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2009 DIGILAW 685 (ALL)

YUSUF v. D D C MUZAFFAR NAGAR

2009-03-02

VIKRAM NATH

body2009
VIKRAM NATH, J. Heard learned Counsel for the petitioners, Sri Prakash Chand Advocate, representing respondent Nos. 5 to 9 and the learned Standing Coun sel representing respondent Nos. 1 to 4. 2. With the consent of parties this petition is disposed of at the admission stage itself. 3. It is admitted that petitioners and the respondent Nos. 5 to 9 belong to the same family. In the partition proceedings, the Consolidation Officer vide order dated 17. 2. 1987 determined that all the petitioners and the respondent Nos. 5 to 9 will have equal 1/9 share each in the property in dispute. The order dated 17. 2. 1987 is ad mitted to the respondents also with regard to the determination of shares. This order has become final. 4. In the allotment proceedings cer tain objections were filed and the petition ers claimed that they may be allotted chaks, according to their shares, in the land in dispute. The Consolidation Officer did not accept the contention of the petitioners. Subsequently appeal was filed which was also dismissed and lastly before the revisional Court also the petitioners failed and the revision was dismissed by the Deputy Director of Consolidation vide order dated 20th November, 1992. From a perusal of the order of the Deputy Director of Consolida tion, it appears that the petitioners had claimed that they may be allotted chaks according to their shares in the Khatas situate near Delhi Gate. The Deputy Direc tor has rejected the claim of the petitioner on the ground that the petitioners have al ready been allotted chaks over a major portion of their original holdings and now if any alteration is made the other chak holders would be adversely affected. 5. The submission of learned Coun sel for the petitioners is that the Khata situate near Delhi Gate had special value on account of its location. Petitioners hav ing denied a chak near Delhi Gate have been deprived of such potential valuable land, over which also they had equal share along with private respondents. 6. On the other hand learned Coun sel for the respondents has submitted that the petitioners had not made any such claim with regard to allotment in the Khata near Delhi Gate upto the stage of Settle ment Officer, Consolidation and therefore, their claim, for the first time, before Deputy Director was misplaced and the revision was rightly dismissed. 6. On the other hand learned Coun sel for the respondents has submitted that the petitioners had not made any such claim with regard to allotment in the Khata near Delhi Gate upto the stage of Settle ment Officer, Consolidation and therefore, their claim, for the first time, before Deputy Director was misplaced and the revision was rightly dismissed. It has also been submitted by the Counsel for the respon dents that the petitioners have no share in the Khatas situate near Delhi gate. Such averments have been made in the supple mentary rejoinder affidavit. 7. Considering the arguments made at the Bar, this Court is of the view that once the order of determination of shares passed by the Consolidation Officer on 17th February, 1987 is not denied and had be come final the shares of the petitioners and the respondents in all the Khatas would be deemed to be equal and 1/9 each. It is also mentioned in the order dated 17. 2. 1987 that between the parties there is no family set tlement which may exclude any, of the share holders from any specific Khata. Thus, it is also evident that all the share holders will have equal shares in all the Khatas. The petitioners, therefore, will also be deemed to have a share in the Khata situate near the Delhi gate. The respon dents have not denied that there is no Khata near Delhi Gate. Once there is a Khata near Delhi Gate having land of special value on account of its potential it would be equitable and fair that all the share holders are allotted, if possible equal area or any equivalent portion at least in the khata comprising land having special value. It would be unfair and unreasonable if some of the share holders are denied chaks in the Khata comprising of land having special value. 8. With regard to the submission of learned Counsel for the respondents that the petitioners had not made any specific claim with regard to the allotment of chak at the Delhi Gate, it would be worth men tioning that the petitioners had been claiming their shares as per the order dated 17. 2. 8. With regard to the submission of learned Counsel for the respondents that the petitioners had not made any specific claim with regard to the allotment of chak at the Delhi Gate, it would be worth men tioning that the petitioners had been claiming their shares as per the order dated 17. 2. 1987 which admittedly gave them equal shares in all the khatas and therefore, the claim of the petitioners even if not spe cific would be deemed to be in respect of Khata comprising the land situate near Delhi Gate also. 9. In view of the discussion made above, the order of Deputy Director of Consolidation which does not record any specific finding on the point discussed above, the order stands vitiated and cannot be sustained. It is, accordingly quashed. The matter is remitted back to the Deputy Director of Consolidation for fresh decision on merits taking into consideration the ob servations made above. 10. Petition allowed as above. Petition Allowed. .