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2015 DIGILAW 1710 (ALL)

Rajendra Prasad v. Dy. Director of Consolidation, Mau

2015-07-02

RAM SURAT RAM (MAURYA)

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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. This writ petition has been filed against the orders of Settlement Officer Consolidation 29.5.2014, allowing appeal of respondent-4 and setting aside order of Assistant Consolidation Officer dated 20.4.1981 and Deputy Director of Consolidation dated 18.12.014, dismissing revision of the petitioners, in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 2. The dispute between the parties relates to plot 4924 (area 256 links) of village Dubari, pargana Natthupur, district Mau which was recorded in the names of Rama Shankar, Gauri Shankar and Kripa Shankar sons of Akshaiber, in basic consolidation year, along with other plots in khata 1787. It is alleged by the petitioners that Ram Badan, Jagdish, Ram Kawal, Triloki Nath and Rajendra Prasad (now represented by the petitioners) filed an objection (registered as Case No. 5657), under section 9-A of the Act, for recording their names, over the aforesaid plot, claiming their adverse possession over it. The dispute was compromised between the parties, before Assistant Consolidation Officer, who by order dated 20.4.1981 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. 1460/1559/2013-14), on 21.12.2010 from the order dated 20.4.1981, along with delay condonation application. Settlement Officer Consolidation by order dated 18.7.2011 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 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. 487/2014-15) from the aforesaid order. Deputy Director of Consolidation by order dated 18.12.2014 dismissed the revision. Hence this writ petition has been filed. 4. 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 land in dispute, which was registered as Case No. 5657, under section 9-A of the Act, as is proved from misilband register. 4. 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 land in dispute, which was registered as Case No. 5657, 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 holders took Rs. 2,500/- from the petitioners and entered into compromise, which was duly recorded by Assistant Consolidation Officer and order on its basis was passed on 20.4.1981. 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 and Kripa Shankar did not challenge the order of Assistant Consolidation Officer, during their life time. Respondent-4 is not related to Gauri Shankar. 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. The appeal was allowed on the ground that the appeal filed by State of U.P. has been 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. D.D.C. 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. 5. I have considered the arguments of the Counsel for the parties and examined the record. 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. 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. 6. 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 2010, he came to know about the order dated 20.4.1981, then he filed appeal. 7. 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. 5657, 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. 2,500/- from them and entered into compromise, which was duly recorded by Assistant Consolidation Officer and order on its basis was passed on 20.4.1981. 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 and Kripa Shankar did not challenge the order of Assistant Consolidation Officer, during their 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. 8. Gauri Shankar and Kripa Shankar did not challenge the order of Assistant Consolidation Officer, during their 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. 8. 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 20.4.1981 passed in Case No. 5657, under section 9-A, name of Gauri Shankar and others were deleted and names of Ram Badan, Jagdish, Ram Kawal, Triloki Nath and Rajendra Prasad sons of Ramdeo were recorded, over plot 4924 (area 256 links). 9. The petitioners are claiming their right on the basis of possession and payment of Rs. 2,500/- at the time of compromise. Payment of Rs. 2,500/-was not proved. A perusal of CH Form-23 of the petitioners shows that plot 4924 (area 256 links) is not recorded, in it, for which the petitioners have no explanation. Thus the petitioners could prove only registration of their objection and not the compromise by Gauri Shankar and Kripa Shankar. In such circumstances, case of respondent-4 that Gauri Shankar and Kripa Shankar had no knowledge of the case nor they 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. 10. 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. 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 Swaleh v. IInd 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 petition has no merit and is dismissed. ………………