Allahabad High Court
Smt. Tajemul Nisha & Another vs Deputy Director Consolidation ... on 13 December, 2013
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
(Judgment reserved on 04.12.2013)
(Judgment delivered on 13.12.2013)
Court No. - 21
Case :- CONSOLIDATION No. - 710 of 2013
Petitioner :- Smt. Tajemul Nisha & Another
Respondent :- Deputy Director Consolidation Distt. Pratapgarh & Others
Counsel for Petitioner :- Jai Pal Singh
Counsel for Respondent :- C.S.C.,Nagendra B. Singh
Hon'ble Sibghat Ullah Khan,J.
Heard Shri J.P. Singh, learned counsel for the petitioners and Shri Nagendra Bahadur Singh, learned counsel for respondent no.3. Late Shri Amjad Ali who died before 1969 was tenure- holder of the land in dispute. He left behind two sons Ibarat Ali, petitioner no.2 and Sikandar Ali who died in January 1998 and was survived by his son Ayub Ali, respondent no.3. Petitioner no.1 is widow of Amjad Ali and mother of both the brothers. After the death of Amjad Ali, objections were filed before C.O. by both the brothers. Ibarat Ali, petitioner no.2 claimed entire land. However, Sikandar Ali, father of O.P. No. 3 claimed that he and his brother Ibarat Ali inherited the land in equal share. On 09.11.1969 Consolidation Officer decided the matter holding that both the brothers had half share. Total area of the agricultural land in dispute is two bigha 14 biswa. After 18 years, i.e., on 10.12.1987 petitioner no.2 filed appeal against order of C.O. of 1969. In the appeal a compromise was filed purporting to contain the thumb impression of Sikandar Ali also. Through the said compromise it was agreed by Sikandar Ali that entire land might be given to his brother Ibarat Ali petitioner no.2.
Appeal had been filed by Amjad Ali. The compromise was filed on 15.3.1991 copy of which is Annexure-6 to the writ petition. The appeal was decided in terms of the compromise on 27.3.1991. Thereafter, in 1996 an order was passed under Rule 109 of U.P.C.H. Rules directing entry of name of Amjad Ali pursuant to the order dated 27.3.1991.
The name of Sikandar Ali was scored off on 27.3.1998. He had already died in January 1998. Respondent no.3 Ayub Ali filed restoration application on 22.7.1998. Restoration application was allowed on 28.3.2009 and order dated 27.3.1991 was set-aside. Against the said order petitioners filed revision no.1854/1217 of 2012-13. The revision was dismissed on 27.8.2013 which order has been challenged through this writ petition.
Learned counsel for the petitioner could not give the date on which application under rule 109 was filed.
The case of opposite party no.3 was that his father Sikandar had not filed any compromise and neither he had put his thumb impression on alleged compromise nor he had engaged any counsel.
The D.D.C. in the impugned order dated 27.8.2013 held that against the order of C.O. of the year 1969 matter was carried in appeal and thereafter in revision and revision was decided on 22.6.1971, hence, appeal filed in the year 1987 against order of C.O. of 1969 was not maintainable.
Against the order dated 27.3.1991, restoration had been filed by O.P. No.3 and revision had been filed by one Ram Dular Singh in the form of revision no.2598. That revision was decided by D.D.C. Pratapgarh on 31.01.2001. Matter was remanded to the S.O.C. In the said order it was mentioned that D.D.C. had decided the matter on 22.6.1971. In the impugned order dated 27.8.2013 there is reference to the earlier order of D.D.C. dated 31.01.2001 and the order dated 22.6.1971 referred to in the order dated 31.01.2001. The order dated 22.6.1971 is not available. Learned counsel for respondent no. 3 also stated that it was not available with him. However, learned counsel has argued that due to inadvertence one plot belonging to Ram Dular Singh had been included in the order of 1969 passed by C.O., hence, Ram Dular Singh had carried the matter in revision which was decided on 22.6.1971.
On repeated inquiry from Court as to why after passing of the order dated 27.3.1991, application for mutation was not immediately filed under Rule 109, learned counsel for the petitioner could not give any reply. It is, therefore, quite evident that no compromise had been entered into by Sikandar Ali. It was a forged compromise which was filed by Amjad Ali and after death of Sikandar Ali name of Amjad Ali was got recorded in the revenue records. There is no evidence or finding that in the appeal Sikandar Ali had been served. The compromise on the face of it appears to be unconscionable in the sense that nothing was given to Sikandar in the said compromise. The theory that both the brothers had agreed much before that the land in dispute would go to Amzad Ali had already been disbelieved by the C.O. when he passed the order in 1969 and gave the entire land in equal share to both the brothers. There was absolutely no explanation of 18 years' delay in filing appeal. The lame excuse advanced by learned counsel for the petitioner that inspite of the order of C.O. of 1969, Sikandar was allowing his brother Amjad ali to exclusively use the land in dispute, hence, there was no necessity to file appeal is stated to be rejected. If Sikandar was aggreable to the demand of Amjad Ali to have the entire land exclusively he would have said so before the C.O. in 1969 and would not have filed objections praying for recording of the land in the name of both the brothers.
Accordingly, it was pure fraud which was played by Amjad Ali.
Even if the argument that through order of D.D.C. of 1971 the dispute between the brothers had not been touched is accepted and the appeal filed by Amjad Ali is held to be maintainable it would not make much difference as there was absolutely no explanation of 18 years' delay in filing appeal and no compromise was entered into by Sikandar. It was a forgery committed by Amjad Ali.
Accordingly, there is absolutely no error in the impugned orders.
Writ petition is dismissed.
Order date : - 13.12.2013
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