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2015 DIGILAW 1452 (ALL)

Smriti Sharma v. Dy. Director of Consolidation

2015-05-29

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. Heard Sri Anil Mehrotra and Sri Manish Kumar Nigam, for the petitioners/ Review Applicants. 2. The writ petition was filed against the orders of Settlement Officer Consolidation dated 28.12.2011 and Deputy Director of Consolidation dated 02.09.2013, passed in title proceeding in U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 3. The dispute between the parties relates to the land recorded in khatas 52, 106 and 107 of village Dhimlauni, tahsil Mau, district Jhansi. In basic consolidation year the name of Moti Lal son of Bhaiya Lal was recorded over khatas 52 and 106, while names of Moti Lal son of Bhaiya Lal, Ram Gopal, Kishun Lal and Madan Gopal sons of Bal Mukund were recorded over khata 107. Moti Lal died on 06.05.1978. Ram Gopal and others filed an objection, under Section 9 of the Act, for recording their names, over the aforesaid khatas. Kusma Devi daughter of Baldeo Prasad filed an objection for recording her name over the khatas in dispute and claimed 1/2 share in it. Narvada (now represented by the petitioners) and Rama, daughters of Moti Lal filed an objection for recording their names over the land in dispute in place of Moti Lal, on the basis of registered will dated 01.04.1977, executed by Moti Lal, in their favour. All the objections were consolidated and tried by Consolidation Officer, who by order dated 22.11.1979, held that Baldeo died in 1373 F. At that time, Kusma Devi, his daughter was married as such his share was inherited by Moti Lal, his brother. Moti Lal executed a gift deed dated 11.11.1970, in respect of 12-13 acre of land in favour of Ram Gopal, Kishun Lal and Madan Gopal sons of Bal Mukund, which was recorded in their names, in separate khata. The remaining land belong to Moti Lal, who executed a registered will dated 01.04.1977, in favour of his daughters Narvada and Rama. On these findings, objections of Kusma Devi daughter of Baldeo and Ram Gopal, Kishun Lal and Madan Gopal were dismissed and the names of Narvada, Rama and Gayatri Devi were directed to be recorded on the basis of will dated 01.04.1977. 4. Kusma Devi did not file any appeal from the order dated 22.11.1979. Krishna Gopal filed an appeal (registered as Appeal No. 96/81), from the order dated 22.11.1979. 4. Kusma Devi did not file any appeal from the order dated 22.11.1979. Krishna Gopal filed an appeal (registered as Appeal No. 96/81), from the order dated 22.11.1979. The appeal was dismissed in default on 11.11.1980. Krishna Gopal filed an application dated 25.11.1980 for recall of the order dated 11.11.1980, which was also dismissed in default on 04.03.1981. Krishna Gopal filed an application dated 09.03.1981 for recall of the order dated 04.03.1981 and 11.11.1980, which was also dismissed in default on 08.04.1981. Krishna Gopal filed an application dated 08.04.1981 for recall of the orders dated 08.04.1981, 04.03.1981 and 11.11.1980, which was also dismissed in default on 12.07.1988. Thereafter, Krishna Gopal died on 30.10.1990. 5. Smt. Krishna Sharma, Pankaj, Neeraj and Jalaj (respondents-3 to 6) filed an application dated 25.04.2006 for recall of the orders dated 12.07.1988, 08.04.1981, 04.03.1981 and 11.11.1980 and restoring the appeal to its original number and hearing the appeal on merit, along with delay condonation application. Settlement Officer Consolidation (respondent-2), by order dated 27.04.2007 and allowed the recall application and restored the appeal. Thereafter, the appeal was allowed by order dated 20.06.2009 and order of Consolidation Officer has been set aside and the matter was remanded to Consolidation Officer for fresh trail on merit. 6. The petitioners filed an application dated 25.04.2011 for recall of the order dated 20.06.2009, stating therein that Narvada was dead and their names were mutated in the revenue records by order dated 10.07.2006. In the recall application filed by respondents-3 to 6, Narvada was impleaded as opposite party. Neither any notice was issued to Narvada nor her heirs and the recall application was allowed against dead person. Rama also filed another application dated 13.05.2011 for recall of the order dated 20.06.2009. Both the applications were consolidated and heard together. Settlement Officer Consolidation by order dated 20.08.2011 allowed the recall applications and set aside the order dated 20.06.2009. Thereafter, the petitioners filed an application dated 19.10.2011 for setting aside the order dated 27.04.2007 also. However, Settlement Officer Consolidation by order dated 28.12.2011 decided the appeal on merits and held that the name of Bal Mukund was recorded in 1359 F but the name of his heirs were not recorded in subsequent year after his death, although Bal Mukund left behind him, his three sons who were his heirs. However, Settlement Officer Consolidation by order dated 28.12.2011 decided the appeal on merits and held that the name of Bal Mukund was recorded in 1359 F but the name of his heirs were not recorded in subsequent year after his death, although Bal Mukund left behind him, his three sons who were his heirs. The Consolidation Officer further did not record any findings as to whether Kusma Devi was alive on the date of death of Baldeo, although objection of Kusma Devi was also pending before him. Neither the heirs of Bal Mukund nor the heirs of Baldeo were given opportunity of evidence and their claim had been rejected only on the basis of will of Moti Lal, although due execution of the will was not proved. On these findings, the appeal was allowed, order of Consolidation Officer dated 22.11.1979 was set aside and the matter was remanded to Consolidation Officer fresh trial and decision on merit. 7. The petitioners filed a revision (registered as Revision No. 9 of 2012) Smt. Rama Devi filed another revision (registered as Revision No. 14 of 2012) from the aforesaid order. Both the revisions were consolidated and heard together by Deputy Director of Consolidation, who by order dated 02.09.2013 held that finding of Settlement Officer Consolidation that heirs of Bal Mukund and Baldeo were not given proper opportunity of hearing in their objections, does not suffer from any illegality. As such, the revisions were dismissed. Hence this writ petition was filed. 8. After hearing the parties, the writ petition was allowed by judgment dated 13.11.2013. In paragraphs-6, 9 and 10 of the judgment, it has been wrongly mentioned that the petitioners had filed an application dated 25.04.2011, for recall of the orders dated 27.04.2007 and 20.06.2009, as copy of the recall application dated 25.04.2011 was not filed along with writ petition as such on the basis of arguments of the respondents, this mistake had occurred. Later on, on the application of the petitioners, these mistakes were corrected on 16.12.2013, and words "27.04.2007 and" have been deleted from aforesaid places of the judgment. 9. Now the petitioners have filed this review application for review of the judgment dated 13.11.2013 on the ground that due to aforementioned mistakes, the Court, in paragraphs-10 and 12 of the judgments, has observed that the application dated 19.10.2011, filed by the petitioners, was not maintainable and amounts to review application. 9. Now the petitioners have filed this review application for review of the judgment dated 13.11.2013 on the ground that due to aforementioned mistakes, the Court, in paragraphs-10 and 12 of the judgments, has observed that the application dated 19.10.2011, filed by the petitioners, was not maintainable and amounts to review application. This observation is an error apparent on face of record as such the judgments was liable to be reviewed and aforementioned observation be deleted. 10. I have considered the arguments of the counsel for the review applicants. In paragraph-9 of the judgment, arguments of the counsel for the respondents were noticed, in which he had argued that the application dated 19.10.2011 filed by the petitioners for recall of the order dated 27.04.2007 was in effect a review application as he had already filed an application dated 25.04.2011, for recall of the order dated 20.06.2009, which was allowed by order dated 20.08.2011. The petitioners filed another writ petition i.e. Writ-B No. 18513 of 2015, which is also heard along with this review application. In Writ-B No. 18513 of 2015, the petitioners have filed a copy of recall application dated 25.04.2011, as Annexure-13-A. In this recall application, the petitioners have mentioned that appeal filed by Krishna Gopal was dismissed in default but the orders were recall without any notice to them. Recall applications were filed against dead persons. Recall application dated 25.04.2006, for recalling orders dated 11.11.1980, 04.03.1981 and 03.04.1981 etc. was illegally allowed. In paragraph-26 of the writ petition, the petitioners have stated that by inadvertence, while making the recall application, for recalling the order dated 20.06.2009, the petitioners had not prayed for recalling the order dated 27.04.2007. 11. In view of the facts that orders dated 11.11.1980, 04.03.1981 and 08.04.1981 etc. were not only in the knowledge of the petitioners, they had specifically challenged its legality in their recall application dated 25.04.2011. It was admitted by them in the writ petition that inadvertently they had not prayed for recalling the order dated 27.04.2007, in the recall application dated 25.04.2011. The counsel for the respondents rightly argued that recall application dated 19.10.2011 amounts to review application. Thus the observations made in the judgment in this respect do not suffer from any illegality. 12. The review application has no merit and is dismissed.