Anish Ahemad And Another vs Deputy Director Of Consolidation ...
2012 Latest Caselaw 3921 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 18
 
Case :- CONSOLIDATION No. - 701 of 2006
 
Petitioner :- Anish Ahemad And Another
 
Respondent :- Deputy Director Of Consolidation Lucknow And Another
 
Petitioner Counsel :- Suresh Chandra Shukla
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Anil Kumar,J.

Heard Shri Suresh Chandra Shukla, learned counsel for the petitioners, learned State Counsel and perused the record.

Facts in brief are that the controversy involved in the present case relates to gata nos.55/3/2 and 52 (hereinafter referred to as the land in dispute) situated in village Ghaila, Pargana, Tehsil, District-Lucknow.

To decide the controversy involved, it is necessary to go through the pedigree, reproduced herein below:-

 
Mehandi Husain
 
|
 
            _____________________________|_______________________
 
	|								        |
 
Naushad Ali 								Mohd. Ishrar
 
	|									|
 
	|								Mohd. Jahar
 
_____  |_______________________________
 
Anish Ahemad 		Gaush Ahmad
 

It is submitted by learned counsel for the petitioners that when the matter was pending before the Settlement Officer of Consolidation, Lucknow against the order dated 13.12.1977 passed by the Consolidation, Officer, a compromise (Annexure No.2) has taken place between the petitioners and father of opposite party no.2. Accordingly, Settlement Officer of Consolidation, Lucknow, decided the appeal no. 594 "Anish Ahmad & Ors. vs. Moh. Israr Husain" in terms of the compromise entered between the parties by the judgment and order dated 31.1.1979 thereby setting aside the order dated 13.12.1977 passed by Assistant Consolidation, Officer, Lucknow.

Thereafter, the father of the opposite party no.2/Sri Mohd. Israr filed a time barred revision against the order dated 31.1.1979, the Deputy Director of Consolidation, Lucknow by order dated 1.12.1995 condoned the delay in filing the revision and fixed the matter for hearing.

During the pendency of the revision before the Deputy Director of Consolidation, Lucknow, Mohd. Israr died, substituted by his legal representative namely Mohd. Jarar/opposite party no.2. By means of judgment and order dated 29.7.2006, the Deputy Director of Consolidation, Lucknow decided the revision in favour of opposite party no.2 and set aside the order dated 31.1.1979 passed by Settlement Officer of Consolidation, Lucknow in Appeal No.594 as well as restored the order passed by Consolidation, Officer. Aggrieved by the said facts, the present writ petition has been filed by the petitioner before this Court.

Learned counsel for the petitioners while challenging the impugned order dated 29.7.2006 submits that in the present case, a compromise has been entered between the parties before the Settlement Officer of Consolidation, Lucknow and on the basis of same the judgment and order dated 31.1.1979 has been passed by the Settlement Officer of Consolidation, Lucknow.

Aggrieved by the said facts, a revision has been filed by the opposite party no.2 after a delay of 17 years, so there is no justification or reason on the part of opposite party no.1/Deputy Director of Consolidation, Lucknow to allow the application for condonation of delay by order dated 1.12.1995. Further, the action on the part of the said authority thereby setting aside the order dated 31.7.1979 passed by the Settlement Officer of Consolidation, Lucknow only on the alleged ground raised by the father of opposite party no.2 in revision that the compromise entered between him and the petitioner nos.1 and 2 is forged, and no evidence has been led to prove the said facts, is an action which is wholly contrary to law, in support of his argument, has placed reliance on the judgments given by this Court in the case of Yogaditya vs. Deputy Director of Consolidation, Ghaziabad & Ors. 2004 (96) RD 341 and Smt. Manraji vs. Deputy Director of Consolidation, Basti & Ors. 2004 (97) RD 594.

Accordingly, it is submitted by learned counsel for the petitioner that the impugned order dated 29.7.2006 is contrary to law, liable to be set aside.

Shri P. C. Mishra, learned counsel appearing on behalf of opposite party no.2 while defending the impugned order has only submitted that in the revision it has been mentioned by the father of opposite party no.2 that compromise in question is forged one but no steps have been taken in order to establish the said plea, and no other point has been argued or pressed by him to support the impugned order challenged in the present writ petition.

During the pendency of the present writ petition, Anish Ahmad/petitioner no.1 died, substituted by his legal representatives as petitioner nos.1/1 to 1/6.

I have heard learned counsel for the parties and gone through the records.

As per the admitted facts of the present case, when the matter was pending for adjudication before Settlement Officer of Consolidation, Lucknow, a compromise (Annexure No.2) has been entered between Mohd. Ishrar and petitioner nos.1 and 2 which was duly verified by their counsel respectively, which is clearly established from the material/documents on record, on the basis of the said compromise, the order dated 31.1.1979 has been passed by Settlement Officer of Consolidation, Lucknow, challenged by way of revision by the Mohd. Israr (now deceased) under Section 48 of the U.P. Consolidation Act before the Deputy Director of Consolidation, Lucknow after a delay of 17 years condoned by order dated 1.12.1995 (Annexure No.9) passed by the said authority.

Thus, so far as argument advanced by learned counsel for the petitioner that the Deputy Director of Consolidation, Lucknow has erred in condoning the delay in filing the revision, has got no force in view of the settled proposition of law that when substantial justice and technical considerations are pitted against each other, the way should be given to substantial justice.

Next point and the argument to be considered is whether the judgment and order dated 29.7.2006 (Annexure No.1) passed by Deputy Director of Consolidation, Lucknow/opposite party no.1 thereby setting aside the judgment and order dated 31.1.1979 in Appeal No.594 passed by Assistant Settlement Officer of Consolidation, Lucknow on the basis of the compromise entered between the parties, duly verified by their counsel, only on the ground stated by Mohd. Israr, father of opposite party no.2 that the same is forged one without leading any evidence in order to establish the fact is a correct exercise on his part or not ?

This Court in the case of Yogaditya vs. Deputy Director of Consolidation, Ghaziabad & Ors. 2004 (96) RD 341 paragraph no.5,has held as under:-

"In view of argument, noted above the Court has examined the matter. There appears to be no dispute about the fact that the compromise on the basis of which order was passed by the appellate authority on 16.8.1996 bears signature of opposite parties nos.3 and 4 and that has been verified by their Counsel. This finding has come in the judgment of appellate authority, dated 11.8.1997. In view of this, it was obligatory on the part of appellate authority to have recorded a finding in the event, he was not satisfied with the genuineness of the compromise, that the signature of respondent nos.3 and 4 and its verification by their counsel was a result of fraud on behalf of petitioner. Unless there is a finding in respect of genuineness of the signature, its verification and the compromise, the order passed on the basis of compromise cannot be set aside. The appellate authority was required to deal with evidence which was led by the opposite parties by taking into consideration the factum of fraud about their signatures and its verification by counsel and this as the appellate authority has neither referred any evidence nor has recorded any finding on the basis of which it can be said that the compromise order was a result of fraud, its setting aside cannot be legally sustained. The revisional Court also has not examined any factual aspect and has not recorded any finding in the light of observations as made above. Rather, he has dismissed the revision simply on the ground that the order of appellate authority is interlocutory in nature."

Further, in the case of Smt. Manraji vs. Deputy Director of Consolidation, Basti & Ors. 2004 (97) RD 594 wherein paragraph nos.8 and 10, held as under:-

"Para 8- The Supreme Court in the case of Sahu Madho Das and others vs. Mukhand Ram and another observed as follows:

It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognizing the right of the others, as they had previously asserted it, to the portions allotted to them respectively.

Para 10- In the case of Subbu Chetty's Family Chairties vs. Ganghaka Mudaliap, the Hon'ble Apex Court has held that if a person having full knolwedge of his rights as a possible reversioner enters into a transaction which settles his claim as well as of the opponent at the relevant time, he cannot be permitted to go back on that arrangement. He cannot be permitted to resile from the compromise and claim a right inconsistent with the one embodied in the compromise, the Apex Court while reiterating the applicability of doctrine of estoppel in matters of family arrangement has observed as follows:-

Assuming however the said document was compulsorily registrable the Courts have generally held that a family arrangment being binding on the parties to it would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it."

In view of the abovesaid legal position and taking into account the facts and circumstances of the present case that neither any evidence has been led nor any step has been taken by Mohd. Israr in order to establish and prove that the compromise (Annexure No.2) entered between the parties in the matter in question which was duly verified by the counsel respectively is an outcome of fraud, so without establishing the said fact it cannot be said that the said compromise is a forged and fabricated document. Accordingly, the order dated 29.7.2006 (Annexure No.1) passed by opposite party no.1 thereby setting aside the order dated 31.1.1979 passed by Settlement Officer, Consolidation is not sustainable, rather the same is contrary to law.

In the result, the impugned order dated 29.7.2006 (Annexure No.1) passed by opposite party no.1 is set aside and the judgment and order dated 31.1.1979 passed in appeal no. 594 "Anish Ahmad & Ors. vs. Moh. Israr Husain" on the basis of compromise entered between the parties is hereby restored.

With the above observations, writ petition is allowed.

Order Date :- 3.9.2012/Mahesh