KRISHNANAND (D) THROUGH. LRS.versusDEPUTY DIRECTOR OF CONSOLIDATION & ORS.

•                 . [2014] 11 S.C.R. 1001


           KRISHNANAND (D) THROUGH. LRS.                          A
                              v.
    DEPUTY DIRECTOR OF CONSOLIDATION & ORS.
           (Civil Appeal No. 9932 of 2014)
                    OCTOBER 28, 2014
                                                                  B
       [SUDHANSU JYOTI MUKHOPADHAYA AND
                 S.A. BOBDE, JJ.)

      Constitution of India, 1950 - Article 226 - Writ jurisdiction·
- Scope of - Held: Jurisdiction u/Article 226 cannot be C
exercised for reappraisal of evidence unless the order
impugned was passed by the authority without jurisdiction or
in excess of his jurisdiction, or finding was patently perverse
- In the present case, High Court in exercise of its writ
jurisdiction was not right in reversing concurrent finding of fact D
 arrived at by three authorities - Uttar Pradesh Consolidation
 of Holdings Act, 1953.

    Allowing the appeal, the Court
    HELD: 1. Jurisdiction under Article 226 of the                E
Constitution cannot be exercised for re-appreciating the
evidence and arrival of findings of facts unless the
authority which passed the impugned order does not
have jurisdiction to render the finding or has acted in
excess of its jurisdiction or the finding is patently             F
perverse. [Para 10) [1007-G, H; 1008-A]

     2. The High Court o'ught not to have entered into re-
appreciation of evidence and reversed the findings of fact
arrived at by the three authorities below, especially since,      G
the authorities had neither exceeded their jurisdiction nor
acted perversely. The High Court has no where stated
that it was of the vrew that there is any perversity, much


                             1001                                 H
     1002    SUPREME COURT REPORTS                 [2014] 11 S.C.R.         •
 A   less the High Court failed :to demonstrate any such
     circumstances. [Para 11] [1008-C, O]

       Babubhai Muljibhai Patel Vs. Nandlal Khodidas Barot
   and Ors. 1975 (2) SCR 71: (1974) 2 SCC 706; National
 B Thermal Power Corporation Ltd. Vs. Mahesh Dutta and Ors.
   2009 (10) SCR 1084 : (2009) 8 SCC 339 - distinguished •
                                      .
                           Case Law Reference:
         1975 (2) SCR 71              Distinguished        Para 6
c        2009 (10) SCR 1084           Distinguished        Para 8
         CIVIL APPELLATE JURISDICTION : Civil Appeal No.
     9932 of 2014.
                                      I

       From the Judgment & Order dated 06.05.2013 in WP No.
 D 5289 of 1983 of the High Court of Judicature at Allahabad,
   Lucknow Bench.              '·                           ·

         Ashwani Kumar, Iii Sharma for the Appellants.
                                  '   '
 E       Pradeep Kant, Ardhendumauli Kumar Pras;ad, Vikas,
     Bansal, Divyanshu Sahay, Rakesh K. Sharma for the
     Respondents.             1
                                                       . ::1

         The Judgment of the Court was delivered by
                                                                        ..,,.
                                                                          , ~

 F      S. A. BOBDE, J. 1. Leave granted ..
                                   '
        2. The appellants have challenged the Judgment of the.
   Allahabad High Court, Bench at Lucknow, by which the High.
   Court has set aside concurrent orders passed by the1
 G Consolidatiori Officer, Sultanpur, dated 03.02.1982; Assistant
   Settlement Officer, Consolidation, Sultanpur dated 21.05.1982; 1
   and Deputy Director of Consolidation, Sultanpur dated,
     17.08.1983.                                                ": ..
                                                                    , ,..J_')
           3. The brief .facts giving riseJo this appeal may be stated{
· H .. as below:                        ' ·
•KRISHNANAND (D) TH. LRS. v. DEPUTY DIRECTOR 1003
      OF CONSOLIDATION [S.A. BOBDE, J.]
      This dispute relates to Khata No. 201 bearing two Gata$.     A
Initially, the land was recorded in the name of Krishna Nand and
Shiv Ram, sons of Ram Adhar. The relationship between the
parties is as follows:

                          BACHCHU
             r                                                     B
            SON                         SON

         RAM ADHAR                     RAM SAMUJH
     I                                           I
            SON                SON         SOLE DAUGHTEF
                                                                   c
         KRISHNA NANO          SHIV        SMT. KAMLA DEVI
                               RAM

      Ram Adhar and Ram Samujh were real brothers, being
 sons of Bachchu. Ram Adhar was elder to Ram Samujh. Kamla D
 Devi, Ram Samujh's daughter, claimed that although Ram
 Adhar acted in a representative capacity, the suit-property had
 been purchased jointly by her father and Ram Adhar in 1938
 frcim the Hasanpu'r Estate in District Sultanpur. To stake her
 claim, she relied upon letters and post cards between her father E
 and his brother. Ram Samujh passed away on 03.03, 1976,
.leaving behind Kamla Devi, his sole heir. Ram Adhar and Ram
 Samujh had partitioned the suit property in the year 1941.
 Furthermore, Kam la Devi contended before the HC that the suit
 property was purchased in the name of her Uncle, Ram Adhar F .
 in 1938, simply because he was the head of the family. After
 his death in 1964, Ram Adhar's sons, Krishna Nand and Shiv ·
 Ram got the suit-property mutated in their name, in spite of the
 fact that Kamla Devi remained in possession of her share. In
  1973, the village where the suit property is located, was notified G
 purs.uant to a consolidation operation. Kamla Devi's husband,
 who was at the time looking after Ram Samujh's share of the
 suit-property, filed objections before the Assistant
 Consolidation Officer, claiming co-tenancy over the said
 property. The matter upon being referred to the Consolidation
                                                                   H
    1004    SUPREME COURT REPORTS                 (2014) 11 S.C.R.
                                                                        •
A Officer, Shiv Ram s/o Ram Adhar and Kamla Devi's father, Ram
  Samujh entered into a compromise, with both admitting half-
  share to each. Pursuant to this, the Consolidation Officer
  decided the case and accordingly the chak was carved out.
  Subsequently, Krishna Nand, i.e. Shiv Ram's brother, filed his
B objection under Section 9(2) of the UP Consolidation of
  Holdings Act, 1953 for the cancellation ofthe above mentioned
  compromise, which was rejected. Aggrieved, Krishna Nand
  preferred an Appeal before the Appellate Authority - The
  Assistant Settlement Officer of Consolidation at Sultanpur, who
c allowed the Appeal and quashed the Order passed by the
  Consolidation Officer and remitted the matter to him, with
  directions to decide the matter afresh on merits. Accordingly,
  the Consolidation Officer reconsidered the matter, and
  dismissed Kamla Devi's claim over the suit property and
  declared her a trespasser. Aggrieved, she preferred an Appeal
D before the Settlement Officer of Consolidation, who dismissed
  her claim. Thereafter she filed a Revision before the.Deputy
  Director of Consolidation, which was also dismissed.
  Aggrieved, she filed a writ-petition before the High Court, which
  was allowed vide the impugned order dated 06.05.2013.
E
        4. We have heard learned counsel for the parties and
    perused the record.

       5. A plain reading of the impugned order shows that the
F High Court had committed ari error in re-appreciating the
  evidence by setting aside the findings of fact, which is normally
  impermissible in the exercise of [ts jurisdiction under Article 226
  of the Constitution of India. The learned counsel for the
  respondent however relied on two decisions of this Court, which
G on a close scrutiny do not help' the case of the respondents.
  The said decisions are considered herein below.                 •·

        6. In Babubhai Muliibhai Patel Vs. Nandlal Khodidas
  Barot and Ors.: (1974) 2 SCC706, this Court observed that
  the High Court is not deprived of its jurisdiction to entertain a
H petition under Article 226 of the Constitution, merely because
                                   .                   '
•   KRISHNANAND (D) TH. LRS. v. DEPUTY DIRECTOR 1005
         OF CONSOLIDATION [S.A. BOBDE, J.]
in considering the petitioner's right of relief, questions of fact      A
may fall to be determined. In a petition under Article 226 the
High Court has jurisdiction to try issues both of fact and law.
Exercise of the jurisdiction is no doubt discretionary, but the
discretion must be exercised on sound judicial principles. When
the petition raises complex questions of fact, which may for            B
their _determination require oral evidence to be taken, and on
that account the High Court is of the view that the dispute
 should not appropriately be tried in a writ petition, the High Court
 may decline to try a petition. If, however, on consideration of
 the nature of the controversy, the High Court decides, that it         c
 should go into a disputed question of fact and the discretion of
 the High Court appears to be sound and in conformity with
 judicial principles, this Court would not interfere in appeal with
 the order made by the High Court~n this respect.

      7. It may be noted that Patel's case (supra) was a case D
where the High Court went into certain disputed facts regarding
whether the no confidence motion, in question, has been. merely
passed, inter alia, it had been contended by the President 'of
the Meeting that the no confidence motion had failed for want
of two-thirds majority of the total number of councillors. He had · E
accordingly filed an affidavit. The. High Court had come to the
conclusion that the Collector had no jurisdiction to make such
inquiry and that the Order of the Collector was void on the
ground that it had been made in violation of the principles of
 natural justice. In fact there was not even a semblance of natural F
justice. The High Court proceeded to consider the material on
 record including the evidence of deponents who had been
cross-examined, and came to the conclusion that 17 councillors
 had voted for the no confidence motion against the appellant
 in the meeting held on May 6, 1973. In these circumstances, G
the exercise of the jurisdiction by the High Court was justified
 on the ground that the entire concept of a democratic institution
would thus have been set at naught, if the appellant would have
 continued as President of the Municipality even though he had
ceas~d to enjoy the support of a requisite number of .H
     1006    SUPREME COURT REPORTS                 (2014] 11 S.C.R.
                                                                         •
A councillors. This Court observed that the purpose underlying the
  petition would have been completely defeated in case
  respondent no. 1 had been relegated to the ordinary remedy
  of a suit and that such remedy was neither adequate nor
  efficacious. Thus the circumstances of the case were entirely
B different from the present case.

          8. Similarly, we do not find that the circumstances existing
     in the other case relied on by the learned counsel for the
     respondents are relevant to the present case. In National
  Thermal Power Corporation Ltd.i Vs. Mahesh Dutta and
C Ors. : (2009) 8 sec 339, the dispute was as to the taking of
  possession of acquired land in ,case of urgency under
  Section 17 of the Land Acquisition Act and this Court observed
  whether actual· physical possession had been taken in
  complianee of the provisions of Section 17 of the Act or not
D would depend upon the facts and circumstances of each case.
  This Court also observed that depending upon the fact situation
  obtaining in each case; ·the High Court had the power to
  determine whether possession of the acquired land was actually
  taken over or not. Eventually, this Court held that a presumption
E existed in view of Section 114 of the Evidence Act, 1872,
  having regard to the issue of certificate and that, therefore. the
  High Court was right in holding that possession has actually
  been taken. This Court upheld the power of the High Court to
  enter into a disputed question of fact depending upon the
F circumstances of the cas'e. There .is no doubt that depending
  upon the circumstances of the case, the High Court could
  determine a question of fact. It must necessarily do so in the
  nature of the case referred to above.

G          9. Considering the·present case, we find that the
      Consolidation Officer, Sultaripur by the order dated 03.02.1982;
    · the Assistant Settlement Officer, Consolidation, Sultanpur by
      order dated 21.05.1982; and Deputy Director of Consolidation,
      Sultanpur by order dated 17:08.1983 had taken a certain view.
      The Consolidation Officer, Sultanpur had passed the final order
H
•   KRISHNANAND (D) TH. LRS. v. DEPUTY DIRECTOR1007
         OF CONSOLIDATION [S.A. BOBDE, J.] .
dismissing the respondent's objection and treated her as a                  A
trespasser in view of the revenue record available. The
respondent filed an appeal before the Assistant Settlement
Officer, Consolidation, Sultanpur, who dismissed the said
appeal. The respondent then preferred a revision before the
Deputy Director of Consolidation, Sultanpur, which too was                  B
dismissed. Thus, three authorities had come to the conclusion
that the respondent is a trespasser. However, the High Court
in the Writ Petition filed by the respondent re-appreciated the
entire evidence on record as if it was hearing an appeal and
 came to the following conclusion:                                          c
        "However, I am of the view that they have failed to
        appreciate that the receipts of money order establish the
        money transaction happened between Ram Samujh and
        Ram Adhar. The entry of clause 9 shows the possession
        of Ram Samujh over the land in dispute, may not be as               D
        owner of the land. Statements of the witnesses prove that
        the property was acquired through the money sent by Ram
        Samujh when their family was joint and since Ram Adhar
        was living at home, it was recorded in his sole name.
        Possession of.both the parties was recorded over half of            E ·
        the each share.
                                     '
        Thus, from the aforesaid facts, the possession of both the
        parties over the land in dispute to the extent of respective
        share is well proved. The acquisition of land by the joint          F
        fund of family having been living in the joint family is also
        established."

          10. The High Court has committed an error in reversing
    the findings of fact arrived at by the authorities below in coming
    to the conclusion that there was a partition. No doubt, the High        G
    Court did so in exercise of its jurisdiction under Article 226 of
    the Constitution. It is a settled law that such a jurisdiction cannot
    be exercised for re-appreciating the evidence and arrival of
    findings of facts unless the authority which passed the impugned
    order does not have jurisdiction to render the finding or has           H
    1008 · SUPREME COURT REPORTS                     [2014) 11 S.C.R.              •
A   acted in excess of its jurisdiction or the finding is patently
    perverse. In the present case, though the High Court reversed
    the concurrent findings of the authorities below and came to the
    opposite conclusion on matter of· facts, the High Court did not
    do so on the ground that the authorities below acted in excess
B   of their jurisdiction or without jurisdiction or that the finding is
    vitiated by perversity.              '

        11. We are of the view that the High Court ous1ht not to
   have entered into re-appreciation of evidence and rev1ersed the
  findings of fact arrived at by the three authorities below,
C especially since, the authorities had neither exceeded their
  jurisdiction nor acted perversely. The. High Court has no where
  stated that it was of the view that ttiere is any perversity, much
  less the High Court failed to demonstrate any such
  circumstances.
D
        12. In the circumstances, we are of the view that the appeal
  deserves to be allowed arid is accordingly allowed. The
  impugned order of the High Court is thus set aside.
    Kalpana K: Tripathy                                  Appeal allowed .




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