# Harish Chand v. Addl. Collector (Admin. & Revenue) Deoria / D.D.C. Deoria & Ors

- **Citation:** (2016) 8 ILRA 781
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-11
- **Bench:** Ram Surat Ram (Maurya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harish-chand-v-addl-collector-admin-revenue-deoria-d-d-c-deoria-ors-44268
- **Pages:** 8

## Headnote

Case Law discussed:
Gurmukh Ram Madan v. Bhagwan Das Madan, AIR 1998 SC 2776
J. Yashoda v. K. Shobha Rani, (2007) 5 SCC 730
Tukaram S. Dighole v. Manikrao Shivaji Kokate, AIR 2010 SC 965
H. Siddiqui v. A. Ramalingam, AIR 2011 SC 1492
Lalit Popli v. Canara Bank, (2003) 3 SCC 583
Ajay Kumar Parmar v. State of Rajasthan, (2012) 12 SCC 406
State of Gujarat v. Vinaya Chandra Chhota Lal Pathi, AIR 1967 SC 778

Procedure:
Petition under Article 226 of the Constitution challenging the order dated 01.07.2006 passed by Deputy
Director of Consolidation in revision under the U.P. Consolidation of Holdings Act, 1953, whereby the order of
Assistant Settlement Officer Consolidation dated 10.03.2005 allowing the appeal of the petitioner and directing
recording of his name over the land in dispute was set aside and the basic year entry in favour of the
respondents was maintained.

Result:
Writ Petition Allowed. Order of Deputy Director of Consolidation dated 01.07.2006 set aside and order of
Assistant Settlement Officer Consolidation dated 10.03.2005 affirmed.

## Text

8 All. Harish Chand Vs Addl. Collector (Admin. & Revenue) Deoria / D.D.C. Deoria & Ors.
781
(2016) 8 ILRA 781
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.08.2016

BEFORE

THE HON'BLE RAM SURAT RAM (MAURYA), J.

Writ B No.- 43368 Of 2006

Harish Chand ...Petitioner
Versus
Addl. Collector (Admin. & Revenue) Deoria / D.D.C. Deoria & Ors. ...Respondents

Counsel for the Petitioner:
R.S. Misra, Arun Kumar

Counsel for the Respondents:
C.S.C., Bishram Tiwari, Ravindra Sharma, V.K. Singh, R.C. Singh

Headnote:
Case Law discussed:
Gurmukh Ram Madan v. Bhagwan Das Madan, AIR 1998 SC 2776
J. Yashoda v. K. Shobha Rani, (2007) 5 SCC 730
Tukaram S. Dighole v. Manikrao Shivaji Kokate, AIR 2010 SC 965
H. Siddiqui v. A. Ramalingam, AIR 2011 SC 1492
Lalit Popli v. Canara Bank, (2003) 3 SCC 583
Ajay Kumar Parmar v. State of Rajasthan, (2012) 12 SCC 406
State of Gujarat v. Vinaya Chandra Chhota Lal Pathi, AIR 1967 SC 778

Procedure:
Petition under Article 226 of the Constitution challenging the order dated 01.07.2006 passed by Deputy
Director of Consolidation in revision under the U.P. Consolidation of Holdings Act, 1953, whereby the order of
Assistant Settlement Officer Consolidation dated 10.03.2005 allowing the appeal of the petitioner and directing
recording of his name over the land in dispute was set aside and the basic year entry in favour of the
respondents was maintained.

Result:
Writ Petition Allowed. Order of Deputy Director of Consolidation dated 01.07.2006 set aside and order of
Assistant Settlement Officer Consolidation dated 10.03.2005 affirmed.
(Delivered by Hon'ble Ram Surat Ram (Maurya), J.)

(Delivered by Hon'ble Ram Surat Ram (Maurya), J.)

1. Heard Sri Arun Kumar, for the petitioner and Sri R.C. Singh, along with Sri Ravindra
Sharma, for the contesting respondents.
782 INDIAN LAW REPORTS ALLAHABAD SERIES

2. This petition has been filed against the order of Deputy Director of Consolidation, dated
01.07.2006 passed in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter
referred to as the 'Act').

3. The dispute between the parties is in respect of basic consolidation year khata 98 of
village Bagahi, Tappa Mail, pargana Salempur Majhauli, district Deoria, which was recorded in the
names of Subhash and Suresh (respondents-2 and 3) (hereinafter referred to as the respondents).
Harish Chand (the petitioner) filed an objection (registered as Case No. 343/2348) under Section 9A of the Act, for recording his name over it and deleting the names of the respondents. He claimed
that Sachchan was bhumidhar of the land in dispute. Sachchan died on 08.10.1967, leaving behind
him the petitioner as his only son and heir of the land in dispute. Since then the petitioner was in
possession of the land in dispute. The petitioner was minor at the time of death of Sachchan. Taking
advantage of minority of the petitioner and illiteracy of his widow mother, the respondents got their
names mutated over the land in dispute, on the basis of a fabricated sale deed dated 09.10.1967.
The petitioner, through his guardian, filed a suit (registered as O.S. No. 452 of 1968) on 27.3.1968,
for cancellation of the sale deed, before Civil Court, which was abated by order dated 07.05.1971,
under Section 5 of the Act. The objection was contested by the respondents and they have stated
that the sale deed of the land in dispute was executed by Sachchan on 09.10.1967 in their favour.
One Brij Kishore Maurya, who is Panchayat Secretary of the village, got this objection filed
through his sister-in-law Prem Sundari, impersonating herself as Smt. Gulaichi and her minor son
Harish Chand. Although, Smt. Gulaichi was not wife of Sachchan, nor Harish Chand was son of
Sachchan.

4. Consolidation Officer, after hearing the parties, by his order dated 27.11.1978 held that
Sachchan died on 08.10.1967, and, sale deed dated 09.10.1967 is fabricated document. He further
found that Smt. Gulaichi was not the widow of Sachchan, nor Harish Chand was the son of
Sachchan. On these findings, he dismissed the objection of the petitioner, directed for deleting the
names of the respondents and recording the land in dispute in the name of Gaon Sabha. Harish
Chand filed an appeal (registered as Appeal No. 1/1/13) and the respondents filed another appeal
(registered as Appeal No. 2/2/14) from the order of Consolidation Officer. Before Appellate Court,
both the parties were allowed to lead their additional evidence. Assistant Settlement Officer
Consolidation, after hearing the parties, by order dated 10.03.2005 affirmed the finding of
Consolidation Officer that Sachchan died on 08.10.1967. He held that sale deed dated 09.10.1967
was executed by some imposter and not by Sachchan. He also relied upon statement and report of
Sri M.M. Kakkar, Fingerprint & Hand Writing Expert and found that thumb impressions of
Sachchan in the Register No. 8 of sale deed dated 09.10.1967 were not tallying with admitted
thumb impressions of Sachchan on the sale deeds dated 31.03.1959 and 03.03.1964, previously
executed by him. So far as Smt. Gulaichi, the mother of the petitioner is concerned, he relied upon
Kutumb Register, Electoral Roll of the year 1968-1969 as well as oral evidence of the petitioner
and found that Smt. Gulaichi was widow of Sachchan and Harish Chand was his son. On these
findings, he allowed the appeal of the petitioner and dismissed the appeal of the respondents and
directed for recording the name of the petitioner over land in dispute.
8 All. Harish Chand Vs Addl. Collector (Admin. & Revenue) Deoria / D.D.C. Deoria & Ors.
783
5. The respondents filed two separate revisions and Gaon Sabha filed one revision against
the order of Assistant Settlement Officer Consolidation. All the three revisions were consolidated
and heard by Deputy Director of Consolidation, who by order dated 01.07.2006 held that admitted
thumb impressions of Sachchan on the sale deeds dated 31.03.1959 and 03.03.1964 were tallying
with his thumb impression on Register No. 8 of the sale deed dated 09.10.1967. Loops of his thumb
impressions on both the sale deeds had curved towards left and had fifteen ridges between delta and
core. The other expert report are not clear on this point. As sale deed dated 09.10.1967 was
executed by Sachchan as such his death on 08.10.1967 was not proved. The names of the
respondents were mutated in revenue record on the basis of sale deed dated 09.10.1967.
Consolidation Court has no jurisdiction to go into controversy that sale deed was in favour of
minors as such it is void. On these findings, he allowed the revision of the respondents, dismissed
the revision of Gaon Sabha and maintained the basic year entry. Hence, this petition has been filed.

6. The counsel for the petitioner submitted that Appellate Court framed two issues for
determination, i.e. (i) whether sale deed dated 09.10.1967 was executed by Sachchan in favour of
the respondents? and (ii) whether Smt. Gulaichi was the widow and Harish Chand was the son of
Sachchan?. The petitioner in order to prove his case, has filed certified copies of Kutumb Register,
Death Register, Voter List of 1968-69. In order to get thumb impressions of Sachchan on sale deed
dated 09.10.1967, tallied from his admitted thumb impressions, the petitioner filed sale deeds dated
31.03.1959 and 03.03.1964, executed by Sachchan. As the respondents withheld the original sale
deed dated 09.10.1967, the petitioner summoned Register No. 8 relating to sale deed dated
09.10.1967, from office of Sub-Registrar. He filed Expert Reports of Sri. M.M. Kakkar, a
Fingerprint & Hand Writing Expert and Sri S.N. Mukherji a Government Fingerprint & Hand
Writing Expert, who had examined thumb impression of Sachchan on the sale deed dated
09.10.1967, in connection with a criminal case, i.e. Crime No. 32/1968, which was later on
investigated by C.B.C.I.D. who has submitted charge sheet against the respondents and the
witnesses of the sale deed. They proved their reports. The petitioner also examined Brij Kishore
Maurya, Panchayat Secretary (PW-1), Naga Chaudhary, Pradhan of the village (PW-2), to prove
Extracts of Death Register, Kutumb Register and Electoral Roll. Smt. Gulaichi also entered into the
witness box as PW-3 and stated that she was widow of Sachchan and the petitioner was the son of
Sachchan. The statement of Smt. Gulaichi was relevant to prove the relationship by conduct under
Section 50 of Evidence Act, 1872. From the evidence of the petitioner, it was fully proved that
Sachchan died on 08.10.1967 and the petitioner was the son of Sachchan and after his death, he had
inherited the property. As Sachchan had died on 08.10.1967, sale deed dated 09.10.1967 was
executed by some imposter of Sachchan. Deputy Director of Consolidation relied upon the report of
Sri R.R. Sahai, without even referring to the reports of Sri M.M. Kakkar and Sri S.N. Mukherji.
Deputy Director of Consolidation ought to have tallied the report of expert from the disputed
fingerprint and then would have recorded his own independent finding, about genuineness of the
thumb impression of Sachchan on the sale deed dated 08.10.1967. He relied upon the report of Sri
R.R. Sahai and without assigning any reason discarded reports of Sri M.M. Kakkar and Sri S.N.
Mukherji. Sri R.R. Sahai, had no degree relating to examination of fingerprints, as admitted by him
in his oral statement. His report cannot be termed as an expert report and is not admissible under
Section 45 of Evidence Act, 1872. Judgment of Deputy Director of Consolidation is based upon
784 INDIAN LAW REPORTS ALLAHABAD SERIES

inadmissible evidence, as well as ignoring the admissible evidence on record. He has illegally set
aside findings of facts of appellate court without assigning any reason. His order is liable to be set
aside.

7. I have considered the arguments of the counsel for the parties and examined the record.
Consolidation Officer and Assistant Settlement Officer Consolidation, relying upon Death Register
and Kutumb Register, which were proved by Brij Kishore Maurya, Panchayat Secretary (PW-1),
Naga Chaudhary, Pradhan of the village (PW-2), held that Sachchan died on 08.10.1967. Deputy
Director of Consolidation, without referring direct evidence relating date of death of Sachchan held
that Sachchan was alive on 09.10.1967, as his thumb impression on Register No. 8 of the sale deed
09.10.1967 was tallying with his admitted thumb impression. Instead of dealing with direct
evidence, he drew inference in respect of issue of death of Sachchan. Course adopted by Deputy
Director of Consolidation in this respect is illegal. Findings of Consolidation Officer and Assistant
Settlement Officer Consolidation in this respect do not suffer from any illegality. It has been
illegally set aside on the basis of inference by respondent-1.

8. The respondents based their title on sale deed dated 09.10.1967, allegedly executed by
Sachchan in their favour. The petitioner denied execution of sale deed by Sachchan and stated that
after death of Sachchan sale deed was manufactured. Burden was upon the respondents to prove
due execution of the sale deed. They did not file original sale deed. Akshaiber (DW-3), father of the
respondents stated that the respondents, who were 12 years and 9 years old at the time of sale deed,
himself negotiated and finalized deal for sale deed. At the time of sale deed, he did not went to the
office of Sub-Registrar for execution/registration of sale deed. Original sale deed was lost, in the
way of Salempur but no information relating to its missing was given to police. Sudeen (DW-1),
marginal witness, in his statement recorded on 08.02.1977 has stated that sale deed was executed
one year prior to his statement. Jeeut (DW-2), the other marginal witness was resident of about 4
k.m. away from village Bagahi and he was not knowing either to Sachchan or Suresh and Subhas,
who were minors at that time. His being marginal witness is not a natural conduct. On the basis of
these evidence, appellate court found that due execution of sale deed was not proved by the
respondents. From aforesaid facts it is clear that the respondents have not produced best evidence in
their possession as such adverse inference is liable to be drawn against them under Section 114
Illustration (g) of Evidence Act, 1872. Deal of sale deed was negotiated and finalized by minors of
12 and 9 years old, which is also not a natural conduct. Explanation as required under Section 65 (f)
of Evidence Act, 1872, to adduce secondary evidence, was not given. Statement of marginal
witnesses were not reliable to prove due execution of sale deed. Deputy Director of Consolidation
illegally reversed the findings of appellate court without considering aforesaid circumstances in
cursory manner, only relying upon exert evidence.

9. Supreme Court in Gurmukh Ram Madan (Dr) v. Bhagwan Das Madan, AIR 1998
SC 2776, held that a sale deed is not a public document and its secondary evidence could not have
been let in evidence except after explanation as to the non-availability of the original in an
appropriate manner. In J. Yashoda v. K. Shobha Rani, (2007) 5 SCC 730, held that secondary
evidence, is an evidence which may be given in the absence of that better evidence which law
8 All. Harish Chand Vs Addl. Collector (Admin. & Revenue) Deoria / D.D.C. Deoria & Ors.
785
requires to be given first, when a proper explanation of its absence is given. The rule which is the
most universal, namely, that the best evidence the nature of the case will admit shall be produced,
decides this objection. That rule only means that, so long as the higher or superior evidence is
within your possession or may be reached by you, you shall give no inferior proof in relation to it.
Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to
enable a party to produce secondary evidence it is necessary for the party to prove existence and
execution of the original document. Under Section 64, documents are to be provided (sic proved)
by primary evidence. Section 65, however permits secondary evidence to be given of the existence,
condition or contents of documents under the circumstances mentioned. The conditions laid down
in the said section must be fulfilled before secondary evidence can be admitted. Secondary evidence
of the contents of a document cannot be admitted without non-production of the original being first
accounted for in such a manner as to bring it within one or other of the cases provided for in the
section. In Tukaram S. Dighole v. Manikrao Shivaji Kokate, AIR 2010 SC 965, held that the
general rule is that secondary evidence is not admissible until the non-production of primary
evidence is satisfactorily proved. However, clause (e) of Section 65, which enumerates the cases in
which secondary evidence relating to documents may be given, carves out an exception to the
extent that when the original document is a "public document" secondary evidence is admissible
even though the original document is still in existence and available. In H. Siddiqui v. A.
Ramalingam, AIR 2011 SC 1492, held that the provisions of Section 65 of the 1872 Act provide
for permitting the parties to adduce secondary evidence. However, such a course is subject to a
large number of limitations. In a case where the original documents are not produced at any time,
nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the
court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the
contents of a document is inadmissible, until the non-production of the original is accounted for, so
as to bring it within one or other of the cases provided for in the section. The secondary evidence
must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the
original. Mere admission of a document in evidence does not amount to its proof. Therefore, the
documentary evidence is required to be proved in accordance with law. The court has an obligation
to decide the question of admissibility of a document in secondary evidence before making
endorsement thereon.

10. Deputy Director of Consolidation based his findings only on expert evidence. So far as
expert evidence relating to thumb impression of Sachchan on the disputed sale deed is concerned,
expert evidence is admissible under Section 45 of Evidence Act, 1872, relevant part of which is
quoted below:-

45. Opinions of experts.--When the Court has to form an opinion upon a point of
foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions
upon that point of persons specially skilled in such foreign law, science or art, or in questions as to
identity of handwriting or finger impressions are relevant facts.

Such persons are called experts.
786 INDIAN LAW REPORTS ALLAHABAD SERIES

Illustrations

(c) The question is, whether a certain document was written by A. Another
document is produced which is proved or admitted to have been written by A.

The opinions of experts on the question whether the two documents were written
by the same person or by different persons, are relevant.

11. Sri R.R. Sahai, expert of the respondents, in his statement has admitted that he had not
done any special course relating to examination of Handwriting and Finger Prints. His report cannot
be treated as expert evidence within meaning of Section 45 of the Act. He further stated that
photographs taken by him for the purposes of its enlargement, were blurred. If the photograph was
blurred, then his report in respect of number of ridges in between delta and core, is not reliable. His
report is not reliable also. In any case, the Court has to form his opinion in respect of genuineness
of thumb impression, by examining original thumb impression with the help of expert report and
not to take expert report as gospel truth as done in present case. Deputy Director of Consolidation
has ignored reports and statements of Sri M.M. Kakkar and Sri S.N. Mukherji, evidence of the
petitioner, on the ground that number of ridges in between delta and core in these reports are not
tallying with the report of Sri R.R. Sahai. Supreme Court in State of Gujrat Vs. Vinaya Chandra
Chhota Lal Pathi, AIR 1967 SC 778, held that sole evidence of a handwriting expert is not
normally sufficient for recording a definite finding that the writing being of certain person or not. In
Lalit Popli v. Canara Bank, (2003) 3 SCC 583, held that it is to be noted that under Sections 45
and 47 of the Evidence Act, the court has to take a view on the opinion of others, whereas under
Section 73 of the said Act, the court by its own comparison of writings can form its opinion.
Evidence of the identity of handwriting is dealt with in three sections of the Evidence Act. They are
Sections 45, 47 and 73. Both under Sections 45 and 47 the evidence is an opinion. In the former
case it is by a scientific comparison and in the latter on the basis of familiarity resulting from
frequent observations and experiences. In both the cases, the court is required to satisfy itself by
such means as are open to conclude that the opinion may be acted upon. Irrespective of an opinion
of the handwriting expert, the court can compare the admitted writing with the disputed writing and
come to its own independent conclusion. Such exercise of comparison is permissible under Section
73 of the Evidence Act. Ordinarily, Sections 45 and 73 are complementary to each other. Evidence
of the handwriting expert need not be invariably corroborated. It is for the court to decide whether
to accept such an uncorroborated evidence or not. In Ajay Kumar Parmar v. State of Rajasthan,
(2012) 12 SCC 406, held that where there is an opinion whether of an expert, or of any witness, the
court may then apply its own observation by comparing the signatures, or handwritings for
providing a decisive weight or influence to its decision.

12. The respondents failed to prove due execution of sale deed dated 09.10.1967 by
Sachchan. Findings of Consolidation Officer and Assistant Settlement Officer Consolidation in
respect respect has been illegally set aside by Deputy Director of Consolidation, relying upon
inadmissible evidence and ignoring relevant evidence.
8 All. Harish Chand Vs Addl. Collector (Admin. & Revenue) Deoria / D.D.C. Deoria & Ors.
787
13. So far as Smt. Gulaichi, being widow and Harish Chandra being son of Sachchan is
concerned, Smt. Gulaichi entered into witness box. Her name was recorded in Kutumb Register and
Electoral Roll as wife of Sachchan, which were proved by Brij Kishore Maurya (PW-1) and Naga
Chaudhary (PW-2). Sudeen (DW-1) admitted that Smt. Prem Sundari was widow of Sachchan.
According to the respondents, Smt. Prem Sundari was impersonating herself as Smt. Gulaichi.
Consolidation Officer ignored the statement of Smt. Gulaichi on the ground that she could not state
the name of maternal uncle of Sachchan. Appellate court relied upon her statement and other
evidence on record and held that Smt. Gulaichi was widow and Harish Chandra was son of
Sachchan. For a rustic and illiterate lady, who had become widow within a short period , it is not
possible to remember name of relations of her husband. Findings of appellate court in this respect,
does not suffer from any illegality. Deputy Director of Consolidation has not decided this issue as
he had found that sale deed dated 09.10.1967 was valid.

14. In view of aforesaid discussions, writ petition succeeds and is allowed. Order of
Deputy Director of Consolidation dated 01.07.2006 is set aside. The order of Assistant Settlement
Officer Consolidation dated 10.03.2005 is affirmed.
----------
788 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 788
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.08.2016

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Writ C No.- 37394 Of 2016

Nidhi Kaushik & Ors. ...Petitioners
Versus
Union Of India & Ors. ...Respondents

Counsel for the Petitioners:
Ram Kumar Dubey

Counsel for the Respondents:
C.S.C., A.S.G.I., Pratik J. Nagar

Headnotes:
Constitution of India - Article 226 - Writ of Mandamus - Maintainability - Private unaided minority educational
institution - Scope of interference - Writ jurisdiction can be exercised only for enforcement of public duty -
Private law rights or contractual matters not enforceable unless public law element is involved.
Education Law - Right of Children to Free and Compulsory Education Act, 2009 - Claim for free education -
Minority educational institution - Applicability - In view of law laid down by the Supreme Court in Pramati
Educational and Cultural Trust v. Union of India, provisions of the Act of 2009 are not applicable to minority
institutions, whether aided or unaided - Students cannot insist admission or continuation of study free of cost
in such institution.
Admission in School - Students granted opportunity to complete admission formalities - Failure to deposit
prescribed fees and comply with institutional requirements - Petitioners seeking direction to continue studies
without payment of fees - Held, where management had already allowed admission but petitioners failed to
fulfil formalities, Court would not issue mandamus compelling institution to provide education free of cost.
Constitution of India - Article 12 - Private educational institutions - Not 'State' - Writ jurisdiction against such
institutions limited to enforcement of statutory or public duty - Reliance placed on principles laid down in
Federal Bank Ltd. v. Sagar Thomas and other precedents.

Held: Petitioners, who are minor children, sought a direction to allow them to pursue studies in respondent
minority institution without payment of fees under the Right of Children to Free and Compulsory Education
Act, 2009. The institution was declared a minority institution. In view of the judgment of the Supreme Court in
Pramati Educational and Cultural Trust v. Union of India, the provisions of the 2009 Act are not applicable to
minority institutions. Further, petitioners failed to complete admission formalities and deposit fees despite
opportunity granted by the institution. No enforceable public law right being established, writ of mandamus
cannot be issued.

Case Law discussed:
Pramati Educational and Cultural Trust v. Union of India;
Federal Bank Ltd. v. Sagar Thomas;
Praga Tools Corporation v. C.V. Imanual;