S. D. Agarwala, J. - (1.) THIS is a petition under Article 226 of the Constitution of India arising out of consolidation proceedings.
(2.) THE plots in dispute are plots No. 1045 and 1042. THEse plots were recorded in the basic year as sirdari of the petitioner. Opposite party No. 4 Jatadhari filed an objection under Section 9-A (2) of the Act on the ground that the name of the petitioner was wrongly recorded in the revenue papers, his name be expunged and that the name of Jatadhari be recorded in place of Ram Samujh. During the pendency of the case before the Consolidation Officer on 1-5-1970 an application was made by the petitioner that in case Jatadhari states that the plots in dispute were in his possession and that it was his sirdari, then the case be decided accordingly. It was further stated that Jatadhari had to state the above facts in the temple of Bhaironji Maharaj after wearing yellow dhoti with Gaga Jali in his hand. The effect of this offer was that in case Jatadhari states in the temple of Bhaironji Maharaj that the plots are in his possession and they are his sirdari, then the case be decided accordingly. This offer made by the petitioner was accepted by Jatadhari. Thereafter on 15th May, 1970 Jatadhari took an oath before Bhaironji that the plots in dispute were in his possession and were his sirdari. Since Jatadhari stated before Bhaironji the Consolidation Officer by its order dated 15th May, 1970 decided the case as per the agreement arrived at between the parties. The Consolidation Officer directed that necessary corrections be made in the records by his order, dated 15th May, 1970. Aggrieved by the said decision an appeal was filed before the Settlement Officer Consolidation. The appeal was dismissed on 19th November, 1971. Against the order dated 19-11-1971 a revision was filed in the court of Deputy Director of Consolidation. The revision was also dismissed on 28th September, 1972. The petitioner has now challenged all the three orders passed by the consolidation authorities by means of the present petition. I have heard learned counsel for the parties. Learned counsel for the petitioner has contended that the provision for taking special oath which was in existence in the Indian Oath's Act, 1873 has now been deleted and there is no such provision in the Oaths Act, 1969 which came into effect from 26th December, 1969 and as such the consolidation courts could not have decided the case on the basis of special oath. It was further urged that the agreement entered into between the parties was against the public policy and as such is void under Section 23 of the Contract Act.
(3.) LEARNED counsel for the respondent has placed before me two Full Bench decisions of this Court where this question has been considered. The first decision cited by the learned counsel is Akbari Begum v. Rahmat Hussain, 1933 ALJ 1127. This is a Full Bench decision of this Court. In this case the question referred was as follows :- " Can the parties to a suit agree, apart from the Indian Oaths Act, that they will abide by the statement of a witness, including one who is a party to the suit and 'can they leave the decision of all points' including costs arising in the case to be according to his statement ? " The Full Bench answered the question in the affirmative holding that apart from Indian Oaths Act it is open to a party to abide by the statement of the witness including one who is a party to a suit.;