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2013 DIGILAW 2905 (ALL)

Devendra Singh v. Dy. Director of Consolidation

2013-11-28

RAM SURAT RAM (MAURYA)

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JUDGMENT Ram Surat Ram (Maurya),J. Heard Sri R. C. Singh, for the petitioners and Sri R. K. Pandey, for the respondent-3. 2. The writ petition has been filed against the orders of Settlement Officer Consolidation (respondent-2) dated 13.08.2012 and Deputy Director of Consolidation (respondent-1) dated 13.09.2013, passed in proceeding under Section 12 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 3. The dispute between the parties relates to plot no. 45 (area (0.104 hectare), 46 (area 0.855 hectare) and 47 (area 0.036 hectare) of village Koilahapatti, pargana Jamaur, district Shahjahanpur, which were recorded in the name of Ahmad Ali Khan (respondent-3), during consolidation proceeding. The petitioners filed an application (registered as Case No. 22) under Section 12 of the Act, for mutating their names on the basis of a sale deed, allegedly executed by Ahmad Ali Khan in favour of Angad Singh (predecessors of the petitioners). It is alleged that Assistant Consolidation Officer, by order dated 26.12.1997, allowed the application and directed for mutation of the names of the petitioners over the land in dispute. 4. Ahmad Ali Khan filed an appeal (registered as Appeal No. 43/114), from the order dated 26.12.1997, on 10.06.2011. In the memorandum of the appeal, it has been stated that he had never executed any sale deed in favour of Angad Singh. He did never receive any notice from the Assistant Consolidation Officer, nor entered into compromise before him. Entire proceedings before Assistant Consolidation Officer are fabricated, behind his back. It has also been stated that Angad Singh had been his reliable man, who had been cultivating the land on 'batai' and after his death the petitioners had been cultivating the land on 'batai'. Neither Angad Singh nor after his death the petitioners had been in exclusive possession over the land in dispute. The appeal was heard by Settlement Officer Consolidation (respondent-2), who by dated 13.08.2012 held that the record of Assistant Consolidation Officer, in which order dated 26.12.1997 was allegedly passed was not available, which shows that on the basis of fabricated order dated 26.12.1997, the names of the petitioners have been mutated. On these findings, the appeal was allowed and the alleged order of Assistant Consolidation Officer dated 26.12.1997 was set aside. The matter was remanded to Consolidation Officer for trail on merit and decide the application of the petitioners afresh. 5. On these findings, the appeal was allowed and the alleged order of Assistant Consolidation Officer dated 26.12.1997 was set aside. The matter was remanded to Consolidation Officer for trail on merit and decide the application of the petitioners afresh. 5. The petitioners filed a revision (registered as Revision No. 137) from the aforesaid order. The revision was heard by Deputy Director of Consolidation (respondent-1), who by order dated 13.09.2013, held that execution of the sale deed has been denied by respondent-3, Settlement Officer Consolidation, after examining the record found that order of Assistant Consolidation Officer was forged. On these findings the appeal was allowed and the matter was remanded to Consolidation Officer for trail on merit and decide the dispute after taking evidence of the parties. The revision is not maintainable. On these findings, the revision was dismissed. Hence this writ petition has been filed. 6. The counsel for the petitioners submits that the appeal was highly time barred. Respondent-3 did not file any application for condonation of delay nor give any explanation of inordinate delay. The notification under Section 52 of the Act took place in the year 2005, while the appeal was filed on 10.06.2011. In the memorandum of the appeal, respondent-3 admitted that the land in dispute was let out to Angad Singh on 'batai' as such in view of the provisions of Section 156 read with Section 164 and 166, the lease amounts to sale deed and the appeal was liable to be dismissed, in view of the admission of respondent-3 and no trail was required. The orders of Settlement Officer Consolidation and Deputy Director of Consolidation are illegal and liable to be set aside. 7. I have considered the arguments of the counsel for the parties. Settlement Officer Consolidation found that the alleged record of Assistant Consolidation Officer, in which order dated 26.12.1997 was passed was not available, which shows that order dated 26.12.1997, was fabricated. In view of the fact that the petitioners secured mutation of their names on the basis of forged order, without any notice to respondent-3, there was neither any delay nor the appeal could be dismissed on this ground. 8. In view of the fact that the petitioners secured mutation of their names on the basis of forged order, without any notice to respondent-3, there was neither any delay nor the appeal could be dismissed on this ground. 8. So far as the admission of respondent-3 in the memorandum of the appeal that the land in dispute was let out to Angad Singh on 'batai' is concerned, earlier the petitioners took the case that respondent-3 had sold the land in dispute to Angad Singh, although no such sale deed is brought on record. In the absence of any title, it is proved that order of mutation could not have been passed by Assistant Consolidation Officer. The disputed question as to whether the land in dispute was let out to Angad is required to be tried on merit. During trial, respondent-3 will be able to explain his alleged admission in the memorandum of appeal. It is not appropriate for this Court to decide the disputed question of fact as trail of issue is still to be held in pursuance of order of Settlement Officer Consolidation. There is no illegality in the impugned order and no interference is required by this Court. The writ petition has no merit and is dismissed.