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2015 DIGILAW 2970 (ALL)

Ram Bachan @ Murali v. State of U. P.

2015-09-17

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri Shyam Sunder Tripathi for the petitioner and Dr. O.P. Yadav for the contesting respondents. 2. The writ petition has been filed against the order of Deputy Director of Consolidation dated 21.8.2015 by which he has allowed the revision and condoned the delay and set aside the order dated 24.10.1989 passed by the Settlement Officer Consolidation on the compromise and remanded the matter to Settlement Officer Consolidation to decide the appeal afresh on merit. 3. There is dispute between the parties in respect of Chak No. 157 area 992 kadi situated in village Miriya Redaha, pargana and tehsil Sagari, Distt. Azamgarh. On the basis of sale deed executed by Bideshi, father of the petitioner, the contesting respondents filed an application under Section 9 of UP C. H. Act for recording their names over ½ share of the land in dispute. The Consolidation Officer by order dated 7.6.1988 directed for mutation of the names of contesting respondents over the land in dispute. Bideshi, father of the petitioner filed an appeal against the aforesaid order. The appeal was initially, dismissed in default by order dated 17.4.1989. Thereafter Bideshi filed an application for recall of the order dated 17.4.1989 on 26.4.1989. It is alleged that in the restoration application the contesting respondents put appearance before the Settlement Officer Consolidation and filed vakalatnama of Sri Vijay Kumar Pandey, Advocate on 7.10.1989 and thereafter a compromise was filed before the Settlement Officer Consolidation on 24.10.1989 which was allegedly executed by Bideshi whose thumb impression was verified by his counsel Sri Shiv Sunder Upadhyay and also signed by Birbal whose signature was identified by Sri Vijay Kumar Pandey. At the time of verification of the compromise dated 24.10.1989 it has been stated that the compromise was filed on behalf of Birbal himself and on behalf of Rajendra and Ram Bhajan through their counsel Sri Vijay Kumar Pandey. Thereafter appeal was decided in terms of compromise by the order of Settlement Officer Consolidation dated 24.10.1989. It may be mentioned that in this compromise half share in Chak No. 157 was given to Bideshi, father of the petitioner and half share in it was given to Birbal, Rajendra and Ram Bhajan. Thereafter appeal was decided in terms of compromise by the order of Settlement Officer Consolidation dated 24.10.1989. It may be mentioned that in this compromise half share in Chak No. 157 was given to Bideshi, father of the petitioner and half share in it was given to Birbal, Rajendra and Ram Bhajan. According to the petitioner, the petitioner has filed a civil suit i.e. O.S. No. 785 of 1987 before Munsif , Mohammadabad, Azamgarh impleading Bideshi and others for permanent injunction restraining them from interfering with his possession over half share in Chak No. 157 as well as restraining Bideshi from executing any sale deed of the land in dispute and that suit was also decided in terms of compromise between the parties filed on 29.4.1988 in which half share of the petitioner has been admitted and on the basis of that compromise civil suit was decreed on 30.4.1988. On the basis of that decree of civil court the petitioner also filed an application for mutation of his name before the Consolidation Officer and the Consolidation Officer by order dated 8.3.1991 directed for mutation of the name of the petitioner over half share of the land in dispute. The contesting respondents have challenged the order of Consolidation Officer dated 8.3.1991 in appeal, thus they came to know about the order of Settlement Officer Consolidation dated 24.10.1989 at least on the date of filing of the appeal against the order dated 8.3.1991. 4. Thereafter the contesting respondents filed a highly time barred revision against the order dated 24.10.1989 before the Deputy Director of Consolidation on 15.12.2012 along with delay condonation application. In the memorandum of revision they have stated that the appeal of the petitioner was dismissed in default and he has filed an application for recall of the order. Before recall of the order the fabricated compromise has been filed and on the basis of that compromise order dated 24.10.1989 has been secured. The contesting respondents neither appeared before the Settlement Officer Consolidation nor filed any vakalatnama. Thus the compromise is totally fabricated document. Before recall of the order the fabricated compromise has been filed and on the basis of that compromise order dated 24.10.1989 has been secured. The contesting respondents neither appeared before the Settlement Officer Consolidation nor filed any vakalatnama. Thus the compromise is totally fabricated document. In respect of the knowledge of the order dated 24.10.1989 it has been stated that they had filed an appeal against the order dated 8.3.1991 i.e. Appeal No. 358/378 and during preparation for argument in the appeal they came to know about the order dated 24.10.1989 only in the month of December 2012 and thereafter the inspection was made and the revision was filed. The petitioner filed an objection and counter affidavit in the delay condonation application as well as in the revision in which it has been stated that the contesting respondents had appeared before the appellate court and voluntarily filed vakalatnama as well as compromise on the basis of order dated 24.10.1989 was passed after due verification of the compromise. Therefore the revision was not maintainable and was liable to be dismissed. 5. The revision was heard by the Deputy Director of Consolidation who by the impugned order dated 21.8.2015 found that the compromise was not signed by Rajendra and Ram Bhajan. It is well settled that the compromise has to be filed by the parties. Along with the record of restoration application the original file of appeal was not attached. No notice in the appeal or in the recall application has been issued, which creates a serious doubt regarding appearance of the contesting respondents and filing compromise on 24.10.1989. The compromise was filed without recalling the order dated 17.4.1989 by which the appeal was dismissed in default. Thus without recalling the order of dismissal the Settlement Officer Consolidation had no jurisdiction to pass any order in the appeal and the order passed on the basis of compromise is totally without jurisdiction. The entire act before the Settlement Officer Consolidation is within the shadow of doubt and raised serious suspicion regarding genuineness of the compromise. On this finding he condoned the delay and allowed the revision and set aside the order dated 24.10.1989 and remanded the matter to Settlement Officer Consolidation to decide the appeal afresh. Hence this writ petition has been filed. 6. On this finding he condoned the delay and allowed the revision and set aside the order dated 24.10.1989 and remanded the matter to Settlement Officer Consolidation to decide the appeal afresh. Hence this writ petition has been filed. 6. The counsel for the petitioner submits that vakalatnama has been filed before the Settlement Officer Consolidation on 7.10.1989 by Birbal, Rajendra and Ram Bhajan which was directed to be kept on record by the Presiding Officer. Thereafter the compromise was filed on 24.10.1989 and the compromise was signed by Birbal and his signature was verified by his counsel Sri Vijay Kumar Pandey. Sri Vijay Kumar Pandey has also verified the compromise on behalf of remaining two brothers of Birbal namely Rajendra and Ram Bhajan. Under Order III, Rule 4 CPC once the advocate is engaged then he is competent to file compromise on behalf of his client and the compromise was signed by the advocate. Although the respondents have challenged the compromise as well as filing of vakalatnama but they did not dare to summon the advocate before the court below. Thus the Deputy Director of Consolidation has illegally set aside the compromise. He further submits that it has been admitted by the respondents that they came to know about the order dated 24.10.1989 at the time of filing of appeal against the order dated 8.3.1991. Thus there was no ground for condoning the inordinate delay. But the Deputy Director of Consolidation has illegally condoned the delay without recording any finding regarding sufficiency of cause for condonation of delay. He further submits that in any case, if the compromise was denied thus the recall application ought to have been filed before the same court but instead of it the revision has been filed. The order of Deputy Director of Consolidation is illegal and liable to be set aside. 7. I have considered the arguments of the counsel for the parties and examined the records. 8. A perusal of the memorandum of revision shows that the contesting respondents have denied their appearance before the Settlement Officer Consolidation regarding filing of vakalatnama as well as compromise. Thus on denial the burden was shifted upon the petitioner to establish that vakalatnama as well as compromise was genuine and the petitioner has failed to prove the genuineness of the vakalatnama as well as the compromise. Supreme Court in Puwada Venkateshwara Rao Vs. Thus on denial the burden was shifted upon the petitioner to establish that vakalatnama as well as compromise was genuine and the petitioner has failed to prove the genuineness of the vakalatnama as well as the compromise. Supreme Court in Puwada Venkateshwara Rao Vs. Chidamana Venkata Ramana, AIR 1976, SC 869, A. Rama Rao Vs. Raghunath Patnaik , AIR 2007, SC 3036, State of West Bengal Vs. E.I.T.A. , AIR 2003, SC 4126, V.S. Krishnan Vs. West Fort Hitech (2008), 3 SCC 363 have held that on denial the presumption stood rebutted and burden is shifted upon the person to prove that act was properly discharged. 9. The Deputy Director of Consolidation recorded a finding that appeal was dismissed in default and neither in the appeal nor in the recall application any notice has been issued to the opposite parties. Along with restoration application original record was not attached. The Settlement Officer Consolidation who had already dismissed the appeal in default had no jurisdiction to pass a fresh order in the appeal without setting aside the order of dismissal. All these findings recorded by the Deputy Director of Consolidation do not suffer from any illegality. 10. So far as the argument of the counsel for the petitioner regarding authority of the advocate to file compromise is concerned, in this case filing of vakalatnama itself has been denied by the contesting respondents and it has not been established that alleged vakalatnama was filed by the contesting respondents. Thus the case law relied upon by the counsel for the petitioner in Y. Sleebachen Vs. Superintending Engineer, 2014 (5), AWC, (SC) has no application in this case. 11. So far as the argument of the counsel for the petitioner that the Deputy Director of Consolidation has not recorded any finding in respect of sufficiency of cause for condonation of delay is concerned, a Full Bench of this Court in Rama Kant Singh Vs. DDC and others, AIR 1975 All 226 (FB) has held that once the record has been summoned by the Deputy Director of Consolidation then in spite of the fact that delay was not liable to be condoned, he can examine the case on merit in exercise of his suo motu revisional jurisdiction under Section 48 of the Act. Thus there is no force in this argument. 12. Thus there is no force in this argument. 12. The matter is still pending before the Settlement Officer Consolidation and the petitioner is free to contest the matter before the court below. No prejudice has been caused to the petitioner as such no interference is required by this Court. 13. The writ petition has no merit, it is dismissed.