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2015 DIGILAW 1454 (ALL)

Baljit v. D. D. C.

2015-05-29

ANJANI KUMAR MISHRA

body2015
JUDGMENT Anjani Kumar Mishra, J. Heard learned counsel for the petitioner and Sri Arjun Singhal for the respondents. 2. The writ petition arises out of an objection under Section 9 -A (2) of the U.P. Consolidation of Holdings Act and is directed against the revisional order passed by the Deputy Director of Consolidation on 10.12.1980. 3. The dispute in the writ petition pertains to Plot no. 418 area 15 Bighas 13 Biswa of Khata no. 235 in the village in question. In the basic year record Khata no. 235 was recorded in the name of Ballu and Murli sons of Sohan. 4. The case of the petitioner, the objector before the consolidation court was that he was in possession over the plot in question. In 1962, the respondents filed a suit for his ejectment. This suit was decreed against the petitioner on 15.09.1962. Aggrieved, the petitioner preferred an appeal. During the pendency of the appeal, the decree of eviction was executed and the contesting respondents, the plaintiff in the suit obtained possession. Subsequently, the appeal filed by the petitioner was allowed by the judgment and decree dated 28.08.1982 and the second appeal filed before the Board of Revenue by the contesting respondents was dismissed on 08.09.1974. This order has become final, not having being challenged any further. 5. In pursuance of the final judgment and decree whereby the suit for possession filed by the contesting respondents was dismissed, the petitioner was given possession of the land for which he had been evicted on the basis of the judgment and decree of the Trial Court on 14.11.1974. This was done on an application under Section 144 CPC for restitution. 6. A suit for mean profit was filed by the petitioner which was decreed and the petitioner was granted compensation for the period he remained out of possession. Since the revenue entries were not corrected after the petitioner was given possession in the restitution proceedings, he filed an application under Section 33/39 of the U.P. Land Revenue Act for correction of papers. This application was dismissed for default. Thereafter on the start of consolidation operations, the petitioner preferred the objection wherefrom this writ petition arises. 7. The Consolidation Officer by his order dated 16.09.1975 allowed the petitioners objection regarding 7 Bigha 1 Biswa and 10 Biswansi of the land in dispute. This application was dismissed for default. Thereafter on the start of consolidation operations, the petitioner preferred the objection wherefrom this writ petition arises. 7. The Consolidation Officer by his order dated 16.09.1975 allowed the petitioners objection regarding 7 Bigha 1 Biswa and 10 Biswansi of the land in dispute. The consequential appeal filed by the contesting respondents was dismissed on 26.02.1976. However, the Deputy Director of Consolidation by the impugned order dated 10.12.1980 allowed the revision filed by the contesting respondents and therefore this petition. 8. The contention of learned counsel for the petitioner is that the Dakhalnama whereby the petitioner was put in possession over the land in question on 14.11.1974 was filed in the proceedings . The Consolidation Officer as also the Settlement Officer Consolidation have categorically referred to this document and relied upon the same. The Deputy Director of Consolidation has recorded that this document is not available on record and therefore he is not in a position to comment thereon. He has therefore discarded the theory that the petitioner have not put in possession in 1974 and because the possession of the petitioner is not recorded in the revenue records he had decided against the petitioner and set aside the orders passed by the Consolidation Officer and the Settlement Officer Consolidation, wrongly and illegally. 9. The second submission made by learned counsel for the petitioner is that the objection had been filed before the Assistant Consolidation Officer. The Deputy Director of Consolidation has wrongly held that the objection had been preferred before the Consolidation Officer and therefore it had not been filed before the court of competent jurisdiction. He has also referred to various documents on record, in support of his contention that the objection had in fact been preferred before the Assistant Consolidation Officer who thereafter forwarded the same to the Consolidation Officer, when efforts for conciliation between the parties failed. 10. The case of the petitioner primarily, therefore, is that the parties belong to the same family. The land in question was settled in their favour by the Zamindar. By virtue of the settlement the petitioner was entitled to half share in the property in question. The parties to the dispute are sons of Mohan and Sohan respectively who were brothers and therefore each branch is entitled to half share. The land in question was settled in their favour by the Zamindar. By virtue of the settlement the petitioner was entitled to half share in the property in question. The parties to the dispute are sons of Mohan and Sohan respectively who were brothers and therefore each branch is entitled to half share. The contesting respondents wrongly and illegally filed a suit for dispossession which was initially decreed by the Trial Court and in pursuance of this decree the petitioner was evicted. Subsequently, however the decree of the Trial Court was set aside in appeal and the order was affirmed by the second appellate court and thereafter the petitioner was put back in possession in restitution proceedings. He was also granted compensation for the period he was kept out of possession. Since however, the possession on the spot was not reflected in the revenue records, proceedings for correction of papers and thereafter the objection under Section 9-A(2) was filed which was rightly allowed by the Consolidation Officer and the Settlement Officer Consolidation. The Deputy Director of Consolidation has wrongly and illegally reversed these judgments. He submits that the Dakhalnama had been filed in proceedings before the Consolidation Officer. It has been specifically referred to by the Consolidation Officer as also the Settlement Officer Consolidation and therefore it was not open for the Deputy Director of Consolidation to discard the same on the observation that the said Dakhalnama was not available on the record before him. In case, the Dakhalnama was misplaced, efforts should have been made to trace out the same and in any case opportunity could have been granted to the petitioner to furnish another copy of the said document, in case the original filed by him had really been lost. The Deputy Director of Consolidation, therefore, could have discarded this document only on a finding that the petitioner had never filed the same. No such finding has been recorded and therefore the impugned order cannot be sustained, more so, when this document was the basis of the order passed by the Consolidation Officer as also the Settlement Officer Consolidation. 11. It has further been submitted that apart from this order there were other documents to show the possession of the petitioner which have been wrongly ignored. 11. It has further been submitted that apart from this order there were other documents to show the possession of the petitioner which have been wrongly ignored. The copy of the appellate order allowing the appeal as also the note made by the Sub Divisional Magistrate that possession had been delivered to the petitioner in the presence of Murli was also available on record, but the same has wrongly and illegally been ignored. Since the objection was that the revenue entries required correction, the Deputy Director of Consolidation has taken an incorrect view in the matter and decided against the petitioner on the reasoning that his possession was not established from the revenue records. In the facts and circumstances of the instant case this view could not have been taken. In case, the revenue entries were in favour of the petitioner, there would have been no occasion for filing the objection itself. 12. Sri Arjun Singhal learned counsel for the respondents on the contrary defended the impugned order. He has submitted that Dakhalnama was a forged document. He has further referred to the finding returned by the Deputy Director of Consolidation on page 56 of the Paper Book wherein the Deputy Director of Consolidation has observed that since the petitioner is not recorded in possession over the land in dispute and his possession is not continuous, he has lost his title to the land in question. 13. I have considered the submissions made by learned counsel for the parties and have perused the record. It would be relevant to note that the Consolidation Officer and the Settlement Officer Consolidation had decided in favour of the petitioner relying upon the Dakhalnama whereby possession was delivered to the petitioner on his application for restitution under Section 144 CPC, consequent upon the dismissal of the suit for eviction filed by the contesting respondents. The Deputy Director of Consolidation has held against the petitioner only for two reasons, First that the Dakhalnama is not available on the record produced before him and secondly because the petitioners continuous possession is not recorded in the revenue records. 14. In this context, it would be relevant to examine as to whether any such plea has been taken by the contesting respondents, alleging either that the Dakhalnama had not been filed by the petitioner or that the copy that was filed was forged. 15. 14. In this context, it would be relevant to examine as to whether any such plea has been taken by the contesting respondents, alleging either that the Dakhalnama had not been filed by the petitioner or that the copy that was filed was forged. 15. The parties have not filed the memo of revision and therefore it is not possible to ascertain as to whether such specific plea was raised by the contesting respondents. No such argument has been noticed by the Deputy Director of Consolidation. Besides, the submission of learned counsel for the respondents is that the Dakhalnama was a forged document. This argument necessarily leads to a conclusion that it was the case of the respondents that the Dakhalnama relied upon by the petitioner was a forged document. It was not their case that no such Dakhalnama was available on record. Besides, there is neither any material nor any argument available on record to show that case of the contesting respondent was that this Dakhalnama was forged. 16. The next submission of learned counsel for the respondents is that the original Dakhalnama was not filed and that merely a copy of the same was filed and therefore, it was rightly discarded by the respondent no. 1. Even this argument cannot be accepted because the Deputy Director of Consolidation has categorically stated that the Dakhalnama is not available in the record of the courts below, placed before him. It therefore, necessarily follows that the Dakhalnama relied upon by the petitioner was filed, since it finds a mention in the orders passed by the Consolidation Officer and the Settlement Officer Consolidation. The Deputy Director of Consolidation has merely observed that since this document is not available on record he is not in a position to make any observation regarding it. 17. In case a document is filed before the Consolidation Officer and it has been referred to in the orders of the two courts below and is not available on the record which was produced before the Deputy Director of Consolidation, it was incumbent upon him to have been ordered an inquiry and to have made attempts to trace out the document or to ascertain the manner in which it was removed from the record. Without carrying out such an exercise, he could not have discarded the document and held against the petitioner, specially when both the subordinate courts had decided in favour of the petitioner relying upon this document. 18. Even the observations which has been relied upon by learned counsel for the respondents, wherein it has been stated that as the continuous possession of the petitioner has not been proved and therefore he has lost his claim to the property, also appears to be without any basis. 19. Learned counsel for the petitioner has not been able to point out any law which provides that merely because a persons' possession is not continuous, he would cease to have title over the property. The petitioner's case was not one of adverse possession wherein he was required to establish his continuous adverse possession for the statutory period and for this reason alone the finding and the observation made in the impugned order cannot be accepted. 20. From the facts and circumstances noticed above and also in view of the discussion in the proceeding paragraphs, the submissions made by learned counsel for the petitioner have force. The two reasons given by the Deputy Director of Consolidation for passing the impugned order have already been found to be improper. 21. The only other ground taken in the impugned order for deciding against the petitioner is that he had earlier initiated proceedings for correction of papers under Section 33/39 of the U.P. Land Revenue Act which proceedings were dismissed for default and such order of dismissal for default has not been set aside. Even this cannot be the basis for deciding against the petitioner. It is settled law that proceedings under Section 33/39 of the U.P. Land Revenue Act are summary proceedings which are always subject to any decision in regular title proceedings. The Deputy Director of Consolidation has therefore decided against the petitioner relying upon orders which even if passed, after hearing the parties and on the merits of their rival claims, would not be binding upon him. In the instant case, the order was merely an order of dismissal for default of a summary proceeding and therefore the same was not binding upon the Deputy Director of Consolidation. Therefore, the impugned order passed by him, cannot be sustained. 22. In the instant case, the order was merely an order of dismissal for default of a summary proceeding and therefore the same was not binding upon the Deputy Director of Consolidation. Therefore, the impugned order passed by him, cannot be sustained. 22. Learned counsel for the respondents has also not been able to rebut the submission made on behalf of the petitioner that there was material on record of the courts below to show that, in fact, the petitioner had obtained an order of restitution on an application under Section 144 CPC for restoring his possession over the land in question and that he had been held entitled to compensation for the period he was kept out of possession. 23. In am therefore constrained, to hold that the case set up by the petitioner is liable to be accepted and was rightly accepted by the Consolidation Officer and the Settlement Officer Consolidation. These orders have been set aside in revision on grounds which are unsustainable, as already discussed herein above. The impugned order therefore cannot be sustained and is liable to be set aside. 24. Accordingly I allow the writ petition and quash the order passed by the Deputy Director of Consolidation dated 10.12.1980. The orders passed by the Consolidation Officer and Settlement Officer Consolidation are reiterated. 25. There shall be no order as to costs.