A.P.Misra - (1.) THE petitioner by means of the present petition has challenged the order dated 2nd February, 1983 passed by the Deputy Director of Consolidation. THE present dispute relates to plot nos. 172 and 173 situate in village Ahopur, Pargana Khairgarh, Tappa Manda, District Allahabad. THEse two plots were recorded as occupancy tenancy of Lokman and others and they mortgaged the same to one Sahtu father of the petitioners and grand father of opposite party no. 4. THE erstwhile intermediary ejected the mortgagor and mortgagee and made fresh settlement with Sahtu. Lateron Lokman and others with the amendment in U. P. Tenancy Act, 1947 applied for re-settlement under section 27. THE suit was decreed on 28th March, 1949 against the only Zamindar and it was ordered that Sahtu should not be ejected till expiry of three years from the date of this order. Petitioners, before the expiry of three years, approached Lokman the tenant to execute a sale deed in their favour. THE case of the petitioners is that the sale deed was executed on 3rd June, 1952 after obtaining the permission and written consent of the Zamindar. THE third brother of petitioners did not join hands in the purchase of the disputed plots. It is further the case of the petitioners that inspite of the above transaction, inadvertantly the name of Gurcharan wrongly continued even after the aforesaid sale deed and it led to the filing of the fresh suit under section 229-B of the UP ZA and LR Act. THEreafter the Assistant Collector 1st Class dismissed the same while the Commissioner, Allahabad Division in appeal allowed by means of an order dated 2nd August, 1971. It seems that thereafter a second appeal has been preferred but on account of the consolidation operation, the same stood abated.
(2.) DURING consolidation operation petitioners filed objection under section 9-A for expunction of the name of Gurcharan from the record on the basis of the aforesaid alleged sale deed. The matter was contested. The objection filed by the petitioners was dismissed by the consolidation officer mainly on the ground that the permission dated 3rd June 1952 had not been proved by the petitioners and since the family remained joint Gurcharan continued in joint possession. In appeal, the learned Settlement Officer (Consolidation) allowed the appeal holding that the said sale deed is not void but voidable. Finally Gurcharan filed revision and the Deputy Director of Consolidation confirmed the finding of the Settlement Officer (Consolidation) and dismissed his revision. Aggrieved as against the said judgment a writ petition was filed earlier before this Hon'ble Court. The said writ petition is numbered as Civil Misc. Writ Petition no. 610 of 1974. After hearing the parties this court remanded the case back before the Deputy Director of Consolidation to decide afresh in accordance with law directed therein. It is during the pendency of this case after remand before the Deputy Director of Consolidation the Revenue record room caught fire some time in December 1978. Consequently the entire file of the courts of the Consolidation Officer and the Settlement Officer (Consolidation) as well as the Deputy Director of Consolidation were reduced into ashes which led into the reconstruction of the file which was done after entertaining objection of the parties concerned. The main thrust of the contention on behalf of the petitioner which has been made even before me is that the copies of the statements of his witnesses filed by the opposite party no. 4 at the time of the reconstruction were after tampering with their statements and, therefore, strongly objected for its being admitted in evidence. The case of the petitioner was that these statements of his four witnesses before the Consolidation Officer were with his counsel who lateron joined in the service and the said file not being transferred, he could not file the same. The objections by the petitioners were rejected by the Joint Director of Consolidation on 31st January, 1981 (Aonexure 9) to petition. Finally the Deputy Director of Consolidation allowed the revision which is the impugned order with the finding that the said document of permission by the Zamindar was not filed at the initial stage and the said document had not been proved. The main argument on behalf of the petitioners is that on account of the record being burnt, the reconstruction of the file has not been made in accord ance with law laid down by this court and in accordance with the well settled principles of law and thus the finding recorded by the revisional court is not sustainable. On the contrary, the learned counsel for the respondents vehemently urged that no error has been committed by the revisional court in reconstruction of the file. Since the question of filing the statement of four witnesses of the petitioner was very much on the petitioner and he having not made proper effort to obtain the same, copies filed by the opposite party no. 4 were justified and on that account it cannot be said that any prejudice has been caused to the petitioner. It is further urged on behalf of the respondents that in reconstruction of the file the court has to decide on the facts of each case. In the present case discretion which has been exercised by the revisional court after remand, cannot be said to be such which requires any interference by this court in the present proceeding. It is significant to refer here that in earlier writ petition this court while remanding the case has very clearly directed the Deputy Director of consolidation to decide the revision afresh in the light of the observations made above whether permission obtained from the Zamindar has been proved in accordance with law. Thus it would be seen that one of the essential facts which the revisional authority was to adjudicate was whether the permission was or was not obtained from the zamindar by the petitioner before execution of the aforesaid sale deed. It seems that on account of no fault of any party the revenue record lying with the revisional court containing the relevant file of the present case including all the documents which formed part of the proceedings before the Consolidation Officer, Settlement Officer (Consolidation) and the Deputy Director of Consolidation were burnt. It is on account of this calamity the present controversy has arisen raising the very significant point and also the question for determination whether the revisional authority has or has not properly exercised its discretion in reconstruction of the file.
(3.) ACCORDING to the learned counsel for the petitioner the documents containing the written permission of the Zamindar was filed by him even before the Consolidation Officer and since this court remanded the case back for fresh decision, the only question which was to be adjudicated by the revisional court was whether the petitioner has proved the said document or not pertaining to the written permission of the Zamindar. ACCORDING to the petitioner he has proved the said document through tneir witnesses. Respondent filed copies of the statements of these four witnesses of the petitioner before the revisional authority. Petitioner seriously objected as the statement were not as it were made earlier but they were tampered, instead prayed to permit him to lead evidence, since reconstruction of these statements were not possible. It is this application and objection of the petitioner which had led into serious dispute inter see between the parties. Opposite party no. 4 objected to the fresh evidence stating that this would amount to give fresh opportunity to the petitioner to fill up the lacuna which should not be permitted. Accepting this contention the revisional court rejected the petitioners' objection holding that it is against law and justice to allow the party to fill up the lacuna and in case the witnesses are allowed to be examined afresh, it would bring great injustice to the parties. The principle of reconstruction of document whether it is lost, burnt f or misplaced not on account of fault of either parties is clearly covered under the courts' inherent power under section 151 CPC. However, this power has to be exercised with great care and circumvention to see that in reconstruction of file no party is getting favourable gains from the position what it was prior to the reconstructions. One of the principles which is to be kept in mind is that the party should be given fullest opportunity first to file such certified copies which are in their possession of those records which are now not available to the court. In doing so the court need not confine itself to the certified copies but even copies which are not certified if either party did not object and accept the said document, it may be accepted as a part of the record of the then existing document. No fixed principle or criterion could be laid down to the court in deciding as to in what manner the record is to be reconstructed.;