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2015 DIGILAW 1708 (ALL)

Ram Briksh v. Dy. Director of Consolidation

2015-07-02

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri C.S. Agnihotri and Sri Akhilesh Kumar, for the petitioners and Standing Counsel for respondent-3 and Sri Prabhakar Dwivedi, for respondent-4. Writ - B No. 3452 of 2015 has been filed against the orders of Settlement Officer Consolidation dated 18.7.2011 allowing the appeal of State of U.P. and setting aside the order of Assistant Consolidation Officer dated 17.2.1981 and 5.8.2013 rejecting recall application of the petitioners and Deputy Director of Consolidation dated 18.12.2014, dismissing revision of the petitioners, arising in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). Writ B- No. 5971 of 2015 has been filed against the order of Settlement Officer Consolidation dated 29.5.2014, allowing the appeal of respondent-4 and setting aside order of Assistant Consolidation Officer dated 17.2.1981 and Deputy Director of Consolidation dated 18.12.2014, dismissing revision of the petitioners. 2. The dispute between the parties in both the writ petitions relates to plots 4924 (area 400 links) and 3094 (area 450 links) of village Dubari, pargana Natthupur, district Mau. According to the petitioners, name of Gauri Shankar son of Akshaibar alone was recorded over it while according to respondent-4, in basic consolidation year, the land in dispute was recorded in the names of Rama Shankar, Gauri Shankar and Kripa Shankar sons of Akshaibar along with other plots in khata 1787. It is alleged by the petitioners that Ram Briksh, Bihari and Ram Chandra (now represented by the petitioners) filed an objection (registered as Case No. 5856), under section 9-A of the Act, for recording their names, over all the aforesaid plots, claiming their adverse possession over it. The dispute was compromised between the parties, before Assistant Consolidation Officer, who by order dated 17.2.1981 directed for recording the names of the petitioners over the land in dispute. 3. Fateh Bahadur (respondent-4) filed a time barred appeal (registered as Appeal No. 1496/1599/2013-14), on 2.2.2011 from the order dated 17.2.1981, along with delay condonation application. State of U.P. (respondent-3) also filed a time barred appeal (registered as Appeal No. 2489), on 8.4.2011 from the order dated 17.2.1981, with prayer for condonation of delay. 3. Fateh Bahadur (respondent-4) filed a time barred appeal (registered as Appeal No. 1496/1599/2013-14), on 2.2.2011 from the order dated 17.2.1981, along with delay condonation application. State of U.P. (respondent-3) also filed a time barred appeal (registered as Appeal No. 2489), on 8.4.2011 from the order dated 17.2.1981, with prayer for condonation of delay. Settlement Officer Consolidation by order dated 18.7.2011 held that order of Assistant Consolidation Officer dated 17.2.1981 amounts to illegal transfer of disputed land and was passed without any notice to State of U.P. On these findings, delay in filing the appeal was condoned and the appeal was allowed. The petitioners filed an application dated 26.10.2012 for recall of order dated 18.7.2011 along with delay condonation application. Settlement Officer Consolidation by order dated 5.8.2013 rejected the recall application. The petitioners filed a revision (registered as Revision No. 392/2014-15) from the aforesaid order. Deputy Director of Consolidation by order dated 18.12.2014 dismissed the revision. Hence Writ B No. 3452 of 2015 has been filed. 4. Settlement Officer Consolidation heard the appeal filed by Fateh Bahadur and by order dated 29.5.2014 held that as the order of Assistant Consolidation Officer dated 17.2.1981 has already been set aside in appeal filed by State of U.P. on 18.7.2011 and recall application dated 26.10.2012 filed by the petitioners for recalling order dated 18.7.2011 has also been rejected by order dated 5.8.2013 as such delay in filing the appeal was condoned and the appeal was allowed. The petitioners filed a revision (registered as Revision No. 470/2014-15) from the aforesaid order. Deputy Director of Consolidation by order dated 18.12.2014 dismissed the revision. Hence Writ B No. 5971 of 2015 has been filed. 5. The Counsel for the petitioners submitted that the petitioners were in possession of the land in dispute and perfected their title. The petitioners filed an objection, claiming their right over the in dispute, which was registered as Case No. 5856, under section 9-A of the Act, as is proved from misilband register. Although right of the petitioners, on the basis of their possession had been perfected, even then recorded tenure holder took Rs. 5,000/- from the petitioners and entered into compromise, which was duly recorded by Assistant Consolidation Officer and order on its basis was passed on 17.2.1981. In pursuance of the order of Assistant Consolidation Officer, valuation of the land in dispute was included in the chak of the petitioners. 5,000/- from the petitioners and entered into compromise, which was duly recorded by Assistant Consolidation Officer and order on its basis was passed on 17.2.1981. In pursuance of the order of Assistant Consolidation Officer, valuation of the land in dispute was included in the chak of the petitioners. Gauri Shankar did not challenge the order of Assistant Consolidation Officer, during his life time. Respondent-4 is not related to Gauri Shankar and has no concern with land in dispute. After death of Gauri Shankar, name of one Santosh Kumar was mutated over his remaining property, by order of Consolidation Officer dated 24.9.1996. Santosh Kumar also did not challenge the order of Assistant Consolidation Officer. Appeal was barred by limitation of about 30 years. When respondent-4 realized that delay was not liable to be condoned, he managed to file another appeal by District Government Counsel (Revenue) on behalf of State of U.P. Compromise in Court, in respect of subject-matter of dispute, is neither required to be registered nor stamp duty is payable on it. The appeal filed by State of U.P., on the ground of stamp evasion or illegal transfer, was not maintainable but it has been illegally allowed. On its basis, appeal of respondent-4 was also allowed. No reason has been assigned for condoning inordinate delay. Revision filed by the petitioners has been illegally dismissed. He relied upon the judgments of this Court in Vishwanath v. DDC and others, 2009 (108) RD 721 in which it has been held that only parties to the proceeding can file appeal under section 11 of the Act and Shankar Shukla v. State of U.P. and others, 2007(103) RD 312 in which it has been held that compromise in the Court cannot be set aside on the ground that it amounts to transfer of the property. He submitted that orders of respondents-1 and 2 are illegal and liable to be set aside. 6. I have considered the arguments of the Counsel for the parties and examined the record. Let us examine the legalities of the order of Settlement Officer Consolidation dated 29.5.2014 allowing appeal of respondent-4. He submitted that orders of respondents-1 and 2 are illegal and liable to be set aside. 6. I have considered the arguments of the Counsel for the parties and examined the record. Let us examine the legalities of the order of Settlement Officer Consolidation dated 29.5.2014 allowing appeal of respondent-4. Settlement Officer Consolidation in his order dated 29.5.2014 assigned only reason for allowing the appeal of respondent-4 that order of Assistant Consolidation Officer dated 17.2.1981 has been set aside in the appeal of State of U.P. Thus case of respondent-4 was not examined independently considering the objection of the petitioners. As such it necessitated that this Court to examine respective cases of the parties to find out as to whether there is miscarriage of justice by impugned orders. 7. Respondent-4, in the memorandum of appeal, took plea that the land in dispute was recorded in khata 1787 in the names of Rama Shankar, Gauri Shankar and Kripa Shankar sons of Akshaiber. Rama Shankar died in 1980 and Gauri Shankar died in 1997, issueless, Kripa Shankar inherited their share. His predecessors had no knowledge of the proceeding before Assistant Consolidation Officer nor they ever appeared before him or signed compromise and order of Assistant Consolidation Officer is a fabricated order. Respondent-4 claims to be son of Kripa Shankar. It is only in 2011, he came to know about the order dated 17.2.1981, then he filed appeal. 8. The objection raised by the petitioners was the petitioners were in possession of the land in dispute and perfected their title. The petitioners filed an objection, claiming their right over the land in dispute, which was registered as Case No. 5856, under section 9-A of the Act, as is proved from misilband register. Although right of the petitioners, on the basis of their possession had been perfected, even then Gauri Shankar took Rs. 5,000/- from them and entered into compromise, which was duly recorded by Assistant Consolidation Officer and order on its basis was passed on 17.2.1981. In pursuance of the order of Assistant Consolidation Officer, valuation of the land in dispute was included in the chak of the petitioners. Gauri Shankar did not challenge the order of Assistant Consolidation Officer, during his life time. Respondent-4 has no concerned with the property of Gauri Shankar as after death of Gauri Shankar, name of Santosh Kumar Singh was mutated in his place. 9. Gauri Shankar did not challenge the order of Assistant Consolidation Officer, during his life time. Respondent-4 has no concerned with the property of Gauri Shankar as after death of Gauri Shankar, name of Santosh Kumar Singh was mutated in his place. 9. A perusal of extract of misilband register (Annexure-2) to the writ petition shows that on the basis of order of Assistant Consolidation Officer dated 17.2.1981 passed in Case No. 5856, under section 9-A, name of Gauri Shankar son of Akshaiber was deleted and names of Ram Chandra, Ram Briksh sons of Bihari were recorded, as purchasers, over plots 4924 (area 400 links) and 3094 (area 450 links). 10. Admittedly there was no sale-deed in favour of the petitioners of the land in dispute. The petitioners are now claiming their right on the basis of possession and payment of Rs. 5,000/- at the time of compromise. Payment of Rs. 5,000/- was not proved. When land in dispute was recorded jointly in the names of Rama Shankar, Gauri Shankar and Kripa Shankar, then how matter was compromised with Gauri Shankar alone. A perusal of CH Form-23 of the petitioners shows that Ram Chandra, Ram Briksh and Bihari were sons of Bahadur. Thus order in favour of Ram Chandra, Ram Briksh sons of Bihari also creates a suspicion in respect of its genuineness. Although, by the order dated 17.2.1981, plots 4924 (area 400 links) and 3094 (area 450 links) were directed to be recorded in the names of Ram Chandra, Ram Briksh but in CH Form-23, plots 4924 (area 304 links) and 3094 (area 150 links) are recorded, for which the petitioners have no explanation. CH Form-23 of the petitioners contains several cuttings. Neither total area of original holdings and total area of allotted holdings are correct as such no reliance can be placed on it to prove that valuation of the land in dispute was allotted in the chaks of the petitioners from 1981. Thus the petitioners could prove only registration of their objection and not the compromise by Gauri Shankar. In such circumstances, case of respondent-4 that Gauri Shankar had no knowledge of the case nor he ever appeared and signed compromise before Assistant Consolidation Officer appears to be more probable. Delay in filing the appeal by respondent-4 was liable to be condoned and appeal was liable to be allowed. 11. In such circumstances, case of respondent-4 that Gauri Shankar had no knowledge of the case nor he ever appeared and signed compromise before Assistant Consolidation Officer appears to be more probable. Delay in filing the appeal by respondent-4 was liable to be condoned and appeal was liable to be allowed. 11. Writ jurisdiction of High Court under Articles 226 and 227 of the Constitution is an extra-ordinary supervisory jurisdiction. For exercising writ jurisdiction, High Court has to primarily satisfy as to whether there was miscarriage of justice to the petitioner. Supreme Court in State of U.P. v. District Judge Unnao AIR 1984 SC 1401 and Roshan Deen v. Preeti Lal, AIR 2002 SC 33 held that the power conferred on the High Court under Articles 226 and 227 of the Constitution is to advance justice and not to thwart it. The very purpose of such Constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating law. The look out of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice become by-product of an erroneous view of law, the High Court is not expected to erase such justice in the name of correcting the error of law. In Mohammad Szwleh v. II Addl. District Judge and Others, AIR 1988 SC 94 and Ramesh Chandra Sankla v. Vikram Cement, (2008) 14 SCC 58 it has been held that writ jurisdiction cannot be exercised for restoring illegal orders. In view of the aforesaid discussions, no interference is required by this Court as the matter has been remanded to the Consolidation Officer and the petitioners have remedy to agitate their grievance. The writ petitions have no merit and are dismissed. ……………….