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1999 Supreme(All) 163
IN THE HIGH COURT OF ALLAHABAD
Shitla Prasad Srivastava, J.
BHOLA NATH (DECD) THROUGH L.RS. - Appellant
Versus
DEPUTY DIRECTOR OF CONSOLIDATION, VARANASI - Respondents
C. M. W. P. 8198 Of 1973
Decided On : 02/10/1999
O.P.MISRA
The Naib Tehsildar did not have the authority to make the disputed entry in Zaman 8 on 30th September 1948, as the provisions of the Land Records Manual and the authority of the Naib Tehsildar were not properly considered by the consolidation authorities.
Headnote:
LAND REFORMS - CONSOLIDATION OF HOLDINGS - JURISDICTION OF NAIB TEHSILDAR TO MAKE ENTRY IN ZAMAN 8 - INTERPRETATION OF LAND RECORDS MANUAL - AUTHORITY OF NAIB TEHSILDAR TO MAKE DISPUTED ENTRY - REMAND TO DEPUTY DIRECTOR OF CONSOLIDATION FOR FRESH DECISION.
Fact of the Case:
Petitioner claimed hereditary tenancy rights over disputed plots, alleging possession and settlement by the zamindar. Respondent No. 4 claimed the plots as his khudkast plots. The Consolidation Officer allowed Respondent No. 4's objection and the Settlement Officer, Consolidation, affirmed the order. On revision, the Deputy Director of Consolidation affirmed the order passed by the Settlement Officer. Petitioner challenged these orders in a writ petition.
Finding of the Court:
The Court found that the Naib Tehsildar had no authority to make the disputed entry in Zaman 8 on 30th September 1948, as the provisions of the Land Records Manual and the authority of the Naib Tehsildar were not properly considered by the consolidation authorities. The Court also found that the consolidation authorities had passed judgments on assumptions and surmises and had decided the case in the absence of the file, only on the basis of doubts.
Issues: 1. Whether the Naib Tehsildar had the authority to make the disputed entry in Zaman 8 on 30th September 1948? 2. Whether the consolidation authorities erred in passing judgments on assumptions and surmises and in deciding the case in the absence of the file?
Ratio Decidendi: 1. The Court interpreted the provisions of the Land Records Manual and held that sub-paragraph (5) of paragraph 13(III) of Part VIII, which deals with the duties of Tehsildars and Naib Tehsildars, does not apply to cases where the Naib Tehsildar passes an order on the basis of a report received from the Patwari or Kanungo. In the instant case, the petitioner did not claim that the Naib Tehsildar passed the order on the basis of any such report, therefore, this paragraph was not applicable. 2. The Court held that the consolidation authorities erred in passing judgments on assumptions and surmises and in deciding the case in the absence of the file, only on the basis of doubts. The Court noted that the file of the revenue case for which an adverse inference was drawn against the petitioner had now been traced out and was available at the time of the final hearing, but could not be seen as the question of fact was to be determined after seeing the file on the point as to whether there was any compromise filed by Respondent No. 4 or not, which could not be determined by the Court.
Final Decision: The Court allowed the writ petition, set aside the order passed by the Deputy Director of Consolidation, and remanded the case to the Deputy Director of Consolidation to decide it afresh in accordance with the observations made in the judgment.
( 1 ) THIS petition under Article 226 of the Constitution of India has been filed by the petitioner for quashing the order dated 29th August, 1973 (incorrectly typed as 19. 8. 1973) 20th October. 1972 and 30th November, 1970, passed by the Deputy Director of Consolidation and Consolidation officer respectively.
( 2 ) THE brief facts as stated in the writ petition for the purpose of the present case are that the disputed plots pertaining to Khata No. 105 of village Kusumhi. Tehsll Bansi, district Basti was recorded in the basic year khatoni in the name of the petitioner as sirdar. Respondent No. 4, namely, Mahant Harihar Das filed an objection under Section 9 of the U. P. Consolidation of holdings Act claiming plot in dispute on the allegations that they were his khudkast plots before the date of vesting and after the date of vesting, he is in possession over the same as bhumidhar. The claim of the respondent No. 4 was contested by the petitioner on the ground that the disputed plot Nos. 548, 952. 953, 922/1 and 922/6 were never khudkast plots of respondent No. 4. Plot Nos. 548, 952 and 953 were recorded as banjar prior to the date of vesting and plot Nos. 922/1 and 922/6 were recorded as hereditary tenancy of one Risiyawan and the petitioner claimed these plots on the basis of possession and the remaining plots were claimed by the petitioner on the ground that they were let out to him before the date of vesting and the petitioner claimed hereditary tenancy before the date of vesting and after the date of vesting became sirdar and remained in possession throughout.
( 3 ) SECOND set of objection was filed by respondent No. 5 Bhikhari claiming plot No. 922/5 and respondent No. 6 filed objection claimed plot No. 922/6 and respondent No. 7 and others claimed different plots. The petitioner contested the claim of the objectors.
( 4 ) THE Consolidation Officer vide order dated 30th November, 1970. allowed the objection of the respondent Nos. 5 to 15 In respect of the plots claimed by them, allowed the objection of respondent No. 4 in respect of remaining plots of Khata No. 105.
( 5 ) THE petitioner challenged the order passed by the Consolidation Officer, which was affirmed by order dated 16th April, 1971 by the Settlement Officer, Consolidation. The petitioner filed a revision which was allowed and the case was remanded to the Settlement Officer, Consolidation for a fresh decision vide order dated 10th August, 1971.
( 6 ) AFTER remand, the Settlement Officer, Consolidation vide order dated 20th October, 1972 modified the order of the Consolidation Officer to the extent that the name of Rlsiawan be recorded over the plot Nos. 922/1 and 922/6. A revision was filed by the petitioner. On 29th august. 1973, the Deputy Director of Consolidation affirmed the order passed by the Settlement officer (Consolidation ). The petitioner has challenged all these orders in the present writ petition.
( 7 ) IT is stated by the petitioner that the petitioner was tenant of the land in dispute except plot nos. 548, 952, 953. 922/1 and 922/6 but his name was not recorded, therefore, he filed an application for correction of the paper and in that case the respondent No. 4 admitted that the petitioner is the tenant of those plots and on the basis of the aforesaid admission, the Naib tehslldar allowed the application vide order dated 30th September, 1948. It is further stated that in the year 1964 the respondent No. 4 filed a declaratory suit against the petitioner in respect of the plots in dispute and certain plots of Khata Nos. 98 Ka and 98 Kha and that suit was decided on the basis of the compromise and petitioners title and possession over the disputed plots were accepted by the respondent No. 4. Petitioner filed certified copy of record of right and misalband showing the aforesaid compromise and also filed a copy of the order passed by the Naib tehslldar. It is further stated that in 1969 the respondent No. 4 filed a correc
