Allahabad High Court
Jaipal Singh vs D.D.C. And 3 Ors. on 25 August, 2014
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 18
Case :- WRIT - B No. - 41011 of 2014
Petitioner :- Jaipal Singh
Respondent :- D.D.C. And 3 Ors.
Counsel for Petitioner :- Dhirendra Bahadur Singh
Counsel for Respondent :- C.S.C.,Karuna Srivastava,Santosh Srivastava
Hon'ble Anjani Kumar Mishra,J.
Heard Sri Dhirendra Bahadur Singh, learned counsel for the petitioner and Sri Santosh Srivastava, who has filed caveat on behalf of respondent no. 4, the sole contesting respondent. With consent of the parties this petition is being decided finally without calling for a counter.
The facts relevant for deciding the controversy involved in the writ petition are as follows:-
It appears that during consolidation operations, a chak was carved out in the name of one Tika Ram, father of the parties. It also appears that Tika Ram died and, thereafter, in title proceedings the shares of the two brothers the petitioner and the contesting respondent were held to be 1/2 each by the S.O.C. in an appeal under section 11 (1) of the Act. It further appears that an application under Rule 109 (A) of the U.P. Consolidation of Holding Rules was filed by the petitioner for implementation of the order dated 1.7.2005 passed by the Settlement Officer, Consolidation granting 1/2 share each to the parties.
Instead of merely recording the names of the two brothers, the sons of Tika Ram over the chak no. 293 and further that each was entitled to half share each therein, the Consolidation Authorities in proceedings under Rule 109A proceeded to partition this chak by metes and bounds. In such partition by metes and bound, the petitioner appears to be aggrieved as he is not satisfied by the portion of the chak no. 293, which has been allotted in his share.
Be that as it may, the fact remains that the proceedings under Rule 109A were only for implementing the order passed in an appeal under section 11 (1) by the Settlement Officer, Consolidation, which granted half share to the parties. There was no direction for carrying out a partition by metes and bounds.
Learned counsel for the respondent has submitted, relying upon Sub Rule 2 of Rule 109-A, that the Consolidation Officer has the power to reallocate affected chaks, after affording opportunity of hearing to the parties concerned and this is what has been done by the impugned orders.
Since proceedings under Rule 109A are in the nature of execution proceedings, the executing court cannot go beyond the order that has been passed or grant relief beyond what has been granted by the order sought to be implemented. It is, therefore, clear that the orders impugned in so far as they carry out a partition by metes and bounds are wholly without jurisdiction as no such order was passed by the Settlement Officer, Consolidation.
Since the parties had been granted half share in title proceedings and the consolidation operations had come to a close by issuance of a notification under section 52 of the Act, the only remedy available to the parties was to approach the competent court for partition of their 1/2 share by metes and bounds. This could have been done by means of a suit under section 176 of the U.P. Zamindari Abolition and Land Reforms Act. In my considered opinion, the Consolidation Authorities in proceedings under Rule 109 (A) were only required to record the names of the parties along with their respective shares over the chak no. 293, which had been carved out in the name of their father and anything beyond making such entry is wholly without jurisdiction.
Therefore, this writ petition is liable to be allowed. The orders impugned deserve to be set aside. The Consolidation Authorities are liable to be directed to only make an entry in the relevant revenue records pertaining to chak no. 293 and record the names of the parties showing their respective shares to be 1/2 each therein and any order beyond this will be without jurisdiction. Thereafter it will be open for the parties to file a suit for partition for demarcation of their respective shares by metes and bounds on the spot before the competent court.
Accordingly and subject to the observations/directions above, the writ petition is allowed and the impugned orders dated 2.5.2014, 23.6.2011 and 14.9.2010 are quashed and the matter is remanded to the Consolidation Officer to record the names of the parties over chak no. 293, showing their share therein to be 1/2 each.
Order Date :- 25.8.2014
SR
