Shambhu Chauhan vs Ram Kirpal Alias Chirkut .

Court: Supreme Court
Case type: Civil Appeal
Decided on: 21-11-2024

<pre> NON-REPORTABLE 

 
IN THE SUPREME COURT OF INDIA 
2024 INSC 882
 
CIVIL APPELLATE JURISDICTION 
 
 
CIVIL APPEAL NO.3311 of 2017 
 
 
SHAMBHU CHAUHAN … APPELLANT(S) 
 
Versus 
 
RAM KIRPAL ALIAS CHIRKUT & ORS. … RESPONDENT(S) 

 
J U D G M E N T 
 
 
SANJAY KAROL, J. 
 
1. The present appeal has been preferred against the judgment and order
th
dated 25 November, 2011 passed by the High Court of Judicature at
Allahabad in Civil Misc. W.P. No. 13286 of 1981, whereby the judgment
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and order dated 28 August, 1976 passed by the Settlement Officer,
st
Consolidation at Deoria, and order dated 01 October, 1981 passed by the
Deputy Director of Consolidation at Deoria were set aside. The Settlement
Signature Not Verified
Digitally signed by Dr.
Naveen Rawal
Date: 2024.11.21
12:46:13 IST
Reason:
Officer, Deoria Sadar, in turn, had set aside the findings returned by the
1 | Civil Appeal No. 3311 of 2017

Consolidation Officer against the Appellant at Deoria in Suit Nos.6273 and
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6264 by order dated 18 October 1975.

2. The facts giving rise to the present appeal are that Khata Nos.38 and 193
(referred to as “disputed land”) are situated in village Muda Dih, Tappa
Deoria, Pargana Salempur Majhauli, district Deoria. Sehati and Bandhoo
sons of Neoor were brothers. Bandhoo had one son namely Agloo, who
was married to Aftee. Aftee died in the year 1959. After the death of Aftee,
the disputed land came to be recorded in the name of Sehati in pursuance
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of a mutation order dated 15 December, 1959. The disputed land
continued to be recorded in the names of Jhagru and Bhusal sons of Sehati
and Ram Kirpal alias Chirkut (Respondent Herein) as Bhumidhar and
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Sirdar. In the year 1973, vide notification dated 12 July, 1973, the disputed
land was notified for consolidation operations. Smt. Gulabi filed
1
objections under section 9 of the U.P. Consolidation of Holding Act, 1953
before the Consolidation Officer, claiming herself to be the daughter of
Aftee and co-tenancy over the disputed land.

3. The sole issue that arises for consideration is, as to whether the High Court,
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in terms of the impugned judgment, rightly upheld the order dated 18
October, 1975 passed by the Consolidation Officer under the provisions of
the Consolidation of Holdings Act, 1953, which initially stood quashed by

1
Hereinafter referred as the “Act”
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the Assistant Settlement Officer, Consolidation vide order dated 28
August, 1976, as affirmed by the Deputy Director of Consolidation vide
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order dated 01 October, 1981.

4. The Consolidation Officer framed the following issues:
1. Whether the plaintiff Gulabi is the daughter of Algu and successor
or Aafti?
2. Whether Gulabi plaintiff on khata no.38 is in possession as
bhumidar?
3. Whether Gulabi, the plaintiff is the lone sirdar recoded on gata
no.422, 451, 687, 717, 1080 of khata No.193?
4. Whether Gulabi the plaintiff is sirdar on gata no.394, 420, 453, 494,
518, 524, 707 and 1085 of khata no.193?
5. What are the shares of the parties?
6. Whether Jhagru and others defendants are the lone bhumidar and
sirdars of khata no.38 and 193?
7. Whether ownership of the plaintiff has ceased to exist and defendant
has become Sirdar under section 210?

5. After affording adequate opportunity to the parties to establish their claim
and discharge the burden of proving the issues, the Consolidation officer
dismissed the objections filed by Smt. Gulabi and held that the disputed
land for the last 16 years was in the possession of the respondents. Also,
3 | Civil Appeal No. 3311 of 2017

she was unable to prove herself to be the daughter of Algoo and,
consequently, the successor of Aftee.

6. The findings of fact concerning the relationship of paternity stood reversed
both by the Appellate and Revisional Authorities. However, perusal of the
th st
said orders dated 28 August, 1976 and 01 October, 1981 only reveal the
authorities not to have appreciated the material in its entirety, resulting in
conclusions of fact crossing the threshold of perversity. A connected
question then would be - whether the Revisional Authority can enter into
the finding of facts, in other words, could the Revisional Authority have
come to the conclusion of no interference being required in the finding of
the Appellate Authority, after having examined in detail independently the
evidence in record?

7. Section 48 of the Act deals with the revisional power of the Director of
Consolidation Officer. The provision reads as follows:

“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 thinks
fit”

4 | Civil Appeal No. 3311 of 2017

8. While considering Section 48 of the Act, this Court in Ram Dular v. Dy. 
.2
Director of Consolidation, Jaunpur and Ors , observed that :

“3. … 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 rest ( si c root) of the matter, had been
committed in recording the order or finding. …”
(Emphasis Supplied)
9. This Court relied on the above-said observation while considering the
scope of the powers of the Deputy Director under section 48 of the Act, in 
Seshmani & Anr. v. Deputy Director of Consolidation ; District Basti, U.P. 
3 4
& Ors. ; Gaya Din & Others v. Hanuman Prasad & Ors. ; and Ram 
5
Avadh & Ors. v. Ram Das & Ors. .

10. Following the findings in Ram Dular (supra), in our considered view, the
Deputy Director of Consolidation, being a Revisional Authority, had
jurisdiction to interfere with the finding on facts of the subordinate authority
only when the said findings are perverse or not supported by any evidence
on record or contrary to law.

2
1994 Supp (2) SCC 198
3
(2000) 2 SCC 523
4
(2001) 1 SCC 501
5
(2008) 8 SCC 58
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th
11. In the present case, the Consolidation Officer passed an order dated 18
October, 1975, after considering the evidence on record. The perusal of the
same enumerated that the findings of the Consolidation Officer are not
perverse and are very well supported by the evidence. As such, interference
therewith by the Revisional Authority was an error in law, which error stood
corrected by the High Court in terms of the impugned judgment. We may
note that the burden to discharge the onus of paternity would lie upon Smt.
Gulabi in terms of Section 101 of the Indian Evidence Act, 1872.

12. During the course of submission to justify interference with the findings of
fact returned by the Appellate and the Revisional Authority, we are taken
through the evidence of Smt. Gulabi. We notice the same to be in two forms,
i.e., (i) ocular; and (ii) documentary. The ocular version, in our considered
view, correctly stands rejected by the Consolidation Officer as also the High
Court, for the witnesses, namely, Jhagru and Pujan, are found not to be
inspiring confidence and their testimonies unbelievable.

13. P.W. – 2, Jhagru, categorically stated in his deposition, "I do not know the
name of Smt. Gulabi’s mother. Algoo is not the name of Smt. Gulabi’s
father." A perusal of his testimony indicates that the witness had no
knowledge whatsoever about the parentage of Gulabi. However, in the same
breath, he testifies that Gulabi is the daughter of Sita. Further contradicting
himself, he denies knowing Gulabi or whether Sita has a daughter.
6 | Civil Appeal No. 3311 of 2017

14. Coming to the documentary evidence, the High Court observed that,

“Only documentary evidence which has been relied upon by the two
courts below is a copy of birth register. A bare perusal of the said
document would show that on the face of it, this document does not
inspire any confidence. Against the entry daughter figure -1 is
mentioned and against the entry son figure-1 is mentioned and total has
also been mentioned as figure one. It is interesting to note the remark
of the officer who issued the said certified copy. It is dated 17th January,
1978. He has noticed the discrepancy and remarked that in the original
register, against the name of Algeo, one daughter has been shown.
 
Note: Uprokt asal register mein alag Nonia ke samne 
lssai Hindustani mein ladki aur mejean kool khane 
mein ladke ka hai. 
 
This document is the sheet anchor of Smt. Gulabi's case and in the
absence of any corroborative evidence, such as evidence of relatives of
the family or of close friends, is not sufficient to hold that she is
daughter of Aftee. The attending facts and circumstances of the case
also do not support the case of Smt. Gulabi. On the own showing of
Smt. Gulabi, she is residing in the adjoining house as per voter list but
she never claimed cotenancy at any point of time, after death of Smt.
Aftee. The courts below have proceeded on wrong footing that the
burden was upon the petitioners to prove that Smt. Gulabi is daughter
of Sita which they failed to prove and therefore, it was held by them
that Smt. Gulabi is daughter of Aftee. Taking the evidence of Smt.
Gulabi on its face value as correct, it is not sufficient to establish her
relationship as daughter of Smt. Aftee. The evidence being insignificant
would not shift the burden on shoulders of the petitioners. There appears
to be no reason as to why Smt. Gulabi did not examine any of her
relatives in support of her case. The evidentiary value of voter-list of
the year 1966 and 1973 is also of inconsequential nature. The voter-list
is prepared on the statement and particulars furnished by such person.
It is in the nature of self serving evidence. It is not safe to place much
reliance upon it, in such matters. However, our legal system has always
emphasis on value, weight and quality rather than quantity, multiplicity
or plurality of witness. Nothing has come on record to connect Smt.
Gulabi with the said birth entry.”

15. On close examination, we find no error in the conclusion arrived at.
However, on independent analysis, we find that Smt. Gulabi rests her claim
only on the birth register, which itself has not been proven in accordance
with law, for none who had either maintained the record or made entries
7 | Civil Appeal No. 3311 of 2017

therein stands examined. That apart, the document itself does not inspire
confidence for, as has been observed by the High Court, entries made therein

are factually incorrect.

16. The High Court, by its judgment, impugned herein, while allowing the writ
petition rightly and exercising the jurisdiction under Article 226 of the
Constitution, observed that the Courts below committed an error of law in
accepting the inadmissible evidence produced by petitioner therein.

17. It is the well-settled position of law by this Court that while exercising the
jurisdiction under Article 226 of the Constitution of India, the High Court
cannot exercise such jurisdiction to reappreciate the entire evidence or finding
of fact unless the concerned authority below acted beyond its jurisdiction or
such findings suffer from error apparent on the face of the record or such
finding beset with surmises or conjectures.

18. This Court made the said observation in the various decisions such as
6
Mikunda Bore v. Bangshidhar Buragohain & Ors. ; State of West Bengal 
7 8
v. Atul Krishna Shaw & Anr. ; Dharamraj and Ors v. Chhitan & Ors. ; and 
9
Krishnanand and Ors. v. Deputy Director of Consolidation & Ors. 
 

6
(1980) 4 SCC 336
7
1991 Supp (1) SCC 414
8
(2006) 12 SCC 349
9
(2015) 1 SCC 553
8 | Civil Appeal No. 3311 of 2017

19. It is undisputed that from 1959 to 1973, no effort was made to challenge
the mutation order. While no limitation to challenge the same stands
prescribed. The 14-year time gap is entirely unexplained. In other words, it
may be said that the belated challenge is afflicted by delay and laches. To
appreciate its effect, we may take note of a few pronouncements in this regard.
In Tukaram Kana Joshi & Ors. v. Maharashtra Industrial Development 
10
Corporation & Ors . , this Court observed that :-

“12. … Delay and laches is adopted as a mode of discretion to decline
exercise of jurisdiction to grant relief. There is another facet. The Court
is required to exercise judicial discretion. The said discretion is
dependent on facts and circumstances of the cases. Delay and laches is
one of the facets to deny exercise of discretion. It is not an absolute
impediment. There can be mitigating factors, continuity of cause action,
etc. That apart, if the whole thing shocks the judicial conscience, then
the Court should exercise the discretion more so, when no third-party
interest is involved. …

13. The question of condonation of delay is one of discretion and has to
be decided on the basis of the facts of the case at hand, as the same vary
from case to case. It will depend upon what the breach of fundamental
right and the remedy claimed are and when and how the delay arose. It
is not that there is any period of limitation for the courts to exercise their
powers under Article 226, nor is it that there can never be a case where
the courts cannot interfere in a matter, after the passage of a certain
length of time. There may be a case where the demand for justice is so
compelling, that the High Court would be inclined to interfere in spite
of delay. Ultimately, it would be a matter within the discretion of the
Court and such discretion, must be exercised fairly and justly so as to
promote justice and not to defeat it. ”

(Emphasis supplied)

20. In regard to the exercise of suo motu power, this Court in State of H.P. & 
11
Ors. v. Rajkumar Brijender Singh and Ors . , held that -

10
(2013) 1 SCC 353
11
(2004) 10 SCC 585
9 | Civil Appeal No. 3311 of 2017

“6. … No fixed period of limitation may be laid but unreasonable delay
in exercise of the power would tend to undo the things which have
attained finality. It depends on the facts and circumstances of each case
as to what is the reasonable time within which the power of suo motu
action could be exercised. …”

21. The Appellate and Revision Authority, in our considered view, returned the
findings of fact which were perverse, based on an incomplete and erroneous
appreciation of evidence, which rightly stands corrected by the High Court.
We find no reason to interfere with the impugned judgment. The appeal is
dismissed in the aforesaid terms.
Pending Application(s) if any, shall stand disposed of.

………………………………..J. 
(C.T. RAVIKUMAR) 
 
 
 
 
………………………………J. 
(SANJAY KAROL) 
 
New Delhi; 
November 21, 2024.
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