- (1.) SHITLA Prasad Srivastava, J. This writ petition under Article 226 of the Constitu tion of India has been filed by the petitioner for quashing the order dated 21-11-1979 passed by the Respondent No. 1 (Joint Deputy Director of Consolida tion, Agra Camp at Mainpuri ).
(2.) THIS case was listed on 12-1-1999 and on the said date, learned Counsel for the respondent was not present therefor, the case was passed over. The office report dated 21-9-1999 was to the effect that the counter and rejoinder-affidavit have been exchanged between the parties and the case is ready for hearing. On 29th September, 1999 again the learned Counsel for the respondent was not present and the case proceeded ex pane against the respondent. It was heard on 29th September, 1999, exparte. The brief facts as stated in the writ petition are that the chaks No. 1506 and 1510 situate in village Mustafabad Tehsil Jasrana, district Mainpuri was recorded in the name of Lakhan Singh son of Lokman Singh and others in the basic year Khatauni. Lakhan Singh died. The name of the legal representative were to be mutated in the revenue record. Smt. Ketuki widow of Gokul Singh filed objec tion, claiming herself to be the real Bhabhi of the deceased being wife of his real brother, second objection was filed by Smt. Ganga Devi and the Respondent No. 4 claiming herself as daughter of the deceased and third objection was filed by Virendra Singh, the petitioner claiming himself the only heir and legal repre sentative of the deceased being sister's son of the deceased. Before the Assistant Con solidation Officer, Smt. Ketuki com promised with the Respondent No. 4 ad mitting Ganga Devi as daughter of the deceased whereas the petitioner had stated that Smt. Ganga Devi was not the daughter of the deceased but she was the daughter of one Gokul Singh. The Consolidation Officer held that the name of Ganga Devi be recorded over the plot in question after expunging the name of Lakhan Singh. The petitioner filed an appeal against the judgment of the Con solidation Officer. The appeal was allowed and it was held that the petitioner is the legal heir of Lakhan Singh and the petitioner's name was ordered to be recorded after expunging the name of Lakhan Singh.
(3.) GANGA Devi filed a revision against the judgment of the Settlement Officer Consolidation and the revision was al lowed. The petitioner has challenged the order of the Deputy Director of Con solidation by means of the present writ petition. A counter-affidavit has been filed by Smt. Ganga Devi. Rejoinder-affidavit has also been filed. The petitioner has challenged the findings of the Deputy Director of Consolidation on the ground that the Deputy Director of Consolidation had no jurisdiction to interfere in the find ings recorded by the Settlement Officer Consolidation and secondly, that the petitioner was not afforded an oppor tunity of hearing. Since the matter was heard ex. pane therefore, the learned Counsel for the petitioner urged that the Deputy Director of Consolidation is not an appellate authority and he had no juris diction to see the question of fact and reverse the findings of fact recorded by the Settlement Officer Consolidation. For that purpose he has placed reliance on 1997 SC 107, Ram Avtar and others v. Ram Dhani and others. This case is not ap plicable to the facts and circumstances of the present case as Court considered the provisions of Section 115 of the Code of Civil Procedure while deciding the revision under Section 331 of the U. P. Zamindari Abolition and Land Reforms Act. The second decision which has been cited by the learned Counsel for the petitioner is 1994 RD 290; Ram Dular v. Deputy Director of Consolidation Jaunpur and others. In this case, the apex Court of the country considered as to whether the Deputy Director of Consolidation was legally justified in upsetting the findings recorded by the Consolidation Officer and the Settlement Officer Consolidation and the Court considered the amended provisions of Section 48 of the U. P. Con solidation of Holdings Act. The relevant paragraph of the aforesaid judgment is reproduced below:-, "the question, therefore, is whether the Deputy Director of Consolidation was legally justified in upsetting the findings recorded by the Settlement Officer, it is true that the finding whether Jokhu and Sampat are sons of Angan is a finding of fact and that the authorities are entitled to consider that question. But while exercising the revisional power under Section 48, what requires to be seen is whether the Deputy Director has considered the question in its proper perspective or had ignored any material evidence on record in coming to the said conclusion. Section 48 reads thus:- "48. Revision and Reference.- (1) The Director of Consolidation may call for and ex amine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings or as to the cor rectness, legality or propriety of any order other than interlocutory order passed by such authority in the case of proceedings and may, after allowing the parties concerned an oppor tunity of being heard, make such order in the case of proceedings as he thinks fit. It is clear that the Director had power to satisfy himself to the legality of the proceedings or as to the correctness of the proceedings or correctness, legality or propriety of any order other than interlocutory order passed by the authorities under the Act. But in considering the correctness, legality or propriety of the order or correctness of the proceedings or regularity thereof it cannot assume to itself, the jurisdic tion of the original authority as fact finding authority by appreciating for itself of those facts de novo. It has to consider whether the legally admissible evidence had not been considered by the authorities in recording a finding of fact or law or the conclusion reached by it is based on no evidence, any patent illegality or impropriety had been committed or there was any proce dural irregularity, which goes to the rest of the matter, had been committed in recording the order or finding. In this case it is seen that admittedly all the parties have been residing in the same locality. It had been found by the Consolidation Officer that the appellant was in possession of the lands and he had produced revenue receipts for continuously 15 years from 1365 Fasli onwards and that finding was not disturbed by the Deputy Director. It is true that the record for the Fasli 1306 was found fabri cated and the name of Sampat was not mutated and Jokhu alone was mutated in the revenue records for 1307 Fasli. The Consolidation Of ficer recorded the genuineness of the entries for the year 1308 Fasii which was not even disputed by the respondents. In the entries for 1308 Fasli the name of Sampat was found as son of Angan and was mutated. This vita aspect was omitted to be taken into consideration by the Deputy Director. The Deputy Director on the other hand concluded that for the year 1308 Fasli also the name of the Sampat was fabricated. It is an obvious error committed by the Deputy Direc tor and the High Court refused to correct it on the plea that it is only a finding of fact. Once, from the entries it is seen that Sampat was also mentioned as son of Angan and the appellant had been continuously in possession for 15 years it would clearly indicate that he has been in joint possession in respect of land in the aforesaid Khata Nos. along with the respondents and their ancestry omitting the breach of the appellant. Thereby he practically omitted to consider the genealogy which was even undisputed by the respondents. Under these circumstances the Deputy Director has committed manifest error of law by reversing the orders of the Consolida tion Officer and Settlement Officer. According ly the appeal is allowed, the order of the Settle ment Officer is confirmed to the extent of half share in the ancestral property acquired by Angan as affirmed by the Settlement Officer on appeal. But in the circumstances, parties are directed to bear their own costs. ";