Poonam Srivastava, J. - (1.) -Heard Sri B. N. Asthana, senior advocate, learned counsel for the petitioner and Sri K. M. Mishra, advocate for the contesting respondent.
(2.) THE order dated 5.11.1984, passed by the Deputy Director of Consolidation, Gorakhpur, under Section 48 of the U. P. Consolidation of Holdings Act (hereinafter referred to as the Act) is impugned in this writ petition. The dispute between the petitioner and contesting respondent revolves round a gift deed in respect of Khata No. 127 which was executed by Smt. Lal Dei. She had 1/3 share in the aforesaid khata. She died in the year 1974 leaving behind three daughters namely Smt. Munari, Smt. Sumanta and Smt. Samari. Respondent No. 1 Smt. Sumanta claimed exclusive title to the entire share of Lal Dei on the basis of a hibbanama executed by Lal Dei on 5.4.1974. On commencement of consolidation proceedings, an objection under Section 9A (2) of the Act was filed. A prayer was made that the name of Smt. Lal Dei be expunged and in her place, respondent No. 1 should be recorded as exclusive owner. The objections were dismissed by the Consolidation Officer on 24.11.1978. The order passed by the Consolidation Officer was to the effect that the name of all the three daughters be recorded over the share of Lal Dei. The respondent No. 1 filed an appeal which was beyond the period of limitation. The Assistant Settlement Officer Consolidation dismissed the appeal on two grounds, firstly that the appeal was time barred but also recorded his findings on merits, coming to a conclusion that late Smt. Lal Dei gifted her share to the two daughters namely the petitioner and respondent No. 1. Secondly it was held that there was no evidence to conclude that Smt. Lal Dei had acquired bhumidhari right in respect of her share. The order of the Assistant Settlement Officer Consolidation dated 16.8.1982 was challenged in revision which was allowed on 5.11.1984. The submission on behalf of the petitioner is that the Assistant Settlement Officer Consolidation recorded a finding of fact on merits which could not be set aside in exercise of revisional jurisdiction. In support of his contention, he has cited a decision of the Apex Court in the case of Ram Avtar and others v. Ram Dhani and others, 1996 ALJ 1908. Emphasis is on paragraph 8 of the said decision. The Apex Court held that while exercising revisional power, the revisional authority entered into all questions of fact and came to a conclusion on pure conjecture. It was pointed out by the Apex Court that howsoever wide statutory power be given to the Deputy Director of Consolidation while exercising revisional jurisdiction, he cannot act as court of appeal so as to reappreciate the evidence on record for recording findings on questions of fact.
(3.) THIS argument has emphatically been disputed by Sri K. M. Mishra appearing for the contesting respondents. He submitted that in the Amended Act, revisional powers have considerably been enlarged. In exercise of jurisdiction under Section 48 of the Act, the Deputy Director of Consolidation is well within his right to examine the record of any case decided by subordinate authority for the purpose of satisfying himself as to the regularity, correctness, legality or propriety of any order passed by such authority. No doubt the Deputy Director of Consolidation is not expected to disturb the finding of fact unless it is perverse or against the weight of evidence. Sri K. M. Mishra has annexed the gift deed alongwith counter-affidavit and has placed the part of the deed where it has specifically been stated by the executor that another gift deed was simultaneously executed in favour of Smt. Munari Devi, and also at the concluding part of gift deed a note has been appended where the name of Munari Devi has been struck off. THIS part of the evidence was completely overlooked by the Assistant Settlement Officer Consolidation and it was in these circumstances, the revisional court recorded its finding on the basis of evidence. He has cited a decision of the Apex Court in the case of Sheo Nand and others v. Dy. Director of Consolidation, Allahabad and others, 2000 (91) RD 213 (SC) : 2000 (2) AWC 1276. Paragraphs 20 and 21 of the said decision are quoted below : "20. Normally, the Deputy Director, in exercise of his powers, is not expected to disturb the findings of fact recorded concurrently by the Consolidation Officer and the Settlement Officer Consolidation, but where the findings are perverse, in the sense that they are not supported by the evidence brought on record by the parties or that they are against the weight of evidence, it would be the duty of the Deputy Director to scrutinize the whole case again so as to determine the correctness, legality or propriety of the orders passed by the authorities subordinate to him. In a case, like the present, where the entries in the revenue record are fictitious or forged or they were recorded in contravention of the statutory provisions contained in the U. P. Land Records Manual or other allied statutory provisions, the Deputy Director would have full power under Section 48 to reappraise or re-evaluate the evidence on record so as to finally determine the rights of the parties by excluding forged and fictitious revenue entries or entries not made in accordance with law. 21. If, therefore, during the course of the hearing of the revision filed by the appellant under Section 48 of the Act, the Deputy Director reopened the whole case and scrutinized the claim of the appellants in respect of two other villages, it could not be said that the Deputy Director exceeded his jurisdiction in any manner. It will be noticed that while scrutinizing the evidence on record, the Deputy Director had noticed that the entries were fictitious and in recording some of the entries in the revenue record in favour of the appellants, statutory provisions including those contained in U. P. Land Records Manual were not followed. In that situation, the Deputy Director was wholly justified in looking into the legality of the entire proceedings and disposing of the revision in the manner in which he has done." He has also cited another Full Bench decision of this Court, in the case of Ramakant Singh v. Deputy Director of Consolidation and others, AIR 1975 All 126.;