NATHUA Vs. D D C JHANSI

JUDGEMENT

(1.) BINOD Kumar Roy, J. The petitioner prays to quash (i) the Revisional Order, dated 6-9-1978 passed by the Deputy Director of Consolidation, Jhansi allowing Revision No. 681 preferred by Respondent No. 3 Raghunath Singh against the appellate order, dated 23-3-1977 of the Settlement Officer (Consolidation), Jhansi passed in his Appeal No. 71/113; and (ii) the order, dated 29-1- 1976 passed by the Consolidation Officer, Ghusarai, Jhansi in Case No. 1716-A of 1976, which was already set aside on his appeal.

(2.) THE portrayal of the relevant facts are in a narrow compass. THE dispute concerns title in regard to 2. 57 acres of land bearing Plot No. 244, 88 decimals of land bearing plot No. 245 and 66 decimals of land bearing plot No. 246 all appertaining to Khata Nc 18 of village Dewara Buzurg, tehsil Garautha, district Jhansi which in the basic year Khatauni, prepared under the provisions of the U. P. Consolidation of Holdings Act (hereinafter referred to as the Act) stand recorded as bhumidhori of the petitioner. Respondent No. 3 filed an objection under Section 9-A (2) of the Act claiming that after taking a loan of Rs. 3,000 the petitioner on 22-8-1973 executed the usufructuary mortgage (copy appended as Annexure-3 to the counter affidavit and its English Translation has been filed by the petitioner) in his favour and also delivered possession which he could not pay back within the period of limitation for redemption of the agreement and accordingly his title extinguished on 7-6- 1974. THE petitioner, on the other hand, took up defence that he had not executed the usufructuary mortgage. THE Consolidation Officer, to whom the case was referred framed the following issues : "whether the petitioner is in possession of the disputed land as bhumidhar on the basis of usufructurary mortgage and whether there was any usufructuary mortgage?" In order to support his case apart from examining him the Respondent No. 3 examined Om Prakash (a witness on the deed of mortgage) and Mohar Singh. He also produced the mortgage bond in question and his affidavit. THE petitioner, apart from examining himself, examined one Devi. THE Consolidation Officer, vide his order, dated 29-12-1976 answered the issues in favour of Respondent No. 3 observing/holding to the following effect :- (i) Respondent No. 3 identified the signature of the petitioner on the document who also stated that the usufructuary mortgage deed was got registered which was read over by the clerk to the petitioner before his signature; that the clerk as well as the Registrar both had read over the document to the petitioner, that the lands in question were transferred to him by the usufructuary mortgage which has been in his possession since that very day, who had also paid the mortgage money. (ii) Even though the petitioner had denied his signature on the document no step was taken ,for getting thumb-impression compared and thus, it cannot be inferred that the document which is on the record is such which was executed by him and contained his signature, (iii) Om Prakash-an attesting witness of the document- had also stated in his evidence that the land in question was given in usufructuary mortgage by the petitioner, which was also put to writing in his presence, (iv) Mohar Singh, an independent witness has also stated that since the day of the usufructuary mortgage he is seeing possession of respondent No. 3 on the lands in question, who denied the suggestion that since three years the petitioner is in its possession, (v) Under Section 164 of the U. P. Z. A. and L. R. Act the document would be deemed to be a sale-deed and the land in possession as Kashtkar. THE petitioner went up in appeal which was allowed by order dated 23-3-1977 observing/holding as follows :- (i) Both sides had accepted that the mortgage was to be redeemed in one year and during the subsistence of the mortgage the crop will be taken by Respondent No. 3. (ii) Had Respondent No. 3 been in possession of the lands in dispute, his possession must have been found in the consolidation enquiry. No Khasra has been produced to show his possession till 1384 Fasli. (iii) THE statement of any witness does not appear to be reliable in regard to possession, (iv) From the statement of Raghunath Singh and the contents of the deed it is clear that the parties had no intention to execute a sale-deed but only had agreed to give crop in lieu of the interest and if the amount was not redeemed within one year respondent No. 3 should have instituted a suit in the civil court for specific performance for realising his mortgage amount, (v) It has already been decided in 1971 RD 270 that the provisions of Section 164 are not applicable in relation to transfer of the lands concerning payment of interest of a loan, (vi) Respondent No. 3 has neither proved that he has returned the amount nor has he instituted any civil suit after 1974 for realisation of the loan and thus, it appears that his status was that of a licensee, who does not acquire bhumidhari rights on the land in question. Respondent No. 3 went up in revision, which was allowed by the impugned order, dated 6-9-1978 observing/holding as follows :- (i) THE deed of mortgage is registered, which was also proved and the denial of the petitioner in regard to non-execution of usufructuary mortgage is false and concocted, (ii) From perusal of the mortgage bond it is clear that the mortgage was executed in lieu of loan and possession was also delivered and thus is either a simple mortgage or has been executed in lieu of the interest of the loan, (iii) THE mortgage is in clear violation of the provisions of Section 155 of the U. P. Z. A. and L. R. Act and the right of the petitioner had extinguished under Section 164 of the. said Act and Respondent No. 3 get bhumidhari rights in the mortgaged land. (iv) THE order passed by the Consolidation Officer in favour of Respondent No. 3 was correct whereas the order passed by the Settlement Officer (Consolidation) was neither based on evidence nor was legal. THE SUBMISSIONS :

(3.) I take up the objection raised by Mr. Verma first. In Surinder Singh v. Central Government and others, AIR, 1986 SC 2166, the Apex Court held as follows :- "whenever an order of Government or some authority is impugned before the High Court under Article 226 of the Constitution, the copy of the order must be produced before it. In the absence of the impugned order it would not be possible to ascertain the reasons which may have impelled the authority to pass the order. It is, therefore, improper to quash an order which is not produced before the High Court in a proceeding under Article 226 of the Constitution. " The petitioner has appended a certified copy of the revisional order. Even though the law is that when a rule is issued by a court of certiorari the respondents are required to produce the records along with the return of the Rule. This requirement of law, however, is seldom followed. It was for the consolidation authorities-Respondents to produce the records before this Court which they had not done and allowed to be weeded out. It is settled law that actus curiae neminem gravabit i. e. act of court prejudices none. Non-production of the records by the authority cannot mean that this Court shall have no jurisdiction to rectify the defects in the order passed by the Revisional Authority whose errors in appropriate cases can be corrected by this Court under Article 226 of the Constitution. Thus, this preliminary objection of Mr. Verma is overruled.