Research › Browse › Judgment

Allahabad High Court · body

1973 DIGILAW 450 (ALL)

Ram Pyarey Shukla v. Bindhya Din

1973-10-10

GULATI

body1973
JUDGMENT Gulati, J. - This is a petition under Article 226 of the Constitution. 2. The dispute relates to Khata No. 325 comprising plot Nos. 526, 528, 533, 537/2, 552 and 526. The contest was between the petitioner Ram Pyarey and respondent No. 1 Bindhya Din. The petitioner claimed himself to be the Sirdar in possession of plots Nos. 526, 533, 535, 537/2, 552 and 566 which were alleged to have been recorded in his name. Plot No. 526 was recorded in the name of respondent Bindhya Din. Both the parties preferred objections under Section 9(2) of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act). The consolidation officer allowed the objection of the parties. The parties went up in appeal before the Settlement Officer Consolidation. The Settlement Officer Consolidation found that the entry in the village records in the name of the petitioner over Khata No. 325 was without justification and the other party Bindhya Din was also found not to possess any title in respect of any of the plots. He, therefore held that the entire Khata No. 325 will remain the property of the Gaon Sabha Mangalpur Kurari, the respondent No. 2. He accordingly ordered that the Chak should be formed in favour of the Gaon Sabha in respect of the land in dispute. Both the parties went up in revision under Section 48 of the Act. The Deputy Director of Consolidation up held the claim of Bindhya Din over plot Nos. 551 and 552 and declared him to be the Bhumidhar of those plots. He recorded no finding in respect of plot No. 526 on the ground that the petitioner had not filed any appeal in respect of those plots. In respect of the remaining plots he upheld the order of the Settlement Officer Consolidation and held that the plots belonged to the Gaon Sabha. The petitioner has now challenged the order of the Deputy Director of Consolidation in this petition. 3. The first contention of the learned Counsel for the petitioner is that the Deputy Director of Consolidation went entirely wrong in declaring certain plots of the Khata in dispute as belonging to Gaon Sabha. The petitioner has now challenged the order of the Deputy Director of Consolidation in this petition. 3. The first contention of the learned Counsel for the petitioner is that the Deputy Director of Consolidation went entirely wrong in declaring certain plots of the Khata in dispute as belonging to Gaon Sabha. It is alleged that Gaon Sabha never filed any objection during the consolidation proceedings and, as such, it was wholly beyond the jurisdiction of the Settlement Officer Consolidation as also of the Deputy Director of Consolidation to hold that Gaon Sabha was entitled to certain plots. This contention of the learned counsel appears to be right. It is not disputed that Gaon Sabha had not filed any objection during the consolidation proceedings. This court in Sabha v. Deputy Director of Consolidation and others, 1969 R.D. 30. held that unless an objection under Section 9 (2) of the Act is preferred and the same is allowed, the entry in the basic year records would become final. In that case also the Deputy Director found that neither of the contesting parties had established their claim to the land in dispute and ordered it to be allotted to the Gaon Sabha, which had preferred no claim under Section 9 (2) of the Act. The Court held that the Deputy Director acted beyond his jurisdiction inasmuch as after having disposed of the objections of the parties he could not declare the land as belonging to the Gaon Sabha without there being any claim from it. The contention of the learned counsel is, therefore, justified and is upheld. 4. The next submission made by the learned counsel for the petitioner relates to plot No. 526. It is argued that the dispute with regard to this plot was left undecided by the Deputy Director of Consolidation on the ground that petitioner had filed no appeal in respect of that Khata. That again is wrong. The memo of appeal does relate to this Khata also and the Deputy Director was not right in not deciding the dispute with regard to plot No. 526. With regard to plot Nos. 551 and 552 allotted to Bindhya Din the learned counsel stated that these plots were already the subject matter of civil litigation between the parties and that litigation had become final and operated as res judicata. With regard to plot Nos. 551 and 552 allotted to Bindhya Din the learned counsel stated that these plots were already the subject matter of civil litigation between the parties and that litigation had become final and operated as res judicata. As a result of that litigation Bindhya Din had no title whatsoever to these plots. The Deputy Director of Consolidation has not considered the effect of the civil litigation between the parties. 5. It is, thus, clear that the entire order of the Deputy Director of Consolidation stands vitiated and the same is ordered to be quashed. The Deputy Director will restore the revision petition to its original number and shall decide it a fresh in accordance with law and the observations made therein. The parties shall hear their own costs.