Gokaran Nath And 5 Others vs Dy. Director Of Consolidation ...
2022 Latest Caselaw 31 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 

 
Reserved on 06.08.2021
 
Delivered on 17.01.2022
 

 
A.F.R.
 
Case :- CONSOLIDATION No. - 863 of 2014
 
Petitioner :- Gokaran Nath & 5 Others
 
Respondent :- Dy. Director Of Consolidation Bahraich & 9 Others
 
CoUnsel for Petitioner :- R.N. Gupta,B.L. Mishra,Bajrangi Lal Mishra,Sunil Kumar Singh,Vijai Bahadur Verma
 
Counsel for Respondent :- C.S.C.,Sanjay Tripathi,Virendra Singh 
 

 
			With
 

 
Case :- CONSOLIDATION No. - 248 of 2015 
 
Petitioner :- Gokaran Nath And Ors. 
 
Respondent :- Deputy Director of Consolidation Bahraich And 	Ors.
 
Counsel for Petitioner :- B.L.Mishra,Bajrangi Lal Mishra 
 
Counsel for Respondent :- C.S.C.,Sanjay Tripathi 
 

 
Hon'ble Mrs. Sangeeta Chandra,J. 

1. These are the two writ petitions filed by Gokaran Nath (now substituted) along with heirs of Ayodhya Prasad his brother, against orders passed by the Consolidation Authorities on objections filed by the Predecessor in interest of the respondent nos. 4 to 8 on Section 9A(2) objections and on application under Rule 109 of the Rules framed under the Consolidation of Holding Act (hereinafter referred to as "the Act"). The facts in both the writ petitions are common stated in the writ petitions that land of Khata Nos.26, 27, 106 and 107 are situated in village Nibia Raibhoja, Tehsil Naanpara district Bahraich. The Land of Khata number 26 was recorded solely in the name of Gokaran Nath where as land of Khata number 27 was jointly recorded in the name of Gokarannath and Anand Swaroop the father of opposite party number 2 to 8 with one half share each Land of Khata number 106 was recorded jointly in the name of Gokarannath along with his three brothers all sons of Raghunandan Prasad, with one fourth share of each and land of Khata number 107 was recorded jointly in the name of Gokarannath and his three brothers sons of Raghunandan Prasad and Anand Swarup grandson of Mahadev Prasad To the tune of one fifth share each In the basic year Khatauni.

2. During consolidation operations objections were filed under the section 9A2 by Anand Swaroop and the Assistant Consolidation Officer passed orders on 2212 1986 and on 23.12.986 on the basis of conciliation directing that land of Khata number 27 and all other Khatas be recorded in the name of Gokaran Nath and his three brothers, sons of Raghunandan Prasad, and also in the name of Anand Swaroop Grandson of Mahadeo Prasad. Land of all Khatas except Khata number 26 were treated as ancestral land and Gokaran Nath and his three brothers and Anand Swaroop were all given 1/5 share in each of the Khatas. The order dated 22 December 1986 and 23 December 1986 passed by the ACO under section 9A2 was implemented in the records and Chak of the parties were carved out under section 21 of the Act. The extract of CH form 23 has been filed as Annexure 6 to the petition.

3. After the death of Anand Swarup his legal heirs the opposite parties number 4 to 8 filed a time barred appeal against the orders dated 22 December 1986 and 23 December 1986. It has been stated that without any notice or summons being served upon the petitioner number one and other respondents to the appeal, the Appeal was allowed and the matter remanded ex-parte on 28 February 1990. After remand of the case On 5.1.1991 an order was passed by the Consolidation Officer that in spite of publication in the Gazette the defendant Gokarannath was not present and the case would proceed ex-parte against him and fixed the date of 22 January 1991 for hearing.

4. On 28.09.1991 a forged compromise was filed on behalf of the opposite party number 4 to 8 through their advocate Shri Ram Narayan Mishra. One Dushyant Kumar Mishra advocate who was the Junior of Shri Ram Narayan Mishra filed power in the name of Ayodhya Prasad and Mahavir Prasad, sons of Raghunandan, but neither Ayodhya Prasad nor Mahavir Prasad had ever engaged him. On the basis of such compromise the Consolidation Officer assumed that the land in question was the ancestral property of the petitioners and the respondents acquired by their common ancestor Vikramjeet Tiwari And determined the share of opposite party number 4 to 8 as one fourth share each and the share of the petitioners as One eighth each. Aggrieved by such order which was passed behind the back of the petitioner Number 1 and his brothers; and on coming to know of the order dated 22 February 1992.the petitioners filed appeals.

5. It has been submitted that neither Gokarannath or nor any of his brothers signed the compromise. No compliance was made of rule 25 A of the Rules of 1954. The application under Rule 109 A2 of the rules Was made only in August 2008 and after deriving knowledge of order passed for implementation/ Amaldaramad on 30 August 2008 the petitioners filed a time barred appeal under section 11 (1) of the Act along with an application for condonation of delay on 15 October 2008. Initially an interim order was passed staying the operation and implementation of the ex-parte order dated 22 February 1992 till further orders and directed the parties to maintain status quo. However the appeal was dismissed by the SOC on 15 April 2013. Against such order the petitioners filed a revision under section 48 before the DDC. Initially an interim was granted on 17 July 2013 staying the operation of the order dated 15 April 2013. Later on the revision was dismissed on 11 November 2014.

6. It has been submitted that the Deputy Director of Consolidation Is the last Court of facts and it should have at least examined the correctness, illegality or the irregularity in the order but no such attempt was made by the DDC. A copy of ZA form 61, prepared under rule 214 of the UPZALR rules Has been filed as Annexure 10 to the writ petition. If the land in dispute was held to be ancestral the shares had to be divided per stirpes. The opposite parties however could not plead or prove the land in dispute to be ancestral property by producing any document to show that title having been derived on the basis of inheritance.

7. It has been mentioned in Paragraph-19 of the writ petition that the share agreed upon in conciliation proceedings before the Assistant Consolidation Officer are still operative between the petitioners and respondents The compromise that was filed before the Consolidation Officer after remand in appeal is not signed by the petitioner number 1 and Kashi Prasad. The validity of the alleged compromise had not been adjudicated nor decided by the Appellate Court or the Revisional Court although the same was challenged in appeal by raising a specific ground that Ayodhya Prasad and his brothers had not engaged any person by the name of Dushyant Kumar advocate to appear on their behalf. The order dated 22 February 1992 was not implemented For a long time therefore a doubt should have arisen regarding its genuineness. Consolidation Officer wrongly observed that notice of the appeal and of the remand of the matter to his Court had both been given to the petitioners though regd post. Petitioners have also Stated that the land in question has already been sold off by the opposite parties number 4 to 8 and third-party interest have been created despite there being an interim order passed in appeal and a similar interim order being passed in revision and interim order passed by this Court on 4.12.2014.

8. The writ petition was filed by Gokaran Nath Tiwari along with sons and heirs of Ayodhya Prasad Tiwari. The petitioner no. 1 died during the pendency of the petition and has been substituted by his sons and legal heirs namely Manoj Kumar Tiwari, Prem for Tiwari and Rajiv Kumar Tiwari. The opposite party number 7 has died during the pendency of the petition and is substituted by his heirs incorporated in July 2021.

9. In the counter affidavit filed on behalf of opposite parties number 4 to 8. It has been stated that the Consolidation Officer had only found one Khata that is, Khata number 26 separately recorded in the name of Gokarannath and therefore had separated such Khata from the claim made by the opposite parties. It has also been argued that the original order passed by the assistant Consolidation Officer on 23 December 1986 was passed on the basis of a forged and fabricated compromise and it was also wrongly implemented and therefore on coming to know the same it was Challenged in appeal. Kashi Prasad filed a reply in this Appeal on 9.5.1988. After hearing the counsel for both the parties the appeals were allowed on 28 February 1990, and the matter was remanded to the Court of Consolidation Officer. Kashi Prasad Tiwari had full knowledge of the matter being heard on its merits by the Consolidation Officer again. He had also sent an application/letter Dated 6 November 1990 along with a copy of his reply in the appeal dated 9 May 1988 but he did not appear before the Court of Consolidation Officer to verify the contents of his application and therefore it was rightly ignored by the Consolidation Officer. In so far as Gokaran Nath is concerned, he was issued notice through registered post and also through publication but he refused to appear and therefore cannot now say that no opportunity of hearing was given to him. It has also been stated that Gokaran Nath lived in Kasba Naanpara and the land in dispute was situated within ten kilometers of his house And was being cultivated by him throughout. He cannot say that he had no notice. Before the Consolidation Officer compromise was filed on 28 September 1991. Since no objection was filed to the said compromise by the petitioners, it was rightly accepted on 22 February 1992. The property in question was the self acquired property of Vikramjeet Tiwari and after his death the property in question came in the name of Shri Mahadeva Prasad and Raghunandan Prasad because his three other sons had died issueless during his lifetime. After the death of Mahadeva Prasad his son Saraswati Prasad and thereafter his grandson Anand Swaroop Tiwari inherited the share of Mahadev Prasad which was half of the Property of Vikramjeet Tiwari. After the death of Anand Swaroop Tiwari his four sons, that is, the respondent nos. 4 to 8, inherited the property with one eighth share each. Similarly when Raghunandan Prasad died his Half share was divided amongst his four sons Mahavir Prasad, Kashi Prasad , Ayodhya Prasad and Gokaran Nath Tiwari. They inherited one eighth share each of Property of Vikram Jeet Tiwari. It has also been Stated in the counter affidavit that the compromise was duly entered into by all the parties to the dispute and it was duly verified by the advocates engaged by them respectively. With regard to delay in filing the application for Amaldaramad, it has been stated in the counter affidavit that the application under rule 109 was filed on 14 June 1993 and not after 16 years. Notice was issued by the Consolidation Officer on the said application but none appeared, except counsel engaged by Gokaran Nath Tiwari. No objection was filed by Gokaran Nath Tiwari against the application but only time was prayed for deferring its disposal.The delay in disposal of such application was caused due to non-availability of no objection from the chief revenue officer Bahraich. The order passed by the Consolidation Officer, The SOC And The DDC has been defended on the ground that they had rightly treated the property to have been acquired from joint family funds by common ancestor Vikramjeet Tiwari and therefore it was divided per stirpes as per the undisputed Pedigree. The petitioners had failed to provide any evidence either before the appellate Court or the Revisional Court that the property in question was acquired by them separately and as such the same should not be treated as common ancestral property.

10. In the rejoinder affidavit filed by the petitioners it has been reiterated that the name of Anand Swaroop the father of opposite party number 4 to8 was recorded only over land of Khata number 27 jointly along with petitioner number 1, and over Khata number 107 along with petitioner number 1 and his three brothers. The Consolidation Officer had noted that the name of Anand Swaroop was not recorded in Khata number 26 Nor in Khata number 106. It has also been Stated that the objections to the basic year Khatauni Was made by Anand Swaroop and therefore Anand Swaroop should have filed evidence that the property in dispute was earned by Vikramjeet Tiwari through joint family funds. On the alleged compromise neither the signatures of Ayodhya Prasad nor that of Mahavir Prasad were present. They never appeared before the Court of Consolidation Officer for verification. Gokarannath and Kashi Prasad were not made parties to the compromise. Their names are absent from the memo of the compromise that was filed as Annexure to the writ petition and this fact has not been disputed in the counter affidavit filed by the respondents It was also Stated in the rejoinder affidavit that on 4.12.2014 this Court has been pleased to stay the operation of the order dated 11 November 2014 and directed the parties to maintain status quo on the spot as It existed on that day. However despite such orders having been passed, the opposite parties number 4 to 8 had sold the land in question to several persons on various dates , copies of three such sale deeds have been filed as Annexures to The rejoinder affidavit.

11. An application for impleadment of subsequent purchasers as opposite parties number 11,12 and 13 was also filed in August 2015 on which notices were issued. Service was deemed sufficient and impleadment allowed on 30 July 2021. A supplementary affidavit has been filed by the petitioners wherein details of old Khata numbers and new Khata numbers have been given. It has been stated that old Khata number 4 (new Khata No.26) was recorded in the name of Gokarannath alone. Old Khata number 54, (new Khata number 27) was recorded in the name of Raghunandan Prasad and Saraswati Prasad son of Mahadev Prasad, and therefore half share in such Khata was rightly given by the assistant Consolidation Officer. Old Khata number 24 and old Khata number 125 were joined together and given new Khata number 106 , which was recorded only in the name of Gokarannath and his three brothers ,sons of Raghunandan Prasad, and therefore no share could have been given to Anand Swaroop or to the respondent number 4 to 8 in such Khata number 106. Old Khata number 25 and 124 were combined to make new Khata number 107 , in which the name of Raghunandan Prasad and Anand Swaroop were recorded. Gokarannath and his three brothers became entitled to half share of Raghunandan Prasad over such land. Anand Swaroop used to give Land revenue for only 1/5 portion of such Khata number 107 , as is evident from extract of the Khatauni and ZA form number 61D. Copies of the relevant extract of the Khatauni And the form number 61 have been filed as an Annexure to the supplementary affidavit.

12. A Reply to such supplementary affidavit has been filed by the opposite parties number 4 to 8 in November 2017 wherein they have denied its contents reiterated that no such documentary evidence was produced before the consolidation authorities that the property in question was not the joint property of the entire family and had been acquired separately by the petitioners. A substitution application was filed in January 2018 which has been allowed after issuance of notice by this Court, in September 2018 substituting the petitioner number 1 and the opposite party number 7 by the legal heirs and dependents. An Affidavit has been filed by the petitioners placing on record the The fact that at least four sale deeds Have been made out in favour of different persons by the respondent number 4 to 8 And their legal heirs during the pendency of the writ petition and the currency of the interim order passed by this Court on 4.12.2014.

13. Learned counsel for the petitioners during the course of arguments has pointed out from Z.A. Form-61 filed as Annexure No.10 and mention in the pleadings in Paragrap-16 that the Petitioner no.1 Gokaran Nath was recorded as the sole tenure holder of Khata Nos.26 & 27, and with his brothers namely Mahaveer Prasad, Kashi Prasad and Ayodhya Prasad in Khata No.106, whereas Anand Swaroop from whom the Opposite party nos.4 to 8 derived title was mentioned as co-sharer only in Khata No.107 only since prior to 1360 Fasli.

14. The objections were filed under Section 9A(2) by the predecessor in interest of the Opposite party no.4 to 8 i.e. Anand Swaroop belonging to the branch of Saraswati and Mahadev praying for share in such Khatas which belonged to the branch of Raghunandan and were recorded in the name of the Petitioner no.1 and his three brothers Mahaveer Prasad, Kashi Prasad and Ayodhya Prasad, therefore the burden lay upon them to prove that the Khatas that they were disputing were ancestral property and hence liable to be partitioned into two branches i.e. of Raghunandan and Mahadev sons of Vikram Tiwari. No such proof was ever produced before the Consolidation Officer. Before the Consolidation Officer only a compromise was relied upon which compromise has been filed as Annexure-7 to the petition which shows that it has not been signed by Gokaran Nath, the Petitioner No.1. On the basis of such compromise dated 28.09.1991 the Consolidation Officer passed an order on 20.02.1992. The predecessor in interest of Opposite party nos.4 to 8 kept quiet after passing of the order dated 20.02.1992 and did not file any application under Rule 109 for its endorsement on the Revenue Records till 2008. When such application was filed in 2008 the petitioners were issued notice and they filed objections through their counsel requesting the Consolidation Officer not to proceed further in the matter as they wished to file an Appeal against the order dated 20.02.1992. The Consolidation Officer, however passed the order under Rule 109 A Sub clause 2, the petitioners approached the Settlement Officer (Consolidation) by filing two Appeals one Appeal was filed against the order dated 22.02.1992 and the other Appeal was filed against the order dated 30.08.2008 passed under Rule 109 (A) 2. Both the Appeals were clubbed and heard together by the Settlement Officer (Consolidation). The Settlement Officer (Consolidation) dismissed the Appeals both on merits and on delay. Although the Settlement Officer (Consolidation) in his order has observed that Gokaran Nath had not agreed to the compromise which was made the basis of the order passed by the Consolidation Officer. He nevertheless directed even Khata Nos.26 and 27 besides Khata No.107 and Khata No.106, to be ancestral property and therefore liable to be partitioned in accordance with the joint Hindu Family Custom. As per the joint Hindu Family Custom the ancestral property was to be divided per stripes between the branches of Raghunandan and Mahadev sons of Vikram Tiwari. The petitioners filed a Revision which Revision has also been rejected by the Deputy Director of Consolidation, Despite the petitioners pleadings before the Deputy Director of Consolidation that the proceedings were vitiated on account of fraud and misrepresentation resorted to by the opposite party nos.4 to 8.

15. Shri Sanjay Tripathi, appeared for the Opposite party nos.4 to 8. He has argued that the petitioners relied upon a compromise filed before the Assistant Consolidation Officer but were disputing the compromise filed before the Consolidation Officer. Even the compromise filed before the Assistant Consolidation Officer on which the initial order of the Assistant Consolidation Officer was passed on 22.12.1986 had directed the partition of the property between the two branches equally. The Appeal was filed against the Assistant Consolidation Officer's order dated 22.12.1986 and the Settlement Officer (Consolidation) remanded the matter to the Consolidation Officer to decide on merits observing that there was no compromise between the parties, and it was the contested case, therefore it should be decided on merits. The order of the Settlement Officer (Consolidation) was never challenged by the petitioners. However, when the matter was remanded to the Consolidation Officer even though they had knowledge that the case was pending before the Consolidation Officer, they failed to appear despite publication of notice in the Newspaper. Before the Consolidation Officer, the petitioners were disputing the claim made by the predecessor in interest of Opposite party nos.4 to 8 that the property in question was ancestral property, but at no such application was filed before the Consolidation Officer by the petitioners for giving evidence to show that the property in question was a self acquired. The Consolidation Officer and thereafter even the Settlement Officer (Consolidation) in Appeal, rightly presumed that being the property of Vikram Tiwari and having devolved upon his two sons, the property was ancestral and therefore directed for its division which orders should not be interfered with lightly as findings of fact have been recorded by three learned Courts below.

16. It has also been argued that if the petitioners failed to produce any evidence before the Consolidation Courts, the Consolidation Courts had no option, but to rely upon the family pedigree which the petitioners also did not dispute, and pass the orders impugned. It has also been argued that the opportunity was not denied by the Consolidation Officers. Notice was issued and thereafter publication in the Newspapers was also made and the petitioner no.1 lived in the same village and was cultivating the land in question, therefore, it cannot be said that he had no knowledge of the proceedings pending before the Consolidation Officer, more so when the Settlement Officer (Consolidation) had remanded the Appeal filed against the order of the Assistant Consolidation Officer after hearing both the parties. Learned counsel for the respondents also argued that the original Khata was in the name of their great grand father Mahadev, and thereafter the name of Saraswati and Anand Swaroop were recorded also on the Khatauni, therefore his sons being legal heirs cannot be denied the share in the ancestral property.

17. Shri Sanjay Tripathi, learned counsel appearing on behalf of the contesting-respondent has pointed out that the Hon'ble Supreme Court as well as this Court in its several judgments has observed that findings of fact recorded by the Consolidation Authorities should not ordinarily be interfered with in writ jurisdiction. The exceptions that have been passed on relate to misrepresentation and fraud depriving of opportunity, perversity and misrepresentation of law, failure to exercise jurisdiction and Acting in excess of jurisdiction by the lower Courts. The case of the petitioners is not covered in any of these exceptions and therefore this Court in writ jurisdiction should not reappraise the evidence before learned consolidation authorities. On the facts of the matter, Shri Sanjay Tripathi states that it was not as if the Consolidation Officer was hearing the matter for the first time and then passed the impugned order. It so happened that C.O. had earlier passed order which was challenged in appeal and the appeal partly allowed and the matter remanded to him by an order dated 28.02.1990. It is apparent from the perusal of the order dated 28.02.1990 that all the parties were heard. It was not open for the petitioner to stay away from the hearing before the Consolidation Officer on remand of the case. It has also been stated that the documents that have been filed along with writ petition and supplementary affidavit filed therein are such documents which have not been produced before the Consolidation Officer and they cannot be looked into now as it would allow the petitioners to improve upon the case set-up before the Consolidation Authorities. It has also been argued that co-sharers praying for partition have to prove their own case. The onus of proof lies upon each of them with regard to the share claimed by them. More so when the family pedigree/ sijra has not been disputed between the parties. The petitioners did not produce any evidence before the Consolidation Authorities to prove that the entries in the khatauni was not found to be wrongly made then it would be followed by all the Courts. Learned counsel for the respondents has cited judgments of the Hon'ble Supreme Court and of this Court to say that where there is no denial of the opportunity and no misrepresentation, the jurisdiction of the writ Court in consolidation cases is very limited and should be exercised with caution and circumspection.

18. Shri Vijay Bahadur Verma has in rejoinder submitted that the judgment of all the learned Courts below has not considered the fact that the compromise was ex-parte. The case can be decided ex-parte but a compromise cannot be acted upon if it is ex-parte.

19. In rejoinder, Shri Vijay Bahadur Verma also submitted that the pleadings in the Appeal and the Revision are specific in so far as at least two Khatas are concerned, one of them being recorded solely in the name of the Petitioner no.1 and the second Khata recorded in the name of the Petitioner no.1 alongwith his three brothers. There is no mention of the branch of Saraswati on these Khatas, and the Annexures that have been relied upon by the petitioners have not been disputed. Only a bald denial in the counter affidavit would not help the respondents.

20. Shri Vijay Bahadur Verma, further argued that paragraph 16 of the writ petition specifically says that till date the Khatauni mentions names of the petitioners. True photocopies along with type copies of Z.A. Form No.16 kha along with extracts of khatauni of petitioner no.1 and his three brothers Mahavir Prasad, Kashi Prasad and Ayodhya Prasad along with that of Anand Swaroop the predecessor in interest of the respondent have been filed as Annexure no.10 to the writ petition.

21. It has also been argued that the consolidation authorities wrongly assumed that the property belonged to Vikramjit Tiwari, the common ancestor of all the parties, however, there was no evidence on record that the property in dispute was ever recorded in the khatauni in the name of either Vikramjit Tiwari or Raghunandan and Mahadev, his two sons.

22. Learned counsel for the petitioner also says that the compromise that was filed before the Consolidation Officer had left out plot no.26 which is new number of old plot no.4. He has pointed out that old plot no.24 and 125 were converted into new plot no.106, old plot no.25 and 124 were converted into new plot no. 107, old plot no. 4 was converted into new plot no.26 and old plot no.54 was converted into new plot no.27.

23. In old plot no.54 (new number 27) half share of Saraswati Prasad is admitted (ancestor of the opposite parties). The compromise was defective because while giving half share of plot no.27 to the ancestor of the opposite party, Saraswati Prasad, it also gave half share of other three plots that belonged solely to either the petitioner or his three brothers and where there was no share of the Mahadev and Saraswati. In plot number 106 the names of the opposite parties or their predecessor in interest were never recorded whereas they were recorded in plot no.107 as co-sharers.

24. Learned counsel for the petitioner has also pointed out that the petitioners had filed two appeals, one against the order passed by the Consolidation Officer under Section 9 A (2) of the Act and the other against the order passed under Rule 109 (A). Both appeals were rejected and thereafter two revisions were filed which revisions have also been rejected which have led to filing of these two writ petitions.

25. It has been argued by the learned counsel for the petitioner that the order passed by the Consolidation Officer was an ex-parte order and, therefore, at least during the appeal and revision the petitioner should have been heard properly.

26. It has also been argued that the question of shares with regard to co-tenure holder is a question of law and cannot be decided on the basis of compromise. It should only be decided on the basis of pleadings and evidence produced by both the parties.

27. Learned counsel for the petitioner has pointed out from the copy of the compromise filed before the Consolidation Officer that there are no signatures of the petitioner on them, hence, it is not binding on them. With regard to the specific query made by the Court about current status of the property in question, Shri Vijay Bahadur Verma, learned counsel has submitted that during the pendency of the appeal there was an interim order passed by the S.O.C. which lapsed when the appeal was rejected. In the petitioner's revision there was also interim order granted by the Deputy Director of Consolidation which came to an end on the rejection of the revision. When the writ petition was filed, this Court on the first day of hearing on 04.12.2020 had directed the parties to maintain status-quo and had also stayed the order passed by the DDC dated 11.11.2014 till the next date of listing. Ignoring the interim order granted during the appeal and revision and thereafter by this Court, the opposite parties have sold all the land in question and, therefore, application for impleadment was filed before this Court on which notice were issued and service found sufficient by this Court. Impleadment application was allowed. The subsequent purchasers have not put in appearance before this Court but Section 52 of the Transfer of Property Act would apply and since the transfer was during the pendency of the litigation before the appellate Court revision Court and High Court, it should be treated as null and void.

28. This Court has perused the order dated 22 February 1992 passed by the Consolidation Officer in Case No.398 to 401, and finds that the Consolidation Officer First recorded that except for Gokarannath and Kashinath, sons of Raghunandan Prasad, all other parties in litigation with respect to Khatas Nos.26, 27, 106, 107 had submitted a compromise dated 28.09.1991. Gokaran Nath had been sent notice through registered post and substituted notice through Gazette publication was also resorted to but he failed to appear. Kashi Prasad Tiwari sent a letter on 06.11.1990 along with a copy of reply submitted on 9.5.1988 in Appeal before the SOC, but Kashi Prasad Tiwari did not appear nor did he file any response to the notice sent to him therefore his letter dated 06.11.1990 was not being taken into consideration. In the compromise dated 28.09.1991 the 4 Khata in dispute were shown to be ancestral property. However Khata No.26 was shown to be recorded in the name of Gokarannath alone and the parties to the litigation had not showed any evidence that said Khata No.26 was in fact ancestral property. The Consolidation Officer observed that for co-tenancy rights to be claimed on property acquired before the U.P. Zamindari Abolition and Land Reforms Act, the Provisions of U.P. Tenancy Act were applicable but after U.P. Zamindari Abolition and Land Reforms Act came into being, to claim co-tenure ship in a particular piece of land, there was no provision, hence, in so far as Khata No.26 was concerned the compromise dated 28.09.1991 could not be made applicable. Only with respect to Khatas Nos.27, 106 and 107, the compromise dated 28.09.1991 would govern the shares of the parties, thus the compromise in respect to Khata Nos.27, 106 and 107 would become part of the order. The Consolidation Officer also observed that the rest of the lands on which the compromise dated 28.09.1991 had been accepted, were covered by the imposition of Ceiling on Land Holdings Act, and therefore the file be sent to the Chief Revenue Officer for his comments before the order dated 22.02.1992 can be made applicable.

29. Two Appeals were filed by Gokaran Nath and others against the order dated 22.02.1992 and order dated 30.08.2008 passed on an application under Rule 109 A(2). Both the Appeals were taken up together by the Appellate Authority. This Court has gone through the order passed by the SOC. The SOC dealt with the facts of the case regarding compromise being submitted in the Court of Consolidation Officer with respect to Khata in question describing them as ancestral property. The Consolidation Officer after hearing the parties had declared Khata No.26 to remain in the sole possession and ownership of Gokarannath whereas other khatas were to be divided per stripes. The appellant had argued that the Consolidation Officer had proceeded ex-parte and pass the order relying upon the compromise which compromise had been done fraudulently. In the basic year Khatauni, Khata No.26 was recorded in the sole name of Gokaran Nath. Khata No.27 was recorded in the name of Gokaran Nath Son of Raghunandan along with Anand Swaroop son of Saraswati. Khata No.106 was recorded in the name of Mahavir Prasad, Kashi Prasad, Ayodhya Prasad and And Gokarannath all sons of Raghunandan. Khata No.107 was recorded in the name of Mahavir Prasad, Kashi Prasad, Ayodhya Prasad And Gokarannath sons of Raghunandan and Anand Swaroop son of Saraswati in the basic year Khatauni. The Assistant Consolidation Officer on basis of conciliation passed an orders on 22.12.1986 and 23.12.1986 declaring 1/5 share in all Khatas leaving out Khata No.26. The said order was also implemented. The Chaks were also carved out. Later on, an Appeal was filed which was accepted on 28.02.1990 and the matter remanded back to the Consolidation Officer to decide afresh as it was a contested case.

30. It was argued before the SOC that after remand Order was passed by the SOC, the case file did not reach the Court of the Consolidation Officer and the order dated 22.02.1992 was passed without going through the records only on the basis of an ex-parte agreement. A Gazette Publication dated 23.07.1990 was said to have been done but knowledge could not be derived by the appellants And the matter proceeded ex-parte and on the basis of a forged compromise dated 28.9.1991 the order dated 22.02.1992 , was passed. The respondents filed an application for implementation of the order on 14.06.1993 and thereafter sat quietly. On 10.10.2006 another application for implementation (Amaldaramad) was filed but no implementation was done. Ajay Kumar, the respondent filed mutation application again which was taken into account and the order 30.08.2008 was passed under rule 109 A(2). Only on implementation of the order dated 30.08.2008 knowledge could be derived by the appellants. Consequently the Appeal was filed with delay.

31. With regard to the merits of the case, it had been observed by the SOC that Kashi Prasad was Posted as Inspector General in PAC and his son was living in America. Mahavir Prasad was Income Tax Commissioner. These two parties had not appeared in the case. The Appeal was heard in their absence. In the Appeal memo it was claimed that the land of the disputed Khata was not ancestral property as the Revenue Records do not show the name of Vikramjit being recorded thereon. However, in the conciliation before the Assistant Consolidation Officer 1/5th share was declared for each of the parties which was not challenged and can be treated as an estoppel.

32. It was argued before the SOC that in the agreement the names of seven parties have been mentioned including that of Gokarannath. With respect to the Appellants' family the name of only two of the parties were mentioned. The names of Ayodhya Prasad and Mahavir Prasad were added later on. It was also argued that when the Court had ordered proceeding ex-parte against the respondents on 05.07.1991, it is not clear as to how such parties came to Court and signed the compromise before the it on 28.09.1991 it is evident that the compromise was a forged document the Vakalatnama that was filed on behalf of the Appellants had been signed in 1989. It was actually filed in September 1991 when the case file was remanded in 1990 no notice was ever issued. Reference was made to two judgements of the High Court Reported in 1987 (RD) 416, and in 1982 (RD) 107, praying for condoning the delay. Appellant also placed reliance upon 1987 (RD) 411, 1983 (RD) 107 and 1987 (RD) 180 to substantiate their claim.

33. The respondents on the other hand while filing their objection to the Appeal stated that the Consolidation Officer had ordered to proceed ex-parte only against Gokarannath. The appellants had failed to show as to how the disputed lands had been acquired by them solely on the basis of their own income. Kashi Prasad had sent a letter indicating his consent and admission by one of the parties/respondents would bind others also. Neither Mahavir Prasad nor Kashi Prasad approached the Appellate Court against the order of the Consolidation Officer. The appeal being time barred ought to have been rejected as no sufficient cause has been shown to condone the delay. The delayed implementation of the order dated 22 February 1992 was only because approval by the chief Revenue officer was granted with much delay. When the Application under rule 109 was filed, a notice was again issued but only Gokarannath appeared And prayed for deferment of hearing. The compromise that was filed between the parties Having not been challenged on merit it Should not be disturbed.

34. After recording the submissions made by the appellant and the respondent, The SOC proceeded to give his findings on the basis of perusal of the original file. He came to the conclusion that the land in question was undisputedly joint family property as no evidence was produced by Appellant of having acquired the same through his own personal efforts it was presumed to have been Acquired jointly. Looking into the Pedigree of the parties the SOC observed that half share of the property of Vikramjit should go to the branch of Mahadeo Prasad/Anand Swaroop and the other half share Should go to the branch of Raghunandan. Such division per stirpes had actually been done. It was noticed that in so far as Khata number 26 was concerned since no evidence was filed of the same having been acquired jointly, it remained recorded in the name of Gokarannath. In so far as order dated 22 February 1992 was concerned the appeal having been filed on 15 October 2008 was with inordinate delay which could not be condoned. Even if the compromise that was relied upon to pass the order dated 22 February 1992 is ignored, still the order passed by the Consolidation Officer appeared to be just and correct as it divided Ancestral property per stirpes. As such the order dated 30 August 2008 implementing the same under rule 109 of the rules also did not warrant interference. The Appellant did not produce any evidence of his entitlement to a larger share of the ancestral property. The Question of remand cannot be considered as it would lead to unnecessary and frivolous litigation. Also the SOC observed that the appeal as well as the application for condonation of delay were supported by an affidavit which had only the signature of Gokarannath thereon. No other legal heir of Raghunandan Prasad was interested in getting the order dated 22 February 1992 set aside.

35. The order dated 11 November 2014 has also been perused by this Court. It decided revision number 404 and connected revisions filed by Gokarannath against the order dated 15 April 2013 rejecting his two appeals. In the revision the DDC has first considered the argument raised by the revisionist that matter relating to four different khatas were decided by four different orders Dated 18 December 1986, 22 December 1986, 31 December 1986, and 23 December 1986 respectively. Four appeals Were filed namely appeal number 2796, 2797, 2798,2799 Respectively against such order the appeals were allowed ex-parte and the matter remanded. On remand of the case a forged compromise was filed which did not have the signatures of Mahavir Prasad and Ayodhya Prasad although it was stated that they were agreeable to such compromise. The names of Gokaran Nath and Kashi Prasad were altogether absent from such compromise. Yet the compromise was believed and made part of the order by the Consolidation Officer. In respect of filing of the said compromise on 28 September 1991, no notice was ever issued to the revisionist hence the orders dated 22 February 1992 ought to be set aside on grounds of Violation of principle of natural justice.

36. It was also argued before the Deputy Director Consolidation that Khatauni Nos.26 and Khata number 106 did not contain the name of Anand Swarup. The Consolidation Officer rejected the claim of the heirs of Anand Swaroop to Khata number 26 as part of ancestral property and Khata number 26 was Directed to remain in the sole ownership of Gokarannath. On the other hand Khata number 106 also did not contain the name of Anand Swarup however he was given half share of such property amounting to almost 40 acres of land. Such an order was self contradictory in nature. On the one hand the claim of the heirs of Anand Swarup was not accepted on Khata number 26 as it did not contain the name of Anand Swaroop, On the other hand the claim of the heirs of Anand Swarup on Khata number 106 was allowed even though the name of Anand Swaroop was not mentioned in the record and there was no evidence filed of the said Khata being ancestral property.

37. It was also argued before the DDC that the respondents very cleverly waited for more than 16 years to get the order dated 22 February 1992 implemented before filing application under Rule 109 A(2) when Order dated 30 August 2008 was passed the revisionist derived knowledge and filed two separate appeals challenging the order dated 22 February 1992 as well as the order dated 30 August 2008, both the appeals were rejected by SOC arbitrarily. It was observed by the SOC that only Gokarannath was aggrieved by the order dated 22 February 1992 and the order dated 30 August 2008. The SOC failed to notice that since Ayodhya Prasad had died before filing of the appeal, his heirs had filed their Vakalatnama on substitution as Appellant number 2 to 6. The failure to notice the Substitution of the heirs of Ayodhya Prasad which Was very much on record made the order under challenge, perverse , And liable to be set aside on this ground alone.

38. It was also argued before the DDC that the SOC and the Consolidation Officer without looking into the fact that no evidence was filed To show that the property was ancestral in nature had assumed the same to be ancestral and divided it equally between the The heirs of Raghunandan Prasad and Mahadeo Prasad. The compromise having been obtained by fraud should have been ignored. The SOC however closed his eyes to such criminal conduct.

39. In the Revision filed against the order dated 30 August 2008 passed under Rule 1098 it was stated that the order dated 22 February 1992 had been implemented Without issuing notice to all the parties concerned. Kashi Prasad and Mahavir Prasad had died In the meantime but the legal heirs were not substituted. In so far as Khata number 106 was concerned it's co tenure holder Kashi Prasad was survived by his son Ajay Kumar Tiwari who lived in America. He was not heard. The Consolidation Officer had wrongly observed in his order that notice was issued to all Concerned. Mahavir Prasad had died 20 years ago his widow had also died in 2006. Kashi Prasad had died 14 years ago. His son was living in America. No notice was ever issued to the legal heirs. Only after knowledge was derived through rumours, Gokarannath had filed an application for deferment on 19 July 2008 that against the original order a restoration application was pending therefore The hearing in application under rule 109 should be deferred. The Consolidation Officer ignored such an application.

40. It was argued before the DDC that the SOC had wrongly observed that the order dated 22 February 1992 had been implemented under rule 109 whereas the order dated 30th of August 2008 had not been passed under rule 109 It was rather passed under rule 109 A2 Under rule 109A2 the Chaks are adjusted so that each of the tenure holders is assigned both high-value and low value land on an equitable basis so that each of the shareholders would be relatively equally placed. On the other hand the Consolidation Officer in his order dated 30 August 2008 had assigned all good land only to the respondents.

41. In response to such revision, the opposite parties filed their written reply stating that after the compromise dated 28 September 1991 was filed in Court, notice was issued to Gokaran Nath through registered post and through publication in newspaper. A copy of the written statement filed on 9 May 1988 in the appeal filed under section 11 (1) of the Act by the respondent before the SOC against the order dated 22 December 1986 Clearly showed that both Kashi Prasad and Gokaran Nath had knowledge of the matter being remanded to the Consolidation Officer for decision afresh. On their Refusal to appear and plead the case before the Consolidation Officer it cannot be said that opportunity of hearing was denied.

42. In so far as delay in filing of the application for implementation (Amaldaramad) is concerned it was stated clearly by the Consolidation Officer in his order dated 22 February 1992 that the land in question may be declared surplus under the ceiling operations . Consequently the Tehsildar Nanpara had submitted a report on 5 March 2007 on which the comments of the Chief Revenue officer were called. The Chief Revenue Officer gave his comments on 12 September 2007 that the land in question was not being affected by ceiling operations. Later on the SOC also granted permission on 26 December 2007 for implementation of the order dated 22 February 1992 only thereafter that the assistant Consolidation Officer issued Notice to all the parties. Even after such notice was issued only Gokarannath appeared And filed his application for deferring of hearing. None of the other respondents appeared. The application of Gokarannath was rightly rejected and the order dated 30.8.2008 was passed.

43. In his order dated 11.11.2014, the DDC had observed that he had carefully gone through the written argument filed by the revisionist also. He has gone through the record of the lower Court. After referring to the facts of the case as mentioned in the Orders dated 22 February 1992 and 15 April 2013 passed in the two appeals by the SOC, the DDC has given his own findings. He has found that notice was issued through registered post and through publication yet the revisionist had not filed any objections. it could not be said that the procedure was not followed by the Consolidation Officer while placing reliance upon the Compromise dated 28 September 1991. The Consolidation Officer was careful enough not to disturb the entry in so far as Khata number 26 was concerned as the parties could not show any evidence to prove that the same was ancestral property acquired through joint fund family funds. On the other hand the other khatas in question All had the names of the successors of The two branches Of Raghunandan Prasad and Mahadev Prasad entered already in the basic year Khatauni. The only question involved was that of determination of individual shares of each of such legal heirs. Such division was done per stirpes And strictly in accordance with the undisputed Pedigree.The order passed by the Consolidation Officer and the Settlement Officer (Consolidation) were on the whole just and did not need any interference. The revisions were consequently rejected.

44. This Court having heard the learned counsel for the parties at length and having perused the orders impugned finds from the annexures filed along with the pleadings on record that in objection filed under section 9A2 of the consolidation Of holdings Act a compromise was filed showing Pedigree of the petitioners and the respondents. Such Pedigree mentioned Vikramjeet Tiwari as the common ancestor having five sons of which Mahadeo Prasad Tiwari And Raghunandan Prasad were the main ancestors of the respondents and the petitioners here in. Mahadeva Prasad Tiwari was survived by his son Saraswati Prasad Tiwari and his son Anand Swaroop Tiwari. Raghunandan Prasad Tiwari had four sons Mahavir Prasad, Kashi Prasad, Gokaran Nath And Ayodhya Prasad Tiwari.

45. In the compromise filed as annexure to the writ petition it was mentioned that Khata Nos.26, 27,106 And 107 were the self acquired property of Vikram Jeet Tiwari. On his death the property was divided equally between his sons Mahadeo Prasad and Raghunandan Prasad Tiwari as his other three other sons had died issueless during the lifetime of Vikram Jeet Tiwari. Saraswati Prasad Tiwari Succeeded his father Mahadeo Prasad Tiwari. On his death Anand Swaroop Tiwari succeeded to his share. On the death of Raghunandan Prasad Tiwari his four sons namely Mahavir Prasad Ayodhya Prasad Kashi Prasad and Gokaran Nath succeeded to one eighth of his shares. The earlier order of the Consolidation Officer had wrongly decided one fifth share each in favour of Mahavir Prasad Ayodhya Prasad Kashi Prasad And Gokaran Nath although they were entitled to only one eighth of the share on which they were actually in possession. A prayer was made in the compromise that in all the four Khata the share of Abhay Kumar ,Sanjay Kumar, Rakesh Kumar ,Rajesh Kumar and Shailesh KumarSons of Anand Swarup Tiwari be decided as 1/10 where as the share of Mahavir Prasad, Ayodhya Prasad, Kashi Prasad and Gokarannath be decided as 1/8 th. The compromise was shown to have been signed by the sons of Anand Swaroop Tiwari identified through their counsel Ravi Narain misra. Mahavir Prasad and Ayodhya Prasad sons of Raghunandan Prasad Tiwari did not sign such compromise dated 28 September 1991.

46. The learned counsel for the petitioners had cited Dharmraj versus DDC Pratapgarh 1987 RD 107; before the appellate Court which was not dealt with by the SOC. In this judgement rendered by coordinate bench of this Court, the Court was considering the claim of co tenancy rights made by the petitioner having been rejected by the DDC The brief facts of the case were that the plots in dispute were contained in two Khata numbers the petitioner was found in possession over the plot in dispute during consolidation operations along with respondent number 4 to8 to the writ petition. Whereas the respondents number 4 to 8 were recorded in the basic year. The petitioner filed an objection under section 9A2 of the Act claiming co tenancy rights on the basis that the plots of both the khatas were ancestral acquisition and the petitioner being the descendant of one of the Two sons of the original Khata holder was entitled to half share. Whereas the respondents number 4to 8 being descendants of the other son were entitled to the remaining half share. The respondents 4 to 8 on the other hand had filed an objection alleging that the plots were acquired only by their ancestor and not by the petitioners ancestor and hence they were the sole tenure holders. The Consolidation Officer decided the case against the petitioner who prefer two appeals. The appeal in respect of one of the Khatas was allowed in respect of the other Khata was dismissed. The petitioner preferred a revision in respect of his appeal which was dismissed. The respondent number 4 to 8 preferred a revision in respect of the appeal of the petitioner which was allowed claiming sole tenancy rights. The Deputy Director of Consolidation by the impugned order had allowed the revision of the contesting respondents as the sole tenure holders and dismissed the petitioners revision. The result was that the contesting respondents were held to be sold tenure holders in respect of both the Khatas The counsel for the petitioner submitted that oral evidence which was filed had not been considered. The High Court had held consistently in Ramnaresh versus DDC and others 1978 RD 118; Paras Nath versus Mazir ul Hasan 1974 unreported Revenue Cases 615; and Radheshyam versus DDC and others 1981 RD page 21; that the Deputy Director Consolidation was the last Court of facts and he should consider the oral and documentary evidence afresh, his orders should not be cryptic and there must be discussion of the oral evidence.

47. In the case before this Court in in Dharmraj, although just a reference was made to the witnesses examined on behalf of the petitioner and in respect of the mother of the petitioner, and the fact that she had not stated anything as to when partition took place in the Family, the DDC did not discuss other remaining portion of the statement made by her. The Court observed that the order Passed by the DDC was cryptic in nature and the DDC failed to apply his mind to the arguments put up by the parties. No points for determination were formulated by the DDC for decision. He had also failed to refer to the documents on record. It was observed by the Court that the DDC being the last Court of facts, should have passed a detailed order which he had not done while reversing the order of the SOC. The order of the DDC was set aside and the matter remanded to him for decision afresh.

48. In Shivnath versus Deputy Director of Consolidation 1983 RD 107; another judgment cited by the petitioners before the SOC but not considered by him, this Court was considering a case where certain land was recorded in the basic year Khatauni in the names of Radhe son of Shiv Pal and Lalta son of Fateh Singh. Kalika, the father of petitioner Sheo Nath and others filed an objection claiming to be co tenure holder in the holding in dispute with the allegations that it was a joint family holding and was acquired in a state of jointness with joint family funds. He claimed that he is a co tenant to the extent of one third share in the holding in dispute which was initially recorded in the name of Radhe in representative capacity. He also claimed to be in possession over the land in dispute . Another objection was filed by Radhe asserting that he is the sole tenant of the land in dispute and it was his sole acquisition. He further contended that the name of Lalta was incorrectly recorded as co-tenant along with him on the holding in dispute and prayed that the name of Lalta be expunged and that he be declared as the sole Sirdar tenant of it. Lalta contested the case asserting that he is cotenant in the holding in dispute and further supported the claim of Kalika father of Shivnath and others, who had pressed his claim of being co tenant along with the recorded persons Radhe and Lalta.

49. The Consolidation Officer after taking evidence of the parties rejected the claim of Kalika who died during the pendency of the case and was substituted by Shivnath and others ,the petitioners. The Consolidation Officer further found that in an earlier litigation in a suit under section 229B of the U.P. Zamindari Abolition and Land Reforms Act between Lalta and Radhe, Lalta was held to be co tenure holder along with Radhey. Consolidation Officer found the said judgement to be operative as Res Judicata between the parties and Lalta and Radhe to be co tenure holders of the disputed lands having equal share therein.

50. Aggrieved by the said order appeal was filed by Shivnath and others whose claim regarding co tenancy rights in the disputed holding was rejected by the Consolidation Officer. Radhey also preferred an appeal against the said order claiming to be sole tenant of the disputed holding. Both the appeals were heard together and decided by the Additional Settlement Officer (Consolidation). The appeal of Shivnath was allowed and they were held to be Co tenure holders entitled to 1/3 share in the disputed holding found to be joint family holding in which Radhe and Lalta were also held to be entitled to 1/3 share each. Aggrieved by the said order Radhey filed a revision which was allowed by the DDC and the DDC held that since in the earlier suit under section 229B of the UPZALR Act Lalta had claimed and a decree was passed in his favour only to the extent that he was entitled to only two bighas of land in the disputed holding and as such Lalta would not be entitled to co tenancy rights with half share in the entire holding in dispute. he also held that all the parties were bound by the decree passed in the aforesaid suit. The decision of the DDC was challenged in writ petition by Shivnath and others and Also by Radhey in separate writ petition. All of them were connected and decided together.

51. The Court Observed :-"it is well settled that the claim of co tenancy rights cannot be upheld merely on the strength of recorded possession over certain plots of the disputed holding and receipt for rent and canal dues made by the claimant. If a holding has been entered in the name of one or more members of the family and another member claims a share in the holding, the burden of proving that the holding was joint family property and the name of the recorded person or persons was in representative capacity lies heavily on the claimant. It has to be established that the claim to be co tenure holder . Was accepted by the other recorded tenure holders in the past in a mutual partition so as to entitle him to claim co tenancy rights by acquiescence or estopple......

(emphasis supplied)

52. The Court also observed that the law is fairly settled that a member of joint family or even a Karta of the family can acquire property for himself and in his own name and that the other members of the Family would have no interest or share in it, if he had acquired it from his own funds. But if the tenancy holding was acquired with the aid and assistance of the joint family funds but the family was joint, then other members of the joint family would also have a share in it, although it may be recorded in the name of individual member of the joint family. The Court relied upon judgement rendered by this Court earlier in Rajendra Mishra versus Tirath Raj Mishra AIR 1953 Allahabad 376 ,and in Visvanath Singh and another versus Brij Dayal Singh and another 1968 RD 396; and Bala Charan and others versus state of UP and others 1978 RD 551; where however it is established or admitted That the family possessed some joint family property which from its nature and relative value may have form the nucleus from which the property in question may have been acquired, the presumption arises that it was joint property and the burden would then shift to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family.

53. The Court also held that the person is not bound by the admission with regard to question of law. What would be his quantum of share, would be determined according to law on the basis of established facts and he will not be stopped from claiming a larger share in the property to which she would otherwise be legally entitled to receive. Admission made by a party with regard to his share is a question of law and it would not be binding and he not be would estopped from claiming a larger share because admission against law is not enforceable. The Court relied upon judgement rendered by the Supreme Court in Banarasi Das versus Kashi Ram and others A.I.R 1963 Supreme Court 1165 where the Supreme Court had observed that an admission in so far as facts are concerned would bind the maker of the admission, but not in so far as it relates to a question of law. This Court also placed reliance upon judgement rendered by the Supreme Court in Societe Belge de Banque SA Versus Rao Girdhari Lal Choudhary A.I.R. 1940 privy council 90 where the lordships of the privy council while considering the question of admission and the relief to be granted by the Court observed that:-"a counsels admission of a point of law cannot be binding upon the Court; and the Court is not precluded from deciding the rights of the parties on a true view of the law" And it moulded the relief that was claimed by the petitioner therein of one third share in the disputed property and observe that the petitioner is entitled to half share in the entire disputed holding.

54. The next judgement on which reliance has been placed by the counsel for the respondent was Paras Nath Singh and others versus DDC and others ; where this Court was considering whether the DDC had power to set aside or modify a final order once made by it. It was held that except in matters specified in Sectn 42A the DDC had no inherent power to set aside or modify any final order once made merely because it is wrong. However the Court also considered the fact that the DDC was sitting as the final Court of fact and therefore not applying mind on every piece of material evidence on record, both oral and documentary led by the parties, could be one ground to recall an order. Even if such order Recalling the earlier order issued by mistake was without jurisdiction , the writ Court in exercise of extraordinary jurisdiction under article 226 would decline to set it aside if substantial justice had been done and the order had not resulted in manifest injustice to any of the parties. The Court observed that the DDC being the last Court of fact should analyse each and every aspect of the case and consider all admissible evidence on record while deciding revision on merit. If material and relevant evidence is ignored, such an order cannot be sustained and it was rightly recorded by the DDC. This Court has carefully perused the judgement in Paras Nath Singh and finds that the observations made by the Court in paragraphs 16 to 20 of the said judgement are in fact in favour of the petitioners herein . It had been argued in the application for recall that certain material documents which were filed by the revisionist before the Assistant Settlement Officer (Consolidation) which were on record, had been completely omitted to be considered by him while deciding the revision. The Court observed that it is settled law that where an Appellate or a Revisional Consolidation Court has not applied its mind on every piece of material evidence on record, both oral and documentary, led by the parties, the order cannot be sustained. It observed "the Deputy Director of Consolidation, being the last Court of Appeal it should analyse each and every aspect of the case and should consider all admissible evidence on record while deciding the revision on merits. If material evidence on record, which is relevant for determining the fact in issue has been blatantly ignored, the order passed by the DDC would not be sustained and no time would be taken in quashing that order by this Court on being approached by the aggrieved party invoking jurisdiction of this Court under article 226 of the Constitution." The Court Further observed that the contesting opposite parties had filed documentary evidence before the Settlement Officer (Consolidation) to prove their title in the land in dispute. Those documents were of earlier litigation in respect of the land in dispute, finally determining the claims of the parties thereto. Assistant Settlement Officer (Consolidation), omitted to consider those documents and in the memo of revision plea was specifically raised on behalf of the revisionist - opposite party number 2 to4, regarding omission of consideration of those documents by the Assistant Settlement Officer (Consolidation) while deciding the appeal. The Deputy Director Consolidation, therefore, should have taken into consideration those documents while disposing of the revision on merits. He omitted to consider the same and corrected this Judicial falliblity in the order dated 18 . 1.1984 by which he recalled the order dated 8.11.1983 and directed the revision to be listed for hearing afresh on merits. - - ". The Court observed in paragraph 16 that "it is no doubt correct to say that if the order passed by the day DDC is one of affirmance, Having been passed after hearing both the parties, it would not stand vitiated merely on the ground that the entire evidence led by the parties has not been referred to and discussed in the order. If the DDC while deciding the revision and passing the order of affirmance has generally agreed with the findings recorded by the subordinate consolidation authorities, then the order would not stand vitiated on the ground that any particular evidence has not been referred to by the DDC in his order. But where any particular relevant material for the decision of the point in issue has not been taken into consideration by the subordinate consolidation authorities,the DDC, who is a Court of fact as well, should take into consideration that evidence while passing even an order of affirmance generally agreeing with the findings recorded by the subordinate consolidation authorities." The Court observed that even though there was no inherent power in the DDC to recall his earlier order and direct hearing of The revision on merits afresh, such an order would not be quashed in order to restore a wrong and illegal order where grave injustice was apparently caused by blatantly ignoring material evidence on record by the DDC.

55. The learned counsel for the respondent Shri Sanjay Tripathi has placed reliance upon several judgements of this Court and of the Supreme Court to say that a plea that was not raised before the consolidation authorities cannot be permitted to be raised before this Court in a writ petition challenging the orders passed by the Consolidation Officer, the Settlement Officer (Consolidation) and the DDC. The first such case cited is that of Kalu versus Deputy Director of Consolidation Pratapgarh 1983(1) LCD page 189; where the Court was considering an order passed by the DDC by which he had allowed the restoration application and recalled his earlier order passed on merits under section 48(3) of the U.P. Consolidation of Holdings Act /it appears that the reference was forwarded by the Assistant Consolidation Officer under section 48 (3)of the Act in January 1981 after hearing the parties. The reference came to be heard by the DDC and he passed an order in February 1981 by which the Chaks of the opposite parties number 2 and 3 were also altered. Some of the parties had appeared and they were heard but admittedly no Notice was issued from the Court of DDC for hearing in the reference to the opposite parties number 2 and 3. An application was moved by the opposite party number 2 in June 1981 for setting aside the aforesaid ex parte order. This application was allowed by the DDC by his order dated 3 August 1982 challenged in the writ petition. The learned counsel for the petitioner had submitted that since there was no provision in the Act for issuing notice to the parties in the reference proceeding under section 48 (3) of the Act, no notice was required to be issued by the DDC. This argument was rejected by the Court however on the basis of the language of the very subsection 3 of section 48. The Court observed that it is well settled that no decision can be rendered by a Court without affording opportunity of hearing by it to the concerned parties. It was incumbent upon the DDC to have directed notices to be issued to those persons who were likely to be affected by the order. The learned counsel for the petitioner next contended that the ex parte order cannot be set aside Merely by way of clemency. The party concerned should show that he had no notice or knowledge of the proceeding. In support of his contention he placed reliance upon the full bench decision of the Court in Radha Mohan Dutt versus Abad Ali Biswas AIR 1931 Allahabad 294 ; The Court had observed that an application under order 9 rule 13 to set aside an ex parte decree cannot to be entertained unless the two conditions are satisfied firstly that summons were not duly served, and secondly that he was prevented from appearing on sufficient cause. The Court Rejected this argument also on the ground that when notice was never issued by the Court of DDC, it cannot be said that the opposite party number two was still aware of the date of hearing and did not appear wilfully before the DDC. The learned counsel for the petitioner had next contended that the opposite party number 2 and 3 had earlier filed an application in March 1981 for setting aside the order Passed in February 1981 and therefore it cannot be accepted that they were not aware of the said order prior to June 1981 ,when the recall application was actually filed. The Court disallowed raising of such argument on the ground that no such assertion was made before the Deputy Director of Consolidation and therefore it could not be said that the Deputy Director of Consolidation omitted to consider the said submission, which appears to have been made for the first time before the High Court.

56. The next judgement on which reliance has been placed is Tahir versus DDC 1988(6) LCD 486; where the Court observed that the DDC in exercise of revisional jurisdiction has to consider entire oral and documentary evidence led by the parties in support of their alleged possession. In paragraph 12 to 15 this Court made observations that are more in favour of the petitioners herein than that of the respondents. This Court Placed reliance upon Supreme Court decision in Pulavarthi Venkata Subbarao Versus Valluri Jagannadha Rao AIR 1967 Supreme Court 591 where the Supreme Court observed that "....,a compromise decree is not a decision by the Court. It is acceptance by the Court of something to which the parties had agreed. The decree merely sets the seal of the Court on the agreement of the parties. The Court does not decide anything. Nor can it be said that the decision of the Court was implicit in it. Only that decision by the Court can be res judicata where the case has been heard and decided on merit . ...the statutory prohibition under section 11 of the code of civil procedure or that of constructive res judicata would apply as a matter of public policy ..... Such a decree cannot strictly be regarded as a decision on the matter which was heard and finally decided , and cannot operate as res judicata. ..Such a decree might create an estoppel by conduct between the parties, but such estoppel must be specially pleaded.,". The Court observed that although the petitioner had not specifically pleaded in his objection s with regard to the said decree to operate as estopple by conduct of the parties, the law of pleadings would not strictly apply before consolidation Authorities. The Court relied upon Full Bench decision of this Court in Vijay Sinha versus state of UP and others 1969 AWR 482 (High Court) where it had been held that the various Courts constituted under the U.P. Consolidation of Holdings Act can neither be held to create a civil jurisdiction nor be governed by the code of civil procedure in the matter of procedure. It observed that The pleading in consolidation proceedings should not be construed strictly and that absence of a specific pleading and non-framing of issues would be a mere irregularity Where the parties have not been taken by surprise and no prejudice has been caused to them. Where a document is filed to establish a claim, then unless its genuineness is denied by the opposite party, it would not deserve to be thrown out and ignored for want of pleading A compromise decree certainly operates as estopple by conduct between the parties and therefore, it could not have been thrown out in consolidation proceedings merely on the technical rules of pleading as was done by the DDC. The DDC having not doubted the genuineness of the compromise decree, the original record of which was summoned and Perused by him,He committed an error in not placing reliance upon the decree merely on the technical ground that it was not pleaded in the objection. The Court observed in paragraph 12 that it did not find any merit in the contention of the Learned counsel that at the revisional stage the Deputy Director of Consolidation could not admit additional evidence filed in support of the claim. The Court observed that there is no statutory bar to the effect that the DDC at the Revisional stage cannot admit additional evidence tendered by the parties in support of their respective claims And record a finding on merits considering the same. Since under section 48 of the U.P. Consolidation of Holdings Act the DDC has got jurisdiction to decide questions both on facts and on points of law as such he can admit a document in evidence in the interest of justice, exercising discretion judiciously and also affording opportunity of rebuttal to the opposite party. The Court Set aside the order passed by the DDC as it had not taken into consideration the entire oral and documentary evidence on record. He had also not adverted to it himself correctly to the revenue record entries in respect of the land in dispute.

57. The Learned counsel for the respondent has also placed reliance upon Smt. Shakuntala Kapoor and another versus seventh additional district judge Meerut 19 93(11) LCD447; The Court considered the question as to whether while deciding a writ petition exercising supervisory jurisdiction under article 226 of the Constitution , any additional evidence could be allowed to be brought on record and considered?. The Court relied upon a full bench decision of this Court in the case of Uday Bhan Singh @Babban Singh and others versus board of revenue 1974 RD 107 which in turn placed reliance upon Supreme Court decision in ramesh and another versus Genda Lal Moti Lal Patni and others reported in AIR 1966 Supreme Court 1445, to hold that a proceeding under article 226 of the Constitution of India is not a continuation of a suit or proceeding giving rise to it. If a writ petition is not a continuation of original suit or proceeding, unlike an appeal or revision, the inference is not only reasonable but inevitable that the orders passed in original suit or proceeding or an appeal or revision arising therefrom do not merge in the orders passed in such a petition. The Court observed that while deciding a writ petition it has only to be seen if the judgement of the learned district judge suffers from any manifest error of law. "Subsequent events particularly which required to be ascertained on evidence, cannot be taken into account for holding that the district judge had committed any manifest error of law in the circumstances of the case". It further observed that there is no escape from the conclusion that additional evidence to assail the findings returned by the competent authority in the exercise of original or appellate jurisdiction in any proceeding cannot be allowed to be utilised as an additional evidence in the proceeding under article 226 of the Constitution of India referring to judgements rendered by it earlier, the Court observed that "where a party wishes to produce further evidence affecting a matter of fact, it must get that evidence produced before the Court Which can decide a question of fact. It is useless for him to tender that evidence before a Court which is confined to question of law. ...The High Court in the exercise of its jurisdiction under article 226 of the Constitution of India, cannot re-appraise the evidence and come to its own conclusion which may be different from that reached by the district judge or the prescribed authority..."

58. Counsel for the respondent has placed reliance upon the decisions of the Supreme Court as well to buttress the argument that the writ Court cannot reappraise evidence. They are :- Admin General of West Bengal versus Collector Varanasi 1988(2) SCC 150; State of Andhra Pradesh v I Chandra Shekhar Reddy 1998(7) SCC 141; Prithipal Singh And another versus Amrik Singh and others 2013(9) SCC 576; Which judgements it is not necessary to deal with in detail as they reiterate the settled position in law that where a new plea is sought to be raised before the High Court or the Supreme Court which has not been shown to have been raised before the trial Court or the Appellate or Revisional Court, and with which requires adjudication on facts, it should not be allowed to be raised for the first time before these Courts of extraordinary jurisdiction.

59. This Court having considered the law as cited before the Consolidation Authorities and before this Court finds therefrom a clear mandate that the writ Court in its extraordinary jurisdiction may interfere in the orders passed by the Consolidation Authorities which are Courts of facts for the litigants if such orders suffer from perversity, that is, if they fail to appreciate correctly the facts placed on record before them or are patently arbitrary in not so far as they do not interpret the law correctly or apply the law incorrectly. In the case at hand the petitioners had specifically pleaded before the Appellate Court and the Revisional Court that their names were not mentioned in the compromise that was filed before the Consolidation Officer or even if they were mentioned, their signatures were not appended to the so called compromise. A compromise having been filed before the Consolidation Officer, was not verified in terms of Rule 25A of the Rules of 1954, where it has been specifically provided that the Assistant Consolidation Officer or the Consolidation Officer before whom the compromise is placed, will verify from the Village Level Consolidation Committee about the compromise filed by the parties and also avoid proceeding against any party to the compromise ex parte. It was a question of law and fact which could have been verified by the Appellate or Revisional Court and dealt with appropriately. Unfortunately, this method was not adopted. The judgments cited by the Appellants were mentioned but not considered by the Settlement Officer (Consolidation) in his order. The Revisional Court being the last Court of facts was duty bound to peruse the records and verify the compromise. It only observed that notice had been duly served of the compromise by the Consolidation Officer and therefore it could not be said that his order was passed in violation of principles of natural justice. The Deputy Director Consolidation further without adverting to the burden of proof being discharged first by the claimants and without any documentary evidence on record, held that the property in dispute was ancestral and therefore rightly divided amongst the co- parceners in accordance with the undisputed pedigree. The DDC with regard to pleas raised before him, has recorded them in detail in his order, but has dealt with them in a cursory manner altogether. The findings given by the DDC have thus become erroneous. The order of the DDC is set aside. The matter is remanded to the DDC to consider afresh.

60. In case any transfer has been made by the respondent nos.4 to 8 during the currency of interim orders of the Appellate Court or the Revisional Court and also of this Court, they shall be examined and notice to subsequent transferees shall be issued and they be heard also by the DDC before final orders are passed.

61. The order dated 30.08.2008 passed under Rule 109 are consequential orders and they are also set aside for the reasons that original orders of the consolidation authorities have now to be examined afresh by the DDC in the Revision which has been remitted by this Court to be decided afresh.

62. Both the writ petitions stands disposed of by this common order. It is expected that the DDC, will decide the matter afresh within six months from the receipt of a copy of this order.

Order date:17/01/2022      (Justice Sangeeta Chandra)
 
PAL