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2013 DIGILAW 2679 (ALL)

Kishan Pal Singh v. D. D. C,

2013-10-28

RAM SURAT RAM (MAURYA)

body2013
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri J.J. Munir, for the petitioners and Sri Kamleshwar Singh, for the respondents. 2. The writ petition has been filed against the order of Deputy Director of Consolidation (respondent-1) dated 18.10.2007, rejecting the recall application of the petitioners, filed for recalling the order dated 04.08.2004, passed in Revision No. 347 & 348 of 1988, filed in title proceedings, under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 3. The dispute relates to the land of basic consolidation year khatas 52, 69, 95-Aa and 95-Ba of village Raipur Banger, tahsil Dadri, district Gautam Budh Nagar, which were recorded in the names of Shibba son of Bhura, Kewal son of Sarwan, and the branch of Ram Sukh. Jhagru and Rati Ram (now represented by the petitioners and respondents-29 to 32) filed an objection claiming their 3/4 share in the land in dispute and for deleting the names of the branch of Ram Sukh, alleging that they were wrongly recorded over the land in dispute. The descendants of Ram Sukh claimed their 1/2 share in the land in dispute and have stated that Jhagru and Rati Ram were not the sons of Kewal and had no share in the disputed land. The matter was remanded by Deputy Director of Consolidation, by order dated 06.04.1988, for fresh decision on merit after giving opportunity of hearing to the parties. After remand, the Consolidation Officer, by order dated 11.03.1998 decided the objections. The branches of Shibba and Ram Sukh filed an appeal (registered as Appeal No. 58). One Ram Bhool, transferee of the land in dispute from Ram Karan also filed an appeal (registered as Appeal No. 357/62). Both the appeals were consolidated and heard by Settlement Officer Consolidation, Gautam Budh Nagar, who by his order dated 29.03.2003 allowed the appeals and held that Rati Ram had 1/6 share and Jhagru had 3/16 share in the land in dispute. 4. Ram Kisan, son of Rati Ram and Jhagru filed two revisions (registered as Revision Nos. 347 and 348) from the aforesaid order. According to the petitioners, 28.07.2004 was the date fixed in the revisions. The hearing was adjourned on 28.07.2004 and 25.08.2004 was fixed for hearing. However, in the meantime a fabricated compromise was filed and on that basis, the revisions were decided on 04.08.2004. 347 and 348) from the aforesaid order. According to the petitioners, 28.07.2004 was the date fixed in the revisions. The hearing was adjourned on 28.07.2004 and 25.08.2004 was fixed for hearing. However, in the meantime a fabricated compromise was filed and on that basis, the revisions were decided on 04.08.2004. In this compromise, a fixed area has been given to the branches of Rati Ram and Jhagru. 5. Kishan Pal Singh filed an application dated 10.08.2004 for setting aside the compromise and order dated 04.08.2004 and decide the revisions on merits. The recall application was heard by Deputy Director of Consolidation, who by his order dated 18.10.2007, held that the compromise was signed by Kishan Pal and Phooli. The recall application is filed on behalf of Kishan Pal but it has not been signed by him. As the order has been passed on the basis of compromise as such recall application was not maintainable. On these findings, recall application has been rejected. 6. The counsel for petitioners submitted that before the revisional court, 25.08.2004 was the date fixed for hearing. However, in the meantime a fabricated compromise was filed on 02.08.2004. The compromise was not signed by Kishan Pal and Phooli. Their signatures were fabricated on it. The Court has not verified the compromise. The petitioners have specifically raised these points before the Court below but Court below has illegality rejected the recall application. The recall application was signed by the counsel for the petitioners and the affidavit of Kishan Pal was attached to this application but respondent-1 has rejected the application on the ground that it did not contain the signature of Kishan Pal. The validity of the compromise was challenged by the petitioners as such recall application was maintainable but respondent-1 has illegally held that as the order is based on compromise as such recall application was not maintainable. Order of respondent-1 is illegal and is liable to be set aside. 7. In reply to the aforesaid arguments, the counsel for the respondents submitted that the petitioners have not challenged the order of Deputy Director of Consolidation dated 04.08.2004 as such writ petition is liable to be dismissed as by setting aside the order dated 18.10.2007 no effective relief can be granted to the petitioners. He submitted that the revisions were filed by Ram Kishan son of Rati Ram and Jhagru. He submitted that the revisions were filed by Ram Kishan son of Rati Ram and Jhagru. The branch of Rati Ram also entered in to compromise and they have not challenged the compromise and the order of Deputy Director of Consolidation dated 04.08.2004, which was passed on the basis of compromise. The petitioners are the heirs of Jhagru. Phooli (petitioner-2) also did not challenge the compromise and order before respondent-1, but has been wrongly impleaded as petitioner-2 in the writ petition. Thus out of three revisionists, namely Ram Kishan, Kishan Pal and Phooli, only Kishan Pal has challenged the compromise. In such circumstances, the correctness of the compromise could not be doubted. The signature of the parties were duly identified by their counsel, before Deputy Director of Consolidation, who in the order dated 04.08.2004 recorded his satisfaction that the compromise was signed by all the parties, whose signatures have been identified by their counsel. Deputy Director of Consolidation, again in the order dated 18.10.2007 held that the compromise was signed by the parties. In such circumstances, the order of Deputy Director of Consolidation does not suffer from any illegality and the writ petition is liable to be dismissed. 8. I have considered the arguments of the counsel for the petitioners and examined the record. The counsel for the respondents raised preliminary objection that the petitioners have not challenged the order of Deputy Director of Consolidation dated 04.08.2004 as such writ petition is liable to be dismissed as by setting aside the order dated 18.10.2007 no effective relief can be granted to the petitioners. The counsel for the petitioners submitted that doctrine of merger would apply in the matter and the order dated 04.08.2004 would be treated as merged with the order dated 10.10.2007. Similar question came for consideration before Supreme Court in DSR Steel (P) Ltd. v. State of Rajasthan, (2012) 6 SCC 782 , in which it held that if the review application is dismissed, affirming the decree or order, in such a contingency there is no question of any merger and anyone aggrieved by the decree or order of the Tribunal or court shall have to challenge within the time stipulated by law, the original decree and not the order dismissing the review petition. Time taken by a party in diligently pursing the remedy by way of review may in appropriate cases be excluded from consideration while condoning the delay in the filing of the appeal, but such exclusion or condonation would not imply that there is a merger of the original decree with the order dismissing the review petition. Thus doctrine of merger will not apply. However, submission of the counsel for the respondents that as the petitioners have not challenged the order of Deputy Director of Consolidation dated 04.08.2004 as such no effective relief can be granted to the petitioners by setting aside the order dated 18.10.2007, is not liable to be accepted. If the order dated 18.10.2007 is set aside, the recall application of the petitioners will revive and be considered afresh. 9. I have examine the photostat copy of the compromise which is filed as Annexure-CA-4 to the Counter Affidavit of Veer Pal Singh. A perusal of the compromise shows that Kishan Pal and Phooli appears to have signed it. Ram Kishan and Jhagru were revisionists in the revision. Signature of Ram Kishan was identified by another counsel while signatures of Kishan Pal and Phooli were identified by the counsel for Veer Pal and others, who were respondents. Thus signatures of Kishan Pal and Phooli were not identified by their counsel. In such circumstances, the challenge made by the petitioners of their signatures on the compromise was genuine. 10. Rule 25-A of U.P. Consolidation of Holdings Rules, 1954 requires Assistant Consolidation Officer to record conciliation in his own writing and get it signed by the parties. By virtue of Section 44-A of the Act, same procedure can be exercised by Deputy Director of Consolidation. Order 23 Rule 3 C.P.C. requires the Court to record its satisfaction that the compromise was filed by the parties. Thus under both the provisions, Deputy Director of Consolidation was required to verify the compromise. But the compromise was not verified by Deputy Director of Consolidation, which appears to have been filed on 02.08.2004 and order on its basis has been passed on 04.08.2004. Thus Deputy Director of Consolidation has illegally failed to examine the validity of the compromise and rejected the recall application without application of mind to the points raised by the petitioners. 11. Thus Deputy Director of Consolidation has illegally failed to examine the validity of the compromise and rejected the recall application without application of mind to the points raised by the petitioners. 11. So far as the findings that the recall application was not been signed by Kishan Pal is concerned, the recall application was signed by the counsel and the affidavit of Kishan Pal was attached with it. Therefore this objection could not be raised that the application was not signed by Kishan Pal. Other reason given by respondent-1 that as the order has been passed on the basis of compromise as such recall application was not maintainable is also not correct as factum of filing of the compromise was challenged. Thus the impugned order suffers from illegalities and is liable to be set aside. 12. In view of the aforesaid discussion, the writ petition succeeds and is allowed. The order of Deputy Director of Consolidation (respondent-1) dated 18.10.2007, rejecting the recall application of the petitioners is set aside. The matter is remanded to Deputy Director of Consolidation (respondent-1) to decide the recall application of the petitioners afresh in accordance with law as well as the observations made above.