Allahabad High Court
Bhanu Pratap And Another vs Deputy Director Of Consolidation ... on 1 August, 2019
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 19
Case :- WRIT - B No. - 1475 of 2019
Petitioner :- Bhanu Pratap And Another
Respondent :- Deputy Director Of Consolidation And 8 Others
Counsel for Petitioner :- Prem Singh,Pradeep Kumar Rai
Counsel for Respondent :- C.S.C.,Omkar Nath Rai,Vineet Kumar Singh
Hon'ble Salil Kumar Rai,J.
Heard Sri Pradeep Kumar Rai, counsel for the petitioners and Sri Vineet Kumar Singh, counsel for respondent No. 3.
Respondent Nos. 4 and 5 have already died and no notices are require to be issued to the heirs of respondent No. 5 as the entire interest of respondent No. 5 was transferred through a sale deed executed by him in favour of Shrawan Kumar, the father of respondent No. 3 and the interest of Shrawan Kumar after his death has devolved on respondent no. 3.
The counsel for the parties agree that the writ petition may be disposed of on the facts stated in the writ petition and the documents annexed with the writ petition and no counter affidavit is required.
For the aforesaid reasons, the Court has proceeded to hear the case on merits and the writ petition is being disposed of.
The facts of the case are that one Gokhula Rai was the co-tenure holder of Khata No. 352. It is alleged that Dev Pujan Rai i.e., predecessor of the petitioners was also a co-tenure holder of Khata No. 352.
It is alleged in the writ petition that Gokhula Rai died on 18.03.1978 but it appears that before the consolidation authorities the said fact is being disputed by the respondents and, therefore, no findings are being recorded on the said dispute as finding on the aforesaid dispute shall be recorded by the Consolidation Officer in the proceeding pending before him under Section 9-A(2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act 1953').
A notification under Section 4 of the Act, 1953 was issued on 14th September, 1979. After the notification issued under Section 4 of the Act, 1953, the name of respondent No. 5 was mutated in the revenue records on the basis of an alleged will dated 18th May, 1978, allegedly executed by Gokhula Rai in favour of respondent No. 5. The said mutation was on the basis of an order passed by the Tehsildar. As the mutation was subsequent to the notification issued under Section 4 of the Act, 1953, therefore, the name of respondent No. 5 was not shown in the basic year records relating to the disputed Khatas. Dev Pujan i.e., the predecessor of the petitioners filed objections under Section 9-A (2) of the Act, 1953 claiming successions to Gokhula Rai under Section 171 of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950. The said objections were numbered as Case Nos. 105 to 115 before the Consolidation Officer, Kasya District- Kushi Nagar and are still pending.
In the meantime, respondent No. 5 executed a sale deed in 1984 in favour of Shrawan Kumar Rai i.e., the father of respondent No. 3 and on the basis of said sale deed Shrawan Kumar Rai filed an application under Section 12 of the Act, 1953 for getting his name recorded in place of Gokhula Rai. The said application was allowed by the Assistant Consolidation Officer vide his orders dated 17.03.1986 and 29.01.1987 on the basis of some compromise allegedly entered into between certain other tenure holders of the disputed khata. Aggrieved by the orders dated 17.03.1986 and 29.01.1987 passed by the Consolidation Officer, Dev Pujan filed an appeal under Section 11 of the Act, 1953 before the Settlement Officer of Consolidation, which was allowed by the Settlement Officer of Consolidation vide his order dated 29.05.1989 and the matter was remanded back to the Consolidation Officer for a fresh decision on merits, after giving an opportunity of hearing to the affected parties. The order dated 29.05.1989, was passed by the Settlement Officer of Consolidation on the ground that the orders dated 17.03.1986 and 29.01.1987 were passed by the Assistant Consolidation Officer without issuing any notice to the co-tenure holders and the Assistant Consolidation Officer had no jurisdiction to pass an order of mutation on the basis of any compromise entered into between some co-tenure holders. Aggrieved by the order dated 29.05.1989 passed by the Settlement Officer of Consolidation, Shrawan Kumar Rai who is the father of respondent No. 3 filed a revision under Section 48 of the Act, 1953 before the Deputy Director of Consolidation, Kushi Nagar, which has been allowed by the Deputy Director of Consolidation Kushi Nagar vide his order dated 04.04.2019.
The order dated 04.04.2019, has been challenged in the present writ petition.
Through his order dated 04.04.2019, the Deputy Director of Consolidation has affirmed the orders dated 17.03.1986 and 29.01.1987 passed by the Assistant Consolidation Officer whereby the name of Shrawan Kumar Rai was mutated in the records in place of Gokhula Rai as a co-tenure holder of Khata No. 352. The said order has been passed in proceedings registered under Section 12 of the Act, 1953 for mutation and not in any proceedings relating to title dispute between the parties. The dispute between the parties regarding devolution of the estate of Gokhula Rai registered under Section 9-A (2) of the Act, 1953 as Case Nos. 105 to 115 is pending before Consolidation Officer.
The petitioners claim succession by virtue of Section 171 of the Act, 1953. The claim of respondent no. 3 is based on the Will allegedly executed by Gokhula Rai in favour of respondent No. 5. The orders dated 17.03.1986 and 29.01.1987 are mutation orders and would be subject to the decision passed by the Consolidation Officer in Case Nos. 105 to 115 registered under Section 9-A (2) of the Act, 1953. The order dated 04.04.2019, is the culmination of proceedings registered under Section 12 of the Act, 1953 for mutation and the said order is subject to the orders passed by the Consolidation Officer under Section 9-A (2) of the Act, 1953.
In view of the aforesaid, no decision on merits is required in the present writ petition regarding the legality of the order dated 04.04.2019 passed by the Deputy Director of Consolidation, Kushi Nagar. However, in view of the fact that the dispute between the parties registered under Section 9-A (2) of the Act, 1953 is pending before the Consolidation Officer since 1986, the Consolidation Officer Kasya, District- Kushi Nagar is directed to decide Case Nos. 105 to 115 within a period of six months from the date a certified copy of this order is produced before him and after giving an opportunity of hearing to the affected parties.
Till the orders passed by the Consolidation Officer deciding case nos. 105 to 115, parties shall not create any third party right in the disputed property.
It is clarified that Case Nos. 105 to 115 shall be decided by the Consolidation Officer without being bound by any of the observations made by any authority in the mutation proceedings.
With the aforesaid direction, the writ petition is disposed of.
Order Date :- 1.8.2019
Sweety
