Allahabad High Court
Badri Prasad vs Deputy Director Of Consolidation ... on 12 December, 2013
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
(Judgment reserved on 29.11.2013)
(Judgment delivered on 12.12.2013)
Court No. - 21
Case :- CONSOLIDATION No. - 689 of 2013
Petitioner :- Badri Prasad
Respondent :- Deputy Director Of Consolidation Faizabad And Ors.
Counsel for Petitioner :- Neeraj Pandey,S.C.Tewari
Counsel for Respondent :- C.S.C.,M.A.Siddiqui
Hon'ble Sibghat Ullah Khan,J.
Heard Sri Neeraj Pandey and Sri S.C. Tewari, learned counsel for petitioner and Sri M.A. Siddiqui, learned counsel for contesting respondent No.3, Om Prakash.
This writ petition arises out of consolidation proceedings pertaining to allotment of chaks. Petitioner is one of the four sons of Mishri Lal and opposite party No.3, Om Prakash is one of the three sons of Mewa Lal. Both Mishri Lal and Mewa Lal were real brothers. The main grievance, which has been raised by the petitioner is regarding plot No.389, area of which before start of consolidation was about 0.4 hectare. Against the order dated 06.06.2013 passed by the C.O. Herington Ganj, District Faizabad in Case No.8, opposite party No.3, Om Prakash filed Appeal No.523, Om Prakash Vs. Badri Prasad and others. S.O.C. Faizabad allowed the appeal on 22.08.2013 and modified the chaks as allotted by C.O. Against the said order, petitioner filed Revision No.834, Badri Prasad Vs. Om Prakash and others. D.D.C. Faizabad dismissed the revision on 30.10.2013, hence this writ petition.
The S.O.C. held that the C.O. had earlier made the changes in the chaks through order dated 21.05.2012, hence second alteration through order dated 06.06.2013 was not permissible. On this ground alone, appeal was allowed.
The contention of the opposite party No.3 before the courts below was that petitioner and his brothers had permitted a third person, a brick kiln owner, to dig four (or six) feet deep earth from plot Nos.1272, 1274 and 1248, after receiving consideration for the same and the same was being done by them under mutual arrangement between them and opposite party No.3 and his brothers hence said plots should be given to the petitioner and not to opposite party No.3 or his brothers. It was for this reason that opposite party No.3 and his brothers had been given chak on plot No.389. All the above plots were joint original holding of both the parties and their brothers apart from some other plots like 1335, 388 and 1273.
During arguments before the revisional court an application was filed on 28.10.2013 by the petitioner asserting that earth had been dug from plots No.1272 and 1274 uptil six feet deep and it had been got done by Om Prakash and his brothers.
Unless formal partition takes place, whatever is done in the joint land is treated to have been done by or on behalf of all the joint owners. If before actual partition either through suit under Section 176 of U.P.Z.A. & L.R. Act or in consolidation proceedings, different co-sharers are using different portions of joint land for the sake of convenience it does not amount to formal partition. It is not at all necessary to allot the said portions to those co-sharers who are using the same.
I do not find such substantial error in the partition of joint land by S.O.C. and D.D.C. which may warrant interference in exercise of writ jurisdiction except to the extent that the land from which earth was permitted to be dug by third party has been allotted only to the petitioner. Permission granted to a third party to dig earth from joint land for consideration will be deemed to have been granted by all the joint owners or on behalf of all the joint owners, even if it is actually granted by one or some of them. The consideration which was received for the said permission could also be deemed to have been received by or on behalf all the co-sharers.
The allotment of land of inferior nature (due to digging of the earth) to the petitioner may be compensated by awarding him reasonable compensation. Accordingly, impugned orders are maintained on the condition that opposite party No.3 pays Rs.15000/- to the petitioner. The amount shall be paid by depositing a draft of the said amount drawn in the name of the petitioner before the D.D.C. for being handed over immediately to the petitioner. Until deposit of the draft operation of the impugned orders shall remain stayed and they shall be given effect to from the date on which the said draft is deposited.
Writ Petition is accordingly disposed of.
Order Date :- 12.12.2013
NLY
