Sudhir Kumar Goswami vs Dist. Director Of Consolidation/ ...
2011 Latest Caselaw 4004 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Judgment Reserved on 16.8.2011
 
Judgment Delivered on 23.8.2011
 

 
Civil Misc. Writ Petition No. 31552 of 2011
 
Sudhir Kumar Goswami Vs. District Director of Consolidation/Deputy Director of Consolidation and other
 

 
**** 

Hon'ble A.P. Sahi, J

This is a contest between the petitioner, who is son of the respondent No.2 and brother of Respondent No.3. The contest is with regard to an agricultural holding recorded in the name of the father, respondent No.2 which has been alienated by him through a sale-deed in favour of Respondent No.4. The petitioner, objects to the same on the ground that the land in dispute was held in representative capacity by respondent No.2 on behalf of the entire joint family and, therefore, he had no individual authority of alienation particularly with regard to the share of the petitioner.

The legal battle commenced when the vendee - respondent No.4 moved an application for mutation under Section 12 of The Uttar Pradesh Consolidation of Holdings Act, 1953. Needless to mention that the village was under consolidation operations and, therefore, such transfer of rights are to be recorded under the provisions of the said Act. The application was accompanied by the sale-deed and on coming to know of the said proceedings, an application was filed by the petitioner before the Consolidation Officer, who is the competent authority, praying for being impleaded as a party to the proceedings to allow him to lodge his objections. The Consolidation Officer vide order dated 11.11.2009 called upon the petitioner - applicant to file his evidence in support of his claim for impleadment and only then he would be allowed to be impleaded. The petitioner claims to have moved his Affidavit in support of the said objection on 20.11.2009 along with an another detailed objection who has also been noticed by the Consolidation Officer, who passed the order on the same day rejecting the impleadment of the petitioner.

The petitioner also prayed for time to file a revision before the Consolidation Officer which was rejected. Accordingly, the petitioner moved a revision which has been dismissed by the impugned order dated 19.5.2011 holding that the petitioner was neither a proper nor a necessary party in the proceedings under Section 12 of The Uttar Pradesh Consolidation of Holdings Act. It was held by the revising authority that since the revision was against an interlocutory order, therefore, it was not maintainable.

Sri H.M.B. Sinha, learned counsel for the petitioner, had advanced his submissions earlier and this Court summarily dismissed the writ petition on 4.7.2011 on the ground that the petitioner could have filed a regular objection under the provisions of the Act under Section 9-A (2) for declaration of his rights if any independently and, therefore, the impleadment application had been rightly rejected. Aggrieved by the dismissal of the writ petition, the petitioner filed a review application on 7.7.2011 contending that Section 12 of The Uttar Pradesh Consolidation of Holdings Act, 1953 is not summary in nature and in view of the provisions of sub-section (2) of Section 12 of the said Act, the objector has a right to raise his claim which can be decided in the same manner as if it was an objection under Section 9-A (2) of the Act. This Court examined the review application and after considering all the authorities on the question came to the conclusion that the judgment dated 7.7.2011 had proceeded on an error apparent on the face of record without noticing the impact of sub-section (2) of Section 12 of the Act and the decisions in that regard and, accordingly, the review application was allowed on 27.7.2011 and the judgment dated 4.7.2011 was recalled restoring the writ petition to it's original number and calling upon the respondents to put forth their stand through a counter-affidavit.

Sri Chandan Sharma put in appearance on behalf of the respondent No.4 and filed an counter-affidavit. Notices were issued to respondent Nos. 2 and 3, who received the same and an Affidavit-of-Service has been filed which is dated 14.8.2011 stating therein that the said respondents have been personally served in the presence of two witnesses. They have not put in appearance inspite of service of notice and have not filed any counter-affidavit.

Sri Chandan Sharma has invited the attention of the Court to the averments contained in the counter-affidavit and it is urged that the petitioner has not disclosed correct facts and, therefore, such non-disclosure dis-entitles him for any discretionary relief. For this, he submits that the petitioner had initially filed Original Suit No.729 of 2006 for cancellation of the sale-deed in favour of respondent No.4 which was dismissed in default. Subsequently, another Suit No.740 of 2006 was filed through Sri Sunil Goswami, the brother of the petitioner and Aditya Goswami for the same relief and for the cancellation of the sale-deed. The said Suit was decided vide Order dated 7.7.2011 holding that the Suit is barred by Section 49 of The Uttar Pradesh Consolidation of Holdings Act and Section 331 of the U.P. Zamindari Abolition & Land Reforms Act. An appeal was filed against the said judgment which was partly allowed permitting the plaintiff to present the plaint before the appropriate forum and the order rejecting the plaint was set aside. Rest of the findings were affirmed. Learned counsel submits that the petitioner had knowledge of filing of the subsequent Suit where he was defendant No.4 yet he has withheld this information and hence the writ petition should be dismissed. Not only this, a revision filed in the matter of 2006 Suit was also disposed of on 2.7.2007 and, therefore, the averment made in the writ petition that it is pending is incorrect.

Sri Sharma further submits that the property is not joint family property and that the land had been purchased by the father of the petitioner (respondent No.2 herein) in his personal and individual capacity and not in representative capacity through a sale-deed on 3.5.1993. It is this land, which has been sold in the year 2006 to the answering respondent. Accordingly, the petitioner has no right, title or interest and he has unnecessarily raised this issue long after the consolidation proceedings had set in and the time for filing objection had expired under Section 9 of the Act. Along with the rejoinder-affidavit, a question-answer has been filed which records that the publication under Section 9 of The Uttar Pradesh Consolidation of Holdings Act inviting objections relating to right, title or interest had already been made on 19.7.1995 and no objection had been filed by the petitioner against his father's name having been entered in individual capacity. It is urged that the cause of action had already arisen to file an objection to the said entry but the petitioner having failed to do so lost his rights if any and any such objection would be barred in view of the provisions of Section 11-A of The Uttar Pradesh Consolidation of Holdings Act read with Section 49 thereof. He, therefore, submits that the petitioner has not come with clean hands before this Court and even otherwise he does not have any legal right hence the writ petition deserves to be dismissed with no interference under Article 226 of the Constitution of India.

Having heard learned counsel for the parties and having considered the submissions raised, it would be appropriate to reproduce the order dated 27.7.2011 passed on the review application in the present writ petition. The same is quoted hereunder:-

"Heard Sri H.M.B. Sinha learned counsel for the petitioner and Sri Chandan Sharma for the respondents.

The petition had been dismissed vide order 4th July, 2011, whereafter this review application was filed and the same was entertained. The review application was also heard and the court was not inclined to accept the same, yet on a second reading of the pleadings while dictating the order, the court further investigated the matter and came across three other judgments that have been referred to in the order dated 25th July, 2011, whereafter the review application was directed to come up for further hearing today.

This review application has been moved praying for recall of the judgment dated 4th July, 2011 on the ground that since the provisions of Section 7 to Section 11 of the U.P. Consolidation of Holdings Act, 1953 apply mutatis mutandis in proceedings under Section 12(2) thereof as such the impugned judgment proceeds on an error without noticing the said provision hence the same deserves to be recalled.

It is well settled that a review would lie if there is an error apparent on the face of record due to either a mistake of the court or the mistake of counsel. Even though, no such explanation has been given in the review application except pointing out of the aforesaid provisions, nonetheless the matter is being disposed of in view of the submissions raised by Sri Sinha. He relies on the apex court judgment in the case of Malkhan Singh Vs. Sohan Singh, AIR 1986 SC 500 to support his aforesaid stand contending that the petitioner is entitled to contest the proceedings under Section 12 of U.P. C.H. Act. He also cited the decision in the case of Kali Charan & others Vs. D.D.C. Ghazipur & another, reported in 1989 RD Pg. 129 to emphasise the meaning of the words mutatis mutandis. He has also cited the decision in the case of Swamidin Vs. State of U.P. & others in a matter of Ceiling on Land Holdings Act, reported in 1996 AWC Pg. 843.

He further submits that this position relating to the applicability of Section 7 to 11 has also been explained in the decision in the case of Aparbal Yadav & another Vs. Deputy Director of Consolidation, Gorakhpur & others, reported in 2003 (95) RD 44.

It may be clarified that a review is not a rehearing of the matter. Opposing the review application, Sri Chandan Sharma submits that the petitioner had also filed a suit for cancellation of the sale deed dated 9th October, 2006, executed by his father Krishna Gopal Goswami in favour of the respondent no. 4- Prateek Vikas Pvt. Ltd. being Original Suit No. 729 of 2006. The said suit was dismissed vide order dated 7.9.2007. The submission is that the impleadment sought by the petitioner in the proceedings under Section 12 of C.H. Act has been rightly rejected by the authorities below and this Court has not committed any error in observing that the petitioner could have filed objection under Section 9-A(2) of the U.P. C.H. Act, 1953, if he was claiming any independent right.

Having heard learned counsel for the petitioner Sri Singh and Sri Sharma for the respondents, it is true that if a matter relating to a title is contested after the revision of records through the proceedings under Section 12, then they would proceed in the same manner as if it was an objection under Section 9-A(2) by virtue of sub-section (2) of Section 12. To that extent, Sri Sinha is right.

In the instant case, the cause of action as disclosed by the petitioner is that he is contesting the title of his own father over the land in dispute. The contention of the petitioner is that the name of his father was entered in revenue records only as a 'Karta' of the family and therefore, taking undue advantage of this status, he had no authority to dispose of the entire holding in favour of a third person, even beyond his share. The holding was being described in the impleadment application as a holding in representative capacity in the name of the petitioner's father.

According to the respondents counsel if this is the plea of the petitioner, then he is contesting the bumidhari rights of his father on the ground that the petitioner has an independent right. This cause of action, therefore, was available to the petitioner, as soon as Section 9 proceedings were initiated, and the proceedings under the Consolidation of Holdings Act for decision of rights had commenced. At that stage, the petitioner had full opportunity to file his objection under Section 9-A(2) claiming his independent right. If the petitioner wanted a declaration against his own father then the remedy to the petitioner was to file an objection under Section 9-A(2). It is this opinion, which has been expressed in the judgment dated 4th July, 2011.

The judgments on scrutiny namely the decision in the case of Raj Bahadur Vs. Board of Revenue, 1979 RD 50 at Page 53 recites as under:-

"It does not, however, seem to follow from these provisions that the Legislature intended that even where members of a Hindu Joint Family were peacefully in joint possession and did not desire any partition, or where co-sharers were under a family arrangement peacefully in separate possession over their respective areas and did not desire any change in the recorded entry, the consolidation authorities were required to record their respective shares or necessarily to effect partition even if not required for ensuring proper consolidation, or that if the non-recorded co-parceners did not seek to get their names or shares specified, their title should get extinguished. The case of co-sharers who are in undisturbed cultivatory possession of different areas according to their shares can not be equated with one of trespassers or persons claiming adverse possession."

In the instant case, the petitioner contends that the cause of action arose when the sale deed came to be executed in favour of contesting respondent by his father and also when the contesting respondent moved an application under Section 12 of the U.P. C.H. Act, 1953 for mutation. It is at that stage that the petitioner filed an impleadment application in order to contest the said proceedings under Section 12. The issue therefore is as to when did the cause of action arose for the petitioner.

A perusal of the pleadings that are on record, the cause of action to the petitioner did arise when the vendee of his father proceeded to get his name mutated meaning thereby when the father of the petitioner sold the property. In such a situation and keeping in view the ratio of the decision in the case of Raj Bahadur (supra) it cannot be said that the cause had already arisen to the petitioner at the stage of Section 9 of the U.P. C.H. Act.

The bar of Section 11-A of the U.P. C.H. Act, would obviously restrict the rights of petitioner to file an objection had the cause arisen earlier at the stage of Section 9. The aforesaid situation therefore makes it clear that the petitioner had no cause of action to file an objection at the stage of Section 9, and accordingly, the observation made by me in the judgment dated 4th July, 2011, is clearly an error apparent on the face of record without noticing the provisions of sub-section (2) of Section 12 as also the authorities referred to hereinabove. The judgment dated 4th July, 2011, therefore, deserves to be reviewed and accordingly, the same is hereby recalled. The writ petition is restored to its original number.

In view of the writ petition having been restored, Sri Chandan Sharma prays for time to file a counter affidavit.

Let an affidavit be filed by Monday. Put up on Monday. "

The petitioner contends that as a matter of fact he had no cause of action in the year 1995 when the proceedings under The Uttar Pradesh Consolidation of Holdings Act had commenced and the notification was issued under Section 9 inviting objections. The provisions of sub-section (2) of Section 9 are quoted hereunder to appreciate the said controversy.

"9. (2) Any person to whom a notice under sub-section (1) has been sent, or any other person interested may, within 21 days of the receipt of notice, or of the publication under sub-section (1), as the case may be, file, before the Assistant Consolidation Officer, objections in respect thereof disputing the correctness or nature of the entries in the records or in the extracts furnished therefrom, or in the Statement of Principles, or the need for partition.

This provision gives a period of 21 days from the date of notification to any other person interested to file an objection in case there is a dispute relating to the correctness or nature of entries on record or the need for partition. Thus, the publication under Section 9 gives the first opportunity to file objections. The objections have to be filed under Section 9-A of the Act. For the purpose of partition of holdings, the provisions of Section 9-C are available if a partition is claimed on the basis of shares. On the basis of any such order passed under the aforesaid provisions, the records are revised with liberty to the parties to file appeals against any such decision under Section 11 of the Act. If an aggrieved person fails to file an objection then a bar comes to operate under Section 11-A which is quoted hereunder:-

"11-A. Bar on objection.--NO question in respect of--

(i)claims to land,

(ii)partition of joint holdings, and

(iii)valuation of plots, trees, wells and other improvements, where the question is sought to be raised by a tenure-holder of the plot or the owner of the tree, well or other improvements recorded in the annual register under Section 10,

relating to the consolidation area, [which has been raised under Section 9 or which might or ought to have been raised under that section], but has not been so raised, shall be raised or heard at any subsequent stage of the consolidation proceedings.]"

The submission of the petitioner is that the petitioner had no cause of action when the notification under Section o was issued as there was no dispute between him and his father at that point of time regarding the entry individually standing in the name of the father. In such a situation, there was neither any occasion to file an objection under Section 9-A and correspondingly there was no occasion for the bar under Section 11-A to operate against the petitioner.

Learned counsel submits that the cause of action arose long thereafter when the sale-deed came to be executed by the petitioner's father in favour of the respondent No.4 in the year 2006. The sale-deed was executed on 9.10.2006. It is when the respondent No.4 moved an application for recording of his name on the basis of the sale-deed that the cause of action arose. The provisions of Section 12 of the Act are quoted hereunder for an appropriate reference:-

"12. Decision of matters relating to changes and transactions affecting rights or interest recorded in revised records.--(1) All matters relating to changes and transfers affecting any of the rights or interests recorded in the revised records published under sub-section (1) of Section 10 for which a cause of action had not arisen when proceedings under Sections u to 9 were started or were in progress, may be raised before the Assistant Consolidation Officer as and when they arise, but not later than the date of notification under Section 52, or under sub-section (1) of Section 6.

(2) The provisions of Sections u to 11 shall mutatis mutandis, apply to the hearing and decision of any matter raised under sub-section (1) as if it were a matter raised under the aforesaid sections."

A perusal of the said provisions indicates that if any change relating to a transaction affecting the right or interest of the recorded tenure holder intervenes, then all such matters have to be dealt with under the said provision. The Section clearly provides that the same would be attracted where a cause of action relating to such transaction had not arisen when proceedings under Sections 7 to 9 were started or were in progress. Learned counsel submits that the petitioner's claim is clearly protected under the said provision as no cause of action had arisen when the proceedings of Section 9 had been initiated or concluded. It is almost after more than 11 years of the notification under Section 9 that the transaction of sale took place in 2006 between the father of the petitioner and the respondent No.4 giving rise to an application under Section 12 of the Act. He, therefore, contends that the section gives a right to raise a dispute in relation to all such matters which has to be decided as if it was an objection as understood under Section 9 of the Act, inasmuch as sub-section (2) of Section 12 declares that such an objection will be decided as sections 7 to 11 mutatis mutandis apply to such proceedings.

Learned counsel, therefore, submits that the impleadment and the objection raised by the petitioner, whatever worth it was, had to be entertained and the objection had to be decided by the Consolidation Officer. The petitioner submits that the Consolidation Officer has erroneously refused to exercise his discretion and jurisdiction for no valid reason which is contrary to the provisions of Section 12 of the 1953 Act. The contention in short is that whatever be the nature of the objection of the petitioner, his impleadment could not have been rejected and his objection had to be decided on merits after allowing him to lead evidence. Reliance has been placed by the learned counsel for the petitioner on the decisions that were referred to at the time of the disposal of the review application and have been noted in the order dated 27.7.2011.

Sri Sharma, learned counsel for the contesting respondent No.4, contends that the cause of action even otherwise had arisen to the petitioner if he was not on good terms with his father and for that the appropriate forum was an objection to be filed under Section 9-A (2) of the Act. He contends that the petitioner having failed to have availed of the said opportunity, there is a statutory bar operating against him. Hence the objection cannot be entertained at the stage of Section 12. In short, the submission is that if the cause of action had arisen earlier, as is evident from the nature of the dispute, then the filing of the objection under Section 12 by the answering-respondent cannot be the stage of raising any objections in view of the bar as pointed out herein above. He has invited the attention of the Court to the Supreme Court decision in the case of Narendra Singh and others Vs. Jai Bhagwan and others, AIR 2005 SC 582.

The position that emerges is that the impleadment sought by the petitioner would be entertainable on the issue relating to the occasion of the arrival of the cause of action to file an objection before the consolidation authorities. There is nothing on record to demonstrate that the petitioner and his father were on cross terms when the notification under Section 9 of the 1953 Act came to be issued in 1995. There is no material to indicate that the petitioner had any cause of action or any cause of action was disclosed otherwise demonstrating a rift between the father and the son upto 2006. On the contrary, the petitioner submits that he had set up a filling station on the land in dispute after it was purchased in the year 1993 in the name of his father and there being no dispute between them at that point of time, there was no reason to approach the consolidation authorities for declaration of any such right or separation of his share. In the absence of any such material, it cannot be said that the petitioner had a cause of action at the stage of Section 9 of the Act. To the contrary, the dispute appears to have surfaced in the year 2006 after the execution of the sale-deed.

The petitioner promptly moved his impleadment application as well as his objection which is on record. The filing of the civil Suit will not bar the right of the petitioner to file an objection so long as the consolidation operations had not come to an end on the date when the respondent No.4 moved an application under Section 12 of the Act or the date on which the petitioner filed his impleadment application. The bar of Section 11-A or Section 49 would, therefore, not operate and the petitioner will have a right to move an objection. The petitioner had disclosed the nature of the right claimed by him. In such a situation, the observations made by this Court in the case of Raj Bahadur Vs. Board of Revenue, 1979 RD 50, as extracted herein above in the order dated 27.7.2011 would be squarely applicable. The decision in the case of Ram Pal Singh Vs. Khandey, 1976 RD 162, is not an authority on the proposition which has emerged on the facts of the present case where the observations made in the case of Raj Bahadur Singh (supra) are more appropriate. The said decision has also been further approved in the case of Rati Ram Vs. Rajvir and others, 1991 ALJ 58. I am, therefore, of the opinion that the impleadment application coupled with the objection filed by the petitioner had to be entertained more so keeping in view the ratio of the decision in the case of Narendra Singh (supra) which clearly requires that the matter has to be raised before the revenue authority.

The objection, which is entertainable under Section 12, has to be decided in the same way as if it was an objection originally filed keeping in view the fact that the provisions of Sections 7 to 11 of the Act apply mutatis mutandis. Thus, the proceedings relating to claim under Section 12 encompass all matters and it is not a mere summary mutation jurisdiction. The objections have to be tried in the same manner as if it was an objection under Section 9-A (2). As explained above, the cause of action for such an objection had not arisen in the present case at the stage of Section 9 and, therefore, the objection has to be decided if raised in proceedings under Section 12.

It is made clear that this Court has not entered into the nature of the right which is being claimed by the petitioner and is only confined to the issue as to whether such an objection could be entertained or not. As reasoned out herein above, the objection was entertainable and the merits thereof had to be decided after allowing the petitioner to contest the same and lead evidence. In my opinion, the impleadement deserves to be allowed and the objection ought to have been decided on merits. The writ petition, therefore, succeeds and is allowed. The order of the Consolidation Officer dated 20.11.2009 and that of the revising authority dated 19.5.2011 are quashed. The petitioner's objection filed shall be entertained on merits and a decision shall be rendered by the Consolidation Officer in accordance with the observations made herein above after allowing the parties to lead evidence. Keeping in view the nature of the dispute, it will also be appropriate that the objections are decided expeditiously preferably within a period of 6 months.

Dt. August 23, 2011

Irshad