# Re. P.M.A. and others v. Moran Mar

- **Citation:** (2010) 2 ILRA 648
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-07-29
- **Case number:** Agra in Misc. Case No.417 of 1994
- **Bench:** Yogendra Kumar Sangal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/re-p-m-a-and-others-v-moran-mar-41672
- **Pages:** 7

## Headnote

Constitution of India Art.226- Review
Petition-Writ
Petition-Challenging
the
validity of order passed by consolidation
authorities-D.D.C. Without discussion of
facts and evidence-without application
of mind-without recording any reason
passed
crypic
order-petition
also
dismissed-order passed by writ court
recalled-Review allowed.

Held: Para 10

Learned counsel further argued that
court of Deputy Director of Consolidation
is
final
court
in
the
matter
of
Consolidation
proceedings.
When
a
revision is presented before the Deputy
Director of Consolidation, it is expected
from the court that it would take notice
of the case of the parties and also
evidence adduced by them and after
taking into consideration the findings of
the Courts below by giving his own
finding and reason in brief on the points
in dispute, the final order will be passed.
Learned
counsel
for
the
petitioner
argued that if we go through the
judgment delivered by Deputy Director
of Consolidation, we will find only in last
10 lines conclusion has been drawn
without discussing evidence in brief that
lower
courts
have
taken
into
consideration
the
facts
and
circumstances of the case and evidence
available on the record and scrutinized
2 All] Sant Bux Singh V. Deputy Director of Consolidation and another
649
the evidence properly and he is in
agreement of the findings of the courts
below. He has not given his own finding
even in brief why the Will in favour of
Sant Bux executed by Garibe is not
reliable and should not given effect. He
just acted on computerized system of
administration of justice by just affixing
a rubber stamp of approval on the
concurrent decisions merely on the
ground that they are based on the
findings of fact. This cannot be said
judgement in the eyes of Law. Learned
counsel further argued that this aspect
of the case also not seen in the matter
while deciding the writ petition.
Case Law Discussed:
2005 (1) SCC 40, AIR 1962 Supreme Court
567, 2001 (19) LCD 527

## Text

648 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
invalidity could be set up whenever and
wherever it is sought to be enforced or
relied upon, even at the stage of execution
and even in collateral proceedings. A
defect of jurisdiction, whether it is
pecuniary or territorial, or whether it is in
respect of the subject-matter of the action,
strikes at the very authority of the Court to
pass any decree, and such a defect cannot
be cured even by consent of parties."

17. A similar view has been
expressed by the Supreme Court in Most.
Re. P.M.A. and others Vs. Moran Mar
Marthoma and another AIR 1995 SC
2001 wherein the Court observed that plea
of absence of jurisdiction of civil court can
be raised and entertained at any stage.

18. In view of above facts and
circumstances, I am of the opinion that the
court below in passing the impugned
judgement and order granting leave to the
plaintiff (applicant)/opposite parties to
institute the suit under Section 92 C.P.C.
acted completely without jurisdiction as
admittedly no part of the subject matter of
the trust was situate at Agra at the relevant
time.

19. Accordingly, the impugned
judgement and order dated 12.8.1997
passed by the Ist Additional District Judge,
Agra in Misc. Case No.417 of 1994
between Sharda Prasad Dwivedi and
another and Gauri Shankar Saraogi and
another suffers with jurisdictional error and
is set aside. Consequently, the application
for leave to institute the suit stands
rejected.

20. This revision as such is allowed.

No order as to costs.
--------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.07.2010

BEFORE
THE HON'BLE YOGENDRA KUMAR SANGAL, J.

Review Petition No. 264 OF 2006

Sant Bux Singh

 ...Petitioner
Versus
Deputy Director of Consolidation and
another

 ...Respondent

Counsel for the Petitioner:
S.K. Mehrotra

Constitution of India Art.226- Review
Petition-Writ
Petition-Challenging
the
validity of order passed by consolidation
authorities-D.D.C. Without discussion of
facts and evidence-without application
of mind-without recording any reason
passed
crypic
order-petition
also
dismissed-order passed by writ court
recalled-Review allowed.

Held: Para 10

Learned counsel further argued that
court of Deputy Director of Consolidation
is
final
court
in
the
matter
of
Consolidation
proceedings.
When
a
revision is presented before the Deputy
Director of Consolidation, it is expected
from the court that it would take notice
of the case of the parties and also
evidence adduced by them and after
taking into consideration the findings of
the Courts below by giving his own
finding and reason in brief on the points
in dispute, the final order will be passed.
Learned
counsel
for
the
petitioner
argued that if we go through the
judgment delivered by Deputy Director
of Consolidation, we will find only in last
10 lines conclusion has been drawn
without discussing evidence in brief that
lower
courts
have
taken
into
consideration
the
facts
and
circumstances of the case and evidence
available on the record and scrutinized
2 All] Sant Bux Singh V. Deputy Director of Consolidation and another
649
the evidence properly and he is in
agreement of the findings of the courts
below. He has not given his own finding
even in brief why the Will in favour of
Sant Bux executed by Garibe is not
reliable and should not given effect. He
just acted on computerized system of
administration of justice by just affixing
a rubber stamp of approval on the
concurrent decisions merely on the
ground that they are based on the
findings of fact. This cannot be said
judgement in the eyes of Law. Learned
counsel further argued that this aspect
of the case also not seen in the matter
while deciding the writ petition.
Case Law Discussed:
2005 (1) SCC 40, AIR 1962 Supreme Court
567, 2001 (19) LCD 527

(Delivered by Hon'ble Yogendra Kumar
Sangal, J.)

1. This Review Petition was filed by
the petitioner of Writ Petition No. 1082
(Cons.) of 2005 Sant Bux Singh vs.
Deputy Director of Consolidation with the
prayer to recall the judgement and order
passed in the Writ Petition dated 3rd July,
2006 by this Court.

The aforesaid writ petition was filed
by the petitioner with the prayer to set
aside the orders dated 12.03.1999 passed
by the C.O. (Consolidation Officer)
rejecting his Objection under Section 9 of
the
Consolidation
of
Holdings
Act
(hereinafter referred to as the 'Act'),
30.08.2003
passed
by
the
S.O.C.
(Settlement
Officer
Consolidation)
dismissing the Appeal and also another
order passed by the D.D.C. (Deputy
Director
of
Consolidation)
dated
23.07.2005 dismissing the Revision also.

Undisputed facts of the case are that
one Garibe S/O Jodha was recorded
tenure-holder of Plot Nos. 56, 60 and 45
in the basic year in revenue record when
the Consolidation operation was started in
the area where this land situated. In the
record on land of Plot Nos. 56 and 45
name of Garibe was recorded as sole
tenure-holder while on the land of Plot
No. 60 his name was recorded as cosharer along with other tenure-holders.
Garibe
S/O
Jodha
had
died
on
05.05.1985.
Sant
Bux
Singh,
the
petitioner his Nephew i.e. Son of real
Brother of Garibe while respondent no. 2,
Smt. Bindeshwari is daughter's married
daughter of Garibe. Petitioner claimed
himself by filing objection under Section
9 of the C.H. Act entitled to be recorded
tenure holder on the land of Garibe on the
basis that no other male member in the
family of Garibe except him surviving.
Later on he also claimed by amendment
in objection that he is entitled to get
recorded his name in the revenue record
on the basis of last Will executed by
Garibe on 28.04.1985. This prayer of
amendment in Objection was earlier
rejected by the C.O. and also by the
S.O.C. in Appeal but later on in Revision,
D.D.C. had allowed it and permitted to
amend his Objections as prayed.

2. On the other hand, respondent no.
2 Smt. Bindeshwari also claimed herself
heir of Garibe on the basis of another Will
registered on 17/18.05.1982 and executed
by Garibe and filed Objection to record
her name on the land in dispute. Both the
parties filed documents and led oral
evidence in support of their respective
cases before the C.O. After going through
evidence on record C.O. rejected the
claim of Sant Bux Singh and ordered to
enter the name of Smt. Bindeshwari Devi
in place of Garibe in record on the basis
of Will in her favour. Appeal filed before
the S.O.C. and Revision filed before the
650 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
D.D.C. by petitioner both were also
dismissed. Writ Petition No. 1082(Cons.)
of 2005 was filed challenging the
aforesaid three orders but the same was
also dismissed. Aggrieved by this order,
the instant Review Petition has been filed
by Sant Bux Singh.

Undisputedly, this Review Petition
was filed well within time. For disposal
of the Review Petition Notice was served
on the counsel for the respondent No. 2,
Shri Pankaj Gupta through counsel for
petitioner applicant who appeared on the
date fixed for hearing. He has not
pressed for time to file objections in the
review case. File of the writ petition
already available. On the request of
parties' counsel their arguments as well
as of learned Standing Counsel were
heard on merit and record was perused.

3. It was argued on behalf of the
review petitioner that this Court while
dismissing
the
writ
petition
not
considered the points raised on behalf of
the petitioner and decided the matter on
the points which were not raised from the
petitioner's side. It was further argued
that Supplementary Affidavit filed on
behalf of the petitioner vide Application
No. 725(W) of 2006 and documents
annexed with it, although the same was
replied on behalf of the respondent no. 2
through counter affidavit, were not taken
into consideration by this Court. In the
Supplementary Affidavit it was pointed
that Consolidation Officer referring the
order dated 21.12.1992 passed by the
Additional Munsif 3rd in civil case
pending between the parties in civil court
wrongly observed that the Munsif court
had believed the Will in favour of Smt.
Bindeshwari by Garibe and held it
reliable. The above finding recorded by
the Consolidation Officer was totally
incorrect as the above court did not
record any such finding about the above
Will in his order dated 21.12.1992 and he
had annexed the certified copy of order
as Annexure S-2. This incorrect finding
affected the final judgment of C.O. This
aspect of case was not taken into
consideration
by
the
Court
while
deciding the writ petition.

4. Copy of the Will executed by
Garibe in favour of the petitioner was
also available filed along with the
Supplementary Affidavit and from its
perusal, it is clear that detail of
immovable
properties
which
were
bequeathed by Garibe in favour of the
petitioner are given in Paragraph 1.
Arrangement for the maintenance and
livelihood of daughter of Garibe namely
Dashrath Devi was also made in the Will
in Paragraph 3 where it is said that she
will live in the house (also bequeathed to
petitioner) during her life time and Sant
Bux will maintain her during this period.
Only after her death possession of the
house will be taken by Sant Bux or his
heirs. Learned counsel for the applicant
argued that when such conditions were
there in the Will, if Sant Bax failed to
maintain her during her life time, Law
will take its own course and Dashrath
Dei will be in a position to get enforced
conditions through legal proceedings.
There is also specific averments in the
Will why he is bequeathing his property
in favour of Sant Bux. It was also
specially mentioned in the last two lines
that earlier Will executed by him shall
stand revoked /cancelled and this is his
last Will. Learned counsel for the
review-petitioner argued that all these
facts detailed in the Will clearly shows
that some how these were escaped from
2 All] Sant Bux Singh V. Deputy Director of Consolidation and another
651
the notice of the Court when the
impugned judgement was pronounced
which is apparent error on the face of
record because it was observed in it that
these details are not there in Will and this
error effected the decision. On the other
hand, learned counsel for the respondent
no. 2 argued that after going through the
record impugned order was passed. I
have gone through the copy of the Will
available on record and found that details
are there and this grave and apparent
error arose in the judgement. It appears
that availability of the supplementary
affidavit was escaped from the notice of
this Court while passing the impugned
order.

5. It was further argued that undue
emphasis was given on this point by the
Consolidation Authorities and also taken
into consideration by this Court also
while dismissing the writ petition that
Will in favour of the respondent no. 2 is
a registered one while Will executed in
favour of the review-petitioner is an unregistered document. Law is clear on this
point as held by the Apex Court in 2005
(1) SCC 40 Daulatram Vs. Shodha and
others and also in AIR 1962 Supreme
Court 567 Rani Purnima vs. Kunwar
Khagendra, that mere fact a Will is
registered Will not by itself is sufficient
to dispel all suspicion regarding it.
Learned counsel for the petitioner argued
that it was not seen either by the
Consolidation Authorities and also by
this Court in dismissing the writ petition
that at the time of registration of the Will
in favour of respondent no. 2, whether it
was
checked
by
the
Registration
Authority that Testator knew that it is
Will being executed which he is
admitting and signing the same. It is also
to be seen that the Officer registering the
Will read it over to the testator or not and
the testator admitted the execution before
the Officer registering the Will, but not
clear from the record whether these facts
were seen and considered. In Daulatram
Case, the Apex Court upheld the
genuineness
of
un-registered
Will
revoking/cancelling the earlier registered
Will .

6. Civil Suit was pending between
the parties which is clear from the
record. Two Wills executed in favour of
the parties by Garibe were also in dispute
in that Civil Suit, it is also clear from the
record and also not disputed by the
parties counsel at the time of arguments.
Consolidation Authorities and also this
Court while deciding the Writ Petition
has not taken pre-caution to avoid the
contradictory finding which may be
possible by two courts i.e. Consolidation
court and also by the Civil Court in the
pending suit regarding the same Will. It
is also in the finding of the Consolidation
Officer that there was one own Son of
Garibe, where he has gone and why his
rights about the property and his
maintenance not considered by the
Consolidation Officer when interest of
daughter of Garibe was considered, it is
also not clear from the record.

Another
fact
taken
into
consideration
by
the
Consolidation
Authorities and by this Court was that
after filing his first Objection before the
Consolidation Officer, petitioner got
amended his Objection and he had
pleaded case of Will in his favour by
Garibe after two years. It is correct that
there is delay on the part of Sant Bux in
this
regard
but
his
amendment
application which was firstly rejected by
the Consolidation Officer then the
652 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Appeal filed was also dismissed by the
S.O.C. was allowed the by the D.D.C. in
Revision filed and he was permitted to
plead case of Will in his favour by
Garibe about the property in dispute. It is
established Law that amendment in the
pleading relates back to the date of
presentation of the plaint or Written
Statement. Moreover, this Court in 1984
92) L.C.D 319 Zazbalnisa Vs. Bachchu
and others held that a Will relied upon by
the Objector cannot be rejected merely
on the ground that there was no reference
of it in the Objections filed on his behalf.
Moreover,
after
this
amendment,
respondent no. 2 was allowed sufficient
time to file reply of the same and she did
so. Later on fresh issues were framed and
evidence of the parties was recorded on
this point. There will be any material
effect of this delay on his part in raising
this plea in these circumstances it was
also not considered.

7. From the record it is clear that
Garibe has also revoked his first Will
deed bequeathing his property in favour
of one Deen Dayal and by 2nd Will deed
he bequeathed his property in favour of
respondent no. 2. Now, if he again
revoked his this Second Will and
bequeathes his property in favour of the
petitioner how it matters. Sant Bux is
also not an unknown person to the family
of Garibe. He is son of his real Brother
and he claimed that he is the only
surviving male member in the pedigree
of Garibe. Reasons are there in Will-deed
why he is bequeathing property in his
favour. Learned counsel for the applicant
argued that these circumstances were
also not considered by the Consolidation
Authorities and also by this Court at the
time of disposal of the Writ Petition. It
appears that simply seeing concurrent
findings of Consolidation authorities,
writ petition was dismissed. My attention
was drawn by the learned counsel for the
review-petitioner on the case Law
reported in LCD 1999 (17) 134 Smt.
Ram Devi Vs. 8th Additional District
Judge, Kanpur which was also referred in
the impugned judgement where this
Court has laid down as follows :

"Constitution of India, Article 226
...................
concurrent
decisions,
interference in....Held, it is the duty of
the court to examine the material and do
justice between the parties.............. It
will be denial of justice, if court acts on
computerized system of administration
of justice by just affixing a rubber stamp
of approval on concurrent decisions
merely on the ground that they are based
on findings of the fact."

8. With reference to the above Law,
learned counsel for the petitioner argued
that it is denial of justice, in the present
case also, because for the reasons
attention of the court escaped from the
the facts detailed in the Will executed by
Garibe in favour of Sant Bux where all
these details were given which are said
not given in the Will by Garibe in the
impugned judgement.

9.

Learned
counsel
for
the
respondent No. 2 argued that Review
Petition is not maintainable against the
impugned order. Learned counsel for the
petitioner argued that there is nothing in
Article 226 of the Constitution of India
to preclude the High Court from
exercising the power of Review which
inheres in every court of the plenary
jurisdiction to prevent miscarriage of
justice or to correct grave and palpable
errors committed by it. It may be
2 All] Sant Bux Singh V. Deputy Director of Consolidation and another
653
exercised where some mistake or error
apparent on the face of record is found
and it may also be exercised on any
analogous ground.

In case, 2001 (19) LCD 527 M.M.
Thomas Vs. State of Kerla, Apex Court
held that if any apparent error is noticed
by the High Court in respect of any order
passed by it, the High Court has not only
power but a duty to correct it. The High
Courts power in that regard is plenary.
High Court is court of record has
inherent powers to correct the record.
The burden to prove that Will in favour
of Sant Bux executed by Garibe was
forged or was obtained by undue
influence or by playing fraud was on
respondent no. 2. It was also to be seen
whether respondent no. 2 has discharged
its burden or not. It was argued that this
important aspect of the matter was also
not considered in deciding writ petition.

10. Learned counsel further argued
that
court
of
Deputy
Director
of
Consolidation is final court in the matter
of Consolidation proceedings. When a
revision is presented before the Deputy
Director of Consolidation, it is expected
from the court that it would take notice
of the case of the parties and also
evidence adduced by them and after
taking into consideration the findings of
the Courts below by giving his own
finding and reason in brief on the points
in dispute, the final order will be passed.
Learned counsel for the petitioner argued
that if we go through the judgment
delivered
by
Deputy
Director
of
Consolidation, we will find only in last
10 lines conclusion has been drawn
without discussing evidence in brief that
lower
courts
have
taken
into
consideration the facts and circumstances
of the case and evidence available on the
record and scrutinized the evidence
properly and he is in agreement of the
findings of the courts below. He has not
given his own finding even in brief why
the Will in favour of Sant Bux executed
by Garibe is not reliable and should not
given
effect.
He
just
acted
on
computerized system of administration
of justice by just affixing a rubber stamp
of approval on the concurrent decisions
merely on the ground that they are based
on the findings of fact. This cannot be
said judgement in the eyes of Law.
Learned counsel further argued that this
aspect of the case also not seen in the
matter while deciding the writ petition.

11. From the above discussions and
circumstances and also taking into
consideration the arguments of the
parties' counsel I am of the view that
argument raised by the learned counsel
for appellant are not without force and
has
some
subsistence.
There
are
sufficient reason to exercise the power of
reopen the matter in the interest of
justice. There is mistake and also selfevident error on the face of the record in
the impugned order. The same is hereby
recalled. The application to review the
impugned judgement is allowed. Writ
Petition be registered on its original
number and be listed again for hearing
before appropriate Bench. Needless to
mention that the matter in writ shall be
decided afresh and any observation made
in this judgment regarding merit of the
case will not come in the way of the
appropriate bench.
---------
654 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.07.2010

BEFORE
THE HON'BLE FERDINO INACIO REBELLO, C.J.
THE HON'BLE A.P. SAHI, J.

Special Appeal No. 276 of 2003

Vivek Yadav ...Petitioner/Appellant
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Vinay K. Gupta

Counsel for the Respondents:
C.S.C.

U.P. Recruitement of Dependent of Govt.
Servants Dying-in-Harness Rules 1974Rule-5- Application for compassionate
appointment
by
minor-Rejected
on
ground of time barred beyond statutory
period of 5 years-although application
moved by the petitioner-appellant within
5 years on achieving the age of majorityheld-being beneficial piece of legislationconfers
power
to
relax
the
delayapplication must by competent person a
minor is no competent unless attain age
of 18 year- the authority as well as
Single Judge-can not ignore this aspect.

Held: Para 8

The power to relax itself contemplates
that in a particular case, the matter has
to be dealt with in a just and equitable
manner. In other words, the test to be
applied is
does the
family of
the
deceased continue to suffer financial
distress and hardship occasioned by the
death of the breadwinner so as to relax
the period within which the application
could be made. These are matters of
fact, which the competent authority
would have to consider. In the instant
case, what we find is that the application
was rejected merely because it was
beyond the time prescribed.
Case law discussed:
(1994) 4 SCC 138, [(2009) 13 SCC 122],
[(1998) 9 SCC 485], [(1996) 8 SCC 23, [2000
(2) UPLBEC 1694].

(Delivered By Hon'ble Ferdino Inacio
Rebello, C.J.)

1. This special appeal is preferred by
the appellant, who sought appointment on
compassionate basis on attaining majority
after the death of his father on 26th of
May, 1986. Late father of the appellant
was working on the post of Assistant
Agriculture Inspector in Rajkiya Krishi
Beej Bhandar, District Rae Bareli. On
account of the death of his father, who
was the sole bread earner, the entire
family is facing financial crunch and it
became impossible for the family to make
both ends meet. The family of the
deceased had no immovable property and
they are living in the rented house and
there was nobody to support the family.
The mother of the appellant was illiterate
and was not aware of the benefits and
thus,
did
not
claim
compassionate
appointment under the State Rules, which
are known as U.P. Recruitment of
Dependants of Government Servants
Dying-in-Harness
Rules,
1974
(hereinafter referred to as 'the Rules'). The
appellant was born on 2nd of February,
1984 and on completion of 18 years of
age, he preferred a representation dated
4th of August, 2001 before the District
Agriculture Officer requesting for his
appointment on compassionate basis as
the
financial
and
social
problems
occasioned by the death of his father
continue. The family of the appellant
consists of his mother, three sisters and
another brother. The mother of the
appellant also gave no objection on 29th