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2011 DIGILAW 1362 (ALL)

Ramraj v. D. D. C. , Ballia and Others

2011-05-26

A.P.SAHI

body2011
Amreshwar Pratap Sahi,J.- 1. Heard learned counsel for the petitioner and Sri Sengar for Respondent No.3. 2. In view of the submissions raised and further that the respondent No.3 does not propose to file any counter-affidavit at this stage and that the respondent No.4 happens to be the brother of Respondent No.3 and is claiming rights only through the Respondent No.3, it is not necessary to issue any notice at this stage to the said respondent. Accordingly, the matter is being disposed of finally at this stage without awaiting any further Affidavits on the basis of the record available and the submission so raised. 3. The dispute relates to the holding of Late Kapil Deo. The respondent No.3 - Gangia claiming herslef to be the widow of Late Kapil Deo moved an application for mutation which was allowed on 17.1.1991. The petitioner claims himself to be the son of Kapil Deo from his first wife Rajeshwari and who was living away from home in connection with his profession. Upon return, he moved an application on 11.12.2001 for getting his name recorded over the holding of Kapil Deo. In the said proceedings, it is alleged that a compromise took place between the petitioner and the respondent No.3 on 1.10.2002 as a result whereof an order came to be passed in that regard. The petitioner, accordingly, got his name recorded in place of Late Kapil Deo. 4. The respondent No.3 appears to have straightway filed an Appeal against the said order alleging that she had neither engaged any counsel nor had entered into the compromise as alleged and, therefore, the order deserves to be set aside. The Settlement Officer Consolidation allowed the Appeal and the revision preferred by the petitioner against the same has also met the same fate. Hence this writ petition. 5. Learned counsel contends that without setting aside the factum of the compromise and without there being any application for setting aside the same before the Consolidation Officer, the Settlement Officer Consolidation exceeded in his jurisdiction in allowing the Appeal and the same error has been committed by the Deputy Director of Consolidation in affirming the same. The contention, therefore, is that so long as the compromise is not set aside in accordance with law, there was no occasion for the matter to have been directed to be decided on merits. 6. The contention, therefore, is that so long as the compromise is not set aside in accordance with law, there was no occasion for the matter to have been directed to be decided on merits. 6. Learned counsel for Respondent No.3 contends that there was overwhelming evidence to indicate that the compromise was fraudulent and that even otherwise the Settlement Officer Consolidation has discussed in his findings in detail that there was no occasion for any such compromise, and that the Respondent No.3 has been non-suited without there being a fair trial on the issue. 7. Having heard learned counsel for the parties and in view of the submissions raised, the basic issue relates to the factum of compromise dated 1.10.2002. Learned counsel for the petitioner is correct in his submission that the factum of compromise has to be agitated before the Court concerned and he has rightly relied upon the principles of Rule 3 of Order 23 of the Civil Procedure Code as amended up to date to contend that the proceedings should emanate in the same Court where the compromise is alleged to have been entered into if any of the parties choose to challenge the same. In the opinion of the Court, the Settlement Officer Consolidation ought to have remitted the matter primarily for the decision on the issue relating to the genuineness of the compromise itself before having proceeded to direct the Consolidation Officer to decide the claim on merits if he had any doubt about the genuineness of the compromise. The Settlement Officer Consolidation has, therefore, committed an error to that extent by sidetracking the issue of genuineness of the compromise and directing the parties to contest the claim on merits. 8. Accordingly, the writ petition deserves to be partly allowed to the aforesaid extent. The order of the Settlement Officer Consolidation and the Deputy Director of Consolidation are, therefore, set aside with a direction to the Consolidation Officer to proceed to examine the genuineness of the compromise dated 1.10.2002 and allow the parties to lead evidence on that score before proceeding to decide the claim on merit. If the Consolidation Officer arrives at a conclusion that the compromise is doubtful or not genuine then in that event he shall allow the parties to lead evidence and then proceed to decide the claim on merits. 9. Accordingly, the writ petition is allowed. If the Consolidation Officer arrives at a conclusion that the compromise is doubtful or not genuine then in that event he shall allow the parties to lead evidence and then proceed to decide the claim on merits. 9. Accordingly, the writ petition is allowed. The Consolidation Officer shall proceed to decide the claim and endeavour to conclude it preferably within 6 months from today.