Ram Garib vs Deputy Director Of Consolidation ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
Case :- WRIT - B No. - 1117 of 1981
 

 
Petitioner :- Ram Garib
 
Respondent :- Deputy Director Of Consolidation And Others.
 
Counsel for Petitioner :- S.K.Mehrotra, I.D.Shukla
 
Counsel for Respondent :- Ratan Kant Sharma,C S C,D R Yadav,L.P. Singh,Pulkit Misra,Sher Bahadur Yadav,Vidya Bhushan Pandey
 
******
 
Hon'ble Jaspreet Singh,J.

1. The instant petition has been preferred by the original-petitioner Ram Garib, who during pendency of the instant petition expired and is now represented by his legal heirs, who assailed the order dated 19.04.1977 passed by the Joint Director of Consolidation and also order dated 30.12.1980 passed by the Deputy Director of Consolidation, contained in Annexures No.4 and 6 respectively.

2. The contesting private-respondent namely Jagdish also expired during pendency of the petition and his legal heirs have been brought on record, whereas the private-respondents No.4 to 7 are the sons of Ram Garib Khewar, who along with Jagdish was contesting the proceedings and had died before filing of the instant petition.

3. In order to put the controversy in a perspective, certain brief facts giving rise to the instant petition are being noticed hereinafter.

4. The dispute in question relates to Khata No.20 and 63 of Village Gharwarpur Chaubey, Pargana Minjhaur, Tehsil Akbarpur, District Faizabad (now Ayodhya). The aforesaid khatas were recorded in the name of Smt. Bisundei, who was the mother of the petitioner. The record indicates that the consolidation operations in the village in question commenced on 15.07.1967 and at that time one Shri Jaldhar filed his objections before the Assistant Consolidation Officer claiming sirdari rights over the disputed property whereas the other set of objections were filed by Jagdish, the original respondent No.3 and Ram Garib, the predecessor-in-interest of the private-respondents No.4 to 7 herein.

5. According to Jaldhar, he claimed Sirdari rights over the property in question on the premise that he had acquired possession and perfected his rights by adverse possession and since none had sought his eviction, accordingly, his rights were perfected. The aforesaid objections were contested by Jagdish and Ram Garib primarily on the ground that the recorded tenure-holder Smt. Bisundei had executed a registered sale-deed dated 26.02.1964 in favour of Jagdish and Ram Garib jointly and their names were also duly mutated by means of the order dated 08.07.1965 and thus, they were the owners in possession and as such the objections filed by Jaldhar were frivolous and deserved to be rejected.

6. The Consolidation Officer by means of his order dated 15.07.1967 accepted the objections filed by Jaldhar only in respect of Plot No.463, 866, 790 and 781, however, it rejected the claim of Jaldhar in respect of other plots.

7. Being aggrieved against the order passed by the Consolidation Officer, two sets of appeals were filed before the Settlement Officer of Consolidation. One by Jagdish and Ram Garib and the other was filed by Jaldhar. Both the appeals came to be dismissed and thereafter only Jagdish and Ram Garib, who had preferred a revision before the D.D.C., which by means of the order dated 07.05.1970 was allowed and upheld the claim of Jagdish and Ram Garib based on the sale-deed. The claim of Jaldhar in respect of adverse possession was rejected.

8. It will be relevant to notice that Jaldhar did not escalate the matter any further. It is in the aforesaid backdrop that the present petitioner Ram Garib, who also happens to share and same name with the purchaser Ram Garib, who along with Jagdish had purchased the property in question by means of the registered sale-deed dated 26.02.1964 from Smt. Bisundei. Thus, it would be seen that the present petitioner, who claims to be son of Smt. Bisundei is also named Ram Garib whereas the purchasers of the property from Smt. Bisundei vide registered sale-deed dated 26.02.1964 are Jagdish and Ram Garib.

9. The controversy arose in light of the order passed by the Deputy Director of Consolidation dated 07.05.1970 whereby the claim of Jagdish and Ram Garib was upheld and the Deputy Director of Consolidation while allowing their revision set aside the order passed by the Settlement Officer of Consolidation and the Consolidation Officer and further observed that the basic year entries will continue and the endorsement in the records be made appropriately.

10. Taking advantage of the aforesaid order, the petitioner herein Ram Garib son of Hardeen and Smt. Bisundei moved an application seeking mutation on the premise that the property belonged to Smt. Bisundei and since even in the revisional order dated 07.05.1970, it was provided that the basic year entires would be incorporated, thus, as per the present petitioner, his case was that the basic year entries related to the name of Smt. Bisundei and since she had expired after commencement of consolidation, hence, he moved the instant application under Section 12 of the U.P. Consolidation and Holdings Act, 1953 to get his name mutated in place of his mother.

11. The record indicates that in the said proceedings, the private-respondents had also filed their objections informing that on the basis of the sale-deed, they were in possession and their names were already mutated by means of the order dated 08.07.1965, hence, the mutation filed by Ram Garib son of Hardeen and Smt. Bisundei be rejected.

12. It appears that Jagdish and Ram Garib did not pursue their objections, as a result by means of an ex-parte order dated 26.10.1977 passed by Consolidation Officer, the mutation was ordered in favour of the present petitioner in place of Smt. Bisundei. It is in furtherance thereof that the private-respondent herein preferred a review petition before the Deputy Director of Consolidation stating that since the order dated 07.05.1970 was passed on merits in favour of Jagdish and Ram Garib but in the operative portion it mentioned that the name as recorded in basic year entry be continued in the records which was creating confusion, hence, the order be reviewed and it be directed that the names of the private-respondents namely Jagdish and Ram Garib be recorded.

13. This particular review was also contested by the present petitioner Ram Garib, son of Hardeen and Smt. Bisundei and the Deputy Director of Consolidation by means of the order dated 19.04.1979 dismissed the review, however, it clarified that since the sale-deed executed by Smt. Bisundei on 26.02.1964 was prior to commencement of the consolidation operations which began on 15.07.1967. Thus, the basic year entry would means the entry in favour of Jagdish and Ram Garib as the mutation order in their favour was passed on 08.07.1965 i.e. prior to the commencement of the consolidation. It is this order dated 19.04.1979 which is under challenge in this petition [Annexure No.4].

14. Subsequently, as the name of the private-respondents was not being incorporated, accordingly, the private-respondents moved an application under Section 42-A of the U.P. Consolidation and Holdings Act, 1953 which came to be dismissed on 24.07.1980 against which the private-respondents preferred another revision before the Deputy Director of Consolidation which came to be allowed by means of the order dated 30.12.1980 directing that the names of the private-respondents be incorporated in respect of Khata No.20 and 63 and this is the other order which is under challenge before this Court in the instant petition [Annexure No.6].

15. Shri I.D. Shukla, learned counsel for the petitioner has primarily focused his arguments, while assailing the impugned orders on two grounds. First, the order dated 19.04.1979 passed by the Joint Director Consolidation is bad in the eyes of law inasmuch as it amounts to reviewing the order dated 07.05.1970 and it is now well settled that the Director of Consolidation/Deputy Director of Consolidation and Joint Director of Consolidation/Deputy Director of Consolidation do not have the powers to review their own orders.

16. It is urged that once the revision No.1155 preferred by Jagdish and Ram Garib was allowed by means of the order dated 07.05.1970, it was not open for the Joint Director Consolidation to have reviewed the said order which is also contrary to the dictum laid down by the Full Bench of this Court in the case of Smt. Anar Kali and others v. Deputy Director of Consolidation and others, reported in 1997 (15) LCD Page 921 where the issue before the Full Bench was "whether it is open for the consolidation authorities to review/recall their final orders exercising inherent powers even though U.P. Consolidation and Holdings Act, 1953 does not vest them with power to review?"

17. It has further been urged that answering the aforesaid question, the Full Bench held that the Consolidation Authorities have not been conferred with the review jurisdiction so also an order passed on merits cannot even be reviewed or recalled in terms of exercise of inherent powers. It is, thus, urged that the order is bad and cannot be sustained.

18. The second limb of submission of Shri Shukla is that an order of mutation passed under Section 12 of the U.P. Consolidation and Holdings Act, 1953 partakes the nature of an order deciding the title between the parties and thus, it has a binding effect.

19. It is submitted that in the instant case since Consolidation Officer by means of the order dated 26.10.1977 had passed the mutation order in favour of the present petitioner wherein the private-respondents had filed their objections but failed to contest, hence, the order of mutation in fact upholds the title of the petitioner. This order having not been challenged it was not open for the Deputy Director of Consolidation to have allowed the revision by means of the order dated 30.12.1980 which in fact runs contrary to the order passed in favour of the petitioner and as such this order also cannot sustain judicial scrutiny and deserves to be quashed.

20. In support of his submissions, Shri I.D. Shukla has relied upon the decision of this Court in the case of Smt. Bhagwan Dei v. Board of Revenue and others, 2010 (110) RD 747; Sudhir Kumar Goswami v. District Deputy Director of Consolidation. and others, 2011 (29) LCD 1963; Hakam Ali and another v. State of U.P. and others, 2014 (122) RD 463; Surendra Singh v. Board of Revenue, U.P., Agra and others, 2015 (127) RD 694 and Smt. Ramdei and others v. Rampati @ Rupa Devi and another, 2005 (23) LCD 829.

21. Shri G.K. Pandey, learned counsel for the private-respondents submitted that the matter is concluded by findings of fact and the writ petition deserves to be dismissed. However, learned standing counsel for the State-respondents has submitted that the sale-deed dated 26.02.1964 executed by Smt. Bisundei and the order of mutation dated 08.07.1965 passed in favour of the private-respondents was never challenged by Smt. Bisundei during her lifetime and even after the commencement of consolidation proceedings nor she filed her objections under Section 9-A(2) of the U.P. Consolidation and Holdings Act, 1953. It is only at a much later stage once the objections filed by Jaldhar and the private-respondents attained finality in terms of the order dated 07.05.1970 whereby the revision of the private-respondents was allowed then the present petitioner moved an application for seeking mutation.

22. It is also urged that there was no consideration regarding the effect of the order dated 07.05.1970 passed by the Consolidation Officer while passing the order of mutation dated 28.10.1977 in favour of the present petitioner nor till date there has been actually any challenge to the sale-deed executed by Smt. Bisundei. Thus, what cannot be done directly cannot be done indirectly either.

23. The thrust of the submissions is that once the proceedings and the order dated 07.05.1970 became final, it was no more open for the petitioner to have got the mutation order which runs contrary to the order passed by the Deputy Director of Consolidation dated 07.05.1970.

24. It has also been urged that by means of the order dated 19.04.1979, the Joint Director of Consolidation did not review the order dated 07.05.1970 rather it was merely clarified. Even otherwise, since the names of the private-respondent was already mutated in terms of the orders dated 08.07.1965 prior to the commencement of the consolidation, thus, on the date of commencement of consolidation operations, the basic year entry as mentioned in the year 07.05.1970 would refer to the entry in favour of the private-respondents and since neither Smt. Bisundei nor the present petitioner assailed the same, consequently in terms of Section 11-A of the U.P. Consolidation and Holdings Act, 1953, the petitioner is not entitled to raise such dispute, accordingly, the writ petition deserves to be dismissed.

25. The Court has heard learned counsel for the parties and also perused the material available on record.

26. Certain undisputed facts which are borne out from the record are as under:-

(a) The sale-deed executed by Smt. Bisundei dated 26.02.1964 and in furtherance thereof, the mutation order dated 08.07.1965 in favour of Jagdish and Ram Garib has never been called in question either by Smt. Bisundei in her lifetime nor by the present petitioner claiming to be the son of Smt. Bisundei and Hardeen.

(b) The sale-deed dated 26.02.1964 and the mutation order dated 08.07.1965 were passed prior to the commencement of the consolidation operations in the village in question which began only on 15.07.1977.

(c) The petitioner has never pleaded nor the record indicates the date of death of Smt. Bisundei.

27. Keeping the aforesaid three facts in mind, if the submissions of the learned counsel for the petitioner is tested, it would reveal that the first contention does not hold merit for the reason that prior to the commencement of consolidation operations, Smt. Bisundei had already executed sale-deed in favour of Jagdish and Ram Garib. The mutation order dated 08.07.1965 had already been passed in their favour and thus on the date of commencement of consolidation operations in the village in question i.e. 15.07.1967, the basic year entry would relate to the entry in the name of Jagdish and Ram Garib.

28. Apparently from the perusal of Annexure No.3 which is a copy of the order dated 26.10.1977, it reveals that by the time the said order came to be passed, Smt. Bisundei had expired. Since, the petitioner has not disclosed the date of death of Smt. Bisundei, it can still safely be assumed that she had died only after the commencement of the consolidation operations, but prior to passing of the order dated 26.10.1977. The petitioner has no where given any explanation that in case if objections under Section 9-A(2) of the U.P. Consolidation and Holdings Act, 1953 were filed by Jaldhar and it was contested by Jagdish and Ram Garib then what prevented the petitioner or his mother to file her objections.

29. Learned counsel for the petitioner also could not give any explanation as to when the order dated 07.05.1970 passed by Deputy Director of Consolidation in terms whereof the revision filed by Jagdish and Ram Garib was allowed and the same was never assailed before any superior Court and had attained finality then subsequently in the year 1977, how on an application preferred under Section 12, the mutation order dated 26.10.1977 was passed by the Consolidation Officer and whether it could override the order dated 07.05.1970 passed by Deputy Director of Consolidation.

30. A feeble submission, in reply, has been made by the learned counsel for the petitioner that in the proceedings initiated under Section 9-A(2) of the U.P. Consolidation and Holdings Act, 1953 whereby Jaldhar, Jagdish and Ram Garib were contesting, the said proceedings, Smt. Bisundei was not a party, therefore, she was not aware and she could not challenge the order dated 07.05.1970 which remained ex-parte insofar as Smt. Bisundei is concerned and the said order was not binding on her.

31. The aforesaid submission can only be noticed to be rejected as what needs to be seen is that Smt. Bisundei had executed a sale-deed in favour of Jagdish and Ram Garib who also got a mutation order in their favour prior to the commencement of consolidation proceedings. In this view of the fact, when the consolidation operations commenced the dispute was primarily between Jaldhar on one hand and Jagdish and Ram Garib on the other. Smt. Bisundei did not have any right left in the disputed property hence she was neither a necessary or a proper party. Even otherwise Smt. Bisundei upon commencement of consolidation operations did have a right to file objection but in her lifetime she did not file any objection or raise any dispute of title over the sale-deed dated 26.02.1964.

32. Nothing on record even remotely suggests that Smt. Bisundei had ever raised any dispute in respect of a sale-deed or the mutation order dated 08.07.1965 passed in favour of Jagdish and Ram Garib. It is only after her death that the present petitioner has sought to move and take advantage of the order dated 26.10.1977 said to have been passed under Section 12 of the U.P. Consolidation and Holdings Act, 1953. Though it is no doubt true that after the amendment in Section 12 of the U.P. Consolidation and Holdings Act in the year 1963, the effect of passing of a mutation order is not per se a mere change in the name but rather the effect is that it also considers and decides the title. However, what is to be seen is that once an order dated 07.05.1970 had been passed by the revisional authority then in terms of Section 11-A of the U.P. Consolidation and Holdings Act, 1953, whether the petitioner could file his objections and seek mutation or he would loose his right to raise objections.

33. At this stage, it will be relevant to notice the Scheme of the U.P. Consolidation and Holdings Act, 1953 and the relevant Sections 9, 9-A, 11, 11-A and 12 are being reproduced hereinafter:-

"[9.Issue of extracts from records and statements and publication of records mentioned in Sections 8 and 8-A and the issue of notices for inviting objections.-(1) Upon the preparation of the records and the statements mentioned in Sections 8 and 8-A, the Assistant Consolidation Officer shall -

(a) correct the clerical mistakes, if any, and send, or cause to be sent, to the tenure-holders concerned and other persons interested, notices containing relevant extracts from the current annual register and such other records as may be prescribed showing -

(i) their rights in and liabilities in relation to the land;

(ii) mistakes, [undisputed cases of succession]and disputes discovered under Section 8 in respect thereof;

(iii) specific shares of individual tenure-holders in joint holdings for the purpose of effecting partitions, where necessary, to ensure proper consolidation;

(iv) valuation of the plots; and

(v) valuation of trees, wells and other improvements for calculating compensation therefor and its apportionment amongst owners, if there be more owners than one;

(b) publish in the unit the current khasra and the current annual register, the khasra chakbandi, the Statement of Principles prepared under Section 8-A, and any other records that may be prescribed to show, inter alia, the particulars referred to in clause (a).

(2) Any person to whom a notice under sub-section (1) has been sent, or any other person interested may, within 21 days of the receipt of notice, or of the publication under sub-section (1), as the case may be, file, before the Assistant Consolidation Officer, objections in respect thereof disputing the correctness or nature of the entries in the records or in the extracts furnished therefrom, or in the Statement of Principles, or the need for partition

[9-A. Disposal of Cases relating to claims to land and partition of joint holdings.-(1) The Assistant Consolidation Officer shall -

(i) where objections in respect of claims to land or partition of joint holdings are filed, after hearing the parties concerned, and

(ii) where no objections are filed after making such enquiry as he may deem necessary,

settle the disputes, correct the mistakes and effect partition as far as may be by conciliation between the parties appearing before him and pass orders on the basis of such conciliation:

[Provided that where the Assistant Consolidation Officer, after making such enquiry as he may deem necessary, is satisfied that a case of succession is undisputed, he shall dispose of the case on the basis of such enquiry.]

(2) All cases which are not disposed of by the Assistant Consolidation Officer under sub-section (1), all cases relating to valuation of plots and all cases relating to valuation of trees, wells or other improvements, for calculating compensation therefore, and its apportionment amongst co-owners, if there be more owners than one, shall be forwarded by the Assistant Consolidation Officer to the Consolidation Officer, who shall dispose of the same in the manner prescribed.

(3) The Assistant Consolidation Officer, while acting under sub-section (1) and the Consolidation Officer, while acting under sub-section (2), shall be deemed to be a Court of competent jurisdiction, anything to the contrary contained in any other law for the time being in force notwithstanding.]

[11. Appeals.-(1) Any party to the proceedings under Section 9-A, aggrieved by an order of the Assistant Consolidation Officer or the Consolidation Officer under that section, may, within 21 days of the date of the order, file an appeal before the Settlement Officer, Consolidation, who shall after affording opportunity of being heard to the parties concerned, give his decision thereon which, except as otherwise provided by or under this Act, shall be final and not be questioned in any Court of law.

(2) The Settlement Officer, Consolidation, hearing an appeal under subsection (1) shall be deemed to be a Court of competent jurisdiction, anything to the contrary contained in any law for the time being in force notwithstanding.]

[11-A. Bar on objection.-No question in respect of -

(i) claims to land,

(ii) partition of joint holdings, and

(iii) valuation of plots, trees, wells and other improvements, where the question is sought to be raised by a tenure-holder of the plot or the owner of the tree, well or other improvements recorded in the annual register under Section 10,

relating to the consolidation area, which has been raised under Section 9 or which might or ought to have been raised under that section], but has not been so raised, shall be raised or heard at any subsequent stage of the consolidation proceedings.]

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

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

34. This Court is also reminded of the decision of Kiran Devi v. D.D.C., 2008 (104) RD 512, wherein after considering the provisions of Section 11-A of the Act of 1953, it has held as under:-

"10. Section 11-A of U.P. Consolidation of Holdings Act, 1953 thus contains a principle akin to principle of res-judicata. Thus the objection which has been raised under Section 9 or which might or ought to have been raised under Section 9 cannot be allowed to be raised in subsequent proceedings of the consolidation. From the materials brought on the record it is clear that no objection regarding valuation of Plot No. 267, which was original holding of petitioners and the respondents, was raised under Section 9. Section 11-A thus creates a bar of raising an objection with regard to valuation of the land by original tenure holders of the plot.

11. When no objection was raised by respondents No. 3 and 4 or any other tenure holder of Plot No. 267, on an appal filed under Section 21(1) no issue can be raised regarding valuation of Plot No. 267. The valuation of Plot No. 267 was fixed at 80 paisa and the same having not been challenged under Section 9, the principle of constructive resjudicata shall come into play as provided under Section 11-A of the Act.

12. The Apex Court considering the provisions of Section 11-A of the U.P. Consolidation of Holdings Act, 1953 in (1975) 2 SCC 568 : A.I.R. 1975 S.C. 1716;Gafoora v. Dy. Director of Consolidation, made following observations in paragraph 3 of the judgment:--

"3. The short question that arises for consideration is whether the High Court is correct in not interfering with the order of the Deputy Director (Consolidation) under Article 226 of the Constitution. Jurisdiction under Article 226 is well settled. The High Court will interfere only if some order is passed by an authority in excess of jurisdiction or there is a manifest error of law apparent on the face of the records. The principle question that was canvassed before the Deputy Director (Consolidation) was whether failure to prefer objection within the time-limit prescribed under Section 9(2) of the Act would entitle an aggrieved party to agitate the matter beyond the prescribed period without explaining the clause of delay in preferring the objection and obtaining a proper order of condonation of delay from the appropriate authority. It is clear from the records that no objection was preferred within the prescribed time. The Deputy Director (Consolidation) refused, if we may say so, rightly to accept that the appellants had earlier lodged any objection on November 21, 1966. That being the position, there was no material whatsoever before the Settlement Officer (Consolidation) for exercising his jurisdiction to condone the delay in lodging objection under Section 9(2) of the Act. Section 11-A bars all objections in respect of claim to land, partition of joint holdings and valuation of plots, etc. relating to the consolidation area which have been raised under Section 9 or which might or ought to have been raised or heard at any subsequent stage of the consolidation proceedings. That being the position there is not error of law in order of Deputy Director (Consolidation) nor is there any excess of jurisdiction committed by him in disposing of the matter as he did in exercise of his revisional power under Section 48"

13. Section 11-A creates a bar on objection in respect of claim to land, partition of joint holding and valuation of plots etc relating to the consolidation area, which has been raised under Section 9 or which might or ought to have been raised under that section, but has not been so raised. Thus no question under Section 11-A can be raised or heard at any subsequent stage of the consolidation proceedings. In view of the above position of law, the Settlement Officer of Consolidation committed error in changing the valuation of Plot No. 267 from 80 paisa to 60 paisa, which has effect of reduction of valuation of the petitioners."

35. From a bare perusal of the aforesaid sections and applying the principles as mentioned in Kiran Devi (supra), it would reveal that all issues relating to title, partition of joint holdings and valuation of plots and objections relating to statement of principal is required to be raised in terms of Section 9 of the U.P. Consolidation and Holdings Act, 1953. Once the orders passed under Sections 7 to 9 of the U.P. Consolidation and Holdings Act, 1953 attain finality in terms of Section 10 of the U.P. Consolidation and Holdings Act, 1953 and the revised annual registers are prepared and maintained. Then, any person aggrieved by an order passed under Section 9-A of the U.P. Consolidation and Holdings Act, 1953, is entitled to file an appeal before the Settlement Officer of Consolidation within the time prescribed in Section 11 itself.

36. However, if an appeal is not filed then in terms of Section 11-A, no question in respect of claim to land, partition or joint holdings and valuation of plots, trees and well and other improvements can be raised at any subsequent stage.

37. Thus, it would be seen even though Section 12 of the U.P. Consolidation and Holdings Act, 1953 permits the matter relating to change or transfers affecting any of the right or interest recorded in the revised record published under Section 10 for which cause of action had not arisen earlier, but had accrued either when the proceedings under Sections 7 to 9 if had started or were in progress only then can be raised before the authorities but not later then the date of notification under Section 52 or sub-section (1) of Section 6 is issued.

38. The effect of Section 12 is that once the revised records have been maintained in terms of Section 10 and thereafter if there is a change or transfer only such transactions can be taken note of in terms of Section 12. In the instant case, since the petitioner has not disclosed the date of death of Smt. Bisundei, therefore, it cannot be said and determined whether the change occurred prior to the date of preparation of the records.

39. Moreover, the significance of the matter is that Smt. Bisundei herself had transferred the property in favour of Jagdish and Ram Garib on 26.02.1964 and mutation order was passed in their favour on 08.06.1965 prior to the commencement of the consolidation operations and the order dated 07.05.1970 passed by the revisional Court in favour of Jagdish and Ram Garib had also attained finality then unless it could be indicated that any change or transfer took place after the revision of the records only then an application under Section 12 could have been entertained or else the petitioner would be precluded from raising objections in terms of Section 11-A of the U.P. Consolidation and Holdings Act, 1953. However, in the instant case the transfer and change had occurred much prior to the commencement of consolidation proceedings, hence, Section 12 had no applicability.

40. For the aforesaid reasons, this Court has no hesitation to hold that the order dated 26.10.1977 which was not only ex-parte but also appear to be non-speaking, in the sense that it does not take note of either the order passed by the Deputy Director of Consolidation dated 07.05.1970 in favour of Jagdish or the effect of Section 11-A of the U.P. Consolidation and Holdings Act, 1953, hence, such an order cannot inspire confidence nor it can be said that it has decided the title in favour of the present petitioner in light of sub-section (2) of Section 12 moreso when the jurisdiction of the Consolidation Officer itself is in question and the circumstances under which the order dated 26.10.1977 was passed having not been explained to the satisfaction of the Court, hence, the petitioner cannot claim any benefit.

41. The decisions cited by the learned counsel for the petitioner relying on the scope and the applicability of Section 12 in Smt. Bhagwan Dei (supra), Sudhir Kumar (supra), Hakam Ali (supra), Surendra Singh (supra) and Smt. Ramdei (supra) and as far as the dictum and proposition in the said cases are concerned, is not disputed, however, in light of the foregoing discussions its applicability to the present case is in doubt and the learned counsel for the petitioner could not dispel the same.

42. It is also to be noticed that the order dated 19.04.1979 in fact did not review the order dated 07.05.1970 at all. However, it only clarified the existing position which cannot be termed as a review. It is also relevant to notice that the present petitioner had also contested the review wherein the order dated 19.04.1979 was passed dismissing the same. Thus, it cannot be said that once the review was dismissed, even then the authority had reviewed its own order. Consequently, the proposition as held by the Full Bench of this Court in the case of Smt. Anar Kali (supra) is not applicable at all in the instant case. Mere clarification of the order does not amount to review as the status remained the same as was indicated in the order dated 07.05.1970. Thus, the two submissions of the learned counsel for the petitioner fails.

43. In light of the aforesaid discussions, this Court finds that there is no merit in the petition. Accordingly, it is dismissed. However, in the facts and circumstances, there shall be no order as to costs.

Order Date :- 16th May, 2022

Rakesh/-