- (1.) POONAM Srivastava, J. This writ petition is taken up in the revised list. Counter and rejoinder affidavits have been exchanged.
(2.) HEARD Sri Sankatha Rai, learned Counsel for the petitioner and Counsel for the contesting respondents. The sole petitioner Hubraji died during continuation of the proceedings in the writ petition and her heirs Bholanath Pandey, Kailash Nath Pandey and Yogendra Nath Pandey have been substituted as petitioner Nos. 1/1, 1/2 and 1/3. Bholanath also died and by means of an order dated 5-5-1998 heirs of late Bholanath have been substituted. The necessary amendment has been incorporated by the learned Counsel on 11-5-1998. The respondent No. 2 Daya Shanker also died and by means of an order dated 11-5- 1998, his name stands deleted from the array of parties. The petitioner has challenged the order of the Deputy Director of Consolidation dated 15-10-1979 under Section 48 of the UP. Consolidation of Holdings Act (hereinafter referred to as the Act ). In the basic year Khatauni Khata Nos. 917 and 893 of village Panasa Uparhar, Tehsil Karchhana, District Allahabad were recorded in the name of Ragho Prasad, Sursari Prasad, Chandrika Prasad. Khata No. 298 was recorded in the name of Ram Suchit, who died on 7-10-1970 before the village was notified for consolidation. Smt. Hubraji-petitioner, Smt. Rajkali and Smt. Satila were the heirs and legal representatives of Ram Suchit. Three sisters initiated mutation proceedings, meanwhile the village was notified for consolidation. The said proceedings stood abated The respondent Daya Shanker stated his claim on the basis of an unregistered adoption deed dated 4-10-1970 said to have been executed only three days before Ram Suchit died. One Dhiraji claimed herself to be the daughter of Ram Suchit and contested the case. During the mutation proceeding, claim of Smt. Dhiraji and Daya Shankar was rejected by the Tehsildar and his order stood confirmed by the Collector. The other two sisters of Smt. Hubraji died, consequently it was the petitioner alone whose name stood mutated in place of the deceased Ram Suchit. A number of objections were filed during the consolidation proceeding under Section 9 of the Act, by Dwarika Prasad, Ganga Prasad, Pratap Bahadur and Chhote Lal. The Consolidation Officer decided the objections and held that Daya Shanker was not adopted son of Ram Suchit, his three sisters were alive at the time when Ram Suchit died but subsequently Smt. Rajkali and Smt. Satila also died. Trijugi Narain Ramji and Shyamji, respondent Nos. 3, 4 and 5 submitted to the order of the Consolidation Officer and did not file any appeal. The petitioner challenged the finding of the Consolidation Officer regarding declaration of Sirdari rights in favour of Dwarika Prasad, Ganga Prasad, Pratap Bahadur and Chhotey Lal. Daya Shanker also preferred an appeal before the S. O. C. who allowed the appeal of the petitioner vide order dated 31-3-1978 and declared Smt. Hubraji petitioner to be sole tenure holder in possession of the disputed Khatas. The respondent No. 3 Trijugi Narain claimed himself to be the son of Smt. Rajkali, sister of the petitioner and deceased Ram Suchit. The respondent Nos. 4 and 5 claimed themselves to be sons of Smt. Satila. The Consolidation Officer allowed the claim of adverse possession in respect of plot No. 1783/1 area 11 biswa of Khata No. 883. No appeal was filed by the respondent Nos. 3, 4 and 5. However, two appeals before the S. O. C. was, one at the instance of the petitioner Smt. Hubraji and the other appeal by Daya Shanker. The claim of Daya Shanker and others was rejected. The S. O. C. gave categorical finding that the father of Daya Shanker Ragho Prasad had litigated with the deceased Ram Suchit and, therefore, it is apparent that the adoption deed in favour of Daya Shanker by Ram Suchit is a fictitious and forged document. Finally three revisions were preferred before the D. D. C. The first revision by Daya Shanker, second by Trijugi Narain and third by Daya Shanker and others claiming Sirdari right. The D. D. C. rejected the revision of Trijugi Narain. The revision of Daya Shanker was allowed and the case was remanded to the S. O. C. and a direction was given that Daya Shanker be given an opportunity to adduce evidence of an expert to ascertain that the thumb impression of Daya Shanker was actually of that of Ram Suchit or not. It was further directed that in the event, the expert comes to a conclusion that the thumb impression does not belong to Ram Suchit then the respondent Nos. 3,4 and 5 alongwith the petitioner will become successors of Ram Suchit. The D. D. C. rejected the claim of Dwarika Prasad, Ganga Prasad, Pratap Bahadur and Chhotey Lal. The said order of the D. D. C. is impugned in the instant writ petition.
(3.) THE submission on behalf of the petitioner is that the order of the D. D. C. permitting Daya Shanker to lead fresh evidence in the shape of an expert opinion regarding thumb impression of Ram Suchit, was an excessive exercise of jurisdiction. It is also submitted that on the date of death of Ram Suchit, his three sisters namely petitioner, Smt. Rajkali and Smt. Satila were alive, and under Section 171 of UP. Z. A. & L. R. Act all the three sisters would be the heirs and successors of Ram Suchit. Smt. Rajkali died in the year 1974 therefore, under Sections 172/171 of U. P. Z. A. & L. R. Act Smt. Hubraji will alone be the heir and successor of Ram Suchit. THE sons of other two sisters could not claim their right under the law. THE next submission is that the respondent No. 1 has wrongly given a finding that in the event, the adoption deed is not proved then Trijugi Narain, Ramji and Shyamji shall also be declared as heirs and successors. Since they had not preferred any appeal before the S. O. C. and the respondent No. 1 himself had dismissed the revision of Trijugi Narain on this very ground, therefore while allowing the revision of Daya Shanker no right can be given to the sons of two sisters of Smt. Hubraji. It is also argued that the Consolidation Officer and S. O. C. have recorded a conclusive finding on the basis of evidence on record that the ingredient of a valid adoption giving and taking ceremony as Dattak Home have not been set aside by the D. D. C. and on the contrary, the entire case has been remanded with a direction to decide the claim of Daya Shanker on the basis of expert evidence, specially on the face of specific finding of the S. O. C. that the thumb impression on the alleged adoption deed is absolutely blurred and cannot be examined. No evidence was led by Daya Shanker required under the law save for the alleged adoption deed which was not proved by cogent evidence in accordance with law. Reliance has been placed on a decision of the Apex Court in the case of Gayadin through its legal representative & Ors. v. Hanuman Prasad through legal representative & Ors. , 2001 (1) JCLR 652 (SC) : 2001 JIR 293 : 2001 Allahabad Civil Journal 761, where the Apex Court has held that the powers under Section 48 of the Act under the Amended Act is not confined to errors of jurisdiction alone but also extends to satisfying himself as to the regularity, correctness, legality or propriety of any order However, the revisional Court cannot be permitted to reverse the finding of fact and also permit additional evidence with a view to fill up the lacuna. It was for Daya Shanker respondent to ask for and lead any evidence to prove the thumb impression of Ram Suchit.;