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2014 DIGILAW 811 (ALL)

Ramesh and others v. D. D. C. and others

2014-03-07

RAM SURAT RAM (MAURYA)

body2014
Ram Surat Ram (Maurya),J. Heard Sri K. C. Kishan Srivastav, for the petitioners and Sri K.N. Singh, for respondents. 2. Both the writ petition have been filed against common orders of Settlement Officer Consolidation (respondent-2) dated 15.02.2013, condoning delay and allowing the appeal and remanding the matter for trial before Consolidation Officer and Deputy Director of Consolidation (respondent-1) dated 21.01.2014, dismissing the revisions of the petitioners against aforesaid order, arising out of title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 3. The dispute between the parties relates to the land recorded on khatas 48, 53 and 56 of village Sagahat, pargana Dehat Amanat, district Varanasi. Three sets of objections were filed during consolidation in respect of the land in dispute, one by Smt. Matabi Devi, second by Bechan and others and third by Banshi, in the year 1992. Before the Consolidation Officer, three compromises were filed on 13.06.1994. The Consolidation Officer verified the compromises on 13.06.1994 and decided the objections in terms of the compromises by order dated 17.06.1994. 4. Ram Adhar filed three appeals from the aforesaid orders alleging that the compromises were not signed by him and the Consolidation Officer illegally decided the objections in terms of the compromise. Settlement Officer Consolidation, by his order dated 23.10.1998 found that compromises were not signed by Ram Adhar as such he allowed the appeals and set aside the order of Consolidation Officer dated 17.06.1998 and remanded the cases for trial on merit. On the restoration applications filed by the petitioners, the orders dated 23.10.1998 were recalled by order dated 22.10.2003 and the appeals were restored to its original number. 5. In the meantime Matabi (respondent-5) also filed an appeal (registered as Appeal No. 136/934/1322/67) along with delay condonation application on 13.11.2003 and Bachchan (respondent-6) filed an appeal (registered as Appeal No. 137/937/1323/68) along with delay condonation application on 12.11.2003 against the orders of Consolidation Officer dated 17.06.1998. It has been stated by these persons that their thumb impressions on the compromises were obtained by practicing fraud upon them and they could not know about the fact at that time. All the appeals were consolidated and heard by Settlement Officer Consolidation, who by order dated 15.02.2013 held that the compromises were not signed by Ram Adhar and also several co-tenure holders. The Consolidation Officer illegally decided the objections on the basis of compromises. All the appeals were consolidated and heard by Settlement Officer Consolidation, who by order dated 15.02.2013 held that the compromises were not signed by Ram Adhar and also several co-tenure holders. The Consolidation Officer illegally decided the objections on the basis of compromises. On these findings the appeals were allowed and orders dated 17.06.1998 were set aside and the cases were remanded to Consolidation Officer for trial on merit. 6. The petitioners along with proforma respondents filed two revisions (registered as Revision No. 1316 and 1334) from the aforesaid order. In the meantime Ram Adhar died and Shiv Nath (respondent-4) was substituted as his heir. Shiv Nath filed an application dated 06.07.2013 before Deputy Director of Consolidation for setting aside the order of Settlement Officer Consolidation, dated 15.02.2013 and restoring order of Consolidation Officer dated 17.06.1998. Both the revisions were consolidated and heard by Deputy Director of Consolidation, who by order dated 21.01.2014 found that as the compromises were not signed by all the parties as such orders of Consolidation Officer were illegal. On these findings, the revisions have been dismissed. Hence, these writ petitions have been filed. 7. The counsel for the petitioners submitted that Shiv Nath (heir of Ram Adhar) filed an application dated 06.07.2013 before Deputy Director of Consolidation for setting aside the order of Settlement Officer Consolidation, dated 15.02.2013 and restoring order of Consolidation Officer dated 17.06.1998. Deputy Director of Consolidation ought to have dismissed the appeals of Ram Adhar as not pressed and set aside the order of appellate court dated 15.02.2013. Other two appeals filed by Smt. Matabi and Bachchan (respondents-5 and 6) were highly time barred. They admit their thumb impressions on the compromises as well as they had knowledge of the orders of Consolidation Officer dated 17.06.1998 from very beginning. There was no ground to condone inordinate delay in filing the appeal by respondents-5 and 6. They had signed the compromise as such the appeal on their behalf were not maintainable. Neither Settlement Officer Consolidation nor Deputy Director of Consolidation recorded any findings for condonation of inordinate delay in filing the appeal or for setting aside the order of Consolidation Officer. The compromise was acted upon between the parties and could not have been set aside as held by this Court in Bachanoo Vs. DDC and others, 2004 (97) RD 106. He submitted that Division Bench of this Court in Bihari Vs. The compromise was acted upon between the parties and could not have been set aside as held by this Court in Bachanoo Vs. DDC and others, 2004 (97) RD 106. He submitted that Division Bench of this Court in Bihari Vs. State and others, 1973 RD 342 and single Judge in Sheo Pujan Vs. DDC and others, 1993 RD 73 held that Deputy Director of Consolidation has jurisdiction to take additional evidence in revision. Otherwise also by virtue of Section 44-A, he can discharge all the functions of the subordinate authorities. As such in stead of remanding the case to Consolidation Officer for trial, he should have decided the case on merit after taking evidence of the parties, in order to save valuable time and unnecessary harassment of the parties as held by this Court in Ugani Vs. DDC and others, 2004 (97) RD 214 and Sheikh Natthu Vs. DDC and others 2009 (106) RD 96 and Supreme Court in P. Purushottam Reddy Vs. Pratap Steels Ltd., AIR 2002 SC 771 . These points were specifically raised before Deputy Director of Consolidation but he has illegally dismissed the revisions of the petitioners. 8. I have considered the arguments of counsel for the petitioner and examined the record. Respondents-1 and 2 found that the compromises were not signed by all the parties. A perusal of the objection filed by Matabi (Annexure-3) shows that 25 persons were arrayed as opposite parties in it while the compromises were not signed by more than 15 persons. As the compromises were not signed by all the parties, Consolidation Officer had no jurisdiction to decide the objections on the basis of compromise. The order of Consolidation Officer dated 17.06.1998 was illegal and without jurisdiction. 9. So far as delay in filing the appeals of respondents-5 and 6 is concerned, Ram Adhar filed appeals within time. During pendency of the appeals of Ram Adhar, other appeals were filed by respondents-5 and 6. All the appeals were arising from same orders in same cases as such they were decided by a common order. There was no illegality in it. As the compromises were not signed by all the parties, Consolidation Officer had no jurisdiction to decide the objections on the basis of compromises. He was required to conduct trial and decide the case on merit. There was no illegality in it. As the compromises were not signed by all the parties, Consolidation Officer had no jurisdiction to decide the objections on the basis of compromises. He was required to conduct trial and decide the case on merit. The arguments that the order of Consolidation Officer dated 17.06.1998 was acted upon cannot be accepted as the appeal of Ram Adhar was filed within time. Allegations of respondents-5 and 6 was that fraud has been practised upon them. This was sufficient ground for condonation of delay. The matter has been remanded for trial on merit. Substantial justice has been done between the parties and no interference is required by this Court. 10. So far as the arguments of the counsel for the petitioners that Deputy Director of Consolidation has jurisdiction to take additional evidence in revision and by virtue of Section 44-A, he can discharge all the functions of the subordinate authorities. As such in stead of remanding the case to Consolidation Officer for trial, he should have decided the case on merit after taking evidence of the parties, is concerned, in P. Purushottam Reddy Vs. Pratap Steels Ltd., AIR 2002 SC 771 , the suit was decided after trial by recording findings on all the issues. High Court has recorded its finding on some of the issues, not preliminary, and then framed three additional issues leaving them to be tried and decided by the trial court. It is not a case where a retrial is considered necessary. Supreme Court held that neither Rule 23 nor Rule 23-A of Order 41 applies. None of the conditions contemplated by Rule 27 exists so as to justify production of additional evidence by either party under that Rule. The validity of remand has to be tested by reference to Rule 25. The plea was raised on behalf of the defendants purely as a question of law which, in their submission, strikes at the very root of the right of the plaintiff to maintain the suit in the form in which it was filed and so the plea was permitted to be urged. The plea was raised on behalf of the defendants purely as a question of law which, in their submission, strikes at the very root of the right of the plaintiff to maintain the suit in the form in which it was filed and so the plea was permitted to be urged. So far as the plea as to readiness and willingness by reference to clause (c) of Section 16 of the Specific Relief Act, 1963 is concerned, the pleadings are there as they were and the question of improving upon the pleadings does not arise inasmuch as neither any of the parties made a prayer for amendment in the pleadings nor has the High Court allowed such a liberty. It is true that a specific issue was not framed by the trial court. Nevertheless, the parties and the trial court were very much alive to the issue whether Section 16(c) of the Specific Relief Act was complied with or not and the contentions advanced by the parties in this regard were also adjudicated upon. The question could have been gone into by the High Court and a finding could have been recorded on the available material inasmuch as the High Court being the court of first appeal, all the questions of fact and law arising in the case were open before it for consideration and decision. 11. In this case, neither issues were framed nor trial was held. In such circumstances, conducting trial before Deputy Director of Consolidation was not appropriate. The cases which are relied upon by the counsel for the petitioners have no application as in all these case, trail was conducted. Right of appeal and revision of the parties will come to an end. Powers under Section 44-A of the Act has to be exercised in rare cases to prevent miscarriage of justice and not in a routine manner. 12. The writ petitions have no merit and are dismissed. _____________