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PETITIONER: SESHAMNI & ANR.

       Vs.

RESPONDENT: THE D. DIRECTOR OF CONSOLIDATION,DISTRICT BASTI U.P. & ORS.

DATE OF JUDGMENT:       14/02/2000

BENCH: D.P.Wadhwa, S.N.Hegde

JUDGMENT:

     J  U  D  G M E N T D.P.  Wadhwa, J.   This  appeal  isdirected  against  judgment date d September 24, 1980 of  the Allahabad  High Court dismissing the review petition of  the appellant.   Earlier  writ petition of the appellants  filed under  Article 226 of the Constitution was dismissed by  the High Court by its judgment dated April 30, 1980.  Appellants had  sought quashing of the order of the Deputy Director  of Consolidation under the U.P.  Consolidation of Holdings Act, 1953   (for   short,  the   ’Act’).   Deputy   Director   of Consolidation   had  allowed  the   revision  filed  by  the contesting respondents under the Act holding the respondents to  be  the  owner  in possession of  plot  bearing  No.301, village  Khakhra  Khurd  Tappa Sahila, P.O.   Khan  Naugarh, Distt.   Basti.   By that judgment, the Deputy  Director  of Consolidation  set  aside  the orders of  the  Consolidation Officer  and the Assistant Settlement Consolidation Officer. During   consolidation  proceedings  in   the  village   the respondents,  successors  of Ram Khelawan,  filed  objection under  Section 9 of the Act before the Consolidation Officer claiming that they are owners of plot No.301 having acquired the  same in auction in 1914 in a suit pending in the  Court of  Munsif.   It was submitted that Ram Khelawan, father  of the  respondents,  got a decree against Bhagwati, father  of the  appellants, in a suit filed by him for recovery of loan given by Ram Khelawan to Bhagwati, father of the appellants. Respondents  contended that they have been in possession  of the  plot  since  then.   In support  of  their  claim  they produced  copy  of the judgment of the Munsif’s  court,  the sales  certificate  and copy of Khatauni for the  period  of 1359/F  and 1324/F.  Appellants claimed that they were never dispossessed  all  through 1914 and that they have  been  in possession  of the plot and have since perfected their title by  adverse  possession.   In support of  their  claim,  the appellants  submitted before the Consolidation Officer  copy of the "khewat" and entry in register of 1914.  By his order dated  January  20, 1972 the Consolidation Officer  rejected the claim of the respondents.  Matter was taken in appeal to the  Assistant  Settlement  Consolidation   Officer  by  the respondents  who dismissed the same by order dated March  8, 1972  holding that the respondents had never filed any claim on  the basis of auction sale with regard to the land.  More than  12 years having elapsed since the sale, the appellants had  perfected  their  title  by  adverse  possession.   The respondents  did not rest there and filed a revision  before the  Deputy  Director of Consolidation.  There  was  dispute regarding  the  number of the plot.  It was found  that  the sale certificate in favour of the respondents mentioned Plot

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No.82/2 (old) though new number of the plot was 301.  It was made  up  of old plot Nos.88/1 and 88/2.  Boundaries of  the plot  bearing  No.301, however, tallied with the  boundaries given  in the "dakhalnama" (auction certificate) of old plot No.82/2.    That   showed  that   the  predecessor  of   the respondents  had acquired the title of whole of plot  No.301 (new).   Deputy Director of Consolidation rejected the claim of  the  appellants  that after the auction of the  plot  in favour  of  Ram  Khelawan,  no steps were  taken  to  obtain possession  of  the same.  There was a suit in which  decree was  based  in favour of Ram Khelawan.  Auction of the  plot was  held  for  recovery  of the decretal  amount.   It  was purchased  by Ram Khelawan and sales certificate granted  in his  favour.   Deputy  Director   of  Consolidation  further observed  that it was not possible to accept the  contention of  the  appellants  that  having   gone  through  all   the processes,  Ram  Khelawan  would not get possession  of  the plot.   He,  therefore,  returned the finding  that  as  per record  plot No.301 (new) comprised of plot No.88/1 and 88/2 (old)  and  that  the   "Dakhalnama"  showed  Ram  Khelawan, predecessor  of  the respondents was in possession.   Deputy Director of Colsolidation, therefore, set aside the order of the  Consolidation Officer as well as that of the  Assistant Settlement  Consolidation Officer.  Aggrieved the appellants filed  writ  petition in the High Court which was  dismissed and  the review also met the same fate.  It was submitted by the  appellant  that  under Section 48 of  the  Act,  Deputy Director  in  exercise of his powers of revision  could  not upset  concurrent  findings  of fact  by  the  Consolidation Officer and on appeal by the Settlement Officer.  Section 48 of  the  Act  was amended by the Amendment Act  8  of  1963. Before  its  amendment  Section 48 read as under:   --  "The Director  of  Consolidation may call for the record  of  any case  if the Officer (other than the Arbitrator) by whom the case  was  decided appears to have exercised a  jurisdiction not  vested  in  him by law or to have  failed  to  exercise jurisdiction  so vested, or to have acted in the exercise of his  jurisdiction illegally or with substantial irregularity and may pass such orders in the case as it thinks fit."

     This  Court  in  Sher  Singh vs.   Joint  Director  of Consolidation  and others (1978 (3) SCC 172) with  reference to  Section 48 prior to its amendment said that the  Section was  in  pari materia with Section 115 of the Code of  Civil Procedure  (’Code’  for  short).    This  Court   thereafter referred  to  various judgments of the Privy Council and  of this  Court  regarding  the powers of the High  Court  under Section 115 of the Code and held:  --

     "The  position  that emerges from these  decisions  is that Section 115 of the Code of Civil Procedure empowers the High Court to satisfy itself on three matters:  (a) that the order  of the subordinate court is within its  jurisdiction; (b)  that  the case is one in which the court ought to  have exercised  its jurisdiction and failed to do so and (c) that in   exercising  jurisdiction  the   Court  has  not   acted illegally,  that is, in breach of some provisions of law, or with  material  irregularity  by committing  some  error  of procedure  in  the course of the trial which is material  in that it may have affected the ultimate decision.  And if the High  Court is satisfied that there is no error in regard to any  of  these three matters, it has no power  to  interfere merely  because  it  differs  from the  conclusions  of  the subordinate   court  on  questions  of   fact  or  law.    A distinction  must  be drawn between the errors committed  by

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subordinate  courts in deciding questions of law which  have relation   to,   or  are   concerned  with,   questions   of jurisdiction  of  the said courts, and errors of  law  which have  no such relation or connection.  An erroneous decision on  a question of fact or of law reached by the  subordinate court  which has no relation to question of jurisdiction  of that  court,  cannot  be corrected by the High  Court  under Section 115."

     Scope  of Section 48 after its amendment in 1968 again came  up  for consideration by this Court in Ram  Dular  vs. Dy.   Director  of Consolidation, Jaunpur and  others  (1994 Supp.  (2) SCC 198).  Now this Section reads as under:-

     "48.   Revision  and  Reference.(1) The  Director  of Consolidation  may  call for and examine the record  of  any case  decided  or  proceedings   taken  by  any  subordinate authority  for  the purpose of satisfying himself as to  the regularity  of  the proceedings;  or as to the  correctness, legality   or  propriety  of  any   order  other   than   an interlocutory  order passed by such authority in the case or proceedings,  may,  after allowing the parties concerned  an opportunity  of being, heard, make such order in the case or proceedings as he things fit."

     Again question arose as to whether the Deputy Director of  Consolidation  was  legally justified in  upsetting  the findings  recorded  by  the Consolidation  Officer  and  the Settlement  Officer.   The Court said that while  exercising the  revisional powers under Section 48 what was required to be  seen was whether the Deputy Director had considered  the questions  in  its  proper perspective or  had  ignored  any material  findings  on  record  in coming  to  a  particular finding.  The Court said:  --

     "It  is  clear that the Director had power to  satisfy himself  as to the legality of the proceedings or as to  the correctness  of the proceedings or correctness, legality  or propriety of any order other than interlocutory order passed by  the  authorities under the Act.  But in considering  the correctness,   legality  or  propriety  of  the   order   or correctness  of  the  proceedings or regularity  thereof  it cannot  assume  to itself the jurisdiction of  the  original authority  as a fact- finding authority by appreciating  for itself  of those facts de novo.  It has to consider  whether the  legally admissible evidence had not been considered  by the authorities in recording a finding of fact or law or the conclusion reached by it is based on no evidence, any patent illegality  or  impropriety had been committed or there  was any  procedural irregularity, which goes to the root of  the matter,  had  been  committed  in  recording  the  order  or finding."

     It  is  difficult  to  accept the  contention  of  the appellants.   Consolidation Officer as well as the Assistant Settlement  Consolidation  Officer  had  ignored  the  sales certificate  in  favour of Ram Khelawan, predecessor of  the respondents.   To base a claim on adverse possession, it  is not  enough to allege that one is in possession of the land. Ingredients  of the adverse possession were missing as these were   not   alleged    nor    taken   into   consideration. Consolidation  Officer  as well as the Assistant  Settlement Consolidation Officer proceeded on wrong premise and against the   settled   principles   of    law.    Deputy   Director Consolidation,  therefore, was well justified in  exercising

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its  power of revision and coming to a different conclusion. Writ petition was rightly dismissed by the High Court and so also  the review petition of the appellants.  The appeal is, therefore,  dismissed.  There shall, however, be no order as to costs.