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2010 DIGILAW 1464 (ALL)

Ram Subhash v. D. D. C. , Basti and others

2010-05-04

POONAM SRIVASTAV

body2010
Poonam Srivastav, J.: - Heard Sri Anand Kumar Srivastava, learned counsel for the petitioner and Sri S. K. Pandey, learned counsel for the respondents. 2. Counter and rejoinder-affidavits have been exchanged between the parties. The writ petition is listed for admission and the case is being decided at this stage itself. 3. The dispute relates to Khata No. 74 of village Ajandeeh tappa Sikandarpur, pargana Amorha, tehsil Harrya, district- Basti that during consolidation proceedings Brij Raj, father of the petitioner filed objections under Section 9A (2) of U. P.C.H. Act (hereinafter referred 'to Act') before the Assistant Consolidation Officer in respect of the disputed Khata for expunging the name of the respondent Sheetla Prasad and Ram Pher and the name of the respondent be entered. The objections were rejected by the Consolidation Officer vide order dated 5.2.1982, which is Annexure-2 to the writ petition. The petitioner preferred an appeal against the aforesaid order, which was numbered as Appeal No. 406/83-84. There were as many as 16 respondents arrayed in the ground of appeal. Father of the contesting respondent Nos. 3 and 4 Sheetla Prasad and Ram Pher, husband of respondent No. 5 Surya Kali were arrayed as opposite party Nos. 1 and 2. Soon after the institution of the appeal, the names of respondent Nos. 3 to 16 were scrapped off and a compromise, allegedly entered into between the petitioner on one hand and Sheetla Prasad and Ram Pher was filed during the pendency of the appeal. The said compromise dated 8.8.1984 is Annexure-3 to the writ petition. The appeal before the S.O.C. was decided in terms of the compromise vide order dated 3.1.1985. 4. The claim of the contesting respondent is that the aforesaid compromise was a forged compromise. An application for recalling the order of the Settlement Officer of Consolidation in terms of the alleged forged compromise was filed on 8.10.1992. The respondents claim that the order of Settlement Officer, Consolidation on the basis of the compromise is an ex parte order, which came to his knowledge very late in the year 1992. An application to recall the order in terms of compromise was filed with a prayer to condone the delay, by means of an application under Section 5 of Limitation Act. This application was supported by an affidavit. The said application was allowed vide order dated 4.5.1994 on a cost of Rs. An application to recall the order in terms of compromise was filed with a prayer to condone the delay, by means of an application under Section 5 of Limitation Act. This application was supported by an affidavit. The said application was allowed vide order dated 4.5.1994 on a cost of Rs. 100 imposed on the respondent No. 2. Aggrieved by the said order, a revision was filed by the petitioner which was dismissed on the ground that revision was preferred against an interlocutary order. The question as to whether the compromise was forged or not is yet to be decided. 5. The assertion of the learned counsel on behalf of the petitioner is that the compromise before the S.O.C. was signed by an advocate and therefore the respondents cannot disown the said compromise and their claim is liable to be rejected. 6. I have heard the respective counsels and gone through the record. Petitioner does not dispute that the appeal was preferred before the S.O.C. and there were 16 respondents arrayed in the ground of appeal but subsequently before the compromise was filed, names of 15 respondents were scored of. The compromise entered into with one of the respondent and the manner in which the compromise was filed renders the compromise suspicious. The order of S.O.C. cannot be said to be illegal in condoning the delay and a reconsideration of the appeal as well as the disputed compromise after affording opportunity of hearing to the parties. The explanation given by the learned counsel that 15 respondents were wrongly arrayed as party and therefore their names were scrapped off is a flimsy explanation and cannot be accepted merely on the statement of the petitioner. The contesting heirs of respondent Sheetla Prasad and Ram Pher have unequivocally stated that they had no knowledge about the compromise and they came to know about it at a subsequent stage when they obtained a copy of khatauni from Lekhpal, thereafter started making enquiry about the appeal. They came to know about the compromise only on 7.10.1992 that a compromise was filed in appeal on 8.8.1984. 7. In the facts and circumstances of the case, I am of the considered view that the respondents admitted that the compromise was on record of appeal but they had not signed the said compromise. Besides, the order of the S.O.C. was an ex parte order. 7. In the facts and circumstances of the case, I am of the considered view that the respondents admitted that the compromise was on record of appeal but they had not signed the said compromise. Besides, the order of the S.O.C. was an ex parte order. I am of the view that it is always open for the Court to condone the delay in moving a recall order. It is a question of discretion and it cannot be evaluated at this stage under Article 226 of the Constitution of India. So far Deputy Director of Consolidation is concerned, he has correctly rejected the revision against an interlocutory order. D.D.C. has not examined the factual aspect of the matter as it has not yet been decided by the S.O.C. at the stage under Section 11 of U. P.C.H. Act. The D.D.C. has rightly refused to entertain the revision. Accordingly, the writ petition lacks merits, impugned order does not suffer from any illegality whatsoever, the petition is therefore dismissed. 8. The matter is remanded to the Settlement Officer, Consolidation to proceed with the hearing of the appeal on merits and decide expeditiously preferably within a period of four months from the date a certified copy of this order is produced before him. The interim order stands discharged.