R.B. Misra, J.
1. This is a petition under Article 226 of the Constitution arising out of a consolidation matter.
2. The dispute between the parties relates to a large number of Khatas spread over in a number of villages, namely, Khata No. 10 of village Maharaura. Khatas Nos. 7 and 8 of village Deori. Khata No. 42 of village Nibi Gaharwar, Khata No. 6 of village Rampatti Kalan, Khata No. 7 of village Rampatti Khurd. Khata No. 3l of village Rani Chak. Khatas Nos. 5 and 18 of village Chhilpi and Khata No. 11 of village Ramchak. The plots in dispute are either the Sir, the Khudkasht or the fixed-rate tenancy plots, comprising a very substantial area in hundreds of acres.
3. The property in dispute at one time belonged to Ram Padarath and 'his brother Dhadh. Ram Padarath died leaving behind Smt. Batasi Kunwar as his widow and Smt. Patirai Kunwar as his daughter; while Dhadh died leaving behind his widow Smt. Parmeshwara. Padarath's daughter Smt. Patirai Kunwar was married to Sankatha Singh. As the property in dispute is a substantial one, there seems to have been a scramble for the same among the various competitive claimants, and a number of litigations having great bearing on the present case were fought out between the parties at various stages.
4. To start with, there was a mutation proceeding in the year 1929 on the death of Smt. Parmeshwara, widow of Dhadh. Smt. Patirai Kunwar wanted her name to be mutated, while Ghandrika Singh and others (respondents Nos. 4 to 34) wanted their own names to be mutated as distant collaterals of Ram Padarath, the father of Smt. Patirai Kunwar. That proceeding culminated into a compromise between Smt. Patirai Kuriwar and respondents Nos. 4 to 34. Then there was a civil suit (No. 3 of 1940) between Smt. Patirai Kunwar and respondents Nos. 4 to 34. In that suit certain arbitrators were appointed by the parties who gave their award. On the basis of the award given by the Arbitrators a compromise application was filed by the parties, and the suit was decided by the Munsif in terms of that compromise. Under the compromise Smt. Patirai Kunwar was given half share in the property with a life interest. The third litigation was a redemption suit (No. 21 of 1949) under Section 12 of the Agriculturists Relief Act filed by respondents Nos. 4 to 34 or their predecessors against respondents Nos. 35 to 54, impleading Smt. Patiraj Kunwar also as a defendant. Respondents Nos. 4 to 34 had in that suit claimed to be the heirs and legal representatives of the original mortgagor along with Smt. Patiraj Kunwar, and on that basis they had sought the redemption of the mortgage. That suit was dismissed by the Additional Civil Judge on 28th December. 1951 on the finding that the plaintiffs (respondents Nos. 4 to 34) had failed to prove that they were the heirs of the original mortgagor or that they were entitled to sue for redemption. Respondents Nos. 4 to 34 preferred an appeal against the judgment and decree of the Additional Civil Judge, but during the pendency of the appeal before the Additional District Judge they filed an application for permission to withdraw from the suit with liberty to file a fresh suit. The Additional District Judge allowed that application with the following order on 17-8-1962:--
'I allow the appeal to be withdrawn with permission to file another suit subject to the appellant paying half the costs of the appeal within 3 months. The counsel for the respondent is agreeable to this order'.
The next litigation between the parties was Suit No. 440 of 1950 filed by Smt. Patiraj Kunwar against respondents Nos. 4 to 34 for recovery of profits to the extent of her half share on the allegation that respondents Nos. 4 to 34 had been in possession of her share. The last litigation in the series was again a mutation case started in the year 1966 on the death of Smt. Patirai Kunwar. In that proceeding Raibali Singh, the petitioner sought mutation in place of Smt. Patirai Kunwar as her son, while respondents Nos. 4 to 34 claimed mutation as the reversioners of Smt. Patirai Kunwar's father. The Tahsildar, however, refused to mutate the name of the petitioner on the ground that he was not the son of Patirai Kunwar.
5. When the village in question were brought under consolidation operations. Smt. Patirai Kunwar and respondents Nos. 4 to 34 were recorded as Bhumidhars over all the Khatas except Khata No. 11 of village Ram Chak, which was recorded in the names of respondents Nos. 35 to 54 in class 7 of Part II of the Khatauni as Asamis. Four sets of objections were filed under Section 9 of the U. P. Consolidation of Holdings Act: (I) Raibali Singh petitioner through his asent. Vishwanath Singh filed an objection claiming to be the sole tenure-holder of the disputed property as son of Smt. Patirai Kunwar and prayed for the expunction of the names of (i) respondents Nos. 35 to 54 from Khata No. 11 of village Ram Chak on the ground that the mortgage in their favour had come to an end, and (ii) of respondents Nos. 4 to 34 from the rest of the Khatas in dispute. (II) Chandrika Singh and others, respondents Nob. 4 to 34 in their objection claimed to be the sole tenure-holders of the disputed Khatas on the allegation that the petitioner was not the son of Smt. Patirai Kunwar (i. e. wife of Sankatha Singh), but was the son of Vishwanath Singh, the brother of Sankatha Singh. They also denied the right and title of respondents Nos. 35 to 54 over Khata No. 11 on the ground that they had lost their right as mortgagees after the date of vesting. They accordingly prayed for the expunction of the names of Smt. Patirai Kunwar and of respondents Nos. 35 to 54. (III) Balkrishna and others (respondents Nos. 35 to 54) in their objection claimed to be the Sirdars of the plots pertaining to Khata No. 11 of village Ram Chak, and alleged that even after the date of vesting they continued in possession and thus acquired the rights of a Sirdar under Sec. 210, U. P. Zamindari Abolition and Land Reforms Act (IV) Sankatha Singh respondent No. 55 filed his objection much beyond the prescribed period. He claimed as the legal heir of his deceased wife Smt. Patirai Kunwar in case the petitioner was not held to be the heir of Smt. Patiraj Kunwar.
6. All the objections were disposed of by the Consolidation Officer on 20th May, 1967 by a common judgment, and arrived at the following findings:--
(i) That Raj Bali Singh, the petitioner, was not the son of Smt. Patiraj Kunwar;
(ii) That Chandrika Singh and others (respondents Nos. 4 to 34) were the sole tenure-holders of the land in dispute;
(iii) That Smt. Patirai Kunwar was not the absolute Bhumidhar of the plots in dispute;
(iv) That Balkrishna and others (respondents Nos. 35 to 54) were only Asamis and not Sirdars; and
(v) That Sankatha Singh (respondent No. 55) could not inherit the property as heir of Smt. Patiraj Kunwar because she had only a life interest in the property. On these findings the Consolidation Officer dismissed the objections of (i) the petitioner, (ii) respondents Nos. 35 to 54, and (iii) respondent No. 55, but allowed that of respondents Nos. 4 to 34, holding them to be the sole tenure-holders and ordering their names to be retained.
7. Against the order of the Consolidation Officer a number oi appeals were preferred by the petitioner, by respondents Nos. 35 to 54 and also by respondent No. 55. The appeals filed by respondents Nos. 35 to 54 were dismissed by the Settlement Officer (Consolidation) on the ground that their status was only that of Asami and not of Sirdar. He also dismissed the appeals of respondent No. 55, but allowed those of the petitioner holding him to be the son of Smt. Patiraj Kunwar. He accordingly directed the ex-junction of the names of the recorded tenure-holders and ordered the name of the petitioner to be entered in place of the deceased Smt. Patiraj Kunwar.
8. Against the order of the Settlement Officer (Consolidation), dated 8th January. 1968, a number of revisions were filed by respondents Nos. 4 to 34, as also by respondents Nos. 35 to 54- But Sankatha Singh submitted to the order and did not file any revision. The Deputy Director of Consolidation in his turn dismissed the revisions filed by respondents Nos. 35 to 54, and allowed the revisions of respondents Nos. 4 to 34 by his order dated 25th January, 1969. He held that the petitioner was not the son of Smt, Patiraj Kunwar; that Smt. Patirai Kunwar had only a life interest in the property in dispute by virtue of the compromise entered into between her and respondents Nos. 4 to 34 in the mutation proceeding of 1929 and in Suit No. 3 of 1940; and that Chandrika Singh and others (respondents Nos. 4 to 34) were the revisioners of the father of Smt. Patirai Kunwar. He further found that Smt. Patirai Kunwar was not the Bhumidhar after the date of vesting, and according to the personal law, which would be applicable in the case, in respect of the Sir Khudkasht and the fixed rate tenancy plots Smt. Patirai Kunwar was not the heir of her father Ram Padarathi and that her name was recorded as a cotenure holder by virtue of the compromise decree between the parties, therefore, she did not become a Bhumidhar after the date of vesting and no question of her succession arose after her death. The Deputy Director further found that Smt. Patirai Kunwar, in any case, lost her right as a co-Bhumidhar as she was ousted by respondents Nos. 4 to 34 as far back as in 1950.
9. Raibali Singh petitioner now challenges the order of the Deputy Director of Consolidation by the present writ petition.
10. Sri Shanti Bhushan, appearing for the petitioner, advanced lengthy arguments to prove that the Deputy Director of Consolidation was biased against the petitioner. He sought to demonstrate it by a reference to the order-sheet dated 25th January, 1969 recorded by the Deputy Director in revision. The revisions were heard, on 24th January 1969 and 25th January, 1969, was fixed by the Deputy Director for delivery of judgment. According to the petitioner, the judgment was, however, not delivered on 25th January although the order sheet dated 25th January, 1969 reads:--
'For reasons given separately in the typed judgment, all the revision applications filed by Chandrika Singh are allowed and the revision applications filed by Balkrishna and others are dismissed, and order passed by the S. O. C. is set aside and the order passed by the C. O. is upheld'.
11. In paragraph 10 of the petition a serious allegation has been made against the Deputy Director. It is averred that the petitioner learnt on 25th January. 1969 that the original judgment written out had been destroyed and a new-judgment was being prepared and he accordingly forthwith requested his counsel to make an application for inspection of the record, which was done. In paragraph 11 it has been averred that on inspection by the counsel it was revealed that the judgment was not traceable in the file, and an endorsement to that effect was made on the inspection application. Great hue and cry was made on behalf of the petitioner, and a telegram was sent to the Consolidation Commissioner regarding the state of affairs, and on 27th January, 1969 another inspection of the record was made but the judgment was not found in the record even on that date. A complaint was made about the matter to the Additional District Magistrate-cum-District Deputy Director of Consolidation, and at long last when the petitioner again applied for a copy of the judgment on 1st February, 1969, the certified copy was delivered to the petitioner's counsel on 14th February, 1969.
12. On the basis of these allegations it is contended by Sri Shanti Bhushan that it was rather impossible for the judgment to have been dictated, transcribed and also delivered in one day on 25th January, when the arguments concluded in the case at 7 p.m. on 24th January.
13. The Deputy Director of Consolidation has filed a detailed counter-affidavit showing how the judgment was delivered on 25th. He has averred in his counter-affidavit that the Commissioner of Consolidation. U. P. assigns duties to the various Deputy Directors of Consolidation. As arrears had accumulated in the district of Mirzapur, the Commissioner of Consolidation directed him to dispose of the pending revisions at Mirzapur, According to the tour programme fixed by the Commissioner of Consolidation, the last working day of his stay at Mirzapur was 25th January, 1969. On 26th January he was required to be present at the Headquarters at Lucknow to participate in the Republic Day celebrations and thereafter he was required to visit Gonda to dispose of the pending revisions there. The hearing of the revisions concluded at about 7 p. m, on 24th January. 1969. As he had only one day at his disposal, he fixed 25th January. 1969 for delivery of judgment in the revisions. In paragraph 12 of his counter-affidavit he had averred that on 25th January. 1969 he read out the operative portion of the judgment and also noted down the gist thereof in his own hand on the order-sheet. That order-sheet, according to his recollection, was also signed by the counsel for both the parties. The Deputy Director has categorically denied the allegations made against him in the petition and has also explained why the judgment was not found on the record. In paragraph 15 he has said that the judgment as typed by the stenographer contained several typographical and other mistakes, and the judgment being a lengthy one could not be corrected and re-typed during the course of the day. Therefore, after reading out the operative portion of the judgment and recording a note regarding the order on the order-sheet in his own handwriting, he took the judgment which was thereafter sent by him, through a special messenger to Mirzapur and was received by the clerk of the Court at Mirzapur on 29th January, 1960, according to the averments made in paragraph 16 of his counter-affidavit.
14. Sri Shanti Bhushan urged that the explanation given by the Deputy Director at the face of it appears to be incorrect inasmuch as too many typographical mistakes do not appear in the corrected judgment. I have looked into the judgment and I find that there were some typographical mistakes in the judgment. It required revision and correction. In view of the special circumstances narrated by the Deputy Director and in view of the short time at his disposal there was no option for him but to take the judgment with him for revision and rectification of the typographical mistakes. The petitioner's argument about bias cannot, therefore, be accepted,
15. The next point urged by Sri Shanti Bhushan is that the finding recorded by the Additional Civil Judge in the redemption suit (No. 21 of 1949) was binding on respondents Nos. 4 to 34, and it would operate as res judicata in the case. In this view of the matter according to him, it was not open to the Deputy Director to have recorded a finding contrary to the one recorded by the Additional Civil Judge in Suit No. 21 of 1949.
16. It may be recalled that Suit No. 21 of 1949 was a suit for redemption filed under Section 12 of the U. P. Agriculturists Relief Act by respondents Nos. 4 to 34 against respondents Nos. 35 to 54 impleading Smt. Patiraj Kunwar also as a defendant, and the Additional Civil Judge had dismissed that suit on the ground that respondents Nos. 4 to 34 i.e. the plaintiffs of that suit) had failed to prove that they were the heirs of the original mortgagor and as such they were not entitled to redeem the property. Thereupon respondents Nos. 4 to 34 gone in appeal, and while the appeal was pending before the Additional District Judge they moved an application for permission to withdraw from the suit with liberty to file a fresh suit. The application was allowed by the Additional District Judge on 17th August. 1962, and his order has already been quoted in the earlier part of the judgment while enumerating the previous litigations between, the parties. Much stress was laid by the counsel for the parties on the construction of the order of the Additional District Judge dated 17th August. 1962. While the petitioner's counsel urged that the Additional District Judge allowed merely the withdrawal of the appeal and not of the suit, Sri V. P. Misra, appearing for the respondents, contended that the word 'appeal in the order of the Additional District Judge was mistake for the word 'suit', and what the Additional District Judge permitted was the withdrawal of the suit itself and not only appeal.
17. The order of the Additional District Judge is not elegant. But it is not for this Court or for the consolidation authorities to sit in judgment over that order. The order has to be construed as it is and not as it ought to be. It is to be seen whether a plausible meaning can be given to the order. It has to be read as a whole. It would be noticed that the first part of the order refers to the withdrawal of the 'appeal', yet the latter part gives permission to file a fresh suit. If the Additional District Judge had intended only to permit the withdrawal of the appeal leaving the judgment and decree of the trial Court intact, there could have been no sense in his granting permission for the filing of a fresh suit. The order, therefore, taken as a whole must mean that the permission granted by the Additional District Judge was for the withdrawal of the suit itself with liberty to file a fresh suit, There may arise a question as to why he used the word appeal instead of suit In the earlier part of his order. But we have to remember that the suit had already culminated into a decree, and the judgment and the decree were challenged in appeal before the Additional District Judge. In all probability, therefore, the suit, in the opinion of the Additional District Judge, was pending before him only in the form of appeal and for that reason he used the word appeal instead of the word suit in his order granting the application. This view finds corroboration also from the fact that the appellants in that case had prayed not for withdrawing themselves from the 'appeal' but from the 'suit', and the Court would be deemed to have passed the order as prayed. Furthermore, if the order of the Additional District Judge is capable of two interpretations equally plausible, and the Deputy Director of Consolidation chose to accept one, it cannot be said that there is a manifest error in his order on that account. In this view of the matter the rigour of the finding given in Suit No. 21 of 1949 is wiped off because respondents Nos. 4 to 34 had been granted permission to file a fresh suit. The Deputy Director of Consolidation was quite justified in coming to his own independent conclusion on the question whether respondents Nos. 4 to 34 were or were not the heirs of the original mortgagor. I find no force in this contention of the petitioner as well.
18. The next point of importance for consideration in this case is about the status of Smt. Patiraj Kunwar after the date of vesting. It was argued for the petitioner that in spite of the compromise entered into between Smt. Patiraj Kunwar on the one hand and respondents Nos. 4 to 34 on the other in the earlier mutation proceeding of 1929 and in Suit No. 3 of 1940 conferring on her only half share in the property with a life interest, Smt. Patiraj Kunwar became the Bhumidhar of the plots in dispute after the advent of the U. P. Zamindari Abolition and Land Reforms Act as naw rights had been created by the statute in favour of tenure-holders.
19. This argument was advanced before the Deputy Director as well but it was repelled on the ground that, according to the personal law applicable to her, she could not inherit the Sir and fixed-rate tenancy plots prior to the date of vesting, and her name was recorded as a co-tenant merely by virtue of the compromise entered into between her and respondents Nos. 4 to 34 giving her only a life interest. She could not, therefore, become a Bhumidhar after the date of vesting and, consequently there was no question of the petitioner inheriting the property even as Smt, Patiraj Kunwar's son.
20. While advancing the same argument before this Court, Sri Shanti Bhushan relied upon the case of Munna Singh v. Dy. Director of Consolidation, 1969 AH WR (HC) 668. In that case, while construing Sections 171 and 172 (i) and (ii) of the U. P. Zamindari Abolition and Land Reforms Act, a Division Bench of this Court held thus:--
'The relevant date for determining the capacity of the Bhumidhar as a life-estate-holder or as an absolute holder is not the date of the death of the Bhumidhar. The relevant date is the date immediately preceding the date of vesting. This appears from a plain reading of the section. On the date of the death of a Bhumidhar. which was bound to be 1-7-1952 or some date thereafter, the personal law would not be applicable to any holding and no question can arise of determining whether, on such date, under the personal law, the Bhumidhar was entitled to a life estate or to an absolute estate. For determined whether sub-clause (i) or sub-Clause (ii) applies, it has to be determined whether the Bhumidhar held the holding, on the date immediately preceding the date of vesting, as a life estate or as an absolute estate.
When the widow held a life estate in the Sir and Khudkasht plot before the date of vesting, it is Sub-clause (i) which is applicable and not Sub-clause (ii)'. It is evident from the above case that the status of a tenure-holder would have to be determined after the date of vesting on the basis of his or her status on the date immediately preceding the date of vesting. Under the compromise in the earlier suit referred to above Smt. Patiraj Kunwar was given a life estate in respect of half share in the disputed property and on that account she became a co-sharer or a co-tenant in the property. Therefore, to all intents and purposes she became a co-Sirholder in the Sir or Khudkasht plots and co-tenant in the fixed-rate tenancy plots. The question whether Smt. Patiraj Kunwar acquired that status by inheritance, or by a compromise or by a family settlement between the parties is not of much importance, and the fact remains that she acquired the status of a co-Sir holder in respect of Sir and Khudkasht land and of a co-tenant in respect of the fixed-rate tenancy land, and Section 18 of the U. P. Zamindari Abolition and Land Reforms Act conferred a fresh right of a Bhumidhar on such persons.
21. In Rajendra Prasad v. Joint Director of Consolidation, 1966 RD 92 (All), a Division Bench of this Court dealt with an exactly similar case. In that case, under an earlier compromise, the widow was debarred from transferring her rights in the land and the Division Bench took the view that after the abolition of the Zamindari all the rights of the intermediary together with all encumbrances vested in the State. Therefore, all the rights possessed by the widow and the members of her family vested in the State, and the State granted fresh rights to the widow. What is material is that it was a fresh right that the widow acquired after the abolition of Zamindari, and that those rights were not governed by the compromise. As a Bhumidhar she had the right to transfer the Bhumidhari rights to anyone under the U. P. Zamindari Abolition and Land Reforms Act. In the instant case, by the earlier compromise Smt. Patirai Kunwar was given only half share with limited right in the property, all the same she became a co-Bhumidhar after the date of vesting on 1st July. 1952 by virtue of a fresh settlement by the State under Section 18 of the Act. Once she became a Bhumidhar she was entitled to transfer the property as permitted by the U. P. Zamindari Abolition and Land Reforms Act, and after her death the devolution would take place in accordance with the provisions of Section 171 of the U. P. Zamindari Abolition and Land Reforms Act.
22. In this view of the matter if the petitioner Rajbali Singh is found to be the son of Smt. Patirai Kunwar he would certainly be entitled to inherit her interest, as under Section 171 (g) a daughter's son is an heir. The petitioner in that situation would be the only heir in preference to the contesting respondents Nos. 4 to 34.
23. The Deputy Director of Consolidation has committed a manifest error in holding that Smt. Patirai Kunwar did not become a Bhumidhar after the date of vesting because she was not entitled, under the personal law, to inherit the property from her father.
24. This leads me to the consideration of the central question involved In the case, whether the petitioner Rai Bali Singh is or is not the son of Smt, Patirai Kunwar. It is the common case of the parties that Smt. Patirai Kunwar was the legally wedded wife of Sankatha Singh respondent No. 55. The Settlement Officer (Consolidation) had found the petitioner to be the son of Smt. Patirai Kunwar, but the Deputy Director of Consolidation has reversed that finding. Essentially the finding recorded by the Deputy Director is a pure finding of fact and this Court, in the exercise of powers under Article 226 of the Constitution, is not normally entitled to interfere with such a finding of fact unless it is shown that the finding is either based on no evidence or inadmissible evidence or on misreading of evidence or in ignorance of material evidence. The petitioner has tried to show that the finding of fact recorded by the Deputy Director in this case can be interfered with.
25. The petitioner produced both oral and documentary evidence to prove that he was the son of Smt. Patirai Kunwar. The documentary evidence produced by the petitioner included: (i) the Kutumb Resister of village Sharwa wherein Sankatha Singh is entered as the Karta of the family and Raibali Singh, the petitioner, as his son; (ii) the birth register of village Sharwa containing an entry about the birth of a son to Sankatha in 1932; (iii) the School leaving Certificate showing Raibali Singh petitioner as the son of Sankatha Singh born on 25th January. 1933; and (iv) a copy of the Kutumb Register of the family of Vishwanath Singh, the younger brother of Sankatha Singh, wherein the name of Ralbali Singh petitioner is conspicuous by its absence.
26. It may be recalled that the case of the contesting respondents Nos. 4 to 34 was that Raibali Singh was not the son of Sankatha Singh but the son of Sankatha Singh's younger brother Vishwanath Singh. The absence of the petitioner's name in the Kutumb Register of the family of Vishwanath Singh indicating that he was not a member of the family of Vishwanath Singh is a material circumstance having a direct bearing on the question. The Deputy Director has discarded all this documentary evidence. He has discarded the birth register on the ground that mere production of the birth register showing the birth of a son to Sankatha Singh was not sufficient to conclusively prove that the entry was with regard to the birth of Raibali Singh, the petitioner. He discarded the School Leaving Certificate on the ground that it was not sufficient only to prove that a son was born to Sankatha Singh and that it was necessary to further prove that there was no Sankatha Singh in the village other than Sankatha Singh, the husband of Smt. Patiraj Kunwar. This finding of his was based only on the assumption that no evidence had been produced by the petitioner either to connect the petitioner with Sankatha Singh, the husband of Smt. Patirai Kunwar or to prove that there was no other Sankatha Singh in the village. As pointed out by the petitioner, this was a wrong assumption for the petitioner did produce Vishwanath Singh who deposed very clearly and unequivocally that besides Sankatha Singh, the husband of Smt. Patirai Kunwar there was no other Sankatha Singh in his village or in village Domanpur. The relevant portion of his deposition reads thus:--
'Hamare gaon men riankatha wald Mahipal ek hi admi hain. Mauza Domanpur men bhi Sankatha wald Mahipal nam ke ek hi admi hain, doosra admi nahi hai'.
Vishwanath Singh further deposed that Ralabali Singh, the petitioner, was the son of Sankatha Singh and not his brother's son as alleged by respondents Nos. 4 to 34. The Deputy Director has completely lost sight of the evidence of Vishwanath Singh. The position might have been different if the Deputy Director had considered the evidence of Vishwanath Singh and then discarded it, but he has recorded his finding on such a material question in utter oblivion of, the deposition of Vishwanath Singh, produced as a witness in the case. In the same way he has committed a grave error in discarding the School Leaving Certificate also, for the evidence of Vishwanath Singh which has been ignored by the Deputy Director connects the petitioner with Sankatha Singh, the husband of Smt. Patiraj Kunwar.
27. Again the Deputy Director has discarded the Kutumb Register of the family of Sankatha Singh on the ground that if Rajbali the petitioner, had been the son of Patiraj Kunwar, she could not have agreed to the mention in the arbitration award that he was the son of her Dewar Vishwanath Singh. That award was challenged on behalf of the petitioner by alleging that there was no such agreement entered into between Smt. Patiraj Kunwar and respondents Nos. 4 to 34. Be that as it may, it is not for this Court now to say whether a valid agreement was or was not entered upon between Smt. Patiraj Kunwar and respondents Nos. 4 to 34 for the appointment of Arbitrators, and I shall assume, for the purposes of, this case, that there was such an agreement. The fact, however, remains that there was absolutely no occasion for such a finding being recorded by the Arbitrators in that earlier suit of 1940 as there was absolutely no dispute in that case as to whether Raibali Singh was or was not the son of Smt Patiraj Kunwar.
28. It was also urged that the Deputy Director has erred in relying on the deposition of Smt. Matabi in a previous mutation case, when Matabi, who was alive was not produced before the consolidation authorities in the present case. Her evidence should not have been read as an evidence in the present case. Had she been examined in this case, her previous statement could have been put to test in her cross-examination.
29. In Central Bank of India Ltd. v. Prakash Chand Jain, AIR 1969 SC 983, the Supreme Court, relying on an earlier Supreme Court case in AIR 1964 SC 719, Khardah Co. Ltd. v. Their Workmen, laid down the following proposition:--
'It is true that, in numerous cases, it has been held that domestic tribunals, like an Enquiry Officer, are not bound by the technical rules about evidence contained in the Evidence Act, but it has nowhere been laid down that even substantive rules, which would form part of principles of natural justice, also can be ignored by the domestic tribunals. The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules or procedure contained in the Evidence Act'.
Thus, Smt. Matabi, not having been produced before the Court in this case, though alive, her previous statement made in another proceeding could not have been relied upon by the Deputy Director.
30. Sri V. P. Misra, however, stressed that, in view of the Full Bench decision in Ajodhya Prasad Bhargava v. Bhawani Shanker Bhargava. AIR 1957 All 1 (FB), the production of Smt. Matabi was not at all necessary in the present proceeding. In this case the Full Bench had held that:--
'Where in a civil suit a party produces documents containing admissions by his opponent, which documents are admitted by the opponent's counsel, and the opponent enters the witness-box, it is not obligatory on the party who produces those documents to draw in cross-examination the attention of the opponent to the said documents before he can, be permitted to use them for the purpose of contradicting the opponent provided that the admissions are clear and unambiguous, but where the statements relied on as admissions are ambiguous or vague, it is obligatory on the party who relies on them to draw in cross-examination the attention of the opponent to the said statements before he can be permitted to use them for the purposes of contradicting the evidence on oath of the opponent'.
This ruling has no application to the facts of the present case for two reasons: (i) Smt. Matabi is not a party to the present proceeding. She was a witness in an earlier case, and her deposition in that case is sought to be used against the petitioner in this case without producing her in Court although she is alive; and (ii) her deposition itself is not very clear. In fact she has made a mess of the whole thing
31. It is thus quite obvious that the Deputy Director of Consolidation has either ignored material evidence or has relied on inadmissible evidence in arriving at his conclusion on the question whether the petitioner is or is not the son of Sankatha Singh, the husband of Smt. Patiraj Kunwar, and his finding cannot, therefore, be sustained.
32. It was further contended on behalf of the petitioner that the Deputy Director has also erred in drawing an adverse inference against the petitioner on the ground of non-production of Sankatha Singh, the alleged father of the petitioner, because he would have been the best person to prove that the petitioner was his son.
33. It may be noted that an application was moved on behalf of the petitioner, duly supported by a medical certificate, saying that Sankatha Singh was 84 years of age and on account of old age and senile decay he had lost his memory. Yet the Deputy Director has drawn an adverse inference against the petitioner on the ground that even if Sankatha Singh was ill, he could have been examined at least on commission. This obviously indicates that the Deputy Director omitted altogether to consider the petitioner's application in the matter which was also supported by a medical certificate. If Sankatha Singh had lost his memory and if this assertion of the petitioner had not been denied by the other party, there could neither have been any question of examining Sankatha Singh on commission in order to prove the petitioner's parentage nor any occasion for the Deputy Director to draw an adverse inference against the petitioner on account of his non-production. The position might have been somewhat different if the Deputy Director had disbelieved the medical certificate. Thus the Deputy Director has committed a manifest error also in ignoring the material evidence and in making wrong assumptions in reaching at the conclusion on a material question in the case.
34. Sri V. P. Misra, appearing for the contesting respondents (sic) that it is not for this Court, in exercise of powers under Article 226 of the Constitution, to Interfere with the findings of fact recorded by the Deputy Director which was the last Court of facts. In this connection he relied upon Kaushalya Devi v. Bachittar Singh. AIR 1960 SC 1168. In that case, while dealing with the scope of Article 226 of the Constitution, the Supreme Court laid down the following proposition:--
'A rending based on no evidence is an error of law apparent on the face of the record, but error in appreciation of documentary evidence or error in drawing inferences cannot be said to be errors of law, and can be corrected only by a Court sitting as a Court of appeal and not under Article 226'.
35. There is no denying the fact that the power of this Court under Article 226 of the Constitution is very limited, and it can neither make a fresh appraisal of evidence nor can it hold that the quantum of evidence relied upon by last court of fact was not sufficient to justify the conclusion arrived at. But the position would be different where the last Court of fact has ignored or mis-read material evidence or has relied upon Inadmissible evidence. In Syed Yaqub v. K. S. Radha Krishna. AIR 1964 SC 477, the Supreme Court, while dealing with a case, the facts of which were more appropriate to the facts of the present case than those in Kaushalya Devi's case (supra), laid down thus:--
'The jurisdiction of High Court to Issue a writ of certiorari is supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. The limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari'.
36. In view of the above ruling this Court can certainly interfere with a finding of fact recorded by the Deputy Director when it is based on no evidence' or in ignorance of material evidence or on a misreading of material evidence or on inadmissible evidence which is no evidence in the eye of law.
37. Lastly, it was argued on behalf of the petitioner that the Deputy Director has carved out a new case for the contesting respondents which was not their case in their pleadings. The respondents never claimed right by adverse possession, and there was neither any issue oil the point of adverse possession nor any finding on the point was recorded by the Consolidation Officer or the Settlement Officer (Consolidation), yet the Deputy Director has recorded, just in passing, a finding in the following terms:--
'Even if it is admitted that Smt. Patiraj Kunwar was a Co-bhumidhar of the land in dispute, she had lost her right because she has been ousted by their possession as back as in 1950'. And this is the only deal given by the Deputy Director to this question.
38. This observation of the Deputy Director is based on the alleged admission of Smt. Patiraj Kunwar in Suit No. 440 of 1950. But it would be recalled that that suit was filed by Smt. Patiraj Kunwar for the recovery of her share of profits and it was in that connection that she had alleged in her plaint that respondents Nos. 4 to 34 were in possession of the entire property. On this slender basis the Deputy Director has recorded the finding that the respondents had matured their title by adverse possession.
39. Among co-sharers the period of limitation prescribed for a suit for possession is different from that prescribed for a suit under Section 209. U. P. Zamindari Abolition and Land Reforms Act. The period of limitation for such a case is twelve years, as held in Ram Awalamb v. Jata Shankar. 1968 All LJ 1108 = (AIR 1969 All 526). This period of 12 years is to be computed not from 1950 but from 1st July. 1952 when the U. P. Zamindari Abolition and Land Reforms Act came into force. The contesting respondents had to show their continuous possession from 1952 for 12 years. That period of 12 years had obviously not expired, when the notification under Section 4 of the U. P. Consolidation of Holdings Act, bringing the villages in question under consolidation operations, was published. Besides, the alleged admission of Smt. Patiral Kunwar was about the state of affairs existing on the date of the suit in 1950, and on that basis the continuity of possession of respondents Nos. 4 to 34 could not be assumed, because there is no presumption about the continuity of possession by a trespasser. The contesting respondents had failed to prove that they had matured title by adverse possession.
40. Sri V. P. Misra, however, argued that title under Section 210. U. P. Zamindari Abolition and Land Reforms Act accrues not by virtue of adverse possession but by virtue of the fact that possession was otherwise than in accordance with law and without the permission of the person entitled to grant possession. Therefore, all that was necessary for the contesting respondents to have proved was that they remained in possession for more than the prescribed period for a suit under Section 209, U. P. Zamindari Abolition and Land Reforms Act.
41. As observed earlier, Section 209 has no application among co-tenure-holders; and if Section 209 had no application, obviously Section 210, which is dependent on Section 209, could have had no application. In order to mature title by adverse possession it was necessary for the contesting respondents Nos. 4 to 34 to have proved that their adverse possession had the characteristics of adequacy, continuity and exclusiveness. There is no evidence to prove this. In Shambhu Prasad Singh v. Smt. Phool Kumari. (1971) 2 SCC 28 = (AIR 1971 SC 1337), while dealing with the question of adverse possession, the Supreme Court 'held thus:--
'On the question of adverse possession by a co-sharer against another co-sharer, the law is fairly well settled. Adverse possession has to have the characteristics of adequacy, continuity and exclusiveness. The onus to establish these characteristics is on the adverse possessors. Accordingly, if a holder of title proves that he too had been exercising during the currency of his title various acts, even though they might not be sufficient to constitute adverse possession as against another, may be abundantly sufficient to destroy that adequacy and interrupt that exclusiveness' and continuity which is demanded from a person challenging by, possession the title which he holds. As between co-sharers, the possession of one co-sharer is in law the possession of all co-sharers. Therefore, to constitute adverse possession, ouster of the non-possessing co-sharer has to be made out. As between them, therefore, there must be evidence of open assertion of a hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other'.
Thus, the admission made by Smt. Patiraj Kunwar in the year 1950, and that too only in respect of only two out of so many khatas, cannot be taken to be an admission of the continued possession of respondents Nos. 4 to 34 even after 1950 and in respect of all the Khatas in dispute. If the compromise entered into between Smt. Patiraj Kunwar on the one hand and Chandrika Singh and others on the other is accepted, Smt. Patiraj Kunwar obviously became a co-sharer a plea of adverse possession, even if taken, was not to be readily accepted, a very heavy burden lay on the co-sharers alleging title by adverse possession to affirmatively prove it.
42. Thus, in the view that I have taken above, the finding of the Deputy Director of Consolidation that the petitioner was not the son of Sankatha Singh, the husband of Smt. Patiral Kunwar, is vitiated by a manifest error of law. The case will have, therefore, to be sent back to him for deciding the revisions afresh in accordance with law after taking into consideration the material evidence on the record and ignoring the inadmissible evidence in the light of the observations made above.
43. For the reasons given above, the writ petition is allowed, the order of the Deputy Director of Consolidation dated 25th January. 1969 is quashed, and the case is sent back to him for deciding the revisions afresh in accordance with Jaw after ignoring the inadmissible evidence and taking into consideration the material admissible evidence on the record in the light of the observations made above. The parties shall, however, bear their own costs.