Allahabad High Court
Jiut vs D.D.C. And 3 Ors. on 28 April, 2014
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 18
Case :- WRIT - B No. - 21463 of 2014
Petitioner :- Jiut
Respondent :- D.D.C. And 3 Ors.
Counsel for Petitioner :- N.L. Pandey,Vijay Pratap Singh
Counsel for Respondent :- C.S.C.,Manoj Mishra
Hon'ble Anjani Kumar Mishra,J.
Heard Shri N.L. Pandey, learned counsel for the petitioner and Shri Manoj Mishra, who has filed caveat on behalf of sole contesting respondent no. 4.
After hearing the learned counsel on the question of admission, the case was ordered to be put up on 28th April, 2014 for delivery of order vide order dated 21.4.2014.
The petitioner has challenged the order dated 14.2.2014 passed by the Deputy Director of Consolidation (the DDC) in a revision arising out of proceedings under Section 9A-2 of the U.P. Consolidation of Holdings Act.
The land in dispute was recorded in the name of one Jagdhari who is said to have died on 12.12.1987, the very day on which the petitioner, his alleged son was born. The petitioner was mutated over the land recorded in the name of Jagdhari by means of a P.A. 11 entry.
On the start of the consolidation operations, an objection was filed on behalf of the petitioner, then a minor through his guardian, his real mother, claiming partition of his 1/4 share in khata no. 51 of village Chhitauna.
The Consolidation Officer (the CO) by his order dated 30.3.1995 directed that the name of the petitioner be recorded over the land in dispute in place of Jagdhari his father. This order was passed in absence of the parties and all other reliefs claimed were rejected for want of evidence.
Against the order of the CO aforesaid a restoration application was filed on 3.5.2005 by the contesting respondent. Subsequent thereto it appears a compromise was filed on 26.5.2005 whereby, it was agreed that the land in dispute be recorded in the name of the contesting respondent. An order has been passed on 27.6.2005 deciding the case in terms of the compromise.
Aggrieved by the compromise order, an appeal preferred by the petitioner was allowed by the Settlement Officer, Consolidation (the SOC) by his order dated 26.4.2010, the compromise was discarded and the petitioner was ordered to be recorded over the land in dispute as son/heir of Jagdhari.
The aforesaid appellate order has been set aside by the DDC who has recorded that admittedly Jagdhari died in 1988. He further recorded that on the basis of the facts mentioned in the objection filed by the mother of the petitioner, his date of birth would be 1990-91 because in the objection filed in 1994 she has mentioned that the petitioner is four years old. The second reason recorded by the DDC in the impugned order is that the petitioner was granted time to produce his High School Certificate which was not produced in spite of opportunity and therefore it was held that an attempt was being made to conceal the correct facts. On the aforesaid two reasons it has been held that the petitioner cannot be the son of Jagdhari who admittedly died in 1988.
Prima facie, the finding recorded by the DDC cannot be said to be perverse.
However, although this point has not been argued by the learned counsel for the petitioner, examination of the record by me, indicates that the initial order of the Consolidation Officer passed on 30.3.1995 whereby petitioner was ordered to be recorded as the son and heir of Jagdhari, was never set aside. It is no doubt true that in 2005 an application was filed by the contesting respondent for recall of this order but there is nothing on record to show that the restoration was in fact allowed, yet the CO has passed a subsequent order dated 27.6.2005 accepting the compromise. This could not have been done without first condoning the delay of about a decade in filing the restoration application and thereafter setting aside the order dated 30.3.1995 after recording a finding that the applicant had been prevented by sufficient cause from appearing on the date fixed. The CO was not competent to pass any order during the currency of the earlier order dated 30.3.1955, as has been done by him.
Under the circumstances, learned counsel for the caveator is granted three weeks time to file counter affidavit. Learned counsel for the petitioner will have two weeks thereafter to file rejoinder.
List immediately thereafter, for admission.
Until further orders, the parties are restrained from creating any third party interest in the property in question.
Order Date :- 28.4.2014
Priyanka
