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2016 DIGILAW 186 (ALL)

Paras Nath v. D. D. C.

2016-01-13

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra, J. – Heard Sri Dinesh Pathak, learned counsel for the petitioners and Sri M.D. Mishra for the respondents. 2. The instant writ petition arises out of an objection under Section 9-A (2) of the U.P. Consolidation of Holdings Act and seeks quashing of the orders passed by the Consolidation Officer on 31.12.1973 and the order passed by the Deputy Director of Consolidation on 05.08.1980. 3. The dispute in the writ petition is a dispute regarding shares of the parties in four Khatas of village Burhanaiya. The Khatas in dispute are Khata Nos. 23, 36 and 60. The peidegree given, is not disputed. The common ancestor of the parties was one Sukh Lal, who had four sons namely, Guru Narain, Ram Narain, Bisheshwar and Kashi Ram. The dispute in the instant writ petition pertains to the shares of the branches of Guru Narain and Ram Narain. 4. The petitioners, who belonged to the branch of Ram Narain, filed objections claiming half share in all the four Khatas. The respondents who belong to the branch of Guru Narain claimed that Khata No.17 belonged exclusively to them. They claimed half share in Khata No.23 and denied the share of Rajendra, Ram Kishore, Pati Ram and Thakur therein. The branch of Guru Narain also claimed their share in Khata Nos.36 and 60. 5. The Consolidation Officer by his order dated 31.12.1973 held the share of the petitioners to be 1/2 in Khata Nos.17 and 23. Their claim as regards Khata No.36 and 60 was rejected. 6. Aggrieved by the order of the Consolidation Officer, both parties filed appeals. The appeal filed by the petitioners pertained to Khata No.36 and 60 while the respondents, belonging to the branch of Guru Narain, claimed, exclusive title to Khata No. 17 and 23. The Settlement Officer Consolidation by his order dated 14.06.1978 dismissed both the appeals. 7. Aggrieved, two revisions were filed. The Deputy Director of Consolidation by the order dated 05.08.1980 dismissed the revision filed by the petitioners. The revision filed by the contesting respondents, who belong to the branch of Guru Narain, was allowed partly, reducing the share of the petitioners in Khata Nos. 17 and 23 to 1/4, from 1/2. Hence this writ petition challenging the orders passed by the Deputy Director of Consolidation and the Consolidation Officer. 8. The revision filed by the contesting respondents, who belong to the branch of Guru Narain, was allowed partly, reducing the share of the petitioners in Khata Nos. 17 and 23 to 1/4, from 1/2. Hence this writ petition challenging the orders passed by the Deputy Director of Consolidation and the Consolidation Officer. 8. At this juncture, it would be relevant to note that the order passed by the Settlement Officer Consolidation, whereby the appeal of the petitioners was dismissed, has not being challenged. This order of the Settlement Officer Consolidation dated 14.06.1978 affirmed the order passed by the Consolidation Officer. Since the appellate order has not been challenged, the order passed by the Consolidation Officer, in so far as it dismissed the objections filed by the petitioners regarding Khata Nos. 36 and 60, has attained finality. 9. Therefore, in so far as the challenge to the order passed by the Consolidation Officer is concerned, the same therefore, cannot be sustained, in absence of any challenge to the order passed by the Settlement Officer Consolidation which affirmed the order of the Consolidation Officer. 10. The Consolidation Officer had dismissed the claim of the petitioners as regards Khata No.36 and 60 and this order was affirmed in appeal. The revision of the petitioners was also primarily against this order and the same has again been dismissed at the revisional stage. Even if, the order of the Deputy Director of Consolidation, as regards, these two Khatas, is set aside, the appellate order would still survive and therefore it must necessarily be held that there is no dispute in the writ petition as regards Khata Nos. 36 and 60. 11. The only question which necessarily survives for consideration is the legality or otherwise of the order passed by the Deputy Director of Consolidation, whereby he has reduced the share of the petitioners from 1/2 to 1/4 in Khata Nos. 17 and 23. 12. The contention of Sri Dinesh Pathak, learned counsel for the petitioners is that the impugned order is vitiated because the judgment and decree in a partition suit under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act dated 24.10.1967 has not been considered by the Deputy Director of Consolidation. The factum of this suit and the judgment therein has been admitted by the respondents in view of their reply in the counter affidavit, to the averments in paragraph nos. The factum of this suit and the judgment therein has been admitted by the respondents in view of their reply in the counter affidavit, to the averments in paragraph nos. 8 and 9 of the writ petition. He further submits that a family partition in the year 1889 and which have been accepted by the Consolidation Officer, has wrongly been discarded by the Deputy Director of Consolidation holding it to be a mere arrangement for the convenience of the parties in cultivating the joint land. It is, therefore, contended that in view of the family partition 1889 and the judgment of the partition suit, the share of the petitioners in Khata Nos. 17 and 23 would be 1/2 and the reduction in their share ordered by the Deputy Director of Consolidation, is perverse. 13. The other arguments as also the grounds Nos. 2, 3 and 5 in the writ petition, pertain to the land of Khata Nos.30 and 63 which for the reasons already given above, are not liable to be considered. These arguments are therefore of no consequence and are not being adverted to. 14. Sri M.D. Mishra, learned counsel for the respondents has reiterated the reasoning given in the impugned order of the Deputy Director of Consolidation. He submits that the Deputy Director of Consolidation has rightly decided the share of the parties and therefore, the impugned order is perfectly justified and calls for no interference. 15. I have considered the submissions made by learned counsel for the parties and have perused the record. 16. The Deputy Director of Consolidation while considering the claim of the petitioners to half share in the dispute Khatas 17 and 23 has held that the total property in village Burhanaiya amounted to 51 pie and Guru Narain was entitled to 25/51 share on account of an exchange as also a gift deed in his favour. The share of Visheshwar, the third son of Sukh Lal and brother of Guru Narain and Ram Narain was given to Guru Narain by way of exchange. The ¼ share of Kashi Ram, the 4th son of Sukh Lal and brother of Guru Narain and Ram Narain was inherited by his son Ram Kumar and upon his death, by his widow Smt. Mahraji. A gift deed was executed by Smt. Mahraji in favour of Guru Narain. The ¼ share of Kashi Ram, the 4th son of Sukh Lal and brother of Guru Narain and Ram Narain was inherited by his son Ram Kumar and upon his death, by his widow Smt. Mahraji. A gift deed was executed by Smt. Mahraji in favour of Guru Narain. This gift deed has been accepted by the Deputy Director of Consolidation, as it was a registered document which was never challenged by anybody. It has also been observed that after obtaining the land by exchange and gift deed Ram Narain himself executed a gift deed of 3 pie share in favour of others and a suit for cancellation for this gift deed was finally rejected findings the gift to be a valid deposition. 17. On the basis of the above, the Deputy Director of Consolidation has found that Paras Nath and others were entitled to only 13 pie share which their father Ram Narain had in these two Khatas. 18. Upon hearing learned counsel for the parties and upon a perusal of the record, I do not find any error in the findings and the reasoning returned by the Deputy Director of Consolidation in the impugned order, whereby the share of Ram Narain from whose branch, petitioners belong, to be only 13 pie. The order impugned therefore is perfectly justified and warrants no interference. 19. Accordingly, the writ petition is found to be without force and is therefore dismissed. Petition Dismissed.