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2015 DIGILAW 306 (ALL)

Mahendra Singh v. Dy. Director of Consolidation

2015-02-16

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Indra Pal Singh Rajpoot, for the petitioner. The writ petition has been filed against the orders of Settlement Officer Consolidation dated 30.4.2012 and Deputy Director of Consolidation dated 19.1.2015, passed in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the 'Act'). 2. The dispute relates to the land recorded in basic consolidation year khata 510 [consisting plots 34 (area 0.84 acre), 389 (area 0.16 acre) and 776 (area 1.60 acre)] of village Kashipura, tahsil Kulpahar, district Mahoba, which was recorded in the name of Chinuwa (respondent-3). Notification under section 9 of the Act for the village was issued on 15.9.1981, section 20 was issued on 20.1.1983. Thereafter Provisional Consolidation Scheme was confirmed and possession over confirmed chaks were delivered up to 31.8.1985. As no objection was filed up to that time as such chak was carved out in the name of Chinuwa. 3. It is alleged that Mahendra Singh (the petitioner) filed a time barred objection, claiming the land in dispute on the basis of his continuous possession since before date of vesting, along with delay condonation application. Notice issued by Consolidation Officer to Chinuwa was returned unserved with report that Chinuwa had gone out of village. Thereafter, notices were published in newspaper 'Dainik Karmyug Prakash' and Consolidation Officer, on its basis by order dated 27.4.1986 proceeded ex-parte against respondent-3 and recorded statement of Mahendra Singh and his witness Nathuwa on 2.5.1986 and by order dated 20.11.1986 allowed the objection and directed for recording the petitioner's name over new plots 2-Ra (area 0.18 acre), 211 (area 0.22 acre), 212 (area 0.32 acre), 687 (area 1.32 acre), 1261 (area 0.59 acre) and 1265 (area 0.23 acre). 4. Chinuwa filed an appeal (registered as Appeal No. 80 of 2012) from the aforesaid order along with delay condonation application on 11.1.2012. The appeal was heard by Assistant Settlement Officer Consolidation, who by order dated 30.4.2012 held that the petitioner did not raise any dispute during partal claiming his right over the land in dispute nor filed any objection under section 9 within time. The objection of the petitioner, report of Assistant Consolidation Officer dated 3.1.1986, notice issued in the case and the order dated 20.11.1986 were in the handwriting of one and the same person. The objection of the petitioner, report of Assistant Consolidation Officer dated 3.1.1986, notice issued in the case and the order dated 20.11.1986 were in the handwriting of one and the same person. Although in the judgment, it has been mentioned that the petitioner had filed documentary evidence to prove his possession but there was no documentary evidence on record. For these reasons it was held that entire record was fabricated and delay in filing of the appeal was condoned and the appeal was allowed. The order of Consolidation Officer dated 20.11.1986 was set aside and the matter was remanded to Consolidation Officer for fresh decision after giving opportunity of evidence/hearing to the parties. 5. The petitioner filed a revision (registered as Revision No. 285/122) and respbndent-3 filed a revision (registered as Revision No. 265/189) along with delay condonation application against the aforesaid order. Both the revisions were consolidated and heard by Deputy Director of Consolidation, who by order dated 19.1.2015, held that the objection of the petitioner, report of Assistant Consolidation Officer dated 3.1.1986, notice issued in the case and the order dated 20.11.1986 were in the handwriting of one and the same person. Thus there was no genuine objection on record. Entire papers were fabricated at some time after finalization of Provisional Consolidation Scheme. On the findings that entire records were fabricated, the case was not required to be remanded for trial as there was no genuine case at all. On these findings he allowed the revision of respondent-3 and dismissed the revision of the petitioner and directed to Settlement Officer Consolidation to make an inquiry and lodge a F.I.R. against the person found guilty for fabricating the record. Hence this writ petition has been filed. 6. The Counsel for the petitioner submitted that land in dispute was ancestral property of the petitioner and was recorded in the name of Chandan Singh (his grandfather) before date of vesting, who died in the year 1979 and it was inherited by his father. The petitioner was through out in possession of the land in dispute and was paying land revenue and irrigation dues. It was wrongly recorded in the name of respondent-3, in basic consolidation record. On coming to know about the entry, an objection was filed along with delay condonation application. The petitioner was through out in possession of the land in dispute and was paying land revenue and irrigation dues. It was wrongly recorded in the name of respondent-3, in basic consolidation record. On coming to know about the entry, an objection was filed along with delay condonation application. Consolidation Officer issued notice to respondent-3 on 17.1.1986, which was returned un-served with endorsement that addressee had gone out side the village. Thereafter notices were sent through registered post which could not be served. Then notice was published in newspaper 'Dainik Karmyug Prakash'. As respondent-3 did not appear as such Consolidation Officer proceeded ex-parte and recorded statement of the witnesses and passed ex parte order. The order of Consolidation Officer was not liable to be set aside. The appeal was filed with inordinate delay of about 26 years. There was no cause for condoning the delay. In any case, Deputy Director of Consolidation has illegally allowed the revision of respondent-3 and set aside the remand order of Assistant Settlement Officer Consolidation and also directed for lodging F.I.R. He submits that 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 petitioner and examined the record. The question is as to whether there was any genuine objection of the petitioner under section 9(2) of the Act, which required trial on merit? Assistant Settlement Officer Consolidation and Deputy Director of Consolidation both concurrently found that the objection of the petitioner, report of Assistant Consolidation Officer dated 3.1.1986, notice issued in the case and the order dated 20.11.1986 were in the handwriting of one and the same person. The petitioner has not said a word either in the memorandum of revision or in the writ petition, challenging the aforesaid findings or giving any explanation. There cannot be a coincident that the objection and judgment were written in the same handwriting. On this basis conclusion was drawn that entire papers were fabricated by one and same person at a belated stage. Findings of fact recorded by two statutory authorities in this respect do not suffer from any illegality. Since there was no genuine case as such trail was required. 8. Admittedly, village was placed under consolidation operation in 1979, notification under section 9 of the Act for the village was issued on 15.9.1981, section 20 was made on 20.1.1983. Findings of fact recorded by two statutory authorities in this respect do not suffer from any illegality. Since there was no genuine case as such trail was required. 8. Admittedly, village was placed under consolidation operation in 1979, notification under section 9 of the Act for the village was issued on 15.9.1981, section 20 was made on 20.1.1983. Thereafter Provisional Consolidation Scheme was confirmed and possession over confirmed chaks were delivered up to 31.8.1985 and notification under section 52 was issued in 1986. Alleged undated objection of the petitioner was forwarded to Consolidation Officer, by Assistant Consolidation Officer along with his report dated 3.1.1986. Thus there being no genuine objection, which required trial on merit. Deputy Director of Consolidation did not commit any illegality in allowing the revision of respondent-3. 9. Contradictory stand has been taken by the petitioner at the different stages. In the objection, the petitioner derived his title on the basis of possession since before date of vesting. In the revision and writ petition, the petitioner claim the land in dispute was his ancestral property. Various documents filed by the petitioners along with writ petition shows that land in dispute was never recorded in the name of the ancestor of the petitioner. Possession of the petitioner was not recorded in khasra in any year nor the land revenue receipts or irrigation receipts relates to the land in dispute. In the judgment of Consolidation Officer and writ petition, it has been mentioned that notice was issued to respondent-3 on 17.1.1986, which was returned unserved with endorsement that addressee had gone out side the village. Thereafter notices were sent through registered post which could not be served. Then notice was published in newspaper 'Dainik Karmyug Prakash'. But none of these documents are on record. In the memorandum of revision, it has been stated that notice was personally served upon respondent-3. In such circumstances, the petitioner has no bona fide case which requires trial. The order of respondent-1 does not suffer from any illegality. In view of aforesaid discussions, the writ petition has no merit and is dismissed.