This writ petition arise out of the proceedings under Section 9 of the U. P. Consolidation of Holdings Act, 1953 (hereinafter referred as the Act, 1953) initiated by the respondent No. 2, The dispute in this writ petition between the parties is in respect of Khata No. 26 Kha, 7 Kha and 35 of village Siwaripur. The respondent No. 2 Smt Kabili filed objections under Section 9 (2) of the Act, 1953 before concerned authority. She claimed co-tenancy in the land in dispute on the allegation that she is widow of late Shri Kallu who is the son of Shri Ram Nanda (deceased ). The claim of the respondent No. 2 was contested by the petitioner. On the ground that she is not the widow of Kallu. She is an imposter. Shri Kallu died unmarried and since then the petitioner is in possession over the land in dispute. The Consolidation Officer after considering evidence both oral and documentary produced by the parties recorded a finding of fact that the respon dent No. 2 is not the widow of Shri Kallu, Copy of order dated 31-3-73 of the said officer is on record as Annexure 1. The respondent No. 2 filed an appeal against this order before the appellate authority who vide its order dated 26-12-73 (An-nexure-2 on the record) confirmed the order of the Consolidation Officer. The respondent No. 2 then filed a revision petition before the respondent No. 1 against the order dated 26-12-73 of the appellate authority. The revisional authority vide its order dated 16-11-76 (Annexure No. 3 on the record) allowed the revision petition of the respondent No. 2 and she was held to be widow of Shri Kallu and declared to be content in the land in dispute and her share was declared to 1/8 in khata No. 7 kha and 26 kha and 1/2 in khata No. 35. The petitioner filed this writ petition against the aforesaid order before this Court which has been admitted on 14. 12. 1976 and stay has been granted in his favour. The writ petition has been contested by affidavit and the petitioner filed a rejoinder affidavit. In the writ petition Shri U. P. Singh the then Deputy Director, consolidation of Holdings, has been im-pleaded in his personal capacity as seriously allegation of mala fide have been made against him by the petitioner in this case. Service of the notice on the respon dent No. 3 was held sufficient on drawing a presumption as per this court's rules. In case where the allegations of mala fide are being made ordinarily personal service of the notices should be insisted and normally court should not proceed on the presumptive service of summons. An ob jection has been raised by the counsel for the respondent No. 2 during the course of argument that the respondent No. 3 has not been served with the summons of this case. Though the petitioner has ar gued on the mala fide of the respondent No. 3 in passing of the impugned order by him and said order is prayed to be quashed on this ground alone but in the facts and circumstances of this case and for want of personal service I think it is not a fit case in which the validity of the impugned order should be tested on the ground of alleged mala fide of the respon dent No. 3 in passing of the same.

(2.) SHRI R. N. Singh, learned counsel for the petitioner has firstly submitted that the respondent No. 1 has exceeded its jurisdiction in reversing the concurrent finding of the facts recorded by the lower authorities on appreciation of the evidence produced by both the parties. SHRI Singh next argued that though the revisional court has wide power under Section 48 of the Act, 1953 but even then without recording of its own reasons of dis-agreement with the findings recorded by the lower authority no interference could have been made with the concurrent finding of the facts. The revisional authority has passed the order without even making reference to the material and important evidence though the lower authorities relying on the said evidence recorded a concurrent finding on facts. The evidence which has not been relied by the lower authorities on the good and cogent reasons has been relied by the respondent No. 1 without disturbing the finding of those authorities. The order of the revisional court is perverse as it has been passed without considering the material evidence produced by the petitioner. The learned counsel for the petitioner by reading all the three orders has illustrated that the respondent No. 1 has decided the matter ignoring the relevant and material evidence from con sideration. In support of his argument the learned counsel for the petitioner has placed reliance on the decision reported in 1979 AWC 174 (Para No. 15), AIR 1976 SC 2037 (Para No. 12) and 1994 CRC 106 (All ).

(3.) THE appellate authority after detailed discussion and consideration of materials which were on record has decide that the Kutumb Register filed by the respondent No. 2 is not the real register but he register produced by the petitioner is the real Kutumb Register. THEn the said authority considered the electoral of the year 1966, statements of Girja Shankar Dubey, Ram Deen and the oral and documentary evidence produced by the petitioner and has affirmed the decision of the settlement officer that the respondent No. 2 is not the widow of Kallu, Kutumb Register filed by the respondent No. 3 was disbelieved by both the authorities after recording cogent and good reasons, Oral evidence produced by her has also not been believed. THE revisional authority has observed in its order as under :