A.P. Sahi, J. - (1.) HEARD Sri H.M.B.Sinha learned counsel for the petitioner and Sri Prabhakar Singh for the respondent No. 2.
(2.) NOTICES had been issued to the respondent Nos. 3 to 14 and appearance has been put forth on behalf of respondent Nos. 10 to 14 by Sri Rohit Verma. The other respondents have also put in appearance through Sri Rohit Verma who have not filed any counter-affidavit and have not contested the petition. The main contest therefore appears to be between the petitioner and the respondent No. 2 Sakir Raja Khan son of late Ahmad Raja Khan. The dispute in this petition relates to the land of Khata No. 21 which is said to have been transferred to the petitioner's predecessor in interest through a sale-deed dated 26.11.1982. The said sale-deed is alleged to have been executed by Ahmad Raza Khan to the extent of his share only. At this stage it would be relevant to record that in relation to Khata No. 7 and Khata No. 22 the wife of Ahmad Raza Khan, Smt. Ishrati Begum had executed a sale- deed on the same day i.e. on 26.11.1982 about which an objection had also been filed. The dispute between the petitioner and Smt. Ishrati Begum in relation to Khata No. 7 and Khata No. 22 travelled up to the High Court in Writ Petition No. 11164 of 1995. The said petition filed by Ishrati Begum was dismissed on 27.4.1995 up holding the order of the Deputy Director of Consolidation dated 16.2.1995 in relation to the said Khatas. The petition was only between Smt. Ishrati Begum and Ahmad Hussain the predecessor in interest of the petitioners. After the disposal of Writ Petition on 27.4.1995 a review application came to be filed by Smt. Ishrati Begum which was also rejected on 19.3.1996. The records of the said writ petition had been summoned by me and the said documents have been perused. The finding in relation to the sale-deed that was in question in the said proceedings was to the following effect extracted from the order dated 16.2.1995 of the Deputy Director of Consolidation: JUDGEMENT_108_ADJ2_2012Image1.jpg registered sale-deed - proved by marginal witness - Burden lies on defendants to show that their thumb impression was forged........." Learned counsel for the petitioner has advanced his submissions primarily on the strength of the said findings contending that the conclusion drawn by the Deputy Director of Consolidation is clearly to the effect that Ahmad Raza Khan had died on 24.4.1984 according to the observations made hereinabove. He therefore submits that the sale-deed was accordingly found to be valid. Sri Sinha submits that Ahmad Raza Khan had verified the signatures on the said sale deed executed by Smt. Ishrati Begum and therefore this was even otherwise a valid piece of evidence to establish that Ahmad Raza Khan had not died prior to 26.11.1982. In the present case the Deputy Director of Consolidation by the impugned order dated 13.2.2003 has recorded a contradictory finding completing ignoring the said evidence and has therefore arrived at a wrong conclusion. Learned counsel for the petitioner submits that this relevant evidence was on record and inspite of the same the Deputy Director of Consolidation has over looked it as such the impugned order is vitiated. He further submits that the impact of the said proceedings has the effect of res judicata and therefore the Deputy Director of Consolidation in the present proceedings could not have recorded a finding contradictory to the same as referred to herein above which has been already affirmed by the High Court in Writ Petition No. 11164 of 1995.
(3.) SRI Sinha therefore submits that the findings that Ahmad Raza Khan died in 1981 recorded by the Deputy Director of Consolidation on the basis that there was a medical certificate of a Hospital supported by an order of revenue official dated 16.8.1981 is erroneous and the same ought to have been discarded. SRI Sinha contends that the sale-deed dated 26.11.1982 has not been assailed by the contesting respondent nor any cancellation thereof has been prayed for and in such a situation the presumption of the validity of the sale deed has to rule in favour of the vendee i.e. the predecessor in interest of the petitioners. This aspect has also been over looked and hence the order is illegal. Replying to the aforesaid submissions Sri Prabhakar Singh submits that neither the issues were the same nor the parties to the present litigation were the same. He relies upon a decision in the case of Mohd. S.Labbai v. Mohd. Hanif, AIR 1976 SC 1569. He further contends that if any observation was made by the Deputy Director of Consolidation in his order dated 16.2.1995 in relation to a different Khata such observations are neither binding nor are evidence within the scope of the Evidence Act, 1872 to be taken notice of. He therefore contends that the argument on res judicata cannot be pressed into service when a categorical finding of fact has been recorded on the basis of material evidence relating to the date of death and mutation of the name of the successor of Ahmad Raza Khan. He further submits that so far as the sale deed is concerned even assuming that no suit has been filed for its cancellation, it is a void document and on the basis of the evidence led before the consolidation authorities, the Deputy Director of Consolidation has rightly treated it to be void and has ignored the same. Replying to the said submissions of Sri Prabhakar Singh, Sri Sinha submits that it has been categorically stated in para 15 of the writ petition that the documents including the judgment of the High Court were brought on record on 20.3.2002 and that the said documents which were relevant, have been ignored. He further submits that the counter-affidavit filed on behalf of the respondent No. 2 no where denies the said fact which is evident from a perusal of para 6 of the counter-affidavit read with para 4 thereof. ;