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2014 DIGILAW 1211 (ALL)

Pashupati Pandey v. D. D. C.

2014-04-15

ANJANI KUMAR MISHRA

body2014
JUDGMENT Anjani Kumar Mishra,J. The petitioners seek a writ of certiorari quashing the order dated 15.4.1999 passed by the Deputy Director of Consolidation, Ballia in Revision No. 1766 copy whereof has been annexed as Annexure-7 to the writ petition. 2. By the order impugned the Deputy Director of Consolidation has set aside the order dated 8.4.1994 of the Assistant Consolidation Officer in Case No. 290 of 1994 and the appellate order dated 16.2.1994 passed by the Settlement Officer, Consolidation, affirming the compromise order of the Assistant Consolidation Officer. 3. The dispute in the writ petition is a dispute regarding shares of the parties who are all descendants of a common ancestor and their relationship is revealed by the undisputed pedigree given below: - Ram khelawan Sheo Balak Ganga Ram Singhasan Bhairav (Died in 1994) Murlidhar Pashupati (Petitioner) Ram Awadh (Petitioner) Nand Jee (Petitioner) Sarvasukh Paras Suryabhan Kritdeo Jai Shankar Hareram 4. Petitioner Nos. 1 and 2 are sons of Ganga while the petitioner No. 3 is grandson of Ganga. On the other hand the contesting respondents namely, Sarvsukh, Paras, Suryabhan, Kritdev, Jai Shanker and Hareram are sons of Ram Singhasan son of Ganga. 5 The case of the petitioners is that Sheo Balak son of Ram Khelawan died and were succeeded by his widow Mst. Chhabirajo who executed a (Hibba) gift-deed in favour of Sarva Sukh son of Ram Singhasan as a result whereof a dispute arose between the parties. Ganga, the grand father of Sarva Sukh as also his sons filed a suit being Suit No. 117 of 1957, for cancellation of the Hibba executed by Mst. Chhabirajo in favour of SarvaSukh. This suit was decreed in terms of a compromise dated 23.11.1957. This compromise, which is admitted between the parties, provided that half share of Sheo Balak inherited by his widow would go to Ram Singhasan and his six sons including SarvaSukh while the remaining half share of Sheo Balak would devolve upon the remaining four sons of Ganga. This compromise was given effect to in the revenue records and the entries continued as such till the start of the consolidation operations in the village. 6 After the start of consolidation operations, Bhairav one of the five sons of Ganga, died issueless on 19.12.1993. This compromise was given effect to in the revenue records and the entries continued as such till the start of the consolidation operations in the village. 6 After the start of consolidation operations, Bhairav one of the five sons of Ganga, died issueless on 19.12.1993. Subsequent to his death an objection under Section 12 of the U.P. Consolidation of Holdings Act was filed on 14.1.1994 giving rise to Case No. 290 of 1994. The Assistant Consolidation Officer on 8.2.1994, on the basis of a compromise, ordered that the name of Bhairav be expunged from chak nos. 105, 310, 404 and the names of Pashupati and Ram Awadh sons of Ganga and Nand Jee son of Murlidhar (the petitioners in this petition) be recorded thereon. 7 This compromise order was challenged by Ram Singhasan, father of the contesting respondents by means of an appeal filed on 16.2.1994 on the ground that the order of the A.C.O. had been passed without complying with the provisions of Rule 25-A of the U.P. Consolidation of Holdings Rules; the persons ordered to be recorded as heirs of Bhairav were not his heirs and in fact the appellant Ram Singhasan was his brother and therefore his heir. 8. The Settlement Officer Consolidation by his order dated 14.5.1997 dismissed the appeal with the finding that the compromise was duly signed by the parties thereto and also by two members of the Consolidation Committee and therefore the same was in accordance with law. It was further recorded that since the appellant had not preferred any objection, he was an unconcerned person, not a party to the proceedings and therefore not entitled to maintain the appeal itself. 9. Against the appellate order, a time barred revision no. 1766 of 1988 was filed on 13.1.1998. In the revision, the revisionists, the sons of Ram Singhasan (since deceased), claimed 1/3 share of Bhairav which would devolve upon Ram Singhasan. It was also alleged that the order passed by the Settlement Officer Consolidation, dismissing the appeal was an exparte order; the record of the proceedings before the appellate court were not available; a certified copy of the appellate order had been applied for and would be filed as soon as it was obtained. It was also alleged that the order passed by the Settlement Officer Consolidation, dismissing the appeal was an exparte order; the record of the proceedings before the appellate court were not available; a certified copy of the appellate order had been applied for and would be filed as soon as it was obtained. On these allegations made in the revision, it was prayed that the record of the proceedings before the Assistant Consolidation Officer be summoned and the order passed therein be set aside. 10. The Deputy Director of Consolidation by his order dated 15.4.1999 allowed the revision, set aside the orders passed by the Settlement Officer, Consolidation and the Assistant Consolidation Officer on the finding that no proclamation had been issued, as was mandatory under the rules. Therefore, the procedure prescribed under law had not been followed which vitiated the impugned orders. It was further directed that the dispute be decided afresh in accordance with the provisions of Section 171 of the U.P. Zamindari Abolition & Land Reforms Act after hearing all the parties concerned. 11. This order of remand passed by the Deputy Director of Consolidation is under challenge in the instant writ petition. 12. I have heard Shri Krishna Mohan Singh, learned counsel for the petitioner and Shri Ajay Kumar Singh, learned counsel appearing for the contesting respondents and have perused the record. 13. Learned counsel for the petitioner has submitted that the contesting respondents are unconcerned persons who have no concern with the property in dispute. He has tried to contend that the shares of the parties stood determined by the compromise decree passed in the year 1957 whereby half share was given to Ram Singhasan and the remaining half share went to Ganga and his four sons. It is one of these four sons of Ganga, namely, Bhairav, who had died issueless and therefore in view of the compromise entered into between the parties in 1957, Ram Singhasan and his sons cease to have any concern with the land in dispute and therefore there was no illegality in the order passed by the Assistant Consolidation Officer. In essence the contention is that in view of the compromise decree, Ram Singhasan stood divested of any share in the property of his father or in the property of his brothers who may have died issueless. 14. In essence the contention is that in view of the compromise decree, Ram Singhasan stood divested of any share in the property of his father or in the property of his brothers who may have died issueless. 14. Elaborating further, his contention that the compromise decree of 1957 had attained finality, the learned counsel for the petitioner has urged that in fact an objection under Section 9-A (2) filed by the Ram Singhasan claiming co-tenancy had been dismissed in 1975. A copy of this order alleged to have been passed by the Consolidation Officer on 9.9.1975 in Case No. 10777/6098 is on record. A perusal of this order reveals that in this objection the objector Ram Singhasan claimed co-tenancy along with the recorded tenure holders in Khata No. 191 consisting of plot Nos. 1726, 1736, 2740 and 2739. This objection was dismissed on the ground that it was not signed by any one, and it was stated to have been preferred by SarvaSukh but it was not clarified as to how SarvaSukh was related to the objector, Ram Singhasan. On the strength of this order, stated to have attained finality, since it was not challenged any further, the learned counsel for the petitioner has sought to contend that the claim for co-tenancy raised by Ram Singhasan or his sons is barred. It has therefore been submitted that the order of remand be set aside, and the Deputy Director of Consolidation be directed to decide the dispute afresh. 15. In reply, the learned counsel for the respondents has invited my attention to paragraph 11 of the counter affidavit wherein it has been denied that any objection under Section 9-A (2) was preferred by Ram Singhasan. In paragraph 12 of the counter affidavit it has been stated that since no objection was filed, there was no question of preferring any appeal against the order dated 9.9.1975. He has further submitted that the dispute arose on the death of Bhairav, who was the real brother of Ram Singasan and even on date the dispute is only about the succession to the share of the said Bhairav, deceased. He has contended that the compromise decree relied upon by the petitioner is of no consequence and has no bearing on the issue involved in the instant writ petition. He has contended that the compromise decree relied upon by the petitioner is of no consequence and has no bearing on the issue involved in the instant writ petition. The compromise decree in Suit No. 117 of 1957 was with regard to the share of Shiv Balak which devolved upon his widow. He submits that Shiv Balak and Ganga were two sons of Ram Khelawan. On the death of Ram Khelawan his two sons inherited half share each. Since Shiv Balak died and was succeeded by his widow who is said to have executed a gift-deed which led to a dispute, a suit was filed for cancellation of the gift-deed which was decreed in terms of a compromise between the parties. He therefore submits that the compromise decree pertains only to the share of Shiv Balak. The dispute in the writ petition does not pertain to the share of Shiv Balak. It pertains to the share of Bhairav one of the sons of Ganga who was real brother of Shiv Balak. Ganga inherited half share of Ram Khelawan while the other half was inherited by Sheo Balak. By the compromise decree Ganga and his four sons were held entitled to one half of the share of Shiv Balak. On the death of Bhairav, who died issueless, his share would necessarily devolve upon his brothers. Since Ram Singhasan is admittedly brother of Bhairav he has a share and an interest in the property in dispute. 16. Upon a consideration of the rival submissions, it is crystal clear that the compromise decree was only as regards property of Sheo Balak. In the instant case the issue of succession opened on 19.12.1993 on the death of Bhairav who is said to have died issueless. The compromise decree of 1957 could not and does not pertain to the manner in which the share of Bhairav will devolve. Nothing as contended emerges from the perusal of the compromise decree which is on record. The first submission of the learned counsel for the petitioner is therefore without any merits. In view of the above, the matter has been rightly remanded by the Deputy Director of Consolidation for decision afresh in accordance with the provisions of Section 171 of the U.P. Zamindari Abolition & Land Reforms Act which lays down the law as regards succession to agricultural land. 17. In view of the above, the matter has been rightly remanded by the Deputy Director of Consolidation for decision afresh in accordance with the provisions of Section 171 of the U.P. Zamindari Abolition & Land Reforms Act which lays down the law as regards succession to agricultural land. 17. The second contention of the learned counsel for the petitioner that an objection under Section 9-A (2) filed by Ram Singasan had been dismissed and the same had attained finality is not tenable for two reasons. First, the very factum of filing of the objection of Ram Singhasan has been categorically denied in the counter affidavit to the writ petition which averment has not been controverted in the rejoinder affidavit. The contents of paragraphs 6 of the rejoinder affidavit in this regard are relevant and the same are quoted below: - "That the contents of paragraph 11 and 12 of the counter affidavit are wholly misplaced, misconceived and irrelevant and in reply however facts already stated in paragraph 9 & 10 of the petition are re-affirmed to be correct." The statement made in the paragraph quoted above, to my mind, is not enough to rebut the allegation of the respondents regarding non filing of any objection under Section 9-A(2) as contained in paragraphs 11 and 12 in the counter affidavit. 18. Secondly, even if it is accepted that the objection was in fact filed and the dismissal thereof has attained finality between the parties, the said finality would only attach to the question or to the claim of co-tenancy by the alleged objector. In the instant case, no claim for co-tenancy is being raised. In fact the claim is one of the succession raised by the real brother of a person who has died issueless. This will necessarily have to be decided in accordance with the provisions of Section 171 of the U.P. Zamindari Abolition & Land Reforms Act. 19. Under the circumstances the submissions made by the learned counsel for the petitioner are without any substance. The writ petition is completely devoid of merits and deserves to be dismissed with costs. 20. Accordingly the writ petition is dismissed with costs of Rs. 5,000/-. and the order of remand is affirmed. 19. Under the circumstances the submissions made by the learned counsel for the petitioner are without any substance. The writ petition is completely devoid of merits and deserves to be dismissed with costs. 20. Accordingly the writ petition is dismissed with costs of Rs. 5,000/-. and the order of remand is affirmed. Since the matter is a very old one, the Consolidation Officer shall endeavor to decide the case expeditiously, after affording parties opportunity of adducing evidence and after hearing all concerned, preferably within a period of six months from the date of production of a certified copy of this order before him.