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2015 DIGILAW 488 (ALL)

Kapil Deo v. D. D. C.

2015-03-13

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri H.P. Mishra, for the petitioner and Sri A.K. Singh, holding brief of Dr. V.K. Rai, and Sri H.M.B. Sinha, for the contesting respondents. This writ petition has been filed against the order of Deputy Director of Consolidation dated 23.12.1999, allowing the revision of Jokhu (now represented by respondents-2 to 4), setting aside the orders of Consolidation Officer dated 1.5.1989 and Settlement Officer Consolidation dated 22.2.1993 and directing to record the names of respondents-2 to 4, over plots 1043 (area 0.70 acre) (on the basis of sale-deed dated 23.3.1974), 1047 (area 0.60 acre) (on the basis of sale-deed dated 27.9.1974), 1043 (area 0.70 acre), 1047 (area 1.16 acre), 1078-Ka (area 0.44 acre), 1078-Kha (area 0.42 acre) and 1229 (area 1.15 acre) (on the basis of auction sale dated 14.1.1976/8.12.1980) of village Bhaisaha, pargana Shahjahanpur, district Deoria, in title proceedings under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 2. In basic consolidation year plots 136 (area 0.06 acre), 175 (area 0.25 acre), 1025 (area 0.48 acre), 1043 (area 0.70 acre), 1047 (area 1.16 acre), 1078-Ka (area 0.44 acre), 1078-Kha (area 0.42 acre), 1229 (area 1.15 acre) and 1361 (area 0.43 acre) of village Bhaisaha, pargana Shahjahanpur, district Deoria, were recorded khata 747 in the name of Sukai son of Govind (grand father of the petitioner. Jokhu filed three objections under section9-A(2) of the Act, for recording his name over the land in dispute. One objection was in respect of plot 1043 (area 0.70 acre) on the basis of sale-deed dated 23.3.1974 executed by Sukai in his favour. Other objection was in respect of plot 1047 (area 0.60 acre) on the basis of sale-deed dated 27.9.1974 executed by Sukai in his favour. Third objection was in respect of plot 1047 (area 3.56 acre) on the basis of auction dated 14.1.1976, which was confirmed on 19.6.1976. In pursuance of auction, sale-deed dated 8.12.1980 executed, which was registered on 17.12.1980. After issue of sale-deed dated 8.12.1980, Jokhu filed an application for amending his third objection and in place of plot 1047 (area 3.56 acre), plots 1043 (area 0.70 acre), 1047 (area 1.16 acre), 1078-Ka (area 0.44 acre), 1078-Kha (area 0.42 acre) and 1229 (area 1.15 acre) were sought to be substituted. 3. Sukai was recorded tenure holder of all the plots mentioned in basic consolidation year khata 747. 3. Sukai was recorded tenure holder of all the plots mentioned in basic consolidation year khata 747. It is alleged that Sukai executed a mortgage deed dated 13.6.1971, in respect of his plots 1043 (area 0.70 acre), 1047 (area 1.16 acre), 1078-Ka (area 0.44 acre), 1078-Kha (area 0.42 acre) and 1229 (area 1.15 acre) (total five plots, area 3.87 acre) in favour of U.P. Co-operative Land Development Bank, Deoria and took loan. However, concealing mortgage, Sukai executed a sale-deed dated 23.3.1974 of plot 1043 (area 0.70 acre) and another sale-deed dated 27.9.1974 of plot 1047 (area 0.60 acre) in his favour Jokhu, after obtaining requisite permission from Settlement Officer Consolidation. Due nonpayment of loan, recovery proceeding was initiated by U.P. Co-operative Land Development Bank, Deoria against Sukai, under the provisions of U.P. Agricultural Credit Act, 1973 and attached mortgaged properties. Thereafter, plots 1043 (area 0.70 acre), 1047 (area 1.16 acre), 1078-Ka (area 0.44 acre), 1078-Kha (area 0.42 acre) and 1229 (area 1.15 acre) (total five plots area 3.87 acre) were auctioned on 14.1.1976, in which Jokhu was highest bidder. Auction sale was confirmed on 19.6.1976 in favour of Jokhu. Thereafter, sale-deed dated 8.12.1980 was executed, which was registered on 17.12.1980. Sukai contested the aforesaid objection and denied execution of sale-deed dated 23.3.1974 and 27.9.1974. He also denied execution of mortgage deed dated 12.8.1971 and ignorance in respect of attachment, auction and sale of mortgage property in favour of Jokhu. 4. The cases were consolidated and tried by Consolidation Officer, who by order dated 6.1.1977 allowed the objection of Jokhu in respect of plots 1043 (area 0.70 acre) (on the basis of sale-deed dated 23.3.1974), 1047 (area 0.60 acre) (on the basis of sale-deed dated 27.9.1974), and dismissed the objection of Jokhu based on auction sale. Both the parties filed appeals. Settlement Officer Consolidation, by order dated 25.9.1980, allowed the appeals and set aside the order of Consolidation Officer and remanded the matter to Consolidation Officer for fresh decision on merit. After remand, Jokhu moved the application for amendment of his original objection for substituting plots 1043 (area 0.70 acre), 1047 (area 1.16 acre), 1078-Ka (area 0.44 acre), 1078-Kha (area 0.42 acre) and 1229 (area 1.15 acre) in place of plot 1047 (area 3.56 acre). However, Consolidation Officer, by order dated 20.10.1982, rejected the amendment application. After remand, Jokhu moved the application for amendment of his original objection for substituting plots 1043 (area 0.70 acre), 1047 (area 1.16 acre), 1078-Ka (area 0.44 acre), 1078-Kha (area 0.42 acre) and 1229 (area 1.15 acre) in place of plot 1047 (area 3.56 acre). However, Consolidation Officer, by order dated 20.10.1982, rejected the amendment application. Thereafter, the arguments were heard on merit and Consolidation Officer, by order dated 1.5.1989 dismissed the objections of Jokhu in respect of all the plots. Jokhu filed an appeal (registered as Appeal No. 1200/571/393) from the aforesaid order, which was dismissed by Settlement Officer Consolidation, by order dated 22.2.1993. 5. Jokhu filed a revision (registered as Revision No. 214/330/680/105 of 1993) from the aforesaid order. Deputy Director of Consolidation by impugned order dated 23.12.1999, held that execution of sale-deed dated 23.3.1974 and 27.09.1974, by Sukai in favour of Jokhu was admitted by Bechu son of Sukai in witness box and also by the Counsel appearing for the petitioners during argument before him as such there remained no dispute in respect of sale deeds dated 23.3.1974 and 27.9.1974. So far as auction sale-dated 14.1.1976/8.12.1980 was concerned, Settlement Officer Consolidation has ignored this sale-deed on the ground that prior permission of Settlement Officer Consolidation was not obtained, which was necessary under section5(1)(c) of the Act. Sale-deed dated 23.3.1974 was executed prior to notification under section 4(2) of the Act, which took place on 1.6.1974. Sale-deed dated 27.9.1974 was executed after taking prior permission of Settlement Officer Consolidation and for auction sale--dated 14.1.1976/8.12.1980 no such permission was required as held by this Court in Smt. Bhagwati v. Deputy Director of Consolidation, Ghaziabad and others. 1983 RD 201. As such all the three sale-deeds in favour of Jokhu were valid. On these findings the revision was allowed and the name of sons of Jokhu was directed to be recorded over the land covered under sale-deeds dated 23.3.1974, 27.9.1974 and auction sale--dated 14.1.1976/8.12.1980. Hence, this writ petition has been filed. 6. The Counsel for the petitioner submitted that Sukhai denied mortgage of the land in dispute in favour of U.P. Co-operative Land Development Bank, Deoria and taking loan. He also denied execution of sale-deed dated 23.3.1974, 27.9.1974 and auction sale dated 14.1.1976/8.12.1980. Burden of proof was upon Jokhu to prove due execution of mortgage, sale-deed and auction sale. 6. The Counsel for the petitioner submitted that Sukhai denied mortgage of the land in dispute in favour of U.P. Co-operative Land Development Bank, Deoria and taking loan. He also denied execution of sale-deed dated 23.3.1974, 27.9.1974 and auction sale dated 14.1.1976/8.12.1980. Burden of proof was upon Jokhu to prove due execution of mortgage, sale-deed and auction sale. Jokhu did not examine marginal witnesses of mortgage, sale-deeds and auction sale to prove due execution of these documents as required under the law. Admittedly the village was placed under consolidation operation by notification dated 1.6.1974. As such for selling the land in dispute, prior permission of Settlement Officer Consolidation was required under section 5(1)(c)(ii) of the Act. No permission was obtained as such sale-deed was void under section 45-A of the Act. Consolidation Officer and Settlement Officer Consolidation held that in absence of requisite permission, the sale deeds were void. The original objection was filed on the basis of auction dated 14.1.1976, in respect of plot 1047 (area 3.56 acre). The amendment application filed by Jokhu for amending objection and substituting plots 1043 (area 0.70 acre), 1047 (area 1.16 acre), 1078-Ka (area 0.44 acre), 1078-Kha (area 0.42 acre) and 1229 (area 1.15 acre) in place of plot 1047 (area 3.56 acre), was rejected by Consolidation Officer, by order-dated 20.10.1982. This order was not challenged by Jokhu. Issues were framed in respect of plot 1047 (area 3.56 acre) and orders of Consolidation Officer and Settlement Officer Consolidation were passed in respect of that plot. However, Deputy Director of Consolidation has allowed the revision in respect of plots for which amendment application had already been rejected. 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 record. I prefer to take up last point that amendment application filed by Jokhu, for amending objection and substituting plots 1043 (area 0.70 acre), 1047 (area 1.16 acre), 1078-Ka (area 0.44 acre), 1078-Kha (area 0.42 acre) and 1229 (area 1.15 acre) in place of plot 1047 (area 3.56 acre), was rejected by Consolidation Officer, by order dated 20.10.1982. This order was not challenged by Jokhu. This order was not challenged by Jokhu. Issues were framed in respect of plot 1047 (area 3.56 acre) and orders of Consolidation Officer and Settlement Officer Consolidation were passed in respect of that plot as such Deputy Director of Consolidation has illegally allowed the revision in respect of plots for which amendment application had already been rejected. Before the consolidation authorities, rule of pleading have no application. It is duty of consolidation authorities to correct the record and decide the dispute on the basis of evidence of the parties. Order rejecting the amendment application is of the nature of interlocutory order. The litigants are not required to challenge every order at that stage itself. In the appeal and revision filed against the final order, interlocutory orders can also be challenged and its correctness can be examined by Appellate and Revisional Court as held by Supreme Court in Achal Mishra v. Rama Shanker Singh, 2000 (400 ALR 769 (SC) Original auction sale dated 8.12.1980 was filed before the consolidation authorities and its due execution was proved by Bhagwandas Gupta, marginal witness. Auction sale dated 8.12.1980 was in respect of plots 1043 (area 0.70 acre), 1047 (area 1.16 acre), 1078-Ka (area 0.44 acre), 1078-Kha (area 0.42 acre) and 1229 (area 1.15 acre)) total 5 plots, area 3.87 acre. As such the order was passed in respect of these plots which were sold to Jokhu. Deputy Director of Consolidation has very wide powers under section 48 of the Act, while deciding the revision as such he has not committed any error in allowing the revision in respect of plots for which amendment application was rejected, on the basis of evidence on record. 8. So far as proving mortgage of the land in dispute by Sukai in favour of U.P. Co-operative Land Development Bank, Deoria and taking loan and auction sale dated 14.1.1976/8.12.1980 are concerned, Jokhu examined Bhagwandas Gupta, Field Officer of U.P. Cooperative Land Development Bank, Deoria, who has proved the mortgage of the land in dispute by Sukai in favour of Bank by executing mortgage deed dated 13.6.1971. He also proved initiation of recovery proceedings for realization of out standing dues against Sukai, in which land in dispute was auctioned on 14.1.1976, in which highest bid of Jokhu was accepted, which was confirmed on 19.6.1976. He also proved initiation of recovery proceedings for realization of out standing dues against Sukai, in which land in dispute was auctioned on 14.1.1976, in which highest bid of Jokhu was accepted, which was confirmed on 19.6.1976. In pursuance whereof sale-deed dated 8.12.1980 was executed by Branch Manager of U.P. Co-operative Land Development Bank, Deoria. Bhagwandas Gupta signed the sale-deed as marginal witness. Sale-deed was registered on 17.12.1980. Thus execution of mortgage deed dated 13.6.1971 and sale-deed dated 8.12.1980 was duly proved. The Consolidation Officer, in his order dated 1.5.1989 has mentioned the names of witnesses Ramesh Chand and Bhagwandas Gupta, examined by Jokhu. Arguments in this respect is false. Under section 12-A of U.P. Agricultural Credit Act, 1973, the bank itself is authorized to auction and sale the mortgage property. 9. So far as prior permission of Settlement Officer Consolidation as required under section 5(1)(c)(ii) of the Act, is concerned, it has been held by this Court in Smt. Bhagwati v. Deputy Director of Consolidation, Ghaziabad and others, 1983 RD 201. Ambika Prasad v. Deputy Director of Consolidation and others and Nazim v. Deputy Director of Consolidation and others, that restriction imposed under section 5(1)(c) and (ii) of the Act, is applicable to the tenure holder and not upon Statutory Authorities or Court. As such Deputy Director of Consolidation has not committed any illegality in allowing the revision following the law laid down by this Court. So far as other sale-deeds dated 23.3.1974 and 27.9.1974 are concerned, the land transferred through these sale-deeds were auctioned and included in auction sale-dated 8.12.1980. As all the three sale-deeds were in favour of Jokhu as such on the findings that auction sale-dated 8.12.1980 was valid, validity of other two sale-deeds are not required to be examined as Jokhu will get the plots of sale-deeds dated 23.3.1974 and 27.9.1974, by auction sale dated 8.12.1980. In view of the aforesaid discussions, the writ petition has no merit and is dismissed.