Shiv Sharan v. Deputy Director of Consolidation, Unnaoand Another
2013-02-06
ARVIND KUMAR TRIPATHI II
body2013
DigiLaw.ai
Arvind Kumar Tripathi (II), J.— (1) Heard, Sri Anoop Srivastava, learned counsel for the petitioner as well as learned Additional Chief Standing Counsel. (2) This writ petition in the nature of certiorari has been filed by Shiv Sharan for quashing the order dated 26.9.2012 by which Deputy Director of Consolidation, Unnao has while deciding Revision No. 409 under Section 48 Consolidation of Holdings Act Village Vethar, Pargana- Harha, Tehsil/District-Unnao (Ram Nath Vs. Shiv Sharan) allowed the revision and remanded back, the case to Consolidation Officer with a direction to decide the matter, after giving opportunity to both the parties to adduce evidence, according to law. (3) It has been argued that Consolidation Officer has earlier given opportunity of hearing to both the parties and both the parties have filed their oral and documentary evidence and thereafter Conslidation Officer has passed order on merit. Hence, the impugned remand order has been passed in routine manner as such, the same is illegal and not sustainable in the eye of law. (4) On factual matrix the dispute pertains to Khata No.402 situated as Village Vethar, Pargana- Harha, Tehsil/District-Unnao, it has been alleged that in "Adhar Varsh Khatauni, the name of Ram Raj Narain, Shambu Dayal, Pratap Narain, Ram Autar, Raj Kishore, Ram Krishna, Shiv Raj Bahadur, Gokran Prasad, Shanker Lal, Badlu and Ram Bharosey were recorded but the share of above persons were wrongly mentioned. An objection under Section 9 of U.P.C.H. Act has filed by one Shiv Kumar, who prayed that his name be recorded in place of aforesaid recorded persons. Another objection was filed by Shiv Sharan son of Badlu (petitioner) in which he has stated that Girdhari and Badlu are real brothers and petitioner is the son of son of Badlu while Girdhari, died issueless. It was averred that one Shiv Ram, son of Binda Prasad has executed a registered sale deed in favour of Girdhari and after death of Girdhari petitioner become absolute owner of the disputed land. The objection under Section 9 of U.P.C.H. Act has been dismissed in default earlier on 17.5.1989 and thereafter again dismissed in default on 6.11.1993. Shiv Saran (Petitioner) filed restoration application and the case was restored. Notices were issued to other share holders and notices were served but no body turned up and lastly, the case was proceeded ex-parte against them.
The objection under Section 9 of U.P.C.H. Act has been dismissed in default earlier on 17.5.1989 and thereafter again dismissed in default on 6.11.1993. Shiv Saran (Petitioner) filed restoration application and the case was restored. Notices were issued to other share holders and notices were served but no body turned up and lastly, the case was proceeded ex-parte against them. Consolidation Officer after considering the entire evidence available on record rejected the objection of Shiv Shanker and mutated the name of petitioner as Sankarmaniya Bhumidhar in revenue records. Shiv Shanker had filed objection before the Consolidation Officer, Antim Abhilekh, Unnao i.e. in respect of the same disputed land, in which he claimed the disputed property on the basis of sale deed. The objection was rejected by the Consolidation Officer Antim Abhilekh. The aggrieved person filed appeal against both the orders dated 13.7.2010 and 14.5.1997. This appeal was dismissed on 28.6.2011 and against the aforesaid order dated 28.6.2011 Ram Nath, son of Shiv Shanker by which a Revision under Section 48 of U.P.C. H. Act i.e. Revision No. 409 Deputy Director of Consolidation, Unnao. This revision was allowed by the impugned order and order dated 14.5.1997 and 13.7.2010 and order dated 28.6.2011 passed by Consolidation Officer and Settlement Officer Consolidation respectively were quashed and matter was remanded back before the Consolidation Officer for giving opportunity of hearing. Feeling aggrieved this writ petition has been filed. (5) It was submitted by learned counsel for the opposite party that admittedly the order passed by Consolidation Officer was ex parte and since Consolidation Courts can decide right and title also hence Deputy Director of Consolidation, Unnao has not committed any illegality in remanding the case so as to allow both the parties to adduce their evidence. (6) It was also argued that writ petition against remand order is not maintainable. (7) Hon'ble Apex Court has in the case of Mangal Prasad Tamoli(D) by LRs V. Narvedshwar Mishra(D) by LRs 2005(99)RD 177 has held that remand order is an interlocutory order which does not terminate the proceedings. It is open to the aggrieved parties to challenge the order of remand after the final judgment made on remand. Apex Court has relied upon the case of Satyadhyan Ghoshal and others V. Smt. Deo Rajain Devi and another (1960) 3 SCR 590 and Kshitish Chandra Bose Vs. Commissioner of Ranchi(1981)2 SCC 764.
It is open to the aggrieved parties to challenge the order of remand after the final judgment made on remand. Apex Court has relied upon the case of Satyadhyan Ghoshal and others V. Smt. Deo Rajain Devi and another (1960) 3 SCR 590 and Kshitish Chandra Bose Vs. Commissioner of Ranchi(1981)2 SCC 764. (8) In the case of Satyadhyan Ghoshal and others (supra) Apext Court has took the view that an order of remand was interlocutory judgment which did not terminate the proceedings and hence could be challenged in an appeal from the final order. (9) In the case of Kshitish Chandra Bose (supra) Apex Court has again reiterated the same view. (10) In the case of Gopal Prasad Vs. Board of Revenue at Lucknow 2007 (102) RD 310, this Court has held that Board of Revenue should not have interfered with the remand order passed by the Additional Commissioner. (11) In another case, Dularey and other V. Deputy Director of Consolidation and Others 2005(99) RD 174, this Court has held that : "This Court is of the view that if the appellate authority has remanded the matter to the Consolidation Officer for fresh consideration there was absolutely no justification either on the fact or in law for the revisional court to interfere in the order of the appellate authority" (12) From the above discussion and in the light of above decisions, the order of remand does not suffer from any illegality or irregularity. The matter is still wide open and it is for the parties to agitate the matter before the Consolidation Officer who will decide the lis after providing further opportunity to the parties to adduce the evidence. (13) Consequently the writ petition is dismissed. _____________