Babu Ram Singh And Others vs Deputy Director Of Consolidation ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Court No. - 1
 
Case :- CONSOLIDATION No. - 1410 of 1980
 
Petitioner :- Babu Ram Singh And Others
 
Respondent :- Deputy Director Of Consolidation And Others.
 
Counsel for Petitioner :- S.K. Srivastava,Raj Mani Dubey,S.K. Mehrotra
 
Counsel for Respondent :- R.M. Dubey,C.S.C.,H.S. Sahai,Mohiuddin Khan,R.N. Mishra,R.N. Misra,S.K.Mehrotra
 

 
Hon'ble Vikram Nath,J.

(i) (Civil Misc. Delay Condonation Application No.101639 of 2016.)

Heard.

This is an application to condone the delay in filing the Restoration Application.

Cause shown for the delay in filing the Restoration Application is sufficient.

Delay is condoned.

Application is allowed.

(ii) (Civil Misc. Restoration Application No. 101638 of 2016).

Heard.

The petition was dismissed for non prosecution by order dated 19.04.2016.

Cause shown for non appearance is sufficient.

The order dated 19.04.2016 dismissing the writ petition for non prosecution is recalled.

Petition is restored to its original number.

Application is allowed.

Order Date :- 4.5.2018

Ashutosh

(Vikram Nath, J.)

Case :- CONSOLIDATION No. - 1410 of 1980

Petitioner :- Babu Ram Singh And Others

Respondent :- Deputy Director Of Consolidation And Others.

Counsel for Petitioner :- S.K. Srivastava,Raj Mani Dubey,S.K. Mehrotra

Counsel for Respondent :- R.M. Dubey,C.S.C.,H.S. Sahai,Mohiuddin Khan,R.N. Mishra,R.N. Misra,S.K.Mehrotra

Hon'ble Vikram Nath,J.

This petition under Article 226 of the Constitution has been filed by Mahesh Singh and Rajbali Singh, since dead now substituted by their heirs praying for writ in the nature of certiorari quashing the following six orders:-

(i) Order dated 01.05.1978 passed by Joint Director of Consolidation, Faizabad in Revision No.1197, under Section 48 of the U.P. Consolidation of Holdings Act, 1953, between Hubraj Singh Vs. Ram Avadh Singh (Annexure-4).

(ii) Order dated 05.06.1969 passed by the Assistant Settlement Officer Consolidation, Faizabad (Tanda) in Appeal No.12194, under Section 11(1) of the U.P. Consolidation of Holdings Act, 1953 between Ram Avadh Singh Vs. Mahesh Singh (Annexure-5).

(iii) Order dated 13th May, 1980 passed by the Joint Director of Consolidation, Faizabad in Revision No.1246, Under Section-48 of the U.P. Consolidation of Holdings Act, 1953 between Rajbali Singh and others Vs. Ram Avadh Singh and others (Annexure-6).

(iv) Order dated 28.10.1978 passed by Consolidation Officer (Tanda), District- Faizabad in Case No.86 between Mahesh Singh and others Vs. Ram Avadh Singh and others (Annexure-8).

(v) Order dated 13.05.1980 passed by Joint Director of Consolidation, Faizabad passed in Revision No.834, under Section 48 U.P. Consolidation of Holdings Act, 1953 between Mahesh Singh Vs. Ram Avadh Singh (Annexure-9).

(vi) Order dated 13th May, 1980 passed by Joint Director of Consolidation passed in Restoration Application arising out of Revision No.1197, under Section 48(3), U.P. Consolidation of Holdings Act, 1953 between Mahesh Singh and Hubraj Singh (Annexure-10).

The facts giving rise to this petition are as follows:-

Dispute relates to Khata no.40 and 56 situate in Village- Amia Bawanpur and Tehsil- Tanda, District- Faizabad. In the basic year records the plots comprising of the aforesaid two Khatas were recorded in the name of Ram Avadh Singh son of Raghubir Singh (respondent no.5). One Hubraj Singh son of Ram Avadh Singh filed objections under Section 9(A)(2) of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the CH Act) claiming that he be declared as Bhoomidhar in possession of the disputed land being in adverse possession of the same to the knowledge of the recorded tenure holder. It was further prayed that the name of respondent No.5 (Ram Avadh Singh) be scored out and in his place his name (Hubraj Singh) may be recorded. The said objections were registered as Case No.1484 before the Consolidation Officer, Tanda, Faizabad. Both parties led evidence, thereafter the Consolidation Officer, Tanda, Faizabad by order dated 31.05.1976 (Annexure-1 to the petition) rejected the objections and further directed for scoring out the entry of Class-9 recorded in favour of the Objector and to maintain the entries as recorded in the basic year. Against the said order of the Consolidation Officer, respondent No.6 (Hubraj Singh) preferred an appeal under Section 11(1) of the CH Act before the Settlement Officer (Consolidation), Faizabad which was registered as Appeal No.10473. The Assistant Settlement Officer, Consolidation, Faizabad vide order dated 25th August, 1976 (Annexure-2 to the petition) concurred with the order passed by the Consolidation Officer and accordingly dismissed the appeal. Revision was filed by Hubraj Singh before the Joint Director of Consolidation, Faizabad registered as Revision No.1197. Both the parties filed a compromise application and based on the said compromise the Joint Director of Consolidation, Faizabad by order dated 01.05.1978 (Annexure-4 to the petition) after allowing the revision in terms of the compromise, set aside the orders passed by the Consolidation Officer dated 31.05.1976 and the Settlement Officer (Consolidation) dated 25.08.1976 and further directed for recording of the name of Hubraj Singh after scoring out the name of Ram Avadh Singh in the records.

In the meantime, the petitioners Mahesh Singh and Rajbali Singh moved an application dated 8th October, 1977 under Section 12 of the CH Act praying for mutating their names in place of respondent no.5 (Ram Avadh Singh) on the basis of a registered sale deed dated 19th June, 1968. The Assistant Consolidation Officer by order dated 16.11.1977 (Annexure-3 to the petition) allowed the Mutation Application on the basis of a compromise said to have been filed by the parties and directed for recording the names of the petitioners in place of respondent no.5 (Ram Avadh Singh).

Ram Avadh Singh on coming to know of the order dated 16.11.1977 filed Appeal No.12144 before the Settlement Officer (Consolidation). The said appeal was allowed vide order dated 05.06.1979 (Annexure-5 to the petition) and the order passed by the Assistant Consolidation Officer on 16.11.1977 was set aside. Against the order dated 05.06.1979, Rajbali Singh and Mahesh Singh (petitioners) filed revision under section 48 of the C.H. Act registered as Revision No.1246. The said revision was dismissed by order dated 13.05.1980 (Annexure-6 to the petition).

It appears that the petitioners Mahesh Singh and Rajbali Singh after dismissal of their application under Section 12 of the CH Act were advised to file objections under Section 9(A)(2) of the CH Act along with an application under Section 5 of the Limitation Act,1963 praying for condonation of delay in filing the objections, which was registered as Case No.86, Mahesh Singh and others Vs. Ram Avadh Singh and others. The Consolidation Officer by order dated 28th October, 1978 (Annexure-8 to the petition) was of the view that there was no justification nor any satisfactory explanation had been given to condone the delay and rejected the application under Section 5 of the Limitation Act and consequently the objections under Section 9(A)(2) of the CH Act.

It appears that against the said order the petitioners-Mahesh Singh and Rajbali Singh filed revision under Section 48 of the CH Act registered as Revision No.834. The said revision was dismissed on merits by order dated 06.04.1979. For recalling the said order the petitioners Mahesh Singh and Rajbali Singh moved an application dated 04.07.1979. The Joint Director of Consolidation by order dated 13.05.1980 (Annexure 9 to the petition) rejected the Restoration Application. Further it appears that against the order dated 01.05.1978 passed by the Joint Director of Consolidation in Revision No.1197, the petitioners filed a review application. The said review application was rejected by the Joint Director of Consolidation, Faizabad by order dated 13.05.1980 (Annexure-10 to the petition).

In the above backdrop and the various orders passed by the Consolidation Authorities, the petitioners approached this Court by way of this petition under Article 226 of the Constitution praying for quashing of the six orders as stated in the opening paragraph.

We have heard Sri Mohd. Arif Khan, learned Senior Advocate assisted by Sri Shadab Khan, learned counsel for the petitioners, Sri I.D. Shukla, learned counsel representing private respondents and Sri Shravan Kumar, learned Standing Counsel for the State-respondents.

With respect to different round of litigations which went up to the Joint Director of Consolidation, we may note here that there were three set of proceedings initiated at the level of the Consolidation Officer. The first set of proceedings was initiated with the filing of the objections under Section 9(A)(2) of the CH Act by respondent no.6 claiming title on the basis of adverse possession against respondent no.5. This set of proceeding culminated in the order dated 01.05.1978 (Annexure-4) passed by the Joint Director of Consolidation on the basis of compromise. Although a review petition was filed by the petitioners - Mahesh Singh and Rajbali Singh but the same was also dismissed by order dated 13th May, 1980 (Annexure-10).

The second set of proceedings initiated by the petitioners Mahesh SIngh and Rajbali Singh by filing application under Section 12 of the CH Act, for mutation of their names in place of respondent no.5 on the basis of registered sale deed dated 19.06.1968. The second set of proceedings culminated in the order of the Joint Director of Consolidation dated 13.05.1980 (Annexure-5) by which it was finally held that the application under Section 12 of the CH Act was not maintainable.

The third set of proceedings was initiated by the petitioners Mahesh SIngh and Rajbali Singh by filing highly belated objections under Section 9(A)(2) of the CH Act along with application under Section 5 of the Limitation Act which were rejected not only by the Consolidation Officer by order dated 28.10.1978 (Annexure-8) but also by the Joint Director of Consolidation by order dated 06.04.1979 and its restoration was rejected by order dated 13.05.1980 (Annexure-9).

With regard to each set of proceedings and the final orders passed against the petitioners, their counsel Sri Mohd. Arif Khan, learned Senior Advocate made separate submissions which would be dealt separately.

With regard to the first round of litigation relating to the objections filed by respondent no.6, under Section 9(A)(2) of the C.H. Act claiming rights on the basis of adverse possession, learned Senior Counsel submitted that the respondent no.6 having lost from the Court of Consolidation Officer and also the Settlement Officer (Consolidation) could not have entered into a compromise before the Joint Director of Consolidation in revision. It is further submitted that it was a collusive decree as the respondent no.5 had already transferred his rights by way of registered sale deed dated 19th June, 1968 in favour of the petitioners Mahesh Singh and Rajbali Singh and as such respondent no.5-Ram Avadh Singh had no right, title or interest left in the property in dispute so as to enter into a compromise and facilitate respondent no.6 (Hubraj Singh). It is also submitted by the learned Senior Advocate that the rights conferred under the U.P. Zamindari Abolition and Land Reforms Act, 1950, (hereinafter referred to as the ZA & LR Act) were special rights conferred under different sections of the aforesaid Act. Such rights could not have been created by way of a compromise decree. It is also submitted by the learned Senior Advocate that the collusive decree on the basis of compromise before the Joint Director of Consolidation would not confer any rights as it amounts to sale and the said decree having not been registered, no rights can be transferred under the orders of the Joint Director of Consolidation dated 01.05.1978 (Annexure-4) passed in the revision.

In support of his submission, Sri Mohd. Arif Khan, learned Senior Advocate placed reliance upon the following three decisions:-

(1) Raja Ram and another Vs. Deputy Director of Consolidation, Siddharth Nagar and others reported in (2006) (101) RD 121.

(2) K. Raghunandan and others Vs. Ali Hussain Sabir and others reported in (2008) 13 SCC 102.

(3) Kedar Singh and another Vs. Deputy Director of Consolidation, Deoria and others reported in (2011) (29) LCD 135.

On the other hand, Sri I.D. Shukla, learned counsel for the private respondents submitted that respondent no.5 (Ram Avadh Singh) had never executed any sale deed in favour of the petitioners as such his rights remained intact. Reference has been made to the counter affidavit and another affidavit filed by respondent no.5 wherein it has been stated that he neither entered into a compromise nor executed any sale deed on 19.06.1968. The petitioners had never claimed any benefit of the said sale deed. For a period of almost 9 years, they also did not get their names mutated on the basis of said sale deed. It is also submitted that Rajbali Singh (petitioner no.2) had given statement in the proceedings under Section 229(B)/209 of the ZA & LR Act prior to the consolidation operations and after the sale deed. Thus apparently the said sale deed had been fraudulently prepared with some ill motive and ulterior design. Sri Shukla, learned counsel for the private respondents further submitted that the Joint Director of Consolidation rightly accepted the compromise between the parties which related only to the suit property and did not require any registration, in view of the provisions contained in Section 17(2)(vi) of the Registration Act, 1908. Lastly, it was submitted that the argument with regard to special rights being conferred under the ZA & LR Act and would disentitle the parties to the suit to enter into a compromise would actually be contrary to the provisions contained in Section 209/210 of the ZA & LR Act. Lastly, it was submitted that the case relied upon by the learned Senior Counsel for the petitioners do not apply to the facts of the present case and are of no help to the petitioners.

Having considered the submissions, it may be recorded that a compromise decree is as good as a decree obtained on contest and is a valid decree in the eye of law. There can be no bar to the parties to a suit to enter into a compromise not only with regard to a suit property but also any property which may not be covered by the suit but the only rider is that if title is being passed-on under the compromise relating to the property covered under the compromise, then registration would be essential only with respect to the property not covered by the suit and insofar as the property covered by the suit is concerned, no registration is necessary under the above provisions of the Registration Act, 1908.

Thus this argument of Sri Mohd. Arif Khan, learned Senior Advocate for the petitioners is rejected.

Further argument with regard to special rights having been conferred under the ZA & LR Act, the parties would be disentitled to transfer rights by way of a compromise in a suit pending before the Competent Court also has no merit for the reason that the ZA & LR Act in itself recognizes title on the basis of adverse possession, under Sections 209 and 210 thereof. A party in adverse possession for the required period under the statute can always claim declaration of his rights as Bhoomidhar under the aforesaid provisions. In the present case, the respondent no.6 (Hubraj Singh) had claimed such rights against respondent no.5 (Ram Avadh Singh) the recorded tenure holder. Ram Avadh Singh having acknowledged and having accepted the claim of adverse possession, no illegality can be found in the order of the Joint Director (Consolidation) allowing the revision on the basis of compromise. Thus, the order of the Joint Director of Consolidation allowing the revision and later on rejecting the review application of the petitioners was fully justified.

In the case of Raja Ram and another (supra) the facts were different and the admission of the tenure holder has been rejected by the Consolidation Courts and on that basis the High Court held that rights could not be created. However, in the present case the statement/ admission of the recorded tenure holder has been accepted and as such the facts are distinguishable and the judgment in the case of Raja Ram and another (supra) is therefore no help to the petitioners.

In the case of K. Raghunandan and others (supra) and in the case of Kedar Singh and another (supra) relied upon by the learned Senior Counsel for the petitioners also are of no help, but, in fact, support the private respondents as the compromise was with respect to the suit property and not of any other property and therefore the decree did not require any registration in view of the exemption provided in Section 17(2)(vi) of the Registration Act, 1908.

With regard to the second set of litigation, Sri Mohd. Arif Khan, learned Senior Advocate submitted that if the application under Section 12 of the CH Act, although rightly allowed by the Assistant Consolidation Officer, was not maintainable the same ought to have been treated as an objection under Section 9(A)(2) of the CH Act. It is also submitted that the Appellate Authority had no jurisdiction to deal with the issue so long as the sale deed had not been cancelled by a Competent Court. It is further submitted that the sale deed being registered, there was presumption of its correctness unless proved otherwise.

In reply to the above arguments, Sri I.D. Shukla learned counsel for the private respondents submitted that Ram Avadh Singh (respondent no.5) had specifically denied firstly the execution of the sale deed and secondly any compromise which was the basis of the order passed by the Assistant Consolidation Officer. The Appellate Authority rightly allowed the appeal of respondent no.5 and rejecting the mutation application for the reasons recorded in the appellate order. It was also submitted by Sri Shukla, learned counsel for the private respondents that the petitioners did not claim any rights on the basis of the alleged sale deed for more than 9 years and Rajbali Singh also did not disclose the execution of the sale deed in the proceedings between the respondent nos.5 and 6, under Section 229(B)/209 ZA & LR Act even though he appeared in the witness box in support of Ram Avadh Singh on the question of possession.

Having heard learned counsel for the parties, this Court is of the firm view that the application under Section 12 of the CH Act was not maintainable and was in fact barred. Section 12 of the CH Act is reproduced below as it would help in showing as to how the application was not maintainable under the said provision.

"(1) All matters relating to changes and transfers affecting any of the rights or interests recorded in the revised records published under sub-section (1) of Section 10 for which a cause of action had not arisen when proceedings under Sections 7 to 9 were started or were in progress, may be raised before the Assistant Consolidation Officer as and when they arise, but not later than the date of notification under Section 52, or under sub-section (1) of Section 6.

"(2) The provisions of Sections 7 to 11 shall mutatis mutandis, apply to the hearing and decision of any matter raised under sub-section (1) as if it were a matter raised under the aforesaid sections"

The sale deed is dated 19th June, 1968 i.e. before the commencement of the consolidation operations and therefore the petitioners ought to have either moved Mutation Application on the basis of sale deed before the Revenue Court or ought to have filed objections under Section 9 of the CH Act, rather they chose to file application under Section 12 of the CH Act after the stage of Section-9 was over and as no cause had arisen after the commencement of the consolidation proceedings the application would not be maintainable.

It may also be noted here that a sale deed which is said to be void would not require any cancellation but can always be ignored while deciding the title dispute in appropriate proceedings. In the present case, the finding recorded by the Appellate Authority in the mutation proceedings was to the effect that the sale deed was forged and even the compromise order was obtained from the Court of Assistant Consolidation Officer on the basis of forged compromise, which did not contain the signature of respondent no.5. Even before this Court respondent no.5, Ram Avadh Singh filed affidavits clearly denying execution of the sale deed and the compromise in Section 12 proceedings. Such a finding is a clear finding of fact and cannot be gone into in writ jurisdiction.

So far as the argument that the consolidation Courts were of the view that application under Section 12 of CH Act was not maintainable the same ought to have been treated as an objection under Section 9(A)(2) of the CH Act for mutating the name of the petitioners also does not help the petitioners inasmuch as the petitioners subsequently had preferred objection under Section 9(A)(2) along with an application for condonation of delay in filing the application (third set of litigation).

In view of the above, the order of the Appellate Authority could not be faulted and given the revision against the order of the Appellate Authority was rightly dismissed for reasons recorded therein.

In respect of the third set of litigation Sri Mohd. Arif Khan, learned Senior Advocate submitted that the petitioners had no choice left after rejection of their application under Section 12 of the C.H. Act as being not maintainable but to file objections under Section 9(A)(2) of the CH Act. Learned Senior Counsel further submitted that rejection of the objections on the ground of delay has deprived the petitioners from getting a decision on merits. Further according to Sri Khan, learned counsel for the petitioners the title suits should not be rejected in limine or on mere technicalities but rather sorted out on merits. The Court is of the view that the court below recorded the reasons for rejecting the application under Section 9 (A)(2) on the ground of delay and as such the decision making process in taking the decision has been correctly arrived at and this Court under Article 226 of the Constitution cannot examine the correctness of the decisions/conclusions or substitute the same by its own finding/decision/conclusion but can only examine the process adopted by the Court below in arriving at the conclusion. The reasoning given by the Court in rejecting the application under Section 5 of the Limitation Act are sound and justifiable and therefore do not call for any interference.

For all the reasons recorded above, the writ petition fails and is accordingly dismissed.

Order Date :- 4.5.2018

Ashutosh

(Vikram Nath, J.)