Daya Shankar And Another v. Deputy Director Of Consolidation And Another

B.L. Yadav, J.

1. The present petition under Article 226 of the Constitution of India is directed against the order dated 9-9-92 passed by the Deputy Director of Consolidation, Siddharthnagar, allowing the revision of Smt. Sirtaji, Respondent No. 2 under Section 48 of the U.P. Consolidation of Holdings Act, 1953 (for short the Act), and setting aside the order dated 7-10-91 passed by the Settlement Officer Consolidation in Appeal No. 1208 and restoring the order passed by the Consolidation Officer dated 18-9-90, where as Revision No. 588 was dismissed.

2. The facts of the case need not detain much. Khata No. 27 was recorded in the basic year in the name of Mahesh son of Changur and Smt. Shivraji, wife of Gurcharan. As Mst. Shivraji died the dispute arose as to who was her successor. Respondent No. 2 Smt. Sirtaji, wife of Gajraj, filed an objection In proceedings under Section 12 of the Act, that she was the daughter of Gurcharan and Smt. Shivraji, recorded tenure holder, hence she was entitled to be recorded in place of Smt. Shivraji. Other objection was filed by Sunder, Dulare and Jang Bahadur that they were Shivrajis husbands brothers son, and hence entitled to be recorded. But one Smt. Katwari, wife of Kesho, filed a time barred objection under Section 12 of the Act claiming benefit of Section 5 of the Limitation Act and alleging that she was the daughter of Smt. Shivraji and that Smt. Sirtaji was not the daughter of Gurcharan and Shivraji, deceased.

3. The objection of Smt. Katwari was denied by Respondent No. 2 Smt. Sirtaji alleging that she was not the daughter of Gurcharan and Smt. Shivraji, rather she was the daughter of one Autar and on account of enmity she has filed objection and there was no justification for condonation of delay, and the objection of Smt. Katwari was liable to be dismissed.

4. The Consolidation Officer, after considering the oral and documentary evidence, by his order dated 18-9-90 (Annexure-4) allowed the objection of Respondent No. 2 holding her to be the daughter of deceased and rejected other objections of the other objectors Against that under. appeal by the Petitioners was allowed by order dated 7-10-91 (Annexure-5) Against that order dated 7-10-91, revision was filed by Respondent No. 2 Smt. Sirtaji which was allowed by the impugned order dated 9-9-92.

5. Sri. O.P. Misra, learned Counsel for the Petitioners urged that the Impugned order was manifestly erroneous, inasmuch as oral evidence as considered and relied upon by the Settlement Officer Consolidation, was not considered by the Dy. Director of Consolidation and that there was misreading in the statement of Vashishtha Singh, Pradhan. Consequently the findings are perverse Reliance was placed on Sultan Singh v. Dy. Director of Consolidation Meerut 1991 RD 455.

6. Sri Siddhartha Shukla, learned Counsel appearing on behalf of Respondent No. 2 urged that the Deputy Director of Consolidation has taken into account all the relevant oral and documentary evidence and has also relied upon the statement of Vashishtha Singh, and that the findings as to whether Mat Shivraji was the daughter of the deceased, was the finding of fact which cannot de interfered with in the writ Jurisdiction. The important documentary evidence was the birth certificate on 1922 of Smt. Sirtaji stating her age to be 46-47 years which corresponds to the date of birth when the statement was recorded and it was not proved by the Petitioners that that date of birth relate to some other person, and the case cited by the learned Counsel for the Petitioner is distinguishable, inasmuch as in that case no oral evidence was considered at all, whereas in the present case oral evidence has been considered.

7. Having heard learned Counsel for the parties there could be no two opinions that the finding that Smt. Sirtaji was the daughter of Gurcharan, was finding of fact. It has to be ascertained as to whether oral evidence was considered by the Deputy Director of Consolidation or not. The Deputy Director of Consolidation has considered the extract of birth certificate and has observed that the statement of Smt. Sirtaji, Respondent No. 2 was recorded in 1969 and she stated that her age was 46-47 years. This statement corresponds correctly with the birth certificate of 1922 indicating that a daughter was born to Gurcharan. The statement of Sirtaji, Respondent No. 2 and that of Mst. Katwari, the other objector, was considered Smt. Katwari alleged that she was the daughter of Gurcharan and Shivraji, and that Smt. Sirtaji, Respondent No. 2 was not the daughter of Smt. Shivraji. She (Smt Katwari) stated her age to be 30-35 years, which was inconsistent with the age shown in the birth certificate of 1922. The Deputy Director of Consolidation was conscious in considering the statement of Mst. Katwari and rejected her statement as 35 years age does not correspond to the date of birth in 1922 rather it indicates that she (Smt. Katwari) was born in some year much after 1922 Only if she could tell that her ape was near about 46 years on the date when her statement was recorded, then she could be connected with the date of birth In this way, Smt. Katwari was correctly held not to be the daughter of Gurcharan and Smt. Shivraji.

8. The Settlement Officer Consolidation has considered the statement of Ganpat and the statement of Smt Sirtaji, and reversed the findings of the Consolidation Officer. Other oral and documentary evidence was not considered, whereas the Deputy Director of Consolidation in revision has considered almost all the oral evidence including the background of litigation between the husband of Respondent No. 2 and that of Smt Katwari. The statements of Ganpat and Kallu and also of Barsati on behalf of Smt. Katwari and the FIR indicating enmity against Kallu and Barsati witnesses of Smt. Katwari were also considered. The statement of Vashishtha was considered and some reference was made about his admission. It is to be noticed that certified copy of his statement has not been filed, but only Annexure-6 has been filed. In case certified copy would have been filed this could have been easier to ascertain the so called admission as referred to by the Deputy Director of Consolidation. A perusal of Annexure 6 indicates (on page 56 of the file), that Vashishtha admitted that Smt. Sirtaji (Respondent No. 2) was in passion. Even then no specific piece of statement was pointed out which was not considered by Respondent No. 1. Under the impugned order detailed discussion has been made in respect of evidence on record. Let us examine law under the assumption that a piece of evidence, may be oral, has been ignored. There is no specific provision applying principles of Evidence Act, 1872 to the U.P. Consolidation of Holdings Act.

9. Even though the principles contained under Section 167 of the Evidence Act, 1872 (or those contained under Section, 57 of the repealed Indian Evidence Act, 1855 may not apply in terms of the consolidation proceedings, but those salutary principles can be borrowed with a view to do complete justice, Similar principle has been indicated under Section 99 of the Code of Civil Procedure, 1908 and Section 465 of the Code of Criminal Procedure.

10. Section 167 of the Indian Evidence Act contains the provision which can be said to be similar to a proviso to the provisions dealing with the admissibility of evidence. In case some admissible evidence has been rejected or inadmissible evidence has been accepted and the decision has been rendered, that decision would not be a ground for either remanding the matter or reversal of decision. In case the remaining evidence (excluding improperly admitted evidence or improperly rejected evidence) there remains other evidence sufficient to uphold the findings arrived at by the court below. The principle in this section applies to all judicial proceedings, either civil or criminal or revenue. The section is based on reasonable principle of common sense. To put it differently unless substantial wrong or miscarriage of justice has occasioned by the improper rejection or admission of evidence, the Judgment appealed against would not be reversed nor the matter would be remanded provided she remaining evidence Justifies the conclusion Where the improper admission or rejection of evidence would have varied the decision or the conclusion reached, would be a consideration weighing with the court seized up with the matter. See Narain v. State of Punjab : AIR 1959 SC 484 [LQ/SC/1958/156] , In the present case even if the statement of Vishishtha, Pradhan was not considered or was misread as suggested by the learned Counsel for the Petitioner, but that would not warrant for reversal of the impugned order. The findings recorded by the Deputy Director of Consolidation are findings of fact based on appraisal of evidence on record.

11. In such matters it is for the court to decide after ignoring the evidence including oral evidence wrongly admitted, i.e. in the present case the statement of Vashishtha in respect of which learned Counsel for the Petitioner raised objections that there appears some misreading in his statement. But even after excluding his statement there is ample evidence to support the findings arrived at by the Deputy Director of Consolidation, who has considered almost entire oral evidence, whereas as stated earlier, the Settlement Officer Consolidation did not consider the entire oral evidence on record, the findings of latter were correctly set aside by the former, The conclusion drawn by the Deputy Director of Consolidation from the oral evidence about the parentage of Smt. Sirtaji, Respondent No. 2 that she was the daughter of Gurcharan and Mst. Shivraji was perfectly correct, even after excluding the statement of Vashishtha. The findings as to whether Smt. Sirtaji was the daughter of Gurcharan and Smt. Shivraji was a finding of fact and was based on appraisal of documentary and oral evidence on record. This being a finding of fact, cannot be interfered with in the writ Jurisdiction. Unless a finding is based on surmises and conjectures or on evidence it cannot be interfered with. See State of West Bengal v. Atul Krishna Shaw AIR 1990 SC 2205 [LQ/SC/1990/475] .

12. In view of the premises aforesaid, the present petition falls and it is dismissed summarily.