BIPAT Vs. DY DIRECTOR OF CONSOLIDATION GORAKHPUR

JUDGEMENT

(1.) THE petitioner prays to quash the appellate order dated 25th March, 1974 passed by the Assistant Settlement Officer Consolidation, Gorakhpur (respondent No. 2) in Appeal No. 1533 (copy appended as Annexure IX) and the revisional order dated 1. 11. 1977 passed by the Deputy Director of Consolidation, Gorakhpur (respondent No. 1) in Revision No. 1351/366 (copy appended as Annexure X ).

(2.) THE relevant facts appearing from the Writ petition, Counter affidavit and the various Annexures thereto and the Rejoinder of the petitioner are as under : THE petitioner claims to have purchased by registered sale deed dated 3. 6. 1967 the interest of respondent No. 3 Smt. Karmi, who is an illiterate widow, in the lands of Khata No. 42 of village Dhaska Pachisi, Pargana Bhauapar, Tehsil Bansgaon,' district Gorakhpur THE basic year entry also admittedly stands recorded in name of respondent No. 3 Navnath and Ram. Chander. On the basis of his sale deed the petitioner filed an objection under Section 9-A (2) of the U. P. Consolidation of Holdings Act (hereinafter referred to as the Act) and thus his name be entered in her place. Objection was registered as Case Nps. 105 and 106. Respondent No. 3 resisted the claim of petitioner on the grounds inter alia that she had not executed any document in his favour, and that when she came to know of the fraud played upon her the instituted a title suit No. 150 of 1977 in the Court of Munsif Bansgaon, district Gorakhpur, which, however, abayed in view of commencement of the consolidation proceedings, on orders of this Court. THE Consolidation Officer framed three issues : (1) Whether the sale deed in regard to land of Khata No. 42 have been executed by Smt. Karmi widow of Devi Charan, in favour of Bipat and if not then what is its effect? (2) Whether Bipat is co-tenant and bhumidhar of the land of Khata No. 42, and if yes then what is the share of parties? and (3) What would be the share of the parties? THE petitioner produced the original sale deed, a certified copy of which has been appended as Annexure I to this writ petition. Perusal of the deed shows that 3. 76 Acres of lands were allegedly transferred for Rs. 6,000/ -. THE petitioner examined himself, besides Basudeo, who has put his signature (thumb impression) on the sale deed as its witness. Respondent No. 3 also examined herself. THE petitioner also got the alleged thumb impression of respondent No. 3 examined by a hand- writing expert who, however, opined that the thumb impressions are blurred and hence he cannot give any definite opinion. THE Consolidation Officer, vide his order dated 25th July, 1992 (copy appended as Annexure VI) accepted the claim of the petitioner after holding that the burden of proof was on Smt. Karmi to prove that she had not executed the sale deed. Respondent No. 3 went up in appeal No. 749/404 which was dismissed by order dated 31. 11. 1972) copy appended as Annexure VII ). THEreafter respondent No. 3 went up in revision, which was allowed and the appeal was remitted back to hear the parties on the issue of possession, which was held to be of importance. THEreafter the appellate authority allowed the appeal of respondent No. 3 vide the impugned order holding that Karmi had not executed the deed and Bipat got executed the deed by producing a Farzi women who is also not in possession. While reversing the findings the appellate authority observed as follows- (i) THE Government expert opines that the sale-deed does not contain signatures of Smt. Karmi. (ii ). Bipat could not prove his allegation that Smt. Karmi had brought the Government expert in collusion, (iii) D. Allexander, the private expert had opined that the thumb impressions are not clear, and hence, he cannot say whether on the sale-deed there is signature of Smt. Karmi or not. (iv) THE marginal witness Basudeo had stated in his evidence that he does not know where Smt. Karmi resides whose thumb impression was not taken in his presence on the sale deed, (v) Similarly Bipat stated that Karma was identified by Ram Chandra before the Registrar but Ram Chandra was not produced as his witness, (vi ). THE sale deed was the basis of claim of Bipat which he could not prove correctly, (vii) THE Consolidation Officer has mentioned in his order that as Smt. Karmi had sold away her house and, therefore, she would have sold away the land whereas the deed shows that she need money for pilgrimage and repair of her house, (viii) From Khasras of 1372 Fasli and 1373 Fasli it is clear that Bipat is not in possession of the land in question. Had he been in possession after the purchase his name should had been mentioned in the Khasras by mentioning his 1/3 share. THE petitioner went up in revision No. 1353 of 1976 which was dismissed by the impugned order observing/holding as follows : (i) THE onus to prove that the petitioner acquired title on the basis of alleged sale-deed was on him, on the basis of which he got possession but he examined only one of the marginal witnesses namely, Basudeo, who had not clearly stated that Smt. Karmi had put her signature in his presence and in the presence of Ram Chandra. This witness had further stated that he had not identified Smt. Karmi before the Registrar arid it is not known as to whether another witness Chandrika Rai identified her before the Registrar or not and from his statement it further appears that he was not well known to Bipat from before and was made a witness by Bipat at the time of. registration. From further perusal of his deposition it becomes clear that he has not stated correctly the facts, (ii) THE other witness Ram Chandra, who was claimed to be Chandrika Rai by Basudeo, was not examined, (iii) Even though the petitioner claims to be in possession after the execution of the document, nothing was stated about his possession in the partal (i. e. Inquiry made during consolidation), (iv) From the evidence on record it is not proved that the land has been partitioned amongst the co-sharers. THE submission :

(3.) BEFORE we proceed we take note that this writ petition was referred to for its adjudication by a Division Bench to examine the following questions : (i) Whether in the facts and circumstances the revisional authority was correct in dismissing the revision application of the petitioner or should have remitted back as the case for read judication by the appellate authority? (ii) Whether in the facts and circumstances of this case, despite abatement of her title suit filed for setting aside the registered sale deed said to have been executed in her favour, it was open for her to take a defence simplicitor before the Consolidation Officer that she had not executed that deed? Our findings : "