RAM KHELAWAN Vs. DY DIRECTOR OF CONSOLIDATION ALLAHABAD

JUDGEMENT

(1.) THE petitioner by means of the present petition has challenged the order dated 2nd February, 1983 passed by the Deputy Director of Consolidation. THE present dispute relates to plot nos. 172 and 173 situate in village Ahopur, Pargana Khairgarh, Tappa Manda, District Allahabad. THEse two plots were recorded as occupancy tenancy of Lokman and others and they mortgaged the same to one Sahtu father of the petitioners and grand father of opposite party no. 4. THE erstwhile intermediary ejected the mortgagor and mortgagee and made fresh settlement with Sahtu. Lateron Lokman and others with the amendment in U. P. Tenancy Act, 1947 applied for re-settlement under section 27. THE suit was decreed on 28th March, 1949 against the only Zamindar and it was ordered that Sahtu should not be ejected till expiry of three years from the date of this order. Petitioners, before the expiry of three years, approached Lokman the tenant to execute a sale deed in their favour. THE case of the petitioners is that the sale deed was executed on 3rd June, 1952 after obtaining the permission and written consent of the Zamindar. THE third brother of petitioners did not join hands in the purchase of the disputed plots. It is further the case of the petitioners that inspite of the above transaction, inadvertantly the name of Gurcharan wrongly continued even after the aforesaid sale deed and it led to the filing of the fresh suit under section 229-B of the UP ZA and LR Act. THEreafter the Assistant Collector 1st Class dismissed the same while the Commissioner, Allahabad Division in appeal allowed by means of an order dated 2nd August, 1971. It seems that thereafter a second appeal has been preferred but on account of the consolidation operation, the same stood abated.

(2.) DURING consolidation operation petitioners filed objection under section 9-A for expunction of the name of Gurcharan from the record on the basis of the aforesaid alleged sale deed. The matter was contested. The objection filed by the petitioners was dismissed by the consolidation officer mainly on the ground that the permission dated 3rd June 1952 had not been proved by the petitioners and since the family remained joint Gurcharan continued in joint possession. In appeal, the learned Settlement Officer (Consolidation) allowed the appeal holding that the said sale deed is not void but voidable. Finally Gurcharan filed revision and the Deputy Director of Consolidation confirmed the finding of the Settlement Officer (Consolidation) and dismissed his revision. Aggrieved as against the said judgment a writ petition was filed earlier before this Hon'ble Court. The said writ petition is numbered as Civil Misc. Writ Petition no. 610 of 1974. After hearing the parties this court remanded the case back before the Deputy Director of Consolidation to decide afresh in accordance with law directed therein. It is during the pendency of this case after remand before the Deputy Director of Consolidation the Revenue record room caught fire some time in December 1978. Consequently the entire file of the courts of the Consolidation Officer and the Settlement Officer (Consolidation) as well as the Deputy Director of Consolidation were reduced into ashes which led into the reconstruction of the file which was done after entertaining objection of the parties concerned. The main thrust of the contention on behalf of the petitioner which has been made even before me is that the copies of the statements of his witnesses filed by the opposite party no. 4 at the time of the reconstruction were after tampering with their statements and, therefore, strongly objected for its being admitted in evidence. The case of the petitioner was that these statements of his four witnesses before the Consolidation Officer were with his counsel who lateron joined in the service and the said file not being transferred, he could not file the same. The objections by the petitioners were rejected by the Joint Director of Consolidation on 31st January, 1981 (Aonexure 9) to petition. Finally the Deputy Director of Consolidation allowed the revision which is the impugned order with the finding that the said document of permission by the Zamindar was not filed at the initial stage and the said document had not been proved.

(3.) ACCORDING to the learned counsel for the petitioner the documents containing the written permission of the Zamindar was filed by him even before the Consolidation Officer and since this court remanded the case back for fresh decision, the only question which was to be adjudicated by the revisional court was whether the petitioner has proved the said document or not pertaining to the written permission of the Zamindar. ACCORDING to the petitioner he has proved the said document through tneir witnesses. Respondent filed copies of the statements of these four witnesses of the petitioner before the revisional authority. Petitioner seriously objected as the statement were not as it were made earlier but they were tampered, instead prayed to permit him to lead evidence, since reconstruction of these statements were not possible. It is this application and objection of the petitioner which had led into serious dispute inter see between the parties. Opposite party no. 4 objected to the fresh evidence stating that this would amount to give fresh opportunity to the petitioner to fill up the lacuna which should not be permitted. Accepting this contention the revisional court rejected the petitioners' objection holding that it is against law and justice to allow the party to fill up the lacuna and in case the witnesses are allowed to be examined afresh, it would bring great injustice to the parties.