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Allahabad High Court · body

2005 DIGILAW 2041 (ALL)

Lakhraj, Kamlakant v. Deputy Director of Consolidation, Assistant Settlement Officer, Consolidation

2005-10-18

S.N.SRIVASTAVA

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S. N. SRIVASTAVA, J. ( 1 ) THIS writ petition is directed against the order dated 26. 9. 02 of Assistant Settlement Officer consolidation allowing the appeals, setting aside the order dated 30. 6. 92 and 5. 2. 93 of consolidation Officer and remanding the matter to the Consolidation Officer to decide it in accordance with law on merits after giving opportunity of hearing Jo the parties and a revisional order dismissing revision. ( 2 ) LEARNED counsel for petitioner urged that in the present case order of Asstt. Settlement Officer consolidation is a final order by which the question of compromise entered into between the parties was finally decided and as such it is not a simple remand to decide the matter afresh in accordance with law and cannot be said to be an interlocutory order. Impugned order of Deputy director of Consolidation is liable to be set aside and matter may be referred back to Deputy director of Consolidation, Gorakhpur to decide on merit. ( 3 ) SRI A. K. Tripathi, learned counsel was heard in opposition. He urged that in view of the finding of Assistant Settlement Officer Consolidation that fraud was committed by petitioner in getting order passed on the compromise by which all the rights of the respondent were derecognised. He further urged that Deputy Director of Consolidation and Assistant Settlement officer Consolidation rightly passed the orders in accordance with law. ( 4 ) AFTER hearing arguments of learned counsel for the parties and perusal of material on record, it transpires that dispute relates to land in dispute of Khata Nos. 19,20,233,234,251,252 and 139 situated in village Madhavnagar Tappa Banki, Tehsil Maharajganj, Pergana Haweli, District gorakhpur. In the basic year, petitioner and Ram Asrey son of Shiv Balak were recorded as co-tenure holders. No objection was filed by petitioner on publication of record under Section 9 of U. P. Consolidation of Holdings Act claiming any exclusive right on the land in dispute. The basic year entry was maintained. The Chaks were carved out in accordance with law and final records were prepared under Section 27 of U. P. Consolidation of Holdings Act. Order of assistant Settlement Officer Consolidation makes it clear that consolidation proceeding was over at every stage and matter was ready for notification under Section 52 of U. P. Consolidation of holdings Act, which was published on 23. 8. 86. Order of assistant Settlement Officer Consolidation makes it clear that consolidation proceeding was over at every stage and matter was ready for notification under Section 52 of U. P. Consolidation of holdings Act, which was published on 23. 8. 86. It transpires that in some objection allegedly filed under Section 9-A of U. P. Consolidation of Holdings Act on 20. 3. 86, a compromise was allegedly entered into between the parties on 30. 6. 92. No case no 3765 as claimed by the petitioner in the court of Consolidation Officer was allegedly registered. ( 5 ) FROM perusal of record, it is found that in objection allegedly filed by petitioner no prayer for condonation of delay in filing objection under Section 9-A of U. P. Consolidation of Holdings act was made. A compromise was allegedly entered into between the parties on 30. 6. 92 by which the ancestral land in khata Nos. 19,20,23,234,251,252 and 139 was allegedly given exclusively to petitioner expunging the name of Ram Asrey, real brother of petitioner, a co-tenure holder. No detail has been mentioned as to the property allegedly given to Ram Asrey son of Shiv Balak in any other village. Photostat copy of compromise filed by petitioner in writ petition makes it clear that name of Opposite Party Ram Asrey son of Shiv Balak in the so-called compromise, is not mentioned, but it mentions alleged signature of Ram Asrey Singh. This signature was also denied by Ram Asrey. ( 6 ) ADMITTEDLY no objection could be filed, as proceeding at the stage under Section 9a-2 of consolidation of Holdings Act became final and allotment proceedings arising out of U. P. Consolidation of Holdings Act also became final. Records were also finally prepared; Section 12 of U. P. Consolidation of Holdings Act proceedings also became final. Ah objection of exclusive possession and rights by petitioner after finalizing of proceeding at this stage was clearly barred by Section 11-A of U. P. C. H. Act. There is nothing on record to show that alleged objection of petitioner was entertained on merit and delay was condoned. ( 7 ) FINDINGS recorded by appellate court: to the effect that: it was a fraud of petitioner committed after more than 4 years after publication of notification under Section 52 of U. P. Consolidation of Holdings Act. There is nothing on record to show that alleged objection of petitioner was entertained on merit and delay was condoned. ( 7 ) FINDINGS recorded by appellate court: to the effect that: it was a fraud of petitioner committed after more than 4 years after publication of notification under Section 52 of U. P. Consolidation of Holdings Act. Basic year entry was maintained in final records prepared under Section 27 of the U. P. Consolidation of Holdings Act in which both the parties were recorded as co-tenure holders. The finding recorded by Asstt. Settlement Officer Consolidation that Ram Asrey never signed on any such compromise and this was the outcome of fraud committed by petitioner does not suffer from any error of law apparent on the face of record. I am of the view that order passed by Assistant Settlement Officer Consolidation was rightly passed by setting aside the alleged compromise as fraud vitiated every order. ( 8 ) IN view of the above glaring fact apparent on the record, I do not consider it a fit case for interference in writ petition. The question whether any writ petition lies against remand order in view of the fact of present case will be academic and laws relied upon by petitioner including rajbir and Ors. v. Dy. Director of Consolidation, Meerut and Ors.-1999 (90) RD 313, Preetam singh (Dead) by LRS and Ors. v. Assistant Director of Consolidation and Ors.-1996 RD 192, madhu Limaye v. State of Maharashtra- AIR1978 SC 47 , 1978 crilj165 , (1977)4 SCC551 , [1978 ]1 SCR749 , 1977 (9)UJ733 (SC), and Rajit Ram Singh and Ors. v. Mahadev Singh and Ors.-2002 (1) All. CJ 588 do not help him. ( 9 ) WITH the result writ petition fails and is dismissed with cost which I quantify as Rs. 1000/ (One Thousand) . .