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1968 DIGILAW 318 (ALL)

Ram Singh v. Director of Consolidation, Camp at Ballia

1968-08-23

M.H.BEG

body1968
ORDER M.H. Beg, J. - The Petitioner No. 2 states that he adopted Petitioner No. 1, a minor, as a son, as he has no issue and he executed a registered deed of adoption on 12-8-1947. On 4-11-1961, the Petitioner No. 2 applied to the Assistant Consolidation Officer praying that Petitioner No. 1 may be entered in the village records along with Petitioner No. 2 as a cobhumidhar. No objection was filed against this application. On 2-12-1961, the Assistant Consolidation Officer passed the following order u/s 9(2) of the UP Consolidation of Holdings Act (hereinafter Mentioned as the Act): In Khata Nos. 15 and 136 of village Bahadur Chak the name of Ram Singh adopted son of Rikhideb Rai r/o Piprakalan shall also be recorded together with the name of the recorded tenure-holder. An appeal could be filed by a person aggrieved by that order within 30 days of the order made by the Assistant Consolidation Officer (21 days were altered into 30 days by an amendment after the 1958 Act with which we are concerned here). But Section 53B provided: The provisions of Section 5 of the Indian Limitation Act, 1908, shall apply to the applications, appeals, revisions and other proceedings under this Act or the rules made thereunder. Section 11, Sub-section (1) make an order passed by the Settlement Officer in appeal final except when a second appeal filed against it u/s 11, Sub-section (2) to the Deputy Director of Consolidation within 21 days of the order of the Settlement Officer. No appeal u/s 11(2) had been filed at all to the Deputy Director as there was no appeal to the Settlement Officer. Long after the expiry of period of limitation for an appeal u/s 11, Sub-section (1), the contesting opposite parties Nos. 4 to 9, with whom Petitioner No. 2 had been litigating, filed a Misc. Application on 16-3-1962 before the Assistant Settlement Officer against the order of the Assistant Consolidation Officer. This was rejected on the ground that the opposite parties had no locus standi and alternatively, on the ground that they could file an appeal. On 4-6 1962, the contesting opposite parties filed a regular appeal to the Assistant Settlement Officer, opposite party No. 3, who passed a very brief order on 5-10-1962 in the following terms: I have heard the Learned Counsel for the parties and have gone through the lower court file. On 4-6 1962, the contesting opposite parties filed a regular appeal to the Assistant Settlement Officer, opposite party No. 3, who passed a very brief order on 5-10-1962 in the following terms: I have heard the Learned Counsel for the parties and have gone through the lower court file. It is an admitted fact that the order of the learned lower court is an favour of an would be heir to be recorded as co-tenure-holder. Obviously, this order is illegal and cannot be allowed to stand. The order is, therefore, set aside. The entry will remain as it was in basic year. 2. The Petitioners filed a second appeal against the order of the Assistant Settlement Officer, u/s 11(2), before the Deputy Director of Consolidation who dismissed it on 4-3-1963. He noticed two points raised by the Petitioners. The first was that the contesting opposite parties had no locus standi to file an appeal as they were not aggrieved persons. The second was that the appeal was time barred and there was no justification for condonation of delay. Unfortunately, the Deputy Director of Consolidation also thought that recording the name of a would be heir as a co-tenureholder with the bhumidhar was prima facie illegal and that such a question could not legally arise. The Deputy Director held that the Assistant Settlement Officer had rightly set aside such an order when it was brought to his notice. The Petitioners then invoked the interference of the Director of Consolidation who also rejected the revision application u/s 48 of the Act on 8-8-1963. 3. It is obvious that the Consolidation authorities have acted in a grossly illegal fashion in denying Petitioner No. 1 his right as a co-tenureholder and Petitioner No. 2 his right to take him as a co-sharer in his right as a Bhumidhar so as to enable the two to be recorded as co-tenureholders. Section 152 of the UP ZA and LR Act makes it absolutely clear that the interest of a Bhumidhar shall be transferable subject to the conditions laid clown. It has not been shown that the conferment on one of the heirs the right of co-tenureholder by a bhumidhar upon his adopted son was prohibited by any provision of the UP ZA and LR Act, or by any other law. It has not been shown that the conferment on one of the heirs the right of co-tenureholder by a bhumidhar upon his adopted son was prohibited by any provision of the UP ZA and LR Act, or by any other law. It has been held in Mahendra Singh v. Attar Singh 1967 AWR 73 : The Bhumidhari rights are special rights created by Act I of 1951 and these new rights are solely to be governed by the provisions of the Act. The notions of Hindu Law or Mohammadan Law which would be applicable to other property not governed by any special law cannot be imported into the rights created by this Act. The consolidation authorities seemed to be under the erroneous impression that an heir could not be taken as a tenure-holder. There are no restrictions upon such a transaction as for instance are found in the proviso to Section 33 of the UP Tenancy Act for conferring cotenancy rights. 4. Another patent error in the order of the consolidation authorities was that the contesting opposite parties were not aggrieved persons at all by the order made by the Assistant Consolidation Officer. They claim no right or interest in the Bhumidhari rights of the Petitioners and were clearly actuated by some oblique or improper motive. Their appeal should have been rejected on the ground that they were not aggrieved persons. 5. It was strenuously contended by Mr. S.N. Sahai that every person living in the village is interested in the correction of village records. Section 11 Sub-section (1) gives right of appeal to an aggrieved person only. If a person is not aggrieved by an order he has no right to invokes the appellate jurisdiction of the Settlement Officer. A person aggrieved must necessarily be one whose rights or interasts are affected or jeopardised and not merely one who suffers some psychological or imaginary injury. As the contesting opposite parties have not been able to show how their interests or rights are affected at all by the creation of co-tenureholder's rights in favour of Petitioner No. 1, they had no right of appeal at all. 6. A further error apparent on the face of the record is that the incompetent appeal was also time barred. As the contesting opposite parties have not been able to show how their interests or rights are affected at all by the creation of co-tenureholder's rights in favour of Petitioner No. 1, they had no right of appeal at all. 6. A further error apparent on the face of the record is that the incompetent appeal was also time barred. The consolidation authorities did not apply their minds at all to the question whether there was any ground for condonation of delay and there is no order condoning the delay. What the Deputy Director of Consolidation seems to have thought was that the Settlement Officer can interfere suo moto whenever an illegal order is brought to his notice. This is not the scope of the appellate jurisdiction u/s 11 of the Act. This view of the Deputy Director was also patently erroneous. 7. The result is that I quash the orders of the Director of Consolidation, Deputy Director of Consolidation and the Settlement Officer passed on 8-8-1963, 4-3-1963 and 5-10-1962. I restore the order passed on 2-12-1961 by the Assistant Consolidation Officer. The Petitioners are entitled to their costs from the contesting opposite parties.