JUDGMENT
Krishna Murari, J.
1. By means of this writ petition the petitioners have challenged the judgment dated 3.2.1978 passed by Consolidation Officer and 25.2.1980 passed by Deputy Director of Consolidation, respectively.
2. I have heard Sri Arun Kumar learned counsel for the petitioners.
3. The facts in brief are that plot No. 446 situate in village Gulampur district Allahabad was recorded in the name of the petitioners in the basic year. The respondent No. 4 filed an objection under Section 9(2) of the U. P. Consolidation of Holdings Act (hereinafter referred to as the Act), claiming that his name be recorded as co-tenure holder over 1/2 share of the said property. The claim of respondent No. 4 was contested by the petitioners. The Consolidation Officer vide order dated 3.2.1978 determined the share of respondent No. 4 to be 1/3rd. Both, the respondent No. 4 and the petitioners filed appeal against the said order. The Settlement Officer, Consolidation vide order dated 2.7.1979 allowed the appeal filed by the petitioners whereas the appeal filed by the respondent No. 4 was dismissed. The respondent No. 4 filed a revision which has been allowed by the Deputy Director of Consolidation by the impugned order.
4. A perusal of the order passed by Consolidation Officer goes to show that though he has made reference to the documentary evidence adduced by the parties but instead of discussing and placing reliance on the same he has preferred to place reliance on the oral evidence. The Settlement Officer, Consolidation after considering documentary evidence has recorded a finding that respondent No. 4 has failed to prove that the property was ancestral property and was acquired by common ancestors of the parties. After considering entries in khatauni of 1321 fasli, 1330 fasli, 1334 fasli, 1372-74 fasli, 1375-77 fasli, the Settlement Officer, Consolidation came to the conclusion that names of any of the ancestors of respondent No. 4 is not recorded. On the contrary entries are in the name of Ram Lal and Ram Narain who are the ancestors of the petitioners, and as such respondent No. 4 has no share in the property in dispute.
5. The Deputy Director of Consolidation has set aside the judgment of Settlement Officer, Consolidation on the ground that evidence has not been assessed properly. The Deputy Director of Consolidation has placed reliance on an alleged power of Attorney said to have been executed in 1901 by which powers were given to Ram Lal being the eldest in the family. The said power of attorney was filed before Deputy Director of Consolidation for the first time. It was not proved in accordance with law, hence, no reliance could have been placed on the same. The Deputy Director of Consolidation wrongly placed reliance on the said power of attorney.
6. Relying on documentary evidence in the form of revenue record right from 1331 fasli, the Settlement Officer, Consolidation recorded a finding of fact that the property in dispute was not acquired by the common ancestors of the parties and the name of the ancestors of the branch of respondent No. 4 was never recorded. The Deputy Director of Consolidation has not pointed out that the finding recorded by the Settlement Officer, Consolidation were perverse or against the evidence on record or not supported by the evidence.
7. A perusal of the judgment of Deputy Director of Consolidation shows that he has arrived at a different conclusion by relying upon the oral evidence. It was not open for the Deputy Director of Consolidation to have disturbed the finding of fact recorded by Settlement Officer, Consolidation by re-appraising the evidence himself.
8. The Hon’ble Apex Court while, considering the scope of the powers of Deputy Director of Consolidation conferred by Section 48 of the Act in the case of Ram Dular v. Deputy Director of Consolidation Jaunpur and Ors.. 1994 (Supp) (2) SCC 198, has observed that in considering the correctness, legality or propriety of the order or correctness of the proceedings, the Deputy Director of Consolidation cannot assume the Jurisdiction of the original authority as a fact finding authority by appreciating the fact de-novo. He has to consider whether the legally admissible evidence has been considered by the authorities in recording of finding of fact or law or any patent illegality or impropriety has been committed or there was any procedural irregularity which goes to root of the matter.
9. Again the Apex Court in the case of Sheo Nand and Anr. v. Deputy Director of Consolidation Allahabad and Anr., AIR 2000 SC 1141 observed as follows:
“Normally, the Deputy Director of Consolidation in exercise of his powers is not expected to disturb the finding of fact recorded concurrently by the Consolidation Officer and the Settlement Officer (Consolidation) but where the findings are perverse, in the sense that they are not supported by the evidence brought on record by the parties or that they are against the weight of evidence. It would be the duty of Deputy Director to scrutinize the whole case again so as to determine the correctness, legality or propriety of the orders passed by the – authority subordinate to him.”
10. In the case of Gayadeen (deceased) through L.Rs. and Ors. v. Hanuman Prasad and Ors., (2001) 1 AWC 344, Hon’ble Apex Court has observed as follows:
“Thus, it is clear that not with standing the fact that Section 48 has been couched in wide term, it only permits interference where the finding of subordinate authority are perverse in the sense that they are not supported by the evidence brought on record or they are against law or where they suffer from vice or procedural irregularity.”
11. in the present case, the Deputy Director of Consolidation has not pointed out anywhere that finding recorded by Settlement Officer, Consolidation were perverse or contrary to the evidence or not supported by evidence. The Deputy Director of Consolidation on reappraisal of evidence arrived at a conclusion different from one arrived by Settlement Officer, Consolidation.
12. In view of the law laid down by the Hon’ble Apex Court Section 48 of the Act does not confer the Deputy Director of Consolidation with the power to disturb the finding of fact recorded by the Settlement Officer. Consolidation unless the said findings are perverse, contrary to the evidence or not supported by evidence. Since, by means of the impugned judgment, the Deputy Director of Consolidation has disturbed the finding of fact recorded by the Settlement Officer. Consolidation on re-appraisal of evidence the same is not sustainable. In the result the writ petition succeeds and is allowed. The impugned judgment of Deputy Director of Consolidation dated 25.2.1980 is hereby quashed and that of Settlement Officer, Consolidation dated 2.7.1979 is affirmed.
13. In the facts and circumstances of the case, there shall be no order as to costs.