HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 5 Case :- WRIT - B No. - 28798 of 2011 Petitioner :- Shiv Prakash Respondent :- D.D.C. And Others Petitioner Counsel :- Pradeep Kumar Rai Respondent Counsel :- C.S.C.,S.K. Gupta Hon'ble Amreshwar Pratap Sahi,J.
Heard learned counsel for the petitioner and Sri S.K.Gupta for the respondent nos.3 and 4.
The challenge in this petition is to the order of the Deputy Director of Consolidation rejecting the revision of the petitioner which had been filed assailing the order dated 19.12.1983. The contention of the learned counsel for the petitioner is that the sale deed which was the basis of the compromise, as well as the effect of the order dated 19.12.1983, was a fraudulent transaction, and therefore the Deputy Director of Consolidation has committed a manifest error for declining to interfere with the same. The submission in short is that if the sale deed is fraudulent so it is void and even otherwise the proceedings are vitiated.as fraud vitiates all solemn proceedings.
The back ground of the case is that the respondent nos.3 and 4 claim that they had purchased the land from the father of the petitioner late Ram Iqbal Tewari through a sale deed in the year 1981. The consolidation proceedings intervened and according to the respondents they got their names mutated by an order dated 19.12.1983 on the basis of a compromise.This order came to be endorsed in the relevant C.H.Form 23 in 1994 itself. The consolidation proceedings culminated with the de-notification under Section 52 of the U.P.C.H.Act. The father of the petitioner, Ram Iqbal Tewari died in 1998. He did not file any objection or raise any plea against the sale deed during his life time. In the year 2008 an appeal was filed under Section 42-A of the U.P.C.H.Act by the contesting respondents for rectification of an order that came to be passed by the Consolidation Officer on 23.4.1988. Another order was passed on an application under Rule 109 of the U.P.Consolidation of Land Holdings Rules for giving affect to the rectification.
Learned counsel for the petitioner contends that it is only in the year 2008 when the petitioner came to know about the order dated 19.12.1983 ,and the fraudulent nature of the transaction of the sale deed , that he filed an appeal against the order under Rule 109 dated 25.6.2008. The petitioner also filed a revision against the order dated 23.4.2008 which was allowed. Another revision was filed against the order dated 19.12.1983 which has given rise to the present proceedings. The basic order is19.12.1983, the validity whereof has to be looked into.
Sri Rai learned counsel for the petitioner contends that from a perusal of the recital contained in the sale deed it is apparent that certain plots which were not even the tenancy of the petitioner were subject matter of the sale deed. Therefore it is more than apparent that the sale deed was a fraudulent document. He therefore contends that the Deputy Director of Consolidation ought to have examined this matter and consequently the order dated 19.12.1983 will also fall if the sale deed is fraudulent.
Sri S.K.Gupta learned counsel for the respondent contends that if the sale deed contains an incorrect recital or is an out come of fraud then the remedy of the petitioner was to file a suit for cancellation of the said sale deed and he could not have been permitted to raise, this plea after the death of the father of the petitioner , that too even after 27 years. of the sale. He submits that even if the number of plots have been incorrectly mentioned the same could have been a matter of dispute by persons who are owners of these plots and not the petitioner.He further contends that all these pleas which have been raised by the petitioner after 27 years of the execution of the sale deed cannot be entertained by the consolidation authorities more so on the ground that it was allegedly fraudulent. It is submitted that the Deputy Director of Consolidation has rightly rejected the revision on the ground of limitation as well as maintainability.
Having heard learned counsel for the parties the basis of the title of the respondent nos.3 and 4 is the sale deed of the year 1981. The said sale deed was placed before the consolidation authorities in proceedings under Section 12 of the U.P.C.H.Act and an order was passed on 19.12.1983 for mutating the name of the respondent nos.3 and 4. This was founded on the basis of a compromise entered into between Ram Iqbal Tewari the father of the petitioner and the Khatedars of the said Khata. From a perusal of the memo of revision a copy of which has been filed as Annexure 11 no ground appears to have been taken therein disputing the factum of the compromise.
In this view of the matter once the compromise has not been disputed it is not for the petitioner to get the entire proceedings under Section 12 opened after the death of his father who died in 1998. All these proceedings are an after thought and cannot be allowed to be sustained at the instance of the petitioner. The petitioner could have been well advised in case he is aggrieved to file a civil suit disputing the sale deed. I do not find any error in the impugned order.
The writ petition is dismissed.
Order Date :- 18.5.2011 mna