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2015 DIGILAW 315 (ALL)

Abhay Prakash v. Dy. Director of Consolidation/Collector Basti

2015-02-18

RAM SURAT RAM (MAURYA)

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JUDGMENT : Ram Surat Ram (Maurya), J. Supplementary affidavit filed today, is taken on record. 2. Heard Sri Chandra Shekhar Agnihotri for the petitioners and Sri R. M. Upadhyay for respondent-4. 3. The writ petition has been filed against the orders of Consolidation Officer dated 24.8.2009, Settlement Officer Consolidation dated 12.5.2011 and Deputy Director of Consolidation dated 30.9.2013 and 16.9.2014 passed in the title proceeding under UP Consolidation of Holdings Act. 4. The dispute related to plot no. 282 (area 15 biswa) of village Gajadharpur, Tappa Khalilabad, Distt. Basti. In basis consolidation record name of Prem Kishori now represented by the petitioners and Suryamani, respondent-4 were recorded over the land in dispute. The dispute was noted in CH Form 4 to the effect that share of Smt. Prem Kishori was 2/3 while share of Suryamai, respondent-4 was 1/3. Prem Kishori filed an objection under Section 9 of the Act claiming to be sole owner of the land in dispute. It has been stated by Smt. Prem Kishori that land in dispute was purchased through sale deed dated 8.9.1970 from Raj Mani and Lal Mani, as they have also acted as guardian of Suryamani, respondent-4 accordingly sale deed executed by the guardians can be said to be voidable document and it was not got cancelled by the Civil Court within the limitation as such Smt. Prem Kishori was owner of the entire land in dispute. In alternative she was claiming that on the basis of sale deed dated 8.9.1970 , she took possession over the land in dispute on the date of sale deed and since then she has been in exclusive possession over it. The age of Suryamani in 1970 was 12 years and he attained the age of majority in the year 1976 but no suit has been filed for taking possession within the limitation over the land in dispute as such right, if any, of Suryamani has come to an end. 5. The case was tried by the Consolidation Office who by order dated 24.8.2009 found that the mother of Suryamani was alive and died in the year 1980 and during her life time the brothers have no right and no guardian of Suryamani was appointed by the Civil Court under the provisions of Minority of Guardianship Act. Name of Prem Kishori was mutated by the order dated 28.8.1971 on the basis of sale deed. Name of Prem Kishori was mutated by the order dated 28.8.1971 on the basis of sale deed. In the mutation order also the name of Suryamani was not deleted and he remained co-sharer over the land in dispute. Accordingly, it was found that sale deed was valid in respect of 2/3 share of Raj Mai and Lal Mani and share of the petitioners were found as 1/3. The petitioners filed an appeal against the aforesaid order. The Settlement Officer Consolidation by order dated 12.5.2011 upheld the findings of the Consolidation Officer and dismissed the appeal. Thereafter the petitioners filed a revision against the aforesaid order. The revision was dismissed by order dated 30.9.2013 holding that the petitioners have neither argued the matter nor file any written argument. The petitioners filed an application for recall of the order on 1.1.2014. In the recall application the petitioners have stated that earlier the petitioners were informed that the file was misplaced somewhere as such the Reader informs them as soon as file is traced, fresh notice will be issued and they will be given information but without issuing any notice the revision was dismissed exparte on 30.9.2013. Restoration application was heard by the Deputy Director of Consolidation who by order dated 16.9.2014 rejected the restoration application. Hence this writ petition has been filed. 6. I have considered the arguments of the counsel for the parties and examined the records. So far as merit of the restoration application is concerned, in the restoration application reason for default was shown as missing of the file and the information given by the Reader that in case the file is traced, fresh notices will be issued to them, is concerned, it is incorrect reason inasmuch as perusal of the order sheet shows that in the revision regularly the dates were fixed and countersigns of the parties were also there. In case file was misplaced then it was not possible. The entry of the order sheet shows that the arguments were heard on 23.9.2013 and 30.9.2013 was fixed for delivery of judgment. The petitioners were given liberty of filing the written argument but admittedly the petitioners had not filed the written argument thus the allegation of default on the date of argument was not found to be correct and the finding of fact recorded in this respect does not liable to be set aside in the writ petition. The petitioners were given liberty of filing the written argument but admittedly the petitioners had not filed the written argument thus the allegation of default on the date of argument was not found to be correct and the finding of fact recorded in this respect does not liable to be set aside in the writ petition. 7. The argument of the counsel for the petitioners on merit that in pursuance of the sale deed dated 8.9.1970 the petitioners have taken possession over the land in dispute as such at the most the respondents could file a suit for ejectment of the petitioners within the limitation as provided under Section 209 of UP Act No. 1 of 1951. At the time of sale deed age of respondent-4 was 12 years and he attained the age of majority in the year 1976 and suit for ejectment of the petitioners could have at the most be filed up to 1988 but no suit was filed as such the relief of respondent-4 has become barred by the limitation. He relied upon the Division Bench judgment of this Court in Parwan v. Board of Revenue, 1987 RD page 139 (DB) in which it has been held that in view of Section 6 of the Limitation Act 1963 the suit under Section 209 is required to be filed within the limitation as provided under the Rules after attaining the age of majority. 8. The sale deed was executed by two brothers and on the basis of sale deed name of mother of the petitioner was recorded by the order dated 28.8.1971 deleting the names of the two brothers. Even at the time of mutation, name of Suryamani, respondent-4 was not deleted and the petitioners have not raised any objection in this respect. Thus the argument that they have taken exclusive possession over the land in dispute cannot be accepted. The possession of respondent-4 remained as of co-sharer through out and it is well settled law that possession of one co-sharer is the possession of all and no adverse possession will run unless there is complete ouster of respondent-4. Since the joint property has been sold without there being any family partition and the petitioners at the most will take joint possession along with other co-sharers. Since the joint property has been sold without there being any family partition and the petitioners at the most will take joint possession along with other co-sharers. The petitioners themselves did not file any suit for partition or deleting the name of Suryamani, respondent-4 who remained co-sharer and through out recorded in the revenue records as such the possession of the petitioners cannot be treated as adverse possession. 9. The impugned orders do not suffer from any illegality, the writ petition has no merit it is dismissed. Petition dismissed.