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2013 DIGILAW 2678 (ALL)

Kamla v. State of U. P.

2013-10-28

RAM SURAT RAM (MAURYA)

body2013
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri R. N. Yadav for the petitioner and Sri Chandra Sen Pal for the respondents-4 and 5 and Sri Manoj Kumar Yadav for respondent-14. 2. The writ petition has been filed against the order of Consolidation Officer dated 21.2.2011 by which the preliminary issues raised by the petitioners regarding res-judicata and the second proceeding was barred under Section 49 of UP Consolidation of Holdings Act etc were decided in favour of the contesting respondents and the order of Deputy Director of Consolidation dated 6.8.2013 dismissing the revision of the petitioners against the aforesaid order. 3. The dispute relates to land of plot no. 68 and 111 of Village Narendrapur Post Dharmapur, Pargana Haveli, Tehsil Sadar Distt. Jaunpur. In basic consolidation year plot no. 68 was recorded in the names of Banshu, Ram Raj, Kamla sons of Sukkhu (now represented by petitioners) and Raj Nath and Raj Kumari (now represented by respondents- 10 and 13) and plot no. 111 was recorded in the name of Raj Dei W/o Shiv Das and Banshu and others. One objection has been filed by Pawan Kumar and Arun Kumar, respondents- 4 and 5 for deleting the names of Banshu and others and for recording their names over the land in dispute on the basis of Will executed by Sitabi Devi in their favour. The Consolidation Officer framed as many as twelve issues in the aforesaid case. On the application of the petitioners, Issue Nos. 7 to 12 were decided as preliminary issues. The Consolidation Officer by order dated 21.2.2011 held that amaldaramad dated 31.5.1960 by which names of the petitioners were recorded over the land in dispute has been challenged by respondents- 4 and 5 and these amaldaramad appears to be fabricated entry in the original khatauni. The petitioners have not filed any document to show that CH Form 11, 23, 41, 45 and 48 were prepared in their names in previous consolidation proceeding, as such, the present proceeding are neither barred on the principle of res-judicata nor barred under Section 49 of UP Consolidation of Holdings Act. So far as, issues relating to the objection being time barred and barred under Section 115 of Evidence Act- 1872 and not maintainable as well as the Consolidation Court has no jurisdiction, all these issues have been decided against the petitioners. So far as, issues relating to the objection being time barred and barred under Section 115 of Evidence Act- 1872 and not maintainable as well as the Consolidation Court has no jurisdiction, all these issues have been decided against the petitioners. The petitioners filed a revision (registered as Revision No. 2737 of 2011-12) against the aforesaid order which has been dismissed by order dated 6.8.2013. 4. The counsel for the petitioners submits that the petitioners have raised various grounds in the memorandum of revision. Deputy Director of Consolidation has neither considered any of the grounds nor recorded any finding in respect of the various grounds raised by the petitioners and revision has been dismissed without application of mind to the grounds raised by the petitioners. He further submits that issue as to whether the land in dispute was jointly acquired by Banshu and Mathura through patta dated 30.7.1938, has been finally decided by order dated 18.1.1963 passed by Deputy Director of Consolidation in Second Appeal No. 537/1962-63 between the parties and this order operates as res-judicata against Sitabi Devi. The present proceeding is second consolidation proceeding as such the present proceeding is also barred under Section 49 of UPCH Act. He further submits that the certified copy of order of Deputy Director of Consolidation dated 18.1.1963 has been filed by the petitioners in Civil Suit No. 176 of 1978 which was filed by the petitioners against Sitabi Devi in respect of the house of the parties and it has been referred in the judgment of IVth Additional Civil Judge, Jaunpur dated 21.8.1986 and the suit filed by the petitioners was decreed. The appeal i.e. Civil Appeal No. 170 of 1986 filed against it, was dismissed by the VIth Additional District Judge by judgment dated 3.9.1988 and Second Appeal No. 1630 of 1998 has been filed but neither it has been admitted so far nor any interim order has been granted in it. He submits that certified copy of the judgment of Deputy Director of Consolidation is on record. In view of the admission of Sitabi, the subsequent proceeding is barred by principle of estoppel as well as subsequent proceeding raising the same issue are not maintainable. The orders of Consolidation Officer as well as Deputy Director of Consolidation are illegal and liable to be set aside. In view of the admission of Sitabi, the subsequent proceeding is barred by principle of estoppel as well as subsequent proceeding raising the same issue are not maintainable. The orders of Consolidation Officer as well as Deputy Director of Consolidation are illegal and liable to be set aside. The counsel for the petitioners relies upon the judgment of Supreme Court in Gulam Abbas Vs Haji Kayyam Ali 1972 Law Suit (SC) 434 in which is has been held that the admission of predecessor in the interest is binding upon the successor, Bhanu Kumar Jain Vs Archana Kumar, 2004 Law Suit (SC) 1528 in which it has been held that order passed between the parties in earlier proceeding operates as res-judicata, he relies upon the judgment of this Court in Raj Nath Pandey Vs Jwala Prasad 2008, Vol-4, AWC 3666 in which it has been held that the findings recorded in consolidation proceeding cannot be declared as illegal and invalid by Civil Court and Ashok Kumar Vs Deputy Director of Consolidation 2009 (107) RD, 759 in which it has been held that order passed in earlier consolidation proceedings are res-judicata in subsequent consolidation proceeding and operates as bar under Section 1- A and 49 of UPCH Act and the judgment of Supreme Court in Shehammal Vs Hasan Khani Rawther and Others, AIR 2011, SC 3609 in which it has been held that family arrangement made in previous proceeding operates as estoppel against the parties in subsequent proceeding. 5. I have considered the arguments for the counsel for the parties and examined the records. Admittedly, neither the certified copy of the order dated 18.1.1963 nor the papers prepared during first consolidation proceedings i.e. CH Form- 11, 23, 41, 45 and 48 were filed before the Consolidation Officer. It is also apparent from the memorandum of revision in which the petitioners have merely stated that in view of the admission in the objection, the documents are not required to be filed. On the other hand the case of the contesting respondents that in previous consolidation proceeding, name of Sitabi alone was recorded and it was continued through out her life and the papers relating to the earlier consolidation proceedings are forged and fabricated papers. 6. On the other hand the case of the contesting respondents that in previous consolidation proceeding, name of Sitabi alone was recorded and it was continued through out her life and the papers relating to the earlier consolidation proceedings are forged and fabricated papers. 6. Section 44 of the Evidence Act provides that any party to suit or other proceeding may show that any judgment, order or decree which is relevant under Section 40, 41 or 42 was delivered by the Court not competent to deliver it or was obtained by fraud or collusion. In view of the provisions contained under Section 44 of the Evidence Act, even the validity of judgment of consolidation authorities in previous proceedings can be examined on the grounds provided under this Section. Supreme Court in Asharfi Lal Vs. Smt Koili, AIR 1995 SC 1440 and Jai Narain Parasrampuria Vs. Pushpa Devi Saraf (2006) 7 SCC 756 held that bar under Section 11 C.P.C. And Section 49 of UPCH Act will not be attracted in case judgment is previous proceeding was obtained by fraud. Since these papers were not produced in the record of Consolidation Officer, accordingly, Consolidation Officer has not committed any illegality in holding that the bar of res-judicata as well as bar contained under Section 49 of UPCH Act are not applicable. Similarly, the principle of estoppel is also not applicable. The petitioners could not show that the objection was time barred. Deputy Director of Consolidation has not committed any illegality in dismissing the revision. 7. However, as the objection is still pending before the Consolidation Officer and it has to be decided on merit. It shall be open to the parties to adduce their evidence in this respect and convince the Consolidation Officer as to whether any proceedings have been taken by them in previous consolidation proceeding or not. In case the relevant evidence are brought on record it shall be open for the Consolidation Officer to deal them in accordance with law. The petitioners are given liberty to challenge the findings on Issues Nos. 7 to 12 also in the appeal if they have to file any appeal against the final order passed by the Consolidation Officer. 8. With the aforesaid observations, the writ petition is disposed of.