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2015 DIGILAW 421 (ALL)

Kamal Kishor v. Deputy Director of Consolidation

2015-02-27

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri C.S. Agnihotri holding brief of Sri Ashok Gupta for the petitioners. The writ petition has been filed against the order dated 20.11.2014 passed in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "the Act"). 2. The dispute related to co-tenancy between the predecessor of petitioners on one side and predecessor of respondent-3 on the other side. In basic consolidation record the name of predecessor of the petitioners was recorded over the land in dispute. The predecessor of respondent-3 filed an objection under section 9 of the Act, claiming co-tenancy right over the land in dispute. It is alleged that before the Assistant Consolidation Officer the parties entered into a compromise and accordingly, the order dated 3.7.1987 was passed on its basis. 3. However, the petitioner filed an appeal before the Settlement Officer, Consolidation along with a delay condonation application on 20.7.2009 and denied entering into the compromise. The Settlement Officer, Consolidation after hearing the parties by order dated 8.8.2012 condoned the delay in filing the appeal and fixed a date for hearing the arguments in appeal. Respondent-3 challenged the order dated 8.8.2012 in revision before the Deputy Director of Consolidation. The Deputy Director of Consolidation in the impugned order dated 20.11.2014 held that it is highly improbable that in spite of separate chaks were carved out in the name of predecessor of respondent-3 and CH Form 23 was prepared in his name, the petitioners could not know about the order of Assistant Consolidation Officer. He further found that the compromise before the Assistant Consolidation Officer would amount to illegal transfer and consolidation authorities may invoke the power under section 11-C of the Act and pass a suitable order in this respect. On this finding he set aside the order of condonation of delay and remanded the matter to the Settlement Officer, Consolidation to obtain an expert report in respect of thumb impression of Raghuveer and Bholi made on the compromise and then he should decide the delay condonation application afresh in accordance with law. Hence this writ petition has been filed. 4. The Counsel for the petitioners submits that the Deputy Director of Consolidation himself recorded the finding that CH Form 23 was prepared in the year 1987 as such there was no ground for condoning inordinate delay. Hence this writ petition has been filed. 4. The Counsel for the petitioners submits that the Deputy Director of Consolidation himself recorded the finding that CH Form 23 was prepared in the year 1987 as such there was no ground for condoning inordinate delay. After this finding there remains nothing for consideration of the Settlement Officer, Consolidation and even if the compromise is found to be forged he was bound by the finding recorded by the Deputy Director of Consolidation. He further submits that co-tenancy is required to be established from the inception and co-tenancy cannot be created unless there is positive evidence. Thus, there will be no illegal transfer. The direction given by the Deputy Director of Consolidation that the consolidation authorities may pass a suitable order exercising powers under section 11-C of the Act is wholly illegal and without jurisdiction. It is nobody's case that there was illegal transfer. In case compromise is found to be fake then the order passed by the Assistant Consolidation Officer will be set aside and the objection will be heard on merit and in case the compromise is found to be genuine the appeal of predecessor of the petitioners will be dismissed. 5. I have considered the arguments of the Counsel for the petitioners and find that the arguments raised by the Counsel for the petitioners have force. 6. The Deputy Director of Consolidation on the one hand remanded the case to the Settlement Officer, Consolidation for deciding the delay condonation application afresh after taking evidence of expert in respect of thumb impression of Raghuveer and Bholi on the compromise. In such circumstances, he should not have recorded finding that after preparation of CH Forms 5-A and 23, it would be highly improbable to believe the statement that the petitioner did not have knowledge about the order of Assistant Consolidation Officer. Similarly, the Deputy Director of Consolidation was not right in stating that subordinate authority to proceed exercising power under section 11-C of the Act in case compromise is found to be genuine treating it as illegal transfer. It is well settled that earlier the name of one branch used to be recorded in a representative capacity. In such circumstances, co-tenancy is admitted and it cannot be held that it is illegal transfer. The claim of the parties over the land in dispute has to be decided on merit. It is well settled that earlier the name of one branch used to be recorded in a representative capacity. In such circumstances, co-tenancy is admitted and it cannot be held that it is illegal transfer. The claim of the parties over the land in dispute has to be decided on merit. The observations made by the Deputy Director of Consolidation in respect of probability of having knowledge of the order of the Assistant Consolidation Officer is merely on the ground that CH Form 5A and 23 had been prepared as well as probability that in case there was a compromise admitting co-tenancy it will be illegal transfer are set aside. The Settlement Officer, Consolidation shall proceed to decide the delay condonation application after taking expert report in respect of thumb impression of Raghuveer and Bholi according to the order dated 20.11.2014 passed by the Deputy Director of Consolidation and decide the case afresh without being influenced by any of the findings recorded by the Deputy Director of Consolidation in his order dated 20.11.2014. In view of the above the writ petition partly allowed as is held above.