Anil Kumar And 2 Others vs Deputy Director Of Consolidation ...
2021 Latest Caselaw 6461 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 33
 

 
Case :- WRIT - B No. - 180 of 2021
 

 
Petitioner :- Anil Kumar And 2 Others
 
Respondent :- Deputy Director Of Consolidation And 2 Others
 
Counsel for Petitioner :- Pradeep Kumar Rai
 
Counsel for Respondent :- C.S.C.,Chandra Kumar Rai,Hari Lal Pandey
 

 
Hon'ble Ashwani Kumar Mishra,J.

1. This petition filed under Article 226 of the Constitution of India is directed against the order dated 12.1.2021 passed by the Deputy Director of Consolidation under Section 48 (1) of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act of 1953) as also the order dated 27.9.2018 passed by the Settlement Officer of Consolidation, Varanasi in appeal filed under Section 11 (1) of the Act of 1953.

2. At the very outset, it would be relevant to notice necessary facts giving rise to filing of the present writ petition.

3. The orders impugned in this petition arise out of title proceedings under Section 9A (2) of the Act of 1953. It transpires that Phool Chandra was the common ancestor of the parties who was survived by three sons namely Bholanath, Deenanath and Rajendra Prasad. Bhola Nath who was the eldest of three brothers died leaving behind three sons, namely Kamlesh, Anil and Sunil, who are the petitioners before this Court. The second brother Deenanath purchased Plot No. 405, in his exclusive name vide registered sale-deed dated 8.6.1992. His name was also recorded in revenue records. Two other lands were also similarly purchased by Deenanath on 18.12.1989 and 21.6.1990. Deenanath got recorded over all the three plots. The present petitioners, who are the nephew of the recorded tenure holder Deenanath applied for expunging the name of Deenanath and incorporating their name exclusively in the revenue record on the basis of an oral family settlement. As per this alleged settlement the recorded tenure holder gave up all his right in the land purchased exclusively in his name for being recorded in the name of the present petitioners. As per the alleged family settlement petitioners gave up their share in certain ancestral properties situated in another village Virdhaval. A compromise application was filed to this effect, signed only by Deenanath. Acting upon such plea the consolidation officer vide his order dated 26.10.1993 expunged the name of recorded tenure holder Deenanath and recorded the name of present petitioners, exclusively, over such property. An appeal came to be filed by Deenanath denying his signatures on the application for compromise before the Consolidation Officer as also the alleged family settlement. It was asserted in appeal that the present petitioners have obtained the order from Consolidation Officer, in a collusive proceeding, inasmuch as neither any of the petitioners had any right over the land nor they had any concern with it and the question of surrendering the property in their favour did not arise. The plea of family settlement was also specifically disputed in appeal. It was also stated that the application before the Consolidation Officer was filed through some impostor and having taken advantage of frivolous proceedings, petitioners have got themselves recorded by ousting the purchasers in whose favour sale-deed was duly executed. The Settlement Officer of Consolidation has taken note of the fact that upon the compromise application the only signature is of Deenanath, whereas, the objection in appeal has been preferred by all the three petitioners who were not even signatory to the compromise filed before the Consolidation Officer. The appellate authority having noticed the facts of the case has recorded a specific finding that the settlement on the basis of alleged compromise is illegal in view of the circumstances noticed in his order. The alleged compromise thus cannot be accepted. It has also been observed that the parties will have the right of contest in the event compromise is ignored. This order has been assailed in revision which has been rejected by the Deputy Director of Consolidation. Aggrieved by these orders, petitioners are before this Court.

4. Sri Pradeep Rai, learned counsel for the petitioners submits that the orders of the appellate and revisional authority are absolutely erroneous inasmuch as the only finding returned in the order is that the compromise was not signed by the petitioners, which was not relevant consideration since the compromise otherwise being in favour of the petitioners, their lack of signatures was of no consequence. It has also been submitted that the order was passed by the Consolidation Officer on the basis of compromise, as such, an appeal would not lie against such order. Reliance is placed upon judgments of this Court reported in 2011 (113) R.D. 571 Ram Raj Vs. Deputy Director of Consolidation and the order dated 12.12.1998 passed in Writ Petition No. 28590 of 1996 (Shom Dutt Vs. Deputy Director of Consolidation, Saharanpur).

5. I have heard learned counsel for the petitioners and have perused the materials on record.

6. Facts, as have been noticed in the previous paragraphs of this judgment, are not in issue. It is not in dispute that the property over which petitioners are claiming right on the basis of family settlement was purchased by way of registered sale-deeds executed in favour of Deenanath and his name was also mutated. The sale-deeds have been executed in the year 1989, 1990 and 1992. The basis of petitioners' claim is a family settlement which admittedly has not been reduced into right. This family settlement, as alleged by the petitioners, is oral on the basis of which compromise application was filed only by Deenanath. Deenanath while filing the appeal has disputed his signatures on the compromise. The appellate authority has taken note of the fact that sale deeds were executed in the year 1992, or immediately prior to it, and were exclusively in favour of Deenanath. The sale-deed was not executed long back. The fact that vendee has given up his entire right in the property purchased by him vide registered sale-deed in his favour casts doubt upon the entire claim of the petitioners.

7. It has otherwise not come on record as to which other property of village Virdhavalpur has been given to the recorded vendee Deenanath. The plea of compromise based upon un-written family settlement, in such circumstances has been found to be doubtful by the Settlement Officer of Consolidation. One of the circumstance to doubt the family settlement is the fact that only Deenanath has signed the compromise and other members i.e. petitioners had not signed the compromise. Serious doubts having been noticed in the execution of compromise, the appellate court found it appropriate to set aside the order passed on compromise and remitted the matter for consideration of claim on merits, based upon the evidence to be lead by the parties. Even after remand of the matter before the Consolidation Officer, it is always open for the petitioners to set up their claim of compromise. The adjudication on merits with regard to respective claim of the parties alone has been allowed by the Settlement Officer of Consolidation against which revision has been rejected. As a consequence, the parties will have the right of contest before the Consolidation Officer.

8. Having examined the materials on record, this Court finds that no perversity or error of jurisdiction has crept in the order of the authorities which may require this Court to interfere in the matter.

9. So far as the argument of Sri Rai that filing of appeal against the order passed in compromise is not maintainable is concerned, the proposition is to well accepted to be questioned. However, where the compromise itself is disputed and the authorities concerned found that there was serious doubts with regard to existence of compromise,the orders in that regard can not be challenged on the ground that appeal itself was not maintainable.

10. The principle of law laid down by this Court in the case of Ram Raj and Shom Dutt (supra) are clearly distinguishable on the facts of the present case. The Settlement Officer of Consolidation has disbelieved the compromise itself for cogent reasons. In such circumstances the petitioner's cannot assert that there existed a compromise or that appeal against the order was not maintainable.

11. The other argument that the appeal was erroneously allowed only on the ground that petitioners had not signed the compromise is also noticed only to be rejected. The appellate authority has clearly noticed the entire facts which casts a serious doubt upon the petitioner's claim. It was in this context that non signing of compromise by the petitioners was also noticed as one of the factors for allowing the appeal. The order of the appellate authority cannot be said to be based only upon non signing of compromise by the petitioners. The orders passed by the authorities would otherwise result in an adjudication on merits where parties will have the opportunity to lead their evidence. Law is otherwise settled that an adjudication based upon contest is to be preferred where the factum of compromise is seriously disputed.

12. This petition under Article 226 of the Constitution of India, therefore, fails and is accordingly dismissed.

13. Any observation made in this order shall not be to the detriment of the parties on merits.

14. The concerned Authority/Official shall verify the authenticity of computerized copy of this order from the official website of High Court Allahabad and shall act accordingly without waiting for submission of the certified copy of this order.

Order Date :- 21.6.2021

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