Ram Naresh And 4 Others vs Deputy Director Of Consolidation ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

			         Neutral Citation No. 2023:AHC:114227
 
					Court No. 18
 
					Reserved On: 12.4.2023
 
					Delivered On: 24.5.2023
 
				         WRIT - B No. - 1715 of 2022
 

 
Petitioner :- 			Ram Naresh and 4 Others
 
Respondent :- 			Deputy Director of Consolidation 						and 43 Others
 
Counsel for Petitioner:- 	Udayan Nandan
 
Counsel for Respondent :- 	C.S.C., T.P. Singh, Sanjai Kumar 						Shukla, Siddharth Nandan, Harish 					Kumar Tripathi, Amit Kumar Singh, 					Sudhir Kumar Tripathi
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Udayan Nandan, learned counsel for the petitioners, learned standing counsel for respondent nos. 1 to 3, Mr. T.P. Singh, learned Senior Counsel assisted by Mr. Sanjai Kumar Shukla, counsel for respondent nos. 4 to 6, Mr. Siddharth Nandan, counsel for respondent nos. 7 to 10, Mr. Harish Kumar Tripathi, counsel for respondent no.12 and Mr. Amit Kumar Singh, holding brief of Mr. Sudhir Kumar Tripathi, counsel for respondent nos. 13 to 42.

2. Brief facts of the case are that khata no.70, arazi no.210/2, area 0.326 hect. (new number khata no.225, arazi no.504kha), mauza- Raghopur, Tappa-Kewatli, Pargana-Haweli, Tehsil- Chauri Chaura, District Gorakhpur was recorded in the name of one Damri Das, son of Mohan Das; Mohan Das had three sons, namely, Damri Das, Halkori Das and Parahu Das. The family pedigree given by petitioners is Annexure No.1 to the writ petition, will be relevant in order to appreciate the controversy, which is as under:-

मोहनदास

_____1_____________________2______________3______

___1_____2______3______________4________5_______6

__1_________2___

The above pedigree reflects that petitioners are from the branch of Shyam Lal (4th son of Bakuch Das). Damri Das had two daughters, one was Smt. Jongia and another was Smt. Janarkho. Petitioners are not aware about the name of second daughter as such petitioners have not mentioned her name in the writ petition or in the family pedigree but contesting respondent nos. 4 to 6 have mentioned her name in the counter affidavit. Bindeshwari father of respondent nos. 4 to 6 is son of Smt. Janarkho.

The family pedigree given by respondent nos. 4 to 6 in their counter affidavit as Annexure No.CA5 will also be relevant for perusal which as under:-

The first consolidation proceedings were initiated in the village in question in the year 1957 by way of notification under Section 4 of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as the "U.P. C.H. Act"). During consolidation operation, names of Bakuch Das and Ram Autar (petitioners' father) were ordered to be recorded in the revenue records, after expunging the name of Mst. Laxmina, wife of Damri Das vide order dated 12.6.1957. An objection under Section 20 of the U.P. C.H. Act was filed by Bindeshwari which was allowed by the Consolidation Officer vide order dated 13.6.1958 and the name of Bakuch Das was ordered to be expunged. Against the order dated 13.6.1958, Bakuch Das filed an appeal before the Settlement Officer Consolidation which was dismissed vide order dated 10.1.1959 but sirdari right was given to one Ram Saran Das accordingly the names of Bakuch Das and Bindeshwari were expunged from the revenue records and the name of Ram Saran was ordered to be recorded in the revenue records. Against the order of the appellate court dated 10.1.1959, two separate revisions were filed being Revision Nos. 527 & 528 by Ram Aadhar and Bindeshwari which were allowed by the Deputy Director of Consolidation vide order dated 11.6.1959. Against the order dated 11.6.1959, Ram Saran filed Writ Petition No.1930 of 1959 before this Court and the aforementioned writ petition was dismissed vide order dated 9.11.1960.

The second consolidation operation took place in the village in question in the year 1990 and father of petitioner nos. 4 to 6, namely, Ram Autar filed objection against the basic year entry under Section 9-A(2) of the U.P. C.H. Act, which was allowed by the Consolidation Officer vide order dated 21.12.1991 by which the name of Ram Autar was ordered to be recorded in the revenue records. Against the order dated 21.12.1991, an appeal under Section 11(1) of the U.P. C.H. Act has been filed by Ram Naresh and Rama Shanker sons of Shyam Lal in the year 2009 i.e. after about 18 years which was allowed by the Settlement Officer Consolidation vide order dated 19.1.2011 and the matter was remanded back to the Consolidation Officer for fresh decision in the matter. During this period, father of petitioner nos. 4 to 6 executed the sale deed in respect of the plot in question for an area of 0.241 hect. in favour of Hari Shankar and Hari Lal who subsequently sold to one Akhlaq Ahmad, however, due to the provisions contained under Sections 166/167 of the U.P. Z.A. & L.R. Act, the transfer made in favour of the purchaser was held to be void vide order dated 27.4.2013/10.3.2014. In pursuance of the remand order passed by the appellate court, the Consolidation Officer vide order dated 24.6.2014 decided the matter under Section 9-A(2) of the U.P. C.H. Act by which the name of petitioners was ordered to be recorded in the revenue records, on the basis of compromise. Against the order dated 19.1.2011, subsequent purchasers Hari Shankar, Akhlaq and others filed application for restoration in respect to the order dated 19.1.2011 which was rejected by the Settlement Officer Consolidation vide order dated 6.12.2014. Respondent nos. 4 to 6 (sons of Bindeshwari) filed an application for impleadment in the proceeding for restoration initiated by Hari Shankar and Others which was rejected by Settlement Officer Consolidation vide order dated 22.11.2014. Respondent nos. 4 to 6 as well as Akhlaq Ahmad and Hari Shankar filed three separate appeals under Section 11(1) of the U.P. C.H. Act against the order dated 24.6.2014. The appeals were numbered as Appeal Nos. 618, 619 and 656 under Sections 11(1) of the U.P. C.H. Act. The Settlement Officer Consolidation consolidated the aforementioned appeals and vide order dated 13.6.2019 allowed all the three appeals, granting benefit of Section 5 of the Limitation Act as well as set aside the order of the Consolidation Officer dated 24.6.2014, the direction was also issued for maintaining the basic year entry. Against the appellate order dated 13.6.2019 passed by the Settlement Officer Consolidation, petitioners filed revision under Section 48 of the U.P. C.H. Act, which was registered as Revision no. 882/2019 New Number- 0012/2021 before the Deputy Director of Consolidation, Gorakhpur. Another revision was filed by Akhlak Ahamad which was registered as Revision No. 0010/2021. The aforementioned revisions were consolidated and heard together. The Deputy Director of Consolidation dismissed both the revisions vide order dated 8.6.2022. Hence this writ petition.

4. This Court vide order dated 26.9.2022, entertained the writ petition and directed the respondents to file counter affidavit in the matter, parties were also directed not to create any third-party-interest in respect to the plot in dispute. In pursuance of the order dated 26.9.2022, contesting respondent have filed their counter affidavit. Petitioner filed his rejoinder affidavit also.

5. Counsel for the petitioners submitted that appeal filed under Section 11(1) of the U.P. C.H. Act was time barred but the appellate courts decided the appeal in arbitrary manner by condoning the delay, setting aside the order of the Consolidation Officer and maintaining the basic year entry. He further submitted that the appellate court in the time barred appeal, should decide the delay condonation matter and merit question separately as held by the Division Bench of this Court in the case reported in 2022(155) RD 309, Ram Prakash vs. Deputy Director of Consolidation, Hardoi and Others. He further submitted that the revision filed by the petitioners has also been dismissed without considering the points set up in the revision as well as argued before the revisional court. He further submitted that the appellate court and revisional court have failed to consider that father of respondent nos. 4 to 6 has not taken any steps for recalling the order dated 21.12.1991 by which name of father of petitioner nos. 4 to 6 was ordered to be recorded over the plot in dispute. He also submitted that the appellate court and the revisional court have failed to consider the fact that the order dated 24.6.2014 was passed on the basis of compromise between the parties. He also submitted that the Deputy Director of Consolidation has dismissed the petitioners' revision on the ground that the claim of Bindeshwari was recognized by this court in the year 1960 while deciding the writ petition vide order dated 9.11.1960 but the revisional court has failed to consider the fact that dispute in the writ petition before this court in the earlier writ petition which was decided in 1959, was between a third party, namely, Ram Saran and Bindeshwari which was decided in favour of the father of respondent nos. 4 to 6 (Bindeshwari), as such, the same will not come in the way of present dispute which was different to the earlier dispute. He also submitted that the impugned orders have been passed on the misconceived grounds, as such, the same are liable to be set aside.

6. On the other hand, Mr. T.P. Singh, learned Senior Counsel appearing for respondent nos. 4 to 6 submitted that the appeal under Section 11(1) of the U.P. C.H. Act along with prayer for condonation of delay against the order of the Consolidation Officer dated 24.5.2014/26.4.2014 was filed giving explanation for delay and the Settlement Officer Consolidation has rightly condoned the delay, set aside the order of the Consolidation Officer dated 24.6.2014 and maintained the basic year entry. He further submitted that the dispute has already been settled by this Court by deciding the writ petition vide order dated 10.1.1959. He also submitted that initiation of the instant proceeding in the second consolidation operation is nothing but abuse of the process of law. He also submitted that jurisdiction has been rightly exercised by the appellate court while deciding the appeal as well as by the revisional court by deciding the revision. He further submitted that there is no limitation for challenging the order passed upon fraudulent compromise, as such, the appellate court has rightly condoned the delay and decided the appeal on merits. He also submitted that the writ petition is liable to be dismissed.

7. Mr. Siddharth Nandan Advocate appearing for respondent nos. 7 to10 submitted that impugned orders have been passed in accordance as such no interference is required against the impugned orders. He further submitted that respondent nos. 7 to10 are bonafide purchasers of respondent nos. 4 to 6 as such they are adopting the argument on merit advanced by learned counsel for respondent nos.4 to 6.

8. I have considered the arguments advanced by counsel for the parties and perused the records.

9. There is no dispute about the fact that the title objection filed by the petitioners against the basic year entry was entertained and the same was decided vide order dated 24.6.2014. There is also no dispute about the fact that the appeal filed by the contesting respondents against the order dated 24.6.2014, was time barred and the appellate court has condoned the delay, set aside the order dated 24.6.2014 and maintained the basic year entry. There is also no dispute about the fact that the revision filed by the petitioners has also been dismissed.

10. The present dispute has been raised in the second consolidation operation against the basic year entry and the Consolidation Officer has decided the same on 21.12.1991 which was set aside in appeal and matter was again remanded to the court of Consolidation Officer. The Consolidation Officer again decided the objection under Section 9-A(2) of the U.P. C.H. Act on the basis of compromise vide order dated 24.6.2014. In appeal, the order dated 24.6.2014 has been again set aside and basic year entry has been maintained. The appellate court while setting aside the order dated 24.6.2014, has not remanded the matter back to the Consolidation Officer to decide the title objection on merit, framing issues and giving parties to lead evidence in accordance with law. It is material that title objection is to be decided after framing issues and giving parties to lead evidence.

11. In the instant matter, the Consolidation Officer, after remand, has decided the objection on the basis of compromise and if the order passed on the basis of compromise has been found illegal, then matter should be remanded back before the Consolidation Officer to decide the title dispute afresh after framing issues and giving parties to lead evidence.

12. So far as the argument advanced by learned Senior Counsel for the contesting respondents is concerned that matter has already been concluded in the earlier consolidation operation by dismissing the writ petition vide order dated 9.11.1960, the issue to this effect should be framed by the Consolidation Officer and the matter should be decided accordingly as the dispute under the U.P. C.H. Act is a dispute of special nature which is not a voluntary litigation rather a litigation forced upon the chak holder by law. This Court in the case reported in 2015 (128) RD 381, Lochan vs. Deputy Director of Consolidation, Mathura and Others has held that consolidation disputes are dispute of special nature which is forced upon the chak holder by law. Paragraph no.14 of the judgment is relevant which is as under:-

"14. The submission of learned counsel for the petitioner that the Consolidation Officer cannot repeatedly pass orders modifying the chak of particular chak holder, has force. It is settled law that the consolidation courts do not possess the power of review. Even otherwise, the litigation under the U.P. Consolidation of Holdings Act is not a voluntarily litigation but is litigation, forced upon a chak holder by law."

13. This Court has also held in the case reported in 2017 (6) ADJ 356, Ram Briksha and Another vs. Deputy Director of Consolidation and 3 Others that right of a co-sharer will not at all come to an end under Section 49 of the Act on the notification under Section 52, due to non-claiming partition of his share and separate chak in his name although there has been no ouster from joint property.

14. Considering the ratio of law laid down by this court, as mentioned above, the title objection filed by the petitioners against the basic year entry should be decided after compliance of Rule 26 of the U.P. C.H. Rules, i.e. framing of issues and giving parties to lead evidence. So far as the adjudication of the dispute in the earlier consolidation operation is concerned, the same will be taken into consideration by the Consolidation Officer, framing specific issue to that effect.

15. Since there is no proper adjudication of the title dispute against the basic year entry in the subsequent consolidation operation by the Consolidation Officer, as such, the impugned orders passed by the consolidation authorities are not sustainable in the eye of law.

16. Considering the entire facts and circumstances, the part of the impugned orders dated 13.6.2019, passed by the Settlement Officer Consolidation and 8.6.2022, passed by the Deputy Director of Consolidation are liable to be set aside and the same are hereby set aside.

17. The writ petition is allowed in part and the order of the appellate court dated 13.6.2019 is modified to the extent that after setting aside of order dated 24.6.2014, matter will be remanded back before the Consolidation Officer who shall decide the title objection on merit, after framing issue and giving opportunity to the parties to lead evidence, expeditiously, preferably within a period of 6 months from the date of production of the certified copy of the order.

18. No order as to costs.

Order Date :- 24.5.2023

C.Prakash

(Chandra Kumar Rai, J.)