Allahabad High Court
Purushottam Sarraf vs State Of U.P. And Others on 27 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No.- 2024:AHC:97362 Court No. 48
Reserved on: 1.5.2024
Delivered on: 27.5.2024
WRIT - B No. - 3826 of 2023
Petitioner :- Purushottam Sarraf
Respondent :- State of U.P. and Others
Counsel for Petitioner:- Mr. Rakesh Pande, Senior Advocate, Ms. Vishakha Pande and Mr. Adya Prasad Tiwari, Advocates
Counsel for Respondent :- Mr. R.C. Singh, Senior Advocate, Mr. Bhaju Ram Prasad Sharma & Mr. S.N. Tripathi, Advocates, Mr. Sharad Chandra Singh, Addl. C.S.C.
Hon'ble Chandra Kumar Rai,J.
1. Heard Mr. Rakesh Pande, learned Senior Counsel assisted by Ms. Vishakha Pandey as well as Mr. Adya Prasad Tiwari, learned counsel for the petitioner, Mr. R.C. Singh, learned Senior Counsel assisted by Sri Bhaju Ram Prasad Sharma as well as Mr. S.N. Tripathhi, learned counsel for the private respondents and Mr. Sharad Chandra Singh, learned Addl. C.S.C. for the state-respondents.
2. Brief facts of the case are that petitioner and predecessor-in-interest of the private respondents are real brothers. According to the petitioner, family partition amongst the brothers had taken place on 27.4.1995 by which the property in dispute was distributed between the petitioner and the predecessor-in-interest of the private respondents, accordingly, a settlement deed was written on 27.4.1995. According to the private respondents, no such family arrangement/settlement had taken place and the alleged settlement deed dated 27.4.1995 is forged and fabricated document. Against the basic year entry of plot nos. 1397, 1400,1401 area 0.809 hectare of Khata No-78 an objection under Section 9-A(2) of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the "U.P. C.H. Act") was filed by the petitioner, claiming exclusive right over the plot in question on the basis of family settlement took place on 27.4.1995. The aforementioned title objection was decided vide order dated 30.5.1995, on the basis of compromise alleged to take place on 30.5.1995. One Civil Suit No.79/1995 for permanent injunction was filed in the civil court by the petitioner in which predecessor-in-interest of the private respondents have filed their written statement. Against the order of the Consolidation Officer dated 30.5.1995, a restoration application dated 17.9.1996 was filed by the predecessor-in-interest of the private respondent. The Consolidation Officer vide orer dated 27.9.1996 set aside the order dated 30.5.1995 and fixed the matter for fresh decision on merit. The Consolidation Officer by subsequent order dated 28.7.1997 allowed the objection filed by the petitioner under Section 9-A(2) of the U.P. C.H. Act, directing to expunge the name of the predecessor-in-interest of the private respondents from the plot in question and record the name of the petitioner exclusively. Against the order dated 28.7.1997, passed by the Consolidation Officer, the predecessor-in-interest of the private respondents have filed time barred restoration application dated 9.10.2002 which was allowed by the Consolidation Officer vide order dated 4.2.2005, setting aside the order dated 28.7.1997 and restoring the proceeding under Section 9-A(2) of the U.P. C.H. Act on its original number for fresh decision after evidence of the parties. Against the order dated 4.2.2005, passed by the Consolidation Officer, the petitioner filed an appeal before the Settlement Officer of Consolidation which was registered as Appeal No.1366, under Section 11(1) of the U.P. C.H. Act before the Settlement Officer of Consolidation. The aforementioned appeal was allowed vide order dated 11.7.2005, setting aside the order dated 4.2.2005 and remanding the matter before the Consolidation Officer to decide the restoration application dated 9.10.2002 afresh considering the limitation question first. Against the orders dated 11.7.2005, time-barred revision was filed by the private respondents on 18.8.2021 before the Deputy Director of Consolidation under Section 48 of the U.P. C.H. Act which was registered as Revision No.436/2021. In the aforementioned revision, petitioner filed objection on 7.10.2022, stating that revision is highly time-barred, as such, the same should be dismissed on the ground of limitation. It is also prayed by the petitioner in the aforementioned revision that question of maintainability and limitation question be decided first before considering the merit of the revision. It is also mentioned in the objection that one revision was filed by the predecessor-in-interest of the private respondent against the same order of Settlement Officer of Consolidation, was dismissed on 1.10.2014, as such, the second revision filed by private respondents is not maintainable. Petitioner filed Writ B No.135/2023 before this Court which was disposed of vide order dated 16.1.2023, directing the Deputy Director of Consolidation to decide the revision in accordance with the ratio of law laid down by this Court in case reported in 2022(155) RD 309, Ram Prakash vs. D.D.C., Hardoi and Others. In compliance of the order of this Court dated 16.1.2023, petitioner filed an application on 9.10.2023 before Deputy Director of Consolidation for granting 15 days time for argument in revision. The Deputy Director heard the aforementioned revision and granted benefit of Section 5 of the Limitation Act in filing the revision. The Deputy Director of Consolidation by the same order, allowed the revision on merit, set aside the orders of the Settlement Officer of Consolidation dated 11.7.2005 as well as the Consolidation Officer dated 30.5.1995, 27.9.1996, 28.7.1997, 4.2.2005 and directed to record the name of the contesting respondents along with petitioner as co-tenure holder on plot nos.1397, 1400 and 1401 of khata no.78. Hence, this petition on behalf of the petitioner, challenging the order dated 30.10.2023, passed by respondent no.2/Addl. District Magistrate (F & R) / Deputy Director of Consolidation, Maharajganj.
3. This Court vide order dated 17.11.2023 directed the parties to exchange their pleadings in the matter. In pursuance of the order dated 17.11.2023, parties have exchanged their pleadings.
4. Mr. Rakesh Pande learned Senior Counsel as well as Mr. A.P. Tiwari learned counsel for the petitioner submitted that the exercise of revisional jurisdiction under Section 48 of the U.P. C.H. Act under the impugned order is wholly illegal as the order impugned in the revision was passed in the year 2005 by which the matter was remanded back before the Consolidation Officer to decide the restoration application dated 9.10.2002 filed by the predecessor-in-interest of the private respondents, considering the limitation question. They further submitted that the appellate order was passed on 11.7.2005 and the revision was filed by the contesting respondent in the year 2021, as such, there was no occasion to the Deputy Director of Consolidation to exercise the revisional jurisdiction in such a belated proceeding initiated by the contesting respondent. They also submitted that in view of the Division Bench decision of this Court reported in 2022(155) RD 309, Ram Prakash vs. D.D.C., Hardoi and Others, the application for condonation of delay is to be decided first in proper manner rather in casual manner as there was delay of more than 15 years in filing the revision in spite of the fact that the contesting respondents were fully aware about the order passed in the appellate proceeding. They further submitted that the initial jurisdiction was exercised by the Consolidation Officer on the basis of family settlement dated 27.4.1995 which had been accepted by predecessor-in-interest of the private respondents in the Civil Suit No.79/1995, as such, there was no justification to set aside the order passed by the Consolidation Officer on 30.5.1995. They also submitted that 1st revision filed by Dharamnath, predecessor-in-interest of the private respondents, against the appellate order dated 11.7.2005, was dismissed on 1.10.2014, as such, the second revision filed by the private respondents in the year 2021, was not maintainable but the Deputy Director of Consolidation has not taken into consideration the aforementioned fact and granted benefit of Section 5 of the Limitation Act as well as allowed the revision, set aside all the orders and directed to record the name of private respondents as co-tenure holders of the plot in question which is wholly illegal on the part of the Deputy Director of Consolidation. They placed reliance upon the judgment of Hon'ble Apex Court passed in Addl. Commissioner Revenue and Others vs. Akhalaq Hussain and Another, in Civil Appeal No.7346 of 2010 decided on 3.3.2020, in order to demonstrate that unless the declaration is made under Section 143 of The Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the "U.P. Z.A. & L.R. Act"), the land land cannot be treated to be abadi. They also submitted that land in dispute is an agricultural land, as such, there was no illegality in the order passed by the Consolidation Officer on 30.5.1995.
5. On the other hand, Sri R.C. Singh, learned Senior Counsel assisted by Mr. B. R. Sharma, learned counsel for respondent nos. 3 to 6 as well as Mr. S.N. Tripathi learned Counsel who is also appearing for the private respondents submitted that the exercise of revisional jurisdiction by the Deputy Director of Consolidation is in accordance with law as delay in filing the revision was condoned by the Deputy Director of Consolidation and the revision was heard on the same date on merit, accordingly, the impugned order has been passed, allowing the revision filed by the petitioner. They further submitted that under the impugned order, the private respondents have also been ordered to be recorded as co-tenure holder of the plot in question alongwith petitioner, as such, no interference is required against the impugned revisional order. They further submitted that Purushottam Sarraf and Dharamnath Sarraf were real brothers and the land in dispute was jointly acquired by them in court auction proceeding in which the sale deed was jointly executed in their favour. They also submitted that Purushottam Sarraf and Dharamnath Sarraf jointly established a cold-storage over he land in dispute in the name of their mother Smt. Ramdei Devi. They further submitted that no partition had taken placed between them, accordingly, a suit for injunction was filed in respect to the house. They also submitted that during consolidation operation at the time of partal, it was found that there is cold-storage and abadi over plot no.1397 and plot nos. 1396, 1400 and 1401 were not found fit for cultivation. They further submitted that in the proceeding under Section 9-A(2) of the U.P. C.H. Act, petitioner has manipulated the order on the basis of fraudulent compromise on the basis of fraudulent family settlement, accordingly, the Deputy Director of Consolidation exercised the revisional jurisdiction considering the nature of the land, source of acquisition of the property as well as other evidence on record and directed to record the name of private respondent as co-tenure holder of the plot in question along with petitioner. They further submitted that the order dated 27.8.2007 passed by the Consolidation Officer was an ex parte order, as such, the same cannot be maintained in the eye of law. They further placed the revenue entry of C.H. Form 2-A & 23 in order to demonstrate that order passed under Section 9-A(2) of the U.P. C.H. Act for recording the name of petitioner, was without jurisdiction as the land cannot be treated as land defined under Section 3(14) of the U.P. Z.A. & L.R. Act or holding as defined under the U.P. C.H. Act. They further submitted that plot in dispute was set apart from consolidation scheme, as such, the revisional court has set aside all the orders and directed to record the name of the private respondents as co-tenure holders of the plot in dispute. They further placed reliance upon the following judgments of Hon'ble Apex Court and that of this Court, in support of their arguments, to the effect that if the land/holding is not covered under the definition clause of U.P.Z.A & L.R. Act / U.P.C.H. Act, the consolidation court cannot exercise their jurisdiction in respect to the plots in question which have been found as abadi:-1997(4) Supreme 346, Randhir Singh and Others vs. Deputy Director of Consolidation and Others; AIR 1966 Supreme Court 828, Gadde Venkateswara Rao vs. Govt. of A.P. and Others; AIR 2004 Supreme Court 3224, State of Punjab and Others vs. Savinderjit Kaur; AIR 2002 Supreme Court 33, Roshan Deen vs. Preet Lal; 2010 AIR SCW 5968 (supreme Court), Jai Singh and Others vs. Municipal Corporation of Delhi and Another Municipal Corporation of Delhi vs. Sh. Jai singh and Ors.; AIR 2001 Supreme Court 3295, M/s. Estralla Rubber vs. Dass Estate (Pvt.) Ltd.; 2017 (136) RD 741, Smt. Lalita Singh vs. State of U.P. through Revenue Department and Others; 2021 (11) ADJ 367, Smt. Savita vs. State of U.P. & Others; 2010(3) ADJ 143, Arun Kumar Mishra and Others vs. State of U.P. and Others; 2010(111) RD 392, Tauqeer Ahmad and Another vs. Deputy Director of Consolidation, Azamgarh and Others.
6. I have considered the arguments advanced by learned Senior Counsel along with their assisting counsel for the parties and perused the records.
7. There is no dispute about the fact that the objection under Section 9-A(2) of the U.P. C.H. Act filed by the petitioner against the basic year entry, to record his name exclusively, was allowed by the Consolidation Officer vide order dated 30.5.1995 but in the restoration proceeding, the order was set aside. There is also no dispute about the fact that under the appellate order dated 11.7.2005, the matter was remanded back before the Consolidation Officer to decide the restoration application dated 9.10.2002 of the private respondents afresh, considering the limitation question. There is also no dispute about the fact that in time-barred revision filed in the year 2021 against the appellate order dated 11.7.2005, the Deputy Director of Consolidation has set aside the order dated 11.7.2005 passed in appeal as well as all the orders passed by the Consolidation Officer including the order dated 30.5.1995 and directed to record the name of private respondents as co-tenure holders of the plot in question.
8. It is material to mention that the title objection under Section 9-A (2) of the U.P. C.H. Act filed by the petitioner claiming exclusive right was decided on the basis of compromise, alleged to take place between the parties vide order dated 30.5.1995 but the private respondents challenged the order on the ground that no compromise has taken place and no family settlement deed has been executed between the parties or their predecessor-in-interest, accordingly, the Consolidation Officer has restored the proceeding for fresh decision on merit but in appeal, the Settlement Officer of Consolidation has set aside the order passed by the Consolidation Officer restoring the proceeding and further remanded the matter before the Consolidation Officer to decide the time barred restoration application filed by the predecessor-in-interest of the private respondents, considering the limitation question 1st. The Deputy Director of Consolidation in the highly time-barred revision, has set aside all the orders and directed to record the name of the private respondents as co-tenure holders which is not proper exercise of jurisdiction at such a belated stage of the proceeding.
9. So far as the nature of the land/plot and the jurisdiction of the court is concerned, as to whether the plot in dispute is abadi or holding, the same can be examined by the Consolidation Officer by framing proper issues and examining the evidence adduced by the parties. The title objection under Section 9-A(2) of the U.P. C.H. Act is to be decided in accordance with law as provided under Rule 26(2) of the U.P. C.H. Rules if there is no valid settlement between the parties. The contesting respondents are denying the compromise as well as the family settlement, as such, only course open before the Consolidation Officer is to decide the objection under Section 9-A(2) of the U.P. C.H. Act on merit, after framing issues and giving parties to lead evidence in accordance with law as at no point of time, the title objection was decided after framing issues in accordance with the provision contained under U.P.C.H. Act.
10. It is also material that there is no challenge to the appellate order dated 11.7.2014 before this Court by which the appeal filed by the petitioner, was allowed and the order of the Consolidation Officer dated 4.2.2005 was set aside and the matter was remitted back before the Consolidation Officer to decide the restoration application dated 9.10.2002 afresh, considering the limitation question 1st but this Court is exercising his jurisdiction under Article 226 of the Constitution of India to the effect that the appellate order dated 11.7.2005 be modified to the extent that the Consolidation Officer shall decide the title objection on merit rather restoration application filed by predecessor of contesting respondents so that matter may further linger on the restoration matter.
11. Considering the entire facts and circumstances of the case, the impugned revisional order dated 30.10.2023 passed by respondent no.2, cannot be sustained and the same is hereby set aside as well as the order passed by the Settlement Officer of Consolidation dated 11.7.2005 is modified to the extent that the Consolidation Officer shall restore the title objection on its original number and decide the same on merit, after framing issues including the issue of jurisdiction and giving opportunity to parties to lead evidence expeditiously, preferably within a period of 6 months from the date of production of the certified copy of the order.
13. The writ petition stands allowed to the extant indicated above.
Order Date :- 27.5.2024
C.Prakash
(Chandra Kumar Rai, J.)
