Indrasan And 3 Others vs Deputy Director Of Consolidation ...
2021 Latest Caselaw 3267 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                         Reserved 
 
                                      					
 
Court No. - 37
 

 
Case :- WRIT - B No. - 593 of 2019
 

 
Petitioner :- Indrasan And 3 Others
 
Respondent :- Deputy Director Of Consolidation And 7 Others
 
Counsel for Petitioner :- Ashish Kumar Singh,Arunesh Kumar Singh
 
Counsel for Respondent :- C.S.C.,Murli Dhar Mishra,Prem Chand Srivastava
 
 and
 
Case :- WRIT - B No. - 1749 of 2020
 

 
Petitioner :- Gurudev Singh And 5 Othes
 
Respondent :- Deputy Director Of Consolidation And 8 Others
 
Counsel for Petitioner :- Murli Dhar Mishra
 
Counsel for Respondent :- C.S.C.,Arunesh Kumar Singh,Ashish Kumar Singh
 

 
Hon'ble Rajiv Joshi,J.

1. On nomination by Hon'ble the Chief Justice vide order dated 13.1.2021, these two writ petitions (Writ-B No. 593 of 2019 and Writ-B No. 1749 of 2020) have came up before this Court.

2. As the parties in both the petitions are the same and since pleadings have already been exchanged in Writ-B No. 593 of 2019, therefore, with the consent of the counsel for the parties, the matter is being decided by this common judgment treating Writ-B No. 593 of 2019 as the leading case.

3. The present writ petition has been filed against the order dated 12.02.2019, passed by the Deputy Director of Consolidation, Kushinagar, whereby the revision was dismissed confirming the orders dated 8.12.2011 and 16.11.2009, passed by the Settlement Officer Consolidation and Consolidation Officer respectively.

4. The facts in brief are that the predecessor-in-interest of the parties late Karia, had two sons namely, Shivbaran and Gauri Shankar. The petitioners belong to the branch of Shivbaran, whereas respondents no. 4 to 8 belong to the branch of Gauri Shankar.

5. Karia has two Khatas bearing Khata Nos. 38 and 39 in village Rampur Bangar Original Suit No. 968 of 1938 was filed for partition of holdings between the predecessor of the parties, which was decreed on the basis of compromise entered between them and accordingly the compromise decree was passed on 21.01.1939.

6. The aforesaid decree has not been challenged by either of the parties and the same has attained finality. A dispute arose in respect of the land of Khata No. 39, which was finally decided by the Deputy Director of Consolidation and it was held that the dispute regarding shares of the descendants of two branches had been set at rest by the compromise decree passed in Original Suit No. 968 of 1938. The said order was passed on 21.06.1986 by the Deputy Director of Consolidation. The aforesaid order of Deputy Director of Consolidation was challenged before this Court in Writ-B No. 14192 of 1986, which was decided vide judgment dated 14.07.1998. It was specifically held by the High Court that the earlier decree passed on the basis of the compromise in Original Suit No. 968 of 1938 is binding on both the parties.

7. The record reveals that on 25.10.1981, an objection under Section 9 A (2) of the U.P. Consolidation of Holdings Act,1953 (hereinafter referred to as the 'Act') was filed by the contesting-respondents in respect of the land of Khata No. 38, wherein exclusive ownership of various plots was claimed by the respondents' predecessors-in-interest. The declaration was also sought in respect of other properties regarding their shares. The Consolidation Officer vide judgement dated 16.11.2009, allowed the objection in favour of answering respondents and held that both the Khata Nos. 38 and 39, were partitioned between the parties on the basis of compromise.

8. Being aggrieved by the order of Consolidation Officer, the petitioners filed an appeal before the Settlement Officer Consolidation, which was also dismissed vide order dated 8.12.2011. Again the petitioners preferred a revision before the Deputy Director of Consolidation, which was allowed vide order dated 6.1.2018. The Deputy Director of Consolidation set aside the orders dated 8.12.20211 & 16.11.2009 of Settlement Officer of Consolidation and Consolidation Officer respectively and remanded the matter for decision afresh on merits.

9. The contesting-respondents challenged the said order dated 6.1.2018 before this Court in Writ-B No. 2694 of 2018, which was allowed by this Court vide judgment and order dated 25.1.2018, whereby the matter was remanded back to the Deputy Director of Consolidation for considering the matter afresh calling some finding with regard to the inclusion of disputed plots in Khata No. 38 in the Kurras prepared on the basis of compromise decree.

10. After the remand order dated 25.1.2018 of this Court, the Deputy Director of Consolidation further remanded the matter to the Consolidation Officer vide order dated 3.11.2018, which was again challenged before this Court in Writ-B No. 5660 of 2018, in which a direction was issued to the Deputy Director of Consolidation to decide the matter himself. After the order of remand by this Court again, the Deputy Director of Consolidation vide judgment dated 12.2.2019 dismissed the revision filed by the petitioners and confirming the findings so recorded by the Consolidation Officer as well as Settlement Officer Consolidation respectively. The order passed by all the Consolidation Authorities including Deputy Director of Consolidation, are impugned in the present writ petition.

11. Heard Sri Ashish Kumar Singh, learned counsel for the petitioners, Sri Murli Dhar Mishra, learned counsel for respondents no. 4 to 8 and perused the record.

12. Learned counsel for the petitioners submits that while passing the impugned order, the Deputy Director of Consolidation, did not at all adhere to the specific direction given by this Court dated 25.1.2018 passed in Writ-B No. 2694 of 2018 and on this ground the order is vitiated. He further submits that as per the order of this Court, the Deputy Director of Consolidation has to record the finding whether the disputed plots of Khata No. 38 were included in Kurras prepared on the basis of compromise decree dated 21.1.1939 or not and in the absence of any such finding, the impugned judgment and order cannot be sustained in the eyes of law.

13. On the other hand, learned counsel for respondents no. 4 to 8 submits that the order passed by the authorities below i.e. Consolidation Officer as well as Settlement Officer Consolidation has been affirmed by the Deputy Director of Consolidation and as such there being findings of fact recorded by all the courts below, no case for interference under Article 226 of the Constitution of India is made out.

14. After hearing the submissions advanced by the counsel for the respective parties, it appears necessary to have a glance of the operative portion of the order dated 25.1.2018, passed in Writ-B No. 2694 of 2018 which reads as under:-

"For the aforesaid reasons, the order dated 6.1.2018 passed by the Deputy Director of Consolidation/Collector, Kushinagar cannot be sustained. The same is hereby set aside. The matter is remitted back to the Deputy Director of Consolidation/Collector, Kushinagar to examine the aforesaid aspect of the matter and return fresh findings, preferably, within a period of two months. It is made clear that the Deputy Director of Consolidation/Collector, Kushinagar would be required to examine the issue of inclusion of the disputed plots of Khata No.38 in the kurras prepared on the basis of compromise decree dated 21.1.1939. All other questions raised by the parties such as the effect of the compromise decree, the jurisdiction of the Civil Court to issue partition decree are not left open for examination by the Deputy Director of Consolidation/Collector, Kushinagar after the said decree was affirmed by this Court vide judgment and order dated 14.7.1998 and has attained finality between the parties.

With the above observations and directions, the writ petition is allowed."

15. From a bare reading of the aforesaid operative part of the judgment, it is apparent that a specific direction was issued to the Deputy Director of Consolidation to examine as to whether the disputed plots of Khata No. 38 were included in Kurras prepared on the basis of compromise decree dated 21.01.1939 or not. The finding recorded by the Deputy Director of Consolidation vide impugned order is quoted here under :-

"lE;d fopkjksIkjkUr i{kksa dks lquus o lgk;d cUnkscLr vf/kdkjh pdcUnh }kjk ikfjr vkns'k fnukd 08-12-2011 o pdcUnh vf/kdkjh iM+jkSuk }kjk ikfjr vkns'k fnukad 16-11-2009 dk fof/kor v/;;u fd;k x;kA pdcUnh vf/kdkjh ds vkns'k fnukad 16-11-2009 tks fd [kkrk la0 38 ds fo"k; esa ikfjr fd;k x;k gS og vkns'k ek0 mPp U;k;ky; ds fjV ;kfpdk la0 [email protected] esa ikfjr vkns'k fnukad 14-07-98 }kjk i{kksa ds e/; caVokjk flfoy okn la0 [email protected] esa ikfjr vkns'k fnukad 21-09-38 ds dze esa vuqikyu djrs gq, dqjkZokj foHkktu fd;s tkus dk funsZ'k fn;k x;k] ftlds dze esa pdcUnh vf/kdkjh }kjk foLr`r foospuk djrs gq, va'k dk fu/kkZj.k djrs gq, i{kksa ds e/; dqjkZokj foHkktu fd;k gS] tks fof/k lEer izrhr gksrk gSA vihyh; U;k;ky; lgk;d cUnkscLr vf/kdkjh pdcUnh ds vkns'k fnukad 08-12-11 }kjk mHk; i{kksa dks lquus ds mijkUr xq.k&nks"k ij vkns'k ikfjr djrs gq, pdcUnh vf/kdkjh iM+jkSuk ds vkns'k fnukad 16-11-2009 dks fof/k lEer ekurs gq, fuxjkuhdrkZx.k }kjk izLrqr vihy fujLr dh x;h gSA ,slh fLFkfr esa voj U;k;ky; }kjk ikfjr iz'uxr nksuks vkns'kksa eas fdlh izdkj dh gLr{ksi dh vko';drk izrhr ugha gksrh gSaA fuxjkuhdrkZx.k }kjk izLrqr fuxjkuh Lohdkj fd;s tkus ;ksX; ugha gSA

mijksDr foospuk ds vk/kkj ij ek0 mPp U;k;ky; ds vkns'k fnukad 30-11-2018 o 25-01-2018 ds leknj esa fuxjkuhdrkZx.k }kjk izLrqr fuxjkuh fnukad 26-12-2011 fujLr fd;k tkrk gSA rFkk lgk;d cUnkscLr vf/kdkjh pdcUnh }kjk ikfjr vkns'k fnukad 08-12-2011 o pdcUnh vf/kdkjh iMjkSuk }kjk ikfjr vkns'k fnukad 16-11-2009 cnLrwj dk;e o cgky j[kk tkrk gSA vkns'k dh izfr lfgr voj U;k;ky; dh i=koyh okil dh tk;A okn vko';d dk;Zokgh bl U;k;k;y dh i=koyh nkf[ky nQ~rj dh tk,A"

16. The impugned order reveals that no independent finding by the Deputy Director of Consolidation has been recorded in terms of the specific direction of this Court dated 25.1.2018 passed in Writ-B No. 2694 of 2018, and order passed by this Court has not been complied with by the Deputy Director of Consolidation while passing the order impugned.

17. Under these circumstances, the impugned order dated 12.02.2019 passed by the Deputy Director of Consolidation cannot be sustained in the eyes of law and is accordingly, quashed. The matter is again remitted to the Deputy Director of Consolidation to examine as to whether the disputed plots of Khata No. 38 were included in the Kurras prepared on the basis of compromise decree dated 25.01.1938 or not and record independent finding of his own in that regard.

18. The matter being old one, and a direction is issued to Deputy Director of Consolidation (respondent no.1) to decide the matter expeditiously within a period of three months from the date of production of computerized/certified copy of this order.

19. In the result, the writ petition stands allowed. No order as to costs.

20. The Writ-B No. 1749 of 2020 has been filed for the following reliefs:-

"1. issue a writ of mandamus directing the respondent no. 1, 2 and 3 to carry out and implement the judgment and orders passed by Consolidation Officer of Consolidation dated 8.12.2011 and by D.D.C./Collector Kushi Nagar dated 2.2.2019 by way of Reference No.44/II Under Rule 109 U.P.C.H. Regarding Village Rampur Banger Tehsil-Padrauna District-Kushi Nagar within a period stipulated by the Hon'ble Court.

2. Issue any other suitable order or direction in the like nature which this Hon'ble Court may deem fit and proper under the facts and circumstances of the cases.

3. To call for the record and to award the cost of writ petition tot he petitioner."

21. The order of the Deputy Director of Consolidation dated 12.2.2019, challenged in the leading writ petition (Writ-B No. 593 of 2019) has already been quashed by this Court and in view of the above, relief as claimed by the petitioners in the connected writ petition (Writ-B No. 1749 of 2020) cannot be granted. Accordingly, Writ-B No. 1749 of 2020 is dismissed.

Order Date :- 10.3.2021

MA/SK