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1986 DIGILAW 336 (ALL)

Dead v. D. D. C. , Faizabad

1986-04-24

K.N.MISRA

body1986
JUDGMENT K.N. Misra, J. - In the present writ petition the dispute relates to land of Sirdari Khata Nos. 691 and 669 and Bhumidhari Khata No. 207 situate in village and pargana Magalsi, Tahsil and district Faizabad. In the basis year Khatauni names of petitioner Bhawani and his two brothers Maheshwar and Sukhi were recorded co-tenure-holders. During Partal and verification of the Khatauni, it was revealed that the name of Maheshwari was wrongly recorded as co-tenant and that he has no share in the said holding as he had separated in the life time of his father Sugai taking his share from the property. The case was contested by Maheshwar who asserted that he has got half share in the holding in dispute. It appears that after taking evidence of the parties the consolidation officer vide order dated April 22, 1960 allowed the objection filed by petitioner Bhawani Bux and held the petitioner to be entitled to half share and Sugai to the remaining half share. It was held that Maheshwar had no share in the said holdings. Aggrieved by it, Maheshwar preferred appeal which was allowed by the Settlement Officer, Consolidation vide order dated October 24, 1960. He upheld the claim of Maheshwar. Against this order the petitioner preferred revision which was allowed by the Deputy Director of Consolidation vide order dated February 8, 1961 and the case was remanded to the Court of Settlement Officer, Consolidation for decision afresh. It appears that during the pendency of the appeal, the statement of proposals carving out chaks in respect of the holdings in dispute was published. An objection was raised that the proceedings under Section 10-A of the U.P. Consolidation of Holdings Act (for short the Act) be stayed and the objection under Section 20 of the Act be not decided. A reference was made to the District Deputy Director of Consolidation who allowed the reference vide order dated October 9, 1961 and directed the Settlement Officer Consolidation to drop proceedings under Section 10-A of the Act. A reference was made to the District Deputy Director of Consolidation who allowed the reference vide order dated October 9, 1961 and directed the Settlement Officer Consolidation to drop proceedings under Section 10-A of the Act. The papers were, however, not corrected in accordance with the order dated April 22, 1960 passed by Consolidation Officer, and, as such, the petitioner had filed an objection under Section 20 of the Act, but subsequently the order of remand dated February 8, 1861 was incorporated in the records and C.H. Form No. 25 was issued to the parties according to which the petitioner was allotted land in respect of half share in the aforesaid holdings in dispute. He, thus, withdrew the objection filed by him under Section 20 of the Act. However. Maheshwar father of opposite party No. 3 filed a time barred objection under Section 20 of the Act claiming allotment of chak to the extent of ?rd share in the aforesaid holdings in dispute. This objection was rejected as time barred by the Consolidation Officer vide order dated April 28, 1962. Aggrieved by it, Maheshwar had preferred appeal which was allowed by the Settlement Officer, Consolidation and by condoning the delay in filing the objection, he remanded the case to the Consolidation Officer for deciding it afresh on merits. In the meantime, the petition had moved an application for correction of map in accordance with the order dated April 22, 1960 passed by the Consolidation Officer and order dated February 8, 1961 passed by the Deputy Director of Consolidation. It appears that when the proceedings in the aforesaid case and reached the said stage, the village was de-notified under Section 52 of the Act. The learned Settlement Officer, Consolidation had, however, allowed the appeal of the opposite parties No. 3 to 10. It is asserted that the order was passed without complying with the directions given by the Deputy Director of Consolidation in the aforesaid order of remand. It has also been averred that the Settlement Officer, Consolidation had committed error in deciding the appeal which was stayed by the District Deputy Director of Consolidation. Against the aforesaid order dated September 5, 1979 (Annexure No. 1) the petitioner preferred revision. During pendency of this revision a notification was issued under Section 4-A of the Act on August 30, 1980 bringing the village under fresh consolidation proceedings. Against the aforesaid order dated September 5, 1979 (Annexure No. 1) the petitioner preferred revision. During pendency of this revision a notification was issued under Section 4-A of the Act on August 30, 1980 bringing the village under fresh consolidation proceedings. The petitioner, therefore, filed objection before the District Deputy Director of Consolidation for ordering the abatement of the revision under Section 5(2) but this application was rejected on November 4, 1980 vide Annexure No. 2. After rejecting the said application, the Deputy Director of Consolidation dismissed the revision of the petitioner vide order dated January 13, 1981, a certified copy of which has been annexed as Annexure No. 3 to the writ petition. These orders passed by opposite parties No. 1 and 2 have been challenged in the present writ petition. 2. Learned counsel for the petitioner urged that since the village was again notified under Section 4-A of the Act, and, as such, the pending revision and all other pending proceedings arising out of aforesaid objections deserved to be abated. Learned counsel, thus, contended that the impugned orders dated November 4, 1980 (Annexure No. 2) passed by the Deputy Director of Consolidation by which he has rejected the application of the petitioner moved under Section 5(2) of the Act and order dated January 13, 1981 (Annexure No. 3) by which the revision filed by the petitioner was dismissed deserve to be quashed being illegal and without jurisdiction. Learned counsel placed reliance upon a decision of this court reported in Ram Krishna Tewari and Another v. Deputy Director of Consolidation Faizabad and Others, 1983 (1) LCD 279 wherein it was held that as a consequence of issuance of notification under Section 4-A(1) of the Act, all the pending proceedings shall abate under Section 5(2) of the Act. It was further held that the pending proceedings started under the provisions of the U.P. Consolidation of Holdings Act prior to the amendment shall abate on the notification issued under Section 4-A of the Act. The question of title in respect of the land in suit can be raised and decided on a fresh objection filed under Section 9-A(2) of the amended Act. In view of the provisions contained in Section 4-A(2) of the Act. Thus, in view of the aforesaid decision. The question of title in respect of the land in suit can be raised and decided on a fresh objection filed under Section 9-A(2) of the amended Act. In view of the provisions contained in Section 4-A(2) of the Act. Thus, in view of the aforesaid decision. I find that the learned Deputy Director of Consolidation acted illegally and without jurisdiction in deciding the revision on merits and in not ordering the proceedings in the said case to abate under Section 5(2) (a) of the Act. The impugned order dated November 4, 1980 (Annexure No. 2) and order dated January 13, 1981 (Annexure No. 3) passed by the Deputy Director of Consolidation are, thus, quashed and the proceedings in the case are directed to abate under Section 5(2)(a) of the Act. The parties will, however, get the title determined in respect of the land in dispute in fresh objections under Section 9-A(2) of the Act and the Consolidation authorities will decide their objection regarding land in dispute after giving them full opportunity to lead their evidence in support of their respective claims not influenced by the decisions recorded in the abated proceedings. 3. In the result, the writ petition succeeds and is hereby allowed. No order as to costs.