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2015 DIGILAW 700 (ALL)

Nirdosh Kumar v. D. D. C.

2015-04-03

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Arjun Singhal, for the petitioner and Sri Ramesh Pundir, for the contesting respondent-2. This writ petition has been filed against the order of Deputy Director of Consolidation dated 4.12.2014 passed in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 2. The dispute between the parties is in respect of their share in basic consolidation year khata 241 of village Budhana Banger, pargana Budhana, district Muzaffarnagar, which was recorded in the names of Data Ram, Daya Ram and Mangu sons of Baljeet. Data Ram was dead and Subhash Chand (respondent-2) is his heir. Daya Ram was dead and Smt. Chandro was his heir. In CH Form-4, share of three brothers were noted as 1/3 each. Subhash Chand (respondent-2) filed an objection (registered as Case No. 105) under section 9-A of the Act, stating therein that in previous consolidation, land recorded in khatas 861, 862 and 863 were amalgamated. In khata 861, all the three brothers, namely Data Ram, Daya Ram and Mangu and their mother Smt. Bhagirathi were having equal shares. In khata 862, all the three brothers, namely Data Ram, Daya Ram and Mangu were having equal shares. While khata 863 [consisting plot 3946 (area 2-0-0 bigha) and 4048 (area 0-12-0 bigha)] was exclusive sirdari holdings of Data Ram. They also filled up CH Form-16, showing their share. Old plot 4048 (new plot 3411 of khata 241) was chak out, which is exclusive property of Subhash Chand. Total valuation of Chak 271 (new khata 241 except plot 3411) was 70.14 annas, in which exclusive sirdari holding of Data Ram i.e. plot 3946 (area 2-0-0 bigha), having valuation of 13.50 anna, was also included. In remaining valuation of 56.64 anna of khata 271, three brothers had equal share. Share of Subhash Chand would be 13.50+18.88=32.38 anna i.e. 3238/7014 share while share of remaining two brothers would be 18.88 anna each i.e. 1888/7014 share and plot 3411 (area 2-0-0 bigha) was exclusive property of Subhash Chand. The claim of 1/3 share by remaining brothers is barred under section 49 of the Act. 3. The case was tried by Consolidation Officer, where both the parties adduced their documentary evidence. Respondent-2 examined himself as PW-1, and Ramesh Chand as PW-2 while from the side of the petitioner, Mangu Singh as DW-1 was examined. The claim of 1/3 share by remaining brothers is barred under section 49 of the Act. 3. The case was tried by Consolidation Officer, where both the parties adduced their documentary evidence. Respondent-2 examined himself as PW-1, and Ramesh Chand as PW-2 while from the side of the petitioner, Mangu Singh as DW-1 was examined. The Consolidation Officer by order dated 10.1.2001, dismissed the objection and held share of the parties as 1/3 each. Respondent-2 filed an appeal (registered as Appeal No. 691) from the aforesaid order, which was dismissed by Settlement Officer Consolidation by order dated 27.9.2011. Respondent-2 filed a revision (registered as Revision No. 589) from the aforesaid orders. Deputy Director of Consolidation, by order dated 4.12.2014 held that both the subordinate authorities have not considered the points raised by Subhash Chand. In case, share of the parties had been determined in previous consolidation and they had filled up CH Form-16 in that respect, then claim of excess share in present consolidation operation is barred under section 49 of the Act. On these findings the revision was partly allowed, order of Settlement Officer Consolation dated 27.9.2011 was set aside and the matter was remanded to Settlement Officer Consolation for deciding the appeal as fresh. Hence, this writ petition has been filed. 4. The Counsel for the petitioner submits that both the parties had adduced their oral and documentary evidence. Deputy Director of Consolidation was competent to decide all the issues relating to fact also under section 48 of the Act. In such circumstances, he would have decided the revision finally on merit, instead of remanding the case. Remand will unnecessarily delay the proceeding and the parties will be harassed. He submits that the order of Deputy Director of Consolidation be set aside and the matter be remanded to Deputy Director of Consolidation to decide the revision on merit. The Counsel for respondent-2 has no objection, in deciding the revision on merit. 5. I have considered the arguments of Counsel for the parties and examined the record. Supreme Court in Ashwinkumar K. Patel v. Upendra J. Patel, AIR 1999 SC 1125 held that High Court should not ordinarily remand a case under Order XLI Rule 23 CPC to the Lower Court merely because it considered that the reasoning of the Lower Court in some respects was wrong. Supreme Court in Ashwinkumar K. Patel v. Upendra J. Patel, AIR 1999 SC 1125 held that High Court should not ordinarily remand a case under Order XLI Rule 23 CPC to the Lower Court merely because it considered that the reasoning of the Lower Court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or the other. It could have considered the various aspects of the case mentioned in the order of the Trial Court and considered whether the order of the Trial Court ought to be confirmed or reversed or modified. It could have easily considered the documents and affidavits and decided about the prima facie case on the material available. In matters involving agreements of 1980 (and 1996) on the one hand and an agreement of 1991 on the other, as in this case, such remand orders would lead to further delay and uncertainty. We are, therefore, of the view that the remand by the High Court was not necessary. Same principle has been applied in consolidation proceeding by this Court in Girdhari v. DDC and others, 2005 (98) RD 583 and Smt. Krishna Kumar v. DDC and others 2008 (104) RD 463 . In view of Explanation (3) to section48 of the Act, Deputy Director of Consolidation was competent to decide all the issues relating to fact independently. In view of the aforesaid discussions, the writ petition succeeds and is allowed. The order of Deputy Director of Consolidation dated 4.12.2014 is set aside. The matter is remanded to Deputy Director of Consolidation to decide the revision finally after hearing the parties, in accordance with law. Since the dispute is in respect of share between the co-sharers, Deputy Director of Consolidation shall decide the revision expeditiously preferably within four months from the date of receipt of a certified copy of this order. The parties are appearing before this Court they shall appear before Deputy Director of Consolidation on 21.4.2015, who shall fix a date for hearing of the revision with convenience of the parties.