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2013 DIGILAW 2988 (ALL)

Chaturbhuj Tiwari v. D. D. C.

2013-12-10

RAM SURAT RAM (MAURYA)

body2013
JUDGMENT Ram Surat Ram (Maurya),J. Heard Sri Sahab Tiwari for the petitioner and Sri Pradeep Kumar Rai for the contesting respondent. 2. The writ petition has been filed against the order of Deputy Director of Consolidation dated 11.02.2013, arising out of proceedings under Section 9-C of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 3. The dispute between the parties was in respect of their shares in the land of khatas 280 and 281 of village Surhurpur, tahsil Mohammadabad Gohna, district Mau. Assistant Consolidation Officer, by order dated 25.03.1998, determined the shares of three brothers namely Ram Sumer (now represented by respondent-4) as 1/3, Ram Swaroop (now died issue less) as 1/3 and Chaturbhuj (the petitioner) as 1/3, in the khatas in dispute, excluding the plots which were chak out. Mahendra Kumar (respondent-4) filed an appeal from the aforesaid order, on 10.12.2008, in which, he has claimed that plot no. 295/2 which was chak out, be allotted exclusively in his share. It may be mentioned that Chaturbhuj was residing out side the village and on coming to know about the consolidation proceedings, he filed an objection under Section 9 of the Act, stating that his share in plots which were chak out was 1/2. In respect of the land of khata 281, it has been stated that as Ram Sumer had executed a sale deed of the land from his share, as such, in this khata, the share of Chaturbhuj was 0.805 hectare and share of Mahendra Kumar was 0.268 hectare (excluding the land sold by Ram Sumer). The appeal was heard by Settlement Officer, Consolidation with out any notice to the petitioner. Settlement Officer, Consolidation by order dated 23.04.2010, held that as respondent-4 had prayed for kurra-wise partition of the plots which were chak out, as such, there was a dispute in respect of the partition of the land between the parties and the dispute was required to be decided by the Consolidation Officer, after taking evidence of the parties. As such, he set aside the order of Assistant Consolidation Officer dated 25.03.1998 and remanded the matter to the Consolidation Officer for fresh decision, in respect of the share of the parties, after giving opportunity of evidence. Mahendra Kumar filed a revision (registered as Revision no. As such, he set aside the order of Assistant Consolidation Officer dated 25.03.1998 and remanded the matter to the Consolidation Officer for fresh decision, in respect of the share of the parties, after giving opportunity of evidence. Mahendra Kumar filed a revision (registered as Revision no. 570/2012-13) from the aforesaid order, which was heard by Deputy Director of Consolidation, who by order dated 11.02.2013 allowed the revision and set aside the order of Settlement Officer Consolidation dated 23.04.2010, so far as it had set aside the order of Assistant Consolidation Officer. On the one hand he has reinstated the order of Assistant Consolidation Officer but at the same time upheld the order, so far as, the matter was remanded to Consolidation Officer. Hence, this writ petition has been filed. 4. The counsel for the petitioner submits that Ram Sumer has already executed a sale deed of the land of his share in khata 281, as such, his claim regarding 1/3 share in this khata, was illegal. He further submits that on the one hand Mahendra Kumar is claiming 1/3 share in the entire khata, but at the same time, he was claiming exclusive right over plot 295/2. As such, the dispute between the parties was in respect of the share in the land in dispute and the objection filed by the petitioner was pending before the Consolidation Officer. Settlement Officer Consolidation has rightly set aside the order of Assistant Consolidation Officer and remanded the matter to Consolidation Officer for deciding the dispute relating to the share of the parties on merit after taking evidence, but Deputy Director of Consolidation has illegally reinstated the order of Assistant Consolidation Officer. The order of Deputy Director of Consolidation is illegal and is liable to be set aside. 5. In reply to the aforesaid arguments, the counsel for the respondent submits that the petitioner has not challenged the order of Assistant Consolidation Officer dated 25.03.1998, determining the share of the parties in the two khatas. Mahendra Kumar filed an appeal in respect of plot 295/2, which was chak out. Settlement Officer Consolidation has illegally set aside the order of Assistant Consolidation Officer dated 25.03.1998, in so far as it was in respect of the lands which were within consolidation area, although, there had been no appeal in this respect. Mahendra Kumar filed an appeal in respect of plot 295/2, which was chak out. Settlement Officer Consolidation has illegally set aside the order of Assistant Consolidation Officer dated 25.03.1998, in so far as it was in respect of the lands which were within consolidation area, although, there had been no appeal in this respect. In such circumstances, Deputy Director of Consolidation has rightly allowed the revision of the petitioner and reinstated the order of Assistant Consolidation Officer dated 25.03.1998. So far as the objection of the petitioner, in respect of the share in the land in dispute is concerned, it is pending before Consolidation Officer and has to be decided after taking evidence of the parties. He submits that in the meantime, the other brother Ram Sumer also died issue less, as such, in CH Form 11, the shares of the parties have been determined as 1/2 each and the chaks were carved out according to the corrected entry of CH Form 11. The order of respondents-1 does not cause any prejudice to the petitioner and no interference is required by this Court. 6. I have considered the arguments of counsel for the parties and examined the record. Under Section 9-A(1) of the Act, Assistant Consolidation Officer is competent to settle the dispute for correction of mistake and effect partition on the basis of conciliation. Admittedly, the petitioner was not before Assistant Consolidation Officer at the time of passing the order dated 25.03.1998, as such, order of Assistant Consolidation Officer dated 25.03.1998 determining the share of the parties is illegal. He was not competent to decide the dispute in the absence of there being any conciliation between the parties. In such circumstances, Settlement Officer Consolidation has not committed any illegality in setting aside the order of Assistant Consolidation Officer dated 25.03.1998 as the appeal was filed against the order dated 25.03.1998. 7. The reasons given by Deputy Director of Consolidation that in case the share is not determined, then the chaks will be joint is illegal. As soon as there was dispute relating to the share of the co-sharers, Assistant Consolidation Officer had no jurisdiction to determine the share. It is immaterial that the chaks of the parties will be carved out jointly. 8. As soon as there was dispute relating to the share of the co-sharers, Assistant Consolidation Officer had no jurisdiction to determine the share. It is immaterial that the chaks of the parties will be carved out jointly. 8. So far as the chak out lands are concerned, the consolidation authorities are competent to determine the share of the parties in respect of this area also and excluding the plots which were out of consolidation from determination of share, was illegal. 9. In this case, Assistant Consolidation Officer firstly by order dated 25.03.1998 determined the share even there being any conciliation before him. After the death of Ram Swaroop, he again corrected the entries in the revised record CH Form 11, allotting 1/2 share to the petitioner and respondent-4, against the provisions of Section 171 of U.P. Act No. 1 of 1951, as at the time of death of Ram Swaroop, Ram Sumer was not alive and his share was inherited by the petitioner alone, although dispute relating to the share of the parties was pending before Consolidation Officer. Settlement Officer Consolidation has rightly set aside the order of Assistant Consolidation Officer and remanded the matter to Consolidation Officer to decide the share of the parties, after taking evidence of the parties. 10. In case the order of Assistant Consolidation Officer is not set aside, then at the subsequent stage, it may cause difficulty as jurisdiction of the Consolidation Officer and Assistant Consolidation Officer are co-extensive. In the dispute was between same parties and in respect of same property if one order has been passed by Assistant Consolidation Officer, then Consolidation Officer will have no jurisdiction to decide the same matter, ignoring the order of Assistant Consolidation Officer. The order of Deputy Director of Consolidation reinstating the order of Assistant Consolidation Officer is illegal. 11. In the result, the writ petition succeeds and is allowed. The order of Deputy Director of Consolidation dated 11.02.2013 is set aside and the order of Settlement Officer, Consolidation dated 23.4.2010 is reinstated. The Consolidation Officer shall decide the dispute in compliance of order of Settlement Officer Consolidation dated 23.04.2010. Since the matter is pending for a long time, as such, Consolidation Officer shall decide the dispute expeditiously, after taking evidence of the parties, preferably within a period of six months from the date of producing a certified copy of this order.