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2014 DIGILAW 3619 (ALL)

Bindeshwari v. D. D. C. , Azamgarh

2014-12-04

ANJANI KUMAR MISHRA

body2014
JUDGMENT Anjani Kumar Mishra, J. 1. Heard learned Counsel for the parties. The writ petition arises out of an objection under section 9-A(2) of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act), and is directed against the orders dated 16.10.1990 and 10.8.1991, passed by respondent No. 1, the Dy. Director of Consolidation, Azamgarh. 2. The dispute in the writ petition pertains to plot Nos. 115, 116, 117, 118 and 205, of village Chatarpur Madhaipatti, pargana Atraulia, tehsil, Budhanpur, district Azamgarh. 3. The land in question was recorded in the name of Bharos, father of the petitioner and respondent No. 5, since deceased. It further appears that on the death of Bharos, his widow, Gujrati, was recorded over the land in dispute. 4. It is the case of the petitioner that, in fact, he and his brother were the heirs of Bharos and that their mother was wrongly recorded over the land in dispute. The sons of Bharos, namely, the petitioner and respondent No. 5, allegedly filed an objection under section 9 of the Act. It is further alleged that Gujrati appeared in these proceedings, and on the basis of her statement, the names of the petitioner and respondent No. 5 was ordered to be recorded over the land in dispute by the order passed by the Assistant Consolidation Officer (hereinafter referred to as the ACO) on 24.12.1981. Gujrati is alleged to have died in the year 1987. 5. Learned Counsel for the petitioner submitted that an appeal was filed against the order dated 24.12.1981 by respondent Nos. 2 to 4, the sons of respondent No. 5, Hansu, claiming on the basis of a registered will of 1976 executed by Gujrati in their favour. This appeal is said to have been dismissed in default on 10.8.1989. This order was never challenged, either by way of restoration application or revision. On the other hand, respondent Nos. 2 to 4 preferred a revision against the order dated 24.12.1981 passed by the ACO. The Dy. Director of Consolidation by his order dated 25.1.1990 condoned the delay and allowed the revision, set aside the order dated 24.12.1981 and remanded the matter back to the Consolidation Officer for a fresh decision, after hearing the revisionists. Against this order of remand, the petitioner filed a recall/review application, which has been rejected by the order dated 10.8.1991, hence this writ petition. 6. Against this order of remand, the petitioner filed a recall/review application, which has been rejected by the order dated 10.8.1991, hence this writ petition. 6. It has been submitted by the learned Counsel for the petitioner that the order dated 24.12.1991 was passed on the basis of a statement given by Gujrati. The contesting respondents filed an appeal against this order, which was dismissed in default, which order has become final. Under the circumstances, the revision filed by the contesting respondents against the order dated 24.12.1981 was not maintainable, and the same has been wrongly entertained and allowed. 7. The second submission of the learned Counsel for the petitioner is that the revisionists never preferred any revision claiming on the basis of the will in their favour and, therefore, they have no right to challenge the order dated 24.12.1981 passed by the ACO. 8. The next submission of the learned Counsel for the petitioner is that the revisionists claimed on the basis of a registered Will of 1976. This Will came into effect on the death of Gujrati in 1987. On that date, there was no property in the name of Gujrati and, therefore, the contesting respondents cannot get any right, title or interest in the property in question on the basis of such Will. It has, lastly, been submitted that along with the recall/review application, the petitioner had filed an affidavit of Sri Sita Ram Yadav, Advocate, wherein it has been stated that he had neither filed his vakalatnama in the revision nor he had argued on behalf of the petitioner prior to the order dated 25.1.1990. He, therefore, contends that the order rejecting the recall application is vitiated as he fails to consider this affidavit. 9. In rebuttal, learned Counsel for the respondents has submitted that an objection under section 9 had been filed in the year 1970. This objection was decided by means of a compromise and the ACO by his order, passed on the basis of the compromise, directed the name of Gujrati to be recorded over the land in question as heir of Bharos, her deceased husband. This order was never challenged by anybody. 10. This objection was decided by means of a compromise and the ACO by his order, passed on the basis of the compromise, directed the name of Gujrati to be recorded over the land in question as heir of Bharos, her deceased husband. This order was never challenged by anybody. 10. Concealing the aforesaid order of the ACO, the petitioner filed another objection under section 9-A(2) of the Act, wherein the respondents nor their father were impleaded as party and an order was obtained on 24.12.1981 allegedly on the statement of Gujrati. It is further his case that Gujrati never appeared in these proceedings and, in fact, the statement was given by the wife of the petitioner, posing to be Gujrati and, therefore, this compromise order was wholly fraudulent, and the same has rightly been set aside by the DDC in the revision filed by the contesting respondents. It has also been submitted that the contesting respondents had filed restoration application for recall of the order dated 10.8.1989, thereby their appeal was dismissed in default. Learned Counsel for the respondents has, however, not been able to state as to what was the fate of the said recall application. 11. In rejoinder, learned Counsel for the petitioner has reiterated the submissions made above. He has also referred to the rejoinder affidavit, which is on record, which contains a denial of the allegations made in the counter affidavit that recall application had been filed by the contesting respondents in the appeal for recall of the order dated 10.8.1989. 12. I have considered the submissions made by the learned Counsel for the parties and have perused the record. 13. From the facts noticed above, it clearly emerges that the petitioner had filed the objection under section 9-A(2) concealing the fact that earlier an objection had been filed by him and had been decided on the basis of a compromise. It is also clear that the order impugned is an order of remand, whereby the CO has been directed to consider the claim of the contesting respondents based on the registered will alleged to have been executed in their favour by Gujrati in 1976. This order has been passed primarily on the reasoning that the contesting respondents were not party to the objection filed by the petitioner and orders were passed therein without any notice or information to them. This order has been passed primarily on the reasoning that the contesting respondents were not party to the objection filed by the petitioner and orders were passed therein without any notice or information to them. This reasoning does not appear to be justified because the order was passed in the year 1981 while the claim of the contesting respondents arose on the death of Gujrati, which is said to have taken place in the year 1987. 14. In such view of the matter, respondent Nos. 2 to 4 were not the necessary parties in the objection filed by the petitioner. It has, however, been categorically stated in the counter affidavit that respondent No. 5, Hansu, father of the petitioner, was not a party to the proceedings drawn on the objection filed by the petitioner. It is also debatable as to whether the revision filed by the contesting respondents would have been entertained in case the order dated 10.8.1989, dismissing the appeal filed by the contesting respondents, was not under challenge therein. However, it is not established on record as to whether the restoration application was, in fact, filed for recall of this order; and if so, what was its fate. 15. From the facts and discussion in the preceding paragraph, it is clear that the conduct of both the parties in this writ petition cannot be said to be above board. There was no justification for the petitioner to have filed a second and subsequent objection under section 9-A(2) when once such an objection had been filed wherein his mother had been ordered to be mutated over the land in question. There was no justification for the petitioner to have filed a second and subsequent objection under section 9-A(2) when once such an objection had been filed wherein his mother had been ordered to be mutated over the land in question. Therefore, the following points emerge for determination: (1) whether the objection, filed by the petitioner, which came to be decided by the order dated 24.12.1981, was legally maintainable; (2) whether the revision filed by the contesting respondents was maintainable in case their appeal had been dismissed in default by order dated 10.8.1989 and the same had become final, if such order was not challenged in revision; (3) The fate of the alleged restoration application filed by the contesting respondents for recall of the order dated 10.8.1989 and its legal consequences; and (4) whether it was open for the contesting respondents to have filed the revision challenging the order dated 24.12.1981 without first having filed an objection under section 9-A(2) or section 12 of the Act, claiming on the basis of the alleged registered Will in their favour, said to have been executed by Gujrati. 16. At this juncture, it would be extremely relevant to note here that the DDC in its order dated 10.8.1991 has stated that the order dated 24.12.1981 was passed by the ACO after the death of Gujrati. This statement of fact in the impugned order has not been challenged or even referred to in the writ petition. 17. Since the order impugned in the writ petition is primarily an order of remand, no useful purpose would be served by setting aside such an order and it would be more appropriate that the issues formulated above, which, in my considered opinion, arise between the parties are also directed to be considered by the CO, who is required to decide the dispute between the parties consequent to the order of remand. 18. Accordingly, and for the reasons given above, I refuse to interfere in the impugned orders. The writ petition is dismissed. The order of remand is affirmed. 19. The Consolidation Officer, before whom the matter has been remanded, shall also consider and decide the issues formulated above. 20. 18. Accordingly, and for the reasons given above, I refuse to interfere in the impugned orders. The writ petition is dismissed. The order of remand is affirmed. 19. The Consolidation Officer, before whom the matter has been remanded, shall also consider and decide the issues formulated above. 20. Since the matter is a very old one, it is expected that the Consolidation Officer shall pass orders in accordance with law after affording the parties opportunity to adduce evidence, and after hearing them, expeditiously as possibly, preferably within 10 months from the date of production of certified copy of this order before him/her. Accordingly and subject to the observations made above, the writ petition is dismissed.