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2015 DIGILAW 364 (ALL)

Banshraj v. Dy. Director of Consolidation, Basti

2015-02-24

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Tripathi B.G. Bhai for the petitioners and Sri R.C. Singh alongwith Sri D.K. Srivastava for contesting respondents-2 and 3. The aforementioned writ petitions have been filed against the orders of Deputy Director of Consolidation dated 7.1.2015, allowing the revisions of respondents-2 and 3 and setting aside orders of Settlement Officer Consolidation dated 29.4.2014, passed in title proceedings under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 2. The dispute between the parties is in respect of inheritance of properties of Ram Harakh. The petitioners are brothers' sons of Ram Harakh while Smt. Rajwanta (respondent-2) is widow of Ram Harakh and Uma Shankar (respondent-3) is the daughter's son of Ram Harakh. The petitioners derive their title on the basis of Will dated 21.2.1983, allegedly executed by Ram Harakh in favour of Rameshar, Muniram and Ram Chandar, (now represented by the petitioners). Smt. Rajwanta, (respondent-2) denied execution of the Will dated 21.2.1983 and claimed that after death of Ram Harakh, she inherited share of Ram Harakh in the land in dispute. Uma Shankar (respondent-3) derives his title on the basis of gift deed dated 28.9.1993 executed by Smt. Rajwanta, in his favour. It is admitted between the parties that Smt. Rajwanta is widow of Ram Harakh and Uma Shankar is daughter's son of Ram Harakh. 3. In basic consolidation year names of the petitioners were recorded over the land in dispute. Smt. Rajwanta filed an objection for recording her name as an heir of Ram Harakh, claiming her 1/4 share. Subsequently, Uma Shankar also filed an objection for recording his name over the land in dispute on the basis of gift deed dated 28.9.1993 executed by Smt. Rajwanta in his favour. The petitioners filed an objection claiming themselves to be heirs of Ram Harakh on the basis of Will dated 21.2.1983. The properties of the parties are situated in villages Didoha, Naudadrani, Dadwa and Khiroghat. All these objections were consolidated and tried together by Consolidation Officer. 4. Before Consolidation Officer, 22.9.2004 was the date fixed. On that day Muniram, Banshraj and Bhagwandas did not appear. The Consolidation Officer dismissed their objections in default and proceeded ex-parte against them in the objections of respondent-2 and 3 and fixed 16.10.2004, for recording evidence of Uma Shankar. All these objections were consolidated and tried together by Consolidation Officer. 4. Before Consolidation Officer, 22.9.2004 was the date fixed. On that day Muniram, Banshraj and Bhagwandas did not appear. The Consolidation Officer dismissed their objections in default and proceeded ex-parte against them in the objections of respondent-2 and 3 and fixed 16.10.2004, for recording evidence of Uma Shankar. According to the petitioners they filed an application for recall of the order dated 22.9.2004 which was allowed and the order dated 22.9,2004 was set aside. However, the cases were regularly adjourned time to time up to 2013. Although in the order dated 22.9.2004, 16.10.2004 was the date fixed for recording the evidence of Uma Shankar but admittedly statement of Uma Shankar was not recorded. Subsequently, it was noticed by the petitioners that recall application filed by them for recalling the order dated 22.9.2004 was not traceable in the records of the cases. Then they filed another application on 1.4.2013 along with delay condonation application, for recall of the order dated 22.9.2004. In this applications, it has been stated that orders dated 22.9.2004 had already been recalled on the application moved by them but the application was misplaced. As thereafter, general dates were fixed and the case was adjourned time to time as such the fact relating to misplacing the application could not be noticed. In such circumstances the delay in filing the recall application was liable to be condoned. The application was heard by the Consolidation Officer who by the order dated 30.12.2013 dismissed the application for condonation of delay as well as recall application. Thereafter the Consolidation Officer by order dated 29.1.2014 decided the cases on merit and the objections of respondents 2 and 3 have been allowed. 5. The petitioners filed separate appeals against the orders dated 30.12.2013 and 29.1.2014, before Settlement Officer Consolidation. Both the appeals were consolidated and decided by Settlement Officer Consolidation, who by the order dated 29.4.2014 held that the Consolidation Officer had not framed the issues in the cases as such the parties were not given opportunity for adducing the evidence and the case was decided without framing the issue and without any oral evidence of the parties. The trial before the Consolidation Officer was not proper. The trial before the Consolidation Officer was not proper. On these findings, the appeals were allowed and the orders dated 30.12.2013 and 29.1.2014 were set aside and the matter was remanded to the Consolidation Officer to decide the cases afresh after framing the issues and giving opportunity of evidence in accordance with law. The aforesaid orders were challenged by the respondents in revisions which were allowed by Deputy Director of Consolidation, by order dated 7.1.2015 and orders of Settlement Officer Consolidation dated 29.4.2014 were set aside and the orders of Consolidation Officer were upheld. Hence these writ petition have been filed. 6. The Counsel for the petitioners submits that a perusal of the order of Consolidation Officer dated 29.1.2014 shows that in the objections no issue was framed by Consolidation Officer, nor any oral evidence was recorded. In such circumstances, Consolidation Officer has not provided opportunity to the parties for adducing the evidence. The order of dismissing the objection of the petitioners in default dated 22.9.2004 has been recalled on the application of the petitioners and thereafter the case was adjourned time to time and general dates were fixed and the case was never taken up. In such circumstances there was sufficient cause for condoning the delay and recalling the order dated 22.9.2004. Settlement Officer Consolidation has recorded a finding that the Consolidation Officer had neither framed any issue nor provided any opportunity to the parties to adduce their evidence and decided the case on merit without recording the oral evidence of the parties. This finding of fact has been wrongly interfered by Deputy Director of Consolidation. He submits that in spite of, recall application of the petitioners, Settlement Officer Consolidation was competent to examine the legality and correctness of the order on merit. Settlement Officer Consolidation, after examining the record recorded a categorical findings that trial of the cases were not properly conducted before Consolidation Officer in as much as neither issues were framed nor oral evidence was recorded. The objections of the respondents have been decided without giving opportunity of evidence which causes material prejudice to the petitioners. Deputy Director of Consolidation has illegally held that the petitioners were given opportunity of evidence but they failed to adduced their evidence. The petitioners have stated that order dated 22.9.2004 had already been recalled on the application moved by them but the application was misplaced. Deputy Director of Consolidation has illegally held that the petitioners were given opportunity of evidence but they failed to adduced their evidence. The petitioners have stated that order dated 22.9.2004 had already been recalled on the application moved by them but the application was misplaced. As thereafter, general dates were fixed and the case was adjourned time to time as such the fact relating to misplacing the application could not be noticed, fit such circumstances the delay in filing the recall application was liable to be condoned. Deputy Director of Consolidation did not advert to the cause shown by the petitioners and has illegally held that delay was not liable to be condoned. 7. In reply to the aforesaid arguments, the Counsel for the respondents submits that admittedly Smt. Rajwanta was the widow of Ram Harakh. The petitioners were not seriously contesting the matter. They only passing the time and waiting the death of Smt. Rajwanta. Will dated 21.2.1983 is a fabricated document inasmuch as Ram Harakh was literate person while on the Will his thumb impression has been affixed. Ram Harakh was having wife, daughter and daughter's son who were taking his care of him and there was no need to execute a Will in favour of his brothers. Ram Harakh used to sell his property time to time and which itself shows that he had no support from his brothers. Deputy Director of Consolidation has rightly recorded a finding that there was no cause for setting aside the order dated 22.9.2004 by which the objections of the petitioners was dismissed in default. Petitioner-1 has retired from the post of Reader from Civil Court while petitioner-2 is practising advocate. It is not liable to be believed that they could not know about the order dated 22.9.2004 till 2013. The separate recall applications were moved by the petitioners which also shows that their intention was only to prolong the proceeding in one way or the other. In such circumstances, Deputy Director of Consolidation has decided the case on merit. It is admitted that respondent-2 is widow of Ram Harakh and thus his preferential heir. She executed a gift deed in favour of respondent-3 and on that basis name of respondent-3 has been directed to be mutated. There is no illegality in the order of Deputy Director of Consolidation. Writ petitioners are liable to be dismissed. 8. It is admitted that respondent-2 is widow of Ram Harakh and thus his preferential heir. She executed a gift deed in favour of respondent-3 and on that basis name of respondent-3 has been directed to be mutated. There is no illegality in the order of Deputy Director of Consolidation. Writ petitioners are liable to be dismissed. 8. I have considered the arguments of the Counsel for the parties and examined the record. So far as the cause for recalling the order dated 22.9.2004 is concerned, the petitioners have stated in the recall application that they had filed an application for recall of the order which was allowed and the case was adjourned thereafter as the general dates had been fixed in the case and the case was never taken up. Deputy Director of Consolidation has not advert to the grounds raised by the petitioners and held that there was no cause for condonation of inordinate delay of about 9 years. 18.8.2004 was the date fixed for issues. On that day case was adjourned for 22.9.2004. On 22.9.2004, the objections of the petitioners were dismissed in default and without framing issues, the case was proceeded ex-parte against them and 16.10.2004 was fixed for recording the evidence of Uma Shankar. Admittedly, statement of Uma Shankar was not recorded by Consolidation Officer. From 16.10.2004 upto 2013, general dates were fixed. Thus the allegations of the petitioners appear to be correct and in such circumstances, the petitioners believed that the order dated 22.9.2004 has already been recalled as the case was never taken up in the meantime. The delay was liable to be condoned. However, Settlement Officer Consolidation ought to have awarded costs to the respondents. 9. There was a separate appeal before Settlement Officer Consolidation from the order of Consolidation Officer dated 29.1.2014 as such he was competent to examine legality and propriety of the order of Consolidation Officer on merit. Settlement Officer Consolidation recorded a finding that Consolidation Officer had not framed issues. Thus proper trial was not conducted and the parties were not given opportunity of evidence. It is well settled that in consolidation objection does not pay any vital role. Consolidation Officer has to observe the procedure as provided under Rule 26(2), which provides for framing issues after hearing the parties and record evidence both oral and documentary and decide the dispute. It is well settled that in consolidation objection does not pay any vital role. Consolidation Officer has to observe the procedure as provided under Rule 26(2), which provides for framing issues after hearing the parties and record evidence both oral and documentary and decide the dispute. Deputy Director of Consolidation did not consider the reasons and findings recorded by Settlement Officer Consolidation and held that the petitioners were given proper opportunity to adduce evidence but they failed to adduce any evidence. 10. Before Consolidation Officer, the objections of the petitioners were in effect a counter objection. In any case, names of respondents-2 and 3 were not recorded in basic consolidation records as such for deciding their objections issues were required to be framed and evidence was required to be recorded. Deputy Director of Consolidation has illegally failed to consider that although 16.10.2004 was the date fixed for evidence of Uma Shankar but his oral evidence has not been recorded nor there was any thing to show that his evidence was closed. The objection of the petitioners as well as the objections of respondents-2 and 3 were consolidated and evidence has to be recorded of the parties. Admittedly the evidence of the parties has not been recorded. In such circumstances findings recorded by Settlement Officer Consolidation that a proper trial was not conducted by Consolidation Officer, does not suffer from any illegality. Deputy Director of Consolidation has illegally remarked that from 1997 till 2004 the petitioners were given opportunity for evidence. Although by that time issues were not framed. Thus the finding in this respect does not appears to be proper. Deputy Director of Consolidation has illegally interfered with the order of Settlement Officer Consolidation which is liable to be set aside. 11. So far as the allegation about delay in trial is concerned, the petitioners as well as respondents both agree before this Court that the trial be expedited before the Consolidation Officer, in such circumstances, the Consolidation Officer shall expedite the trial and try to conclude the proceeding within a period of two months from the date of producing certified copy of this order before him. In the results, the writ petitions succeed and are allowed on the cost of  Rs. 10,000/- only. The orders of Deputy Director of Consolidation dated 7.1.2015 are set aside. The petitioners will pay a cost of Rs. In the results, the writ petitions succeed and are allowed on the cost of  Rs. 10,000/- only. The orders of Deputy Director of Consolidation dated 7.1.2015 are set aside. The petitioners will pay a cost of Rs. 10,000/- to Uma Shankar, respondents within a period of one month. In case Uma Shankar avoids to receive the aforesaid cost in cash and give receipt in this respect then it will be open to the petitioners to deposit the cost before the Consolidation Officer in the form of demand draft in favour of Uma Shankar. The parties appear before this Court, they will appear before the Consolidation Officer on 10.3.2015. On that day Consolidation Officer will fix a date with the consent of the parties for framing issues. Thereafter, he will proceed to record the evidence of the respondents first and thereafter evidence of the petitioners. The Consolidation Officer shall not grant any unnecessary adjournment to the parties and tried to conclude the trial within two months.