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2015 DIGILAW 1265 (ALL)

Tara Devi v. Dy. Director of Consolidation, Mau

2015-05-15

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri K.N. Shukla, for the petitioner and Sri Vijay Kumar Ojha, for the caveator respondent-4. The writ petition has been filed against the orders of Consolidation Officer dated 6.11.2011, Settlement Officer Consolidation dated 27.1.2010 and Deputy Director of Consolidation dated 17.1.2015 passed in proceeding under section 9-A(2) of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 2. The dispute relates to plot 84 of village Barhadpur, pargana Mohammadabad Gohna, district Mau. In basic consolation year, an area of 7 kari of plot 84 was recorded in khata 4, an area of 10 kari was recorded in khata 294 (banjar), an area 153 kari was recorded in khata 237 (in the name of Jharkhandi, now represented by the petitioner and respondents-20 to 27), an area of 93 kari was recorded in khatas 152 and 279 kari was recorded in khatas 13 (khatas 4, 13 and 152 were recorded in the names of Amar and his co-sharers, respondents-4 to 19) (hereinafter referred to as the respondents). Amar filed four objections, before Settlement Officer Consolidation, who entertained it, exercising powers under section 44-A of the Act, for correction of area as recorded in CH Form-5 of plot 84, in various khatas. Later on, Settlement Officer Consolidation by order dated 12.1.2001, remitted the objections to Consolidation Officer for deciding on merit, where it were registered as Case Nos. 2150, 2151, 2152 and 2153. 3. In basic consolidation year, name of Jharkhandi alone was recorded over khata 237. Patiram and sons of Satiram (respondents-20 to 27) filed an objection (registered as Case No. 212 of 1996) for recording their names as co-sharers of 1/3 share over the land in dispute. The petitioner claimed for recording her name over 1/3 share of Jharkhandi on the basis of sale-deed executed by him in the year 1982. Surendra, Virendra and Jitendra claimed 1/3 share of Mahadev also on the basis of his sale-deed of the year 1978. Case No. 212 was summoned by Settlement Officer Consolidation as stated in paragraph-6 of recall application (filed as Annexure-8). Aniruddh (respondent-4) filed a counter-objection in Case No. 212 on 19.6.2001. 4. Consolidation Officer by order dated 23.10.2001 consolidated Case No. 212 along with Case Nos. 2150 etc. Consolation Officer, by order dated (sic).11.2001 held that plot 84 was made from old' plot 167. Aniruddh (respondent-4) filed a counter-objection in Case No. 212 on 19.6.2001. 4. Consolidation Officer by order dated 23.10.2001 consolidated Case No. 212 along with Case Nos. 2150 etc. Consolation Officer, by order dated (sic).11.2001 held that plot 84 was made from old' plot 167. In 1356-F an area of 379 kari was recorded in the names of the respondents in different khatas. In khasra 1356-F plot 167/1 (area 374 kari) was recorded as grove of the respondents and plot 167/2 (area 100 kari) was recorded in occupation of Jharkhandi and others. In khatauni 1359-F an area of 374 kari of plot 167 was recorded in various khatas of the respondents and an area of 100 kari was recorded in the names of Jharkhandi, Pakhandi and Mahadeo. In previous consolidation old plot 167 was renumbered as plot 84 as proved from CH Form-41. However in CH Form 45, an area of 153 kari of plot 84 was recorded in the names of Jharkhandi, Pakhandi and Mahadeo, which was recorded in basic consolidation year in the name of Jharkhandi. Total area of plot 167 was recorded in 1356-F as 374 kari. However in 1359-F 474 kari was recorded and in basic consolidation year it was recorded as 284 kari. As 1359-F an area of 100 kari was recorded in the names of Jharkhandi and others as such same area was liable to be recorded in their names. As no objection was filed against khata 294 (banjar) as such no change was recorded in khatas 4, 152 and 294. Excess area was liable to be recorded in khata 13. Share of Tara Devi was 1/3 in khata 237, Patiram as 1/6 and sons of Satiram as 1/9 each. 5. Patiram, Satiram and Tara Devi filed an application on 27.11.2001 for recall of the order of Consolidation Officer dated 6.11.2001. The respondents filed a time barred appeal (registered as Appeal No. 935/859) from the aforesaid order, on 25.1.2002. Later on, the petitioner also filed a time barred appeal (registered as Appeal No. 2394) from the aforesaid order, on 17.1.2009 along with delay condonation application. Both the appeals were consolidated and decided by order of Settlement Officer Consolidation, who by dated 27.1.2010, held that as the petitioner had filed recall application as such she had knowledge of the order. There is no cause for condonation of inordinate delay. Both the appeals were consolidated and decided by order of Settlement Officer Consolidation, who by dated 27.1.2010, held that as the petitioner had filed recall application as such she had knowledge of the order. There is no cause for condonation of inordinate delay. He condoned the delay in filing the appeal by the respondents. He found that in 1356-F total area of plot 167 was 379 kari. In 1359-F, plot 167/1 total area 374 kari were recorded in various khatas in the names of the respondents. However, an area of 100 kari of plot 167/2 was recorded in the names of Jharkhandi, Pakhandi and Mahadeo. Thus total area of this plot had become 474 kari in place of 379 kari, which was illegal. Entry of the names of Jharkhandi, Pakhandi and Mahadeo had no basis. On the basis of unauthorized and illegal entry no right can be given to the heirs of Jharkhandi, Pakhandi and Mahadeo. On these findings, the appeal of the petitioner was dismissed and the appeal of the respondents was allowed and plot 84 was directed to be deleted from khata 237 and its 100 kari area was included in khata 13 of the respondents. The petitioner filed a revision (registered as Revision No. 214/320 of 2014-15) from the aforesaid order. Deputy Director of Consolidation, by order dated 17.1.2015 dismissed the revision. Hence this writ petition has been filed. 6. The Counsel for the petitioner submitted that Consolidation Officer has not conducted proper trial, due to which the petitioner and her co-sharers were deprived from adducing their evidence. The petitioner was recorded tenure holder but no notice was issued to her. Consolidation Officer by order dated 23.10.2001 consolidated Case No. 212 along with Case Nos. 2150 etc. behind the back of the petitioner and her co-sharers and decided by order dated 6.11.2001. The order was ex parte as such, the petitioner and her co-sharers filed an application for recall of the order dated 6.11.2001, on 27.11.2001. Consolidation Officer did not decide the recall application. In the meantime, entire record of Consolidation Officer were summoned in the appeal. Then the petitioner came to know about the appeal filed by the respondents and she also filed an appeal but Settlement Officer Consolidation has illegally refused to condone the delay and dismissed the appeal of the petitioner as time barred. In the meantime, entire record of Consolidation Officer were summoned in the appeal. Then the petitioner came to know about the appeal filed by the respondents and she also filed an appeal but Settlement Officer Consolidation has illegally refused to condone the delay and dismissed the appeal of the petitioner as time barred. Deputy Director of Consolidation dismissed the revision by a cryptic order without adverting to the grounds raised by the petitioner. Aniruddh illegally sold the land of the petitioner for which criminal case has been filed. In order to save from criminal prosecution, he mala fide filed the appeal. Amar, father of Aniruddh, in his objection dated 29.8.1996 and Aniruddh in his objection dated 19.6.2001 admitted 100 kari (61 Ares) of plot 84 belonging to the petitioner and her co-sharers. Consolidation authorities have illegally ignored these admissions and carved out a third case. Predecessors of the petitioner were "recorded occupants" over an area of 100 kari of plot 167/2, in 1356-F and this plot was recorded in their names in 1359 F khatauni. They became sirdar under section 20 of U.P. Act No. 1 of 1951, of this land., Village underwent into consolidation operation prior to present consolidation. The respondents never challenged the right of the predecessors of the petitioner as such their names were maintained in previous consolidation in CH Form-45. Right of the respondents, if any, is barred under section49 of the Act. Impugned orders are illegal and liable to be set aside. 7. I have considered the arguments of the Counsel for the parties and examined the record. A perusal of the order of Consolidation Officer dated 6.11.2001 shows that he had framed issues. In basic consolidation year, name of Jharkhandi alone was recorded over khata 237. Husband of the petitioner and others filed an objection (registered as Case No. 212 of 1996) for recording their names and declaring their 1/3 share. The petitioner also claimed for recording her name over 1/3 share of Jharkhandi on the basis of sale deed executed by him in her favour. Surendra, Virendra and Jitendra also claimed 1/3 share of Mahadeo on the basis of his sale deed. The petitioner also claimed for recording her name over 1/3 share of Jharkhandi on the basis of sale deed executed by him in her favour. Surendra, Virendra and Jitendra also claimed 1/3 share of Mahadeo on the basis of his sale deed. As plot 84 (area 153 kari) was also mentioned in khata 237 and Case No. 212 was in respect of khata 237, Settlement Officer Consolidation summoned this case also, as stated in paragraphs of recall application (Annexure-8) and taken along with objections of the respondents. Thus all cases were in the knowledge of the petitioner and her co-sharers. All the parties had adduced their evidence and allegation that no proper trial was held or the petitioner and her co-sharers were not given proper opportunity of evidence is not liable to be accepted. After remittance, on 12.1.2001, Aniruddh filed his objection on 19.6.2001 in case No. 212. Thereafter issues were framed. Consolidation Officer by order dated 23.10.2001 consolidated Case No. 212 along with Case Nos. 2150 etc. Thus issues were within knowledge of the parties. They also adduced their evidence. Cases were filed in 1996 and decided on 6.11.2001. Arguments that proper opportunity was not given is not liable to be accepted. 8. The case of the petitioner and her co-sharers, respondents-20 to 27, including her husband in respect of plot 84 was common. But under their strategy they were not contesting together. The petitioner and her co-sharers filed an application for recall of the order dated 6.11.2001, on 27.11.2001. When record of Consolidation Officer was summoned in the appeal filed by the respondents, then, the petitioner alone filed an appeal on 17.1.2009. Settlement Officer Consolidation refused to condone the delay and dismissed the appeal of the petitioner as time barred holding that at least on the date of filing of recall application, she had knowledge of the order dated 6.11.2001 and there is no cause for condoning the delay. 9. Settlement Officer Consolidation refused to condone the delay and dismissed the appeal of the petitioner as time barred holding that at least on the date of filing of recall application, she had knowledge of the order dated 6.11.2001 and there is no cause for condoning the delay. 9. So far as merit of the case is concerned, the petitioner claims that after date of vesting her predecessors acquired sirdari right over the land in dispute under section 20 of U.P. Act No. 1 of 1951 as they were recorded as occupant in 1356-F and 1359-F. A Special Bench of 5 Hon'ble Judges in Basdeo v. Board of Revenue U.P. and others 1974 RD 188 (SC), and Supreme Court in Bechan v. Kankar 1972 RD 219 (SC), and Ram Harakh v. Hamid Ahmad Khan (1988) 7 SCC 484, held that in order to get right under section 20 of U.P. Act No. 1 of 1951 on basis of entry of "recorded occupant" in 1356 F and 1359-F, entry must have been made according to the provisions of Land Records Manual and genuine. Paragraph-84 (c) of Land Records Manual prescribes procedure for making entry of possession of a person other than recorded tenure holder, in red ink in column 6 of khasra as "Ghair Qabiz Dawedar Qabza Fulan". The petitioner and her co-sharers derived their title on the basis of khasra entry of 1356-F in which Jharkhandi, Pakhandi and Mahadeo were recorded as occupants over an area of 100 kari of plot 167/2, for the first time. In khatauni 1356 F, total area of plot 167 was recorded 379 kari, in the names of the respondents in khatas 60, 145 and 358. In khasra 1356-F, 167/1 area 374 kari was recorded as grove of the respondents and 167/2 area 100 kari was recorded as grove of recorded tenure holders in column 5 but in column 6 names of Jharkhandi, Pakhandi and Mahadeo were recorded as "occupant" and crop of barley was shown. When about full area of plot 167 was recorded as grove of recorded tenure holder in plot 167/1, how plot 167/2 area 100 kari was recorded in occupation of Jharkhandi and others. Carvation of plot 167/2 area 100 kari itself was illegal and a forgery as by carving this plot total area of about 95 kari was increased which was an impossibility. Carvation of plot 167/2 area 100 kari itself was illegal and a forgery as by carving this plot total area of about 95 kari was increased which was an impossibility. This entry cannot be said to be genuine entry made after following procedure of Land Records Manual. Plot 167/2 area 100 kari was recorded in the names of Jharkhandi, Pakhandi and Mahadeo in 1359 F khatauni along with other plots with period of cultivation as 3 years although this plot was recorded in the names of the respondents in their khatas also. Thus a double entry of the same plot was recorded in the name Jharkhandi and others, without any basis. Settlement Officer Consolidation found that entire area was recorded in the name of the respondents, who were recorded tenure holder but its 100 kari was illegally recorded in the names of Jharkhandi and others, making total area as 474 kari in place of 379 kari. Thus title of the predecessors of the petitioners was not proved as the entry of "recorded occupants" of the names of predecessor of the petitioner was not a genuine entry but is a forgery and double entry. 10. So far as arguments that village underwent into consolidation operation prior to present consolidation and the names of the predecessor of the petitioner were recorded over the disputed land and not been challenged by the respondents and their right has become barred under section 49 of the Act, is concerned, as stated above double entry was continued as entire area was recorded in the name of the respondents, in basic consolidation record of previous consolidation and they were not required to file any objection. In final consolidation record, area was illegally reduced in their names. Mistake committed in preparation of final consolidation record, can be proved to be wrong under section 27(2) of the Act and bar of section 49 of the Act does not apply. 11. In final consolidation record, area was illegally reduced in their names. Mistake committed in preparation of final consolidation record, can be proved to be wrong under section 27(2) of the Act and bar of section 49 of the Act does not apply. 11. So far as admissions of Amar, in his objection dated 29.8.1996 and Aniruddh in his objection dated 19.6.2001 admitting 100 kari (61 Ares) of Elot 84 belonging to the petitioner and her co-sharers, is concerned Civil Procedure Code has not been applied in the proceedings under the Act, as held by Full Bench of this Court in Bijai Narain v. State of U.P. 1969 RD 330 (FB), and Supreme Court while considering similar provisions of State of Bihar Consolidation and Fragments Act in Mohd. Shakoor Mian v. Raj Mangal Mishra (1999) 7 SCC 641. Rule of pleadings is not applicable. Consolidation authorities are required to decide the dispute, after framing issues and taking evidence of the parties according to Rule 26. On the basis of evidence, it was found that there was no basis of entry of the names of predecessors of the petitioners, which was unauthorized and fabricated entry. 12. Supreme Court in Avtar Singh v. Gurdial Singh 2007 (102) RD 430 (SC), and Ram Chandra Sakharam Mahajan v. Damodar Trimbak AIR 2007 SC 2577 held that by an admission, title in immovable property cannot be created but an opinion can be formed in respect of the nature of the land, subject-matter of admission. In Union of India v. Ibrahim Uddin 2012 (117) RD 784 (SC), it has been held that admissions are governed under sections 17 to 31 of the Evidence Act, 1872 and such admissions can be tendered and accepted as substantive evidence. "Admissions" made by a party though not conclusive, is a decisive factor in a case unless the other party successfully withdraws the same or proves it to be erroneous. In this case, from the evidence adduced by the parties, it has been proved that the predecessors of the petitioner had no title over the land in dispute. Only on the basis of admissions, the petitioner cannot be held as owner of immovable property. In view of the aforesaid discussions, the writ petition has no merit and is dismissed. ……………….