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2016 DIGILAW 2334 (ALL)

Sakhawat Ali v. State of U. P.

2016-07-06

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya), J. Heard Sri Abhishek Pandey, for the petitioners, Standing Counsel, for State of U.P. and Sri Rajesh Yadav, for the respondent-5. 2. The writ petition has been filed against the orders of Consolidation Officer dated 22.11.2004, Settlement Officer Consolidation dated 27.02.2009 and Deputy Director of Consolidation dated 22.06.2015 passed in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the 'Act'). 3. The dispute between the parties is in respect of basic consolidation year khata 42 (consisting plots 86, 87, 89, 92, 134, 135, 153 and 178) of village Fatehpur, majra Jhabiran, khata 106 (consisting plots 74, 75, 180, 181, 182, 183, 184, 853, 925, 1239, 1241, 1245, 1254, 1260, 1350, 1351, 1352, 1353, 1354, 1355, 1356 and 1357) and khata 106-A (consisting plots 21, 207, 525, 539, 541, 825, 905, 906, 910, 1253 and 1266) of village Jhabiran, tahsil Deoband, district Saharanpur. In basic consolidation year, khata 42 was recorded in the names of Sakhawat and Mungesuddin and Khatas 106 and 106- A were recorded in the names of Mungesuddin (now represented by the petitioners). Gram Panchayat (respondent-5) filed objections under Section 9 of the Act, for deleting names of Sakhawat and Mungesuddin from khatas in dispute and recording its names over it. It has been stated by Gram Panchayat that land in dispute were public utility land and of the categories of land mentioned under Section 132 of U.P. Act No. 1 of 1951. No right can accrue to any one over it. Sakhawat and Mungesuddin got their names recorded over it on the basis of collusive decree dated 31.05.1978 passed in O.S. No. 95 of 1976. The petitioners contested the objections and stated that land in dispute were in possession of their ancestors since before date of vesting and they had acquired bhumidhari right over it. There right has been upheld by Civil Court in O.S. No. 95 of 1978 by judgment dated 31.05.1978. On its basis Naib Tahsildar by order dated 25.07.1978 passed in Case Nos. 241 and 257, directed for recording their names. Gram Panchayat filed O.S. No. 28 of 1983, for cancellation of decree dated 31.05.1978, which was dismissed by judgment dated 06.09.1989. These judgments operate as res-judicata between the parties. There were other objections also but those are not relevant for this writ petition. 4. The cases were consolidated and tried by Consolidation Officer. Gram Panchayat filed O.S. No. 28 of 1983, for cancellation of decree dated 31.05.1978, which was dismissed by judgment dated 06.09.1989. These judgments operate as res-judicata between the parties. There were other objections also but those are not relevant for this writ petition. 4. The cases were consolidated and tried by Consolidation Officer. Apart from documentary evidence, Sukkan Singh, Pradhan of Gram Panchayat was examined as witness. The petitioners apart from documentary evidence, examined Mungesuddin as witness. Consolidation Officer, by judgment dated 22.11.2004 held that from khatauni 1382 F to 1384 F, it was proved that land in dispute were recorded as khaliyan, Johan (talab), manure pits, marghat (cremation ground) and water logging land, in the name of Gaon Sabha. Gul Mohammad, Idrish, Mst. Majeedan, Daud and Dilshad filed O.S. No. 95 of 1978, impleading Khuda Bande Tala Masuma Waqf Qabristan and Hafiz Mungesuddin, as the defendants. They entered into a compromise in the suit and the suit was decreed in terms of compromise on 31.05.1978. On the basis of this decree, Naib Tahsildar recorded the names of Sakhawat and Mungesuddin, by orders dated 25.07.1978, passed in Case Nos. 241 and 257. As Gaon Sabha and State of U.P. were not parties in this suit as such judgment and decree passed in it, was not binding upon them. Otherwise also Civil Court had no jurisdiction to decide title over the land and decree dated 31.05.1978 was without jurisdiction. State of U.P. and Gaon Sabha challenged the aforesaid decree in O.S. No. 28 of 1983, which was abated under Section 5 (2) of the Act. Land in dispute, being land of the categories mentioned under Section 132 of U.P. Act No. 1 of 1951 as such no right can accrue to any one over it. On these finding objections of Gaon Sabha were allowed and the names of Sakhawat and Mungesuddin were deleted from the land in dispute. 5. Sakhawat and Mungesuddin filed an appeal (registered as Appeal No. 527/330), from the aforesaid order. The appeal was heard by Settlement Officer Consolidation, who by order dated 27.02.2009 upheld the findings and dismissed the appeal. The petitioners filed a revision (registered as Revision No. 983/146), from the aforesaid orders. The revision was heard by Deputy Director of Consolidation, who by order dated 22.06.2015, dismissed the revision. Hence this writ petition has been filed. 6. The appeal was heard by Settlement Officer Consolidation, who by order dated 27.02.2009 upheld the findings and dismissed the appeal. The petitioners filed a revision (registered as Revision No. 983/146), from the aforesaid orders. The revision was heard by Deputy Director of Consolidation, who by order dated 22.06.2015, dismissed the revision. Hence this writ petition has been filed. 6. The counsel for the petitioners submits that disputed land were in possession of their ancestors, since before date vesting. After date of vesting, they acquired sirdari right and at present bhumidhari right over it. Their right has been upheld by Civil Court in O.S. No. 95 of 1978, by judgment dated 31.05.1978. On its basis Naib Tahsildar by orders dated 25.07.1978 passed in Case Nos. 241 and 257, directed for recording their names, over the land in dispute. Gaon Sabha had notice of the proceedings before Naib Tahsidar but did not contest. Subsequently, State of U.P. and Gaon Sabha filed O.S. No. 28 of 1983, for cancellation of decree dated 31.05.1978, which was dismissed by judgment dated 06.09.1989. These judgments operate as res-judicata between the parties and have been illegally ignored. Orders of consolidation authorities are illegal and liable to be set aside. 7. I have considered the arguments of the counsel for the parties and examined the record. The petitioners have not filed any document either before consolidation authorities or before this Court to show their possession over the land in dispute, since before date of vesting. Consolidation Officer recorded a categorical findings that from khatauni 1382 F to 1384 F it was proved that land in dispute were recorded as khaliyan, Johan (talab), manure pits, marghat (cremation ground) and water logging land, in the name of Gaon Sabha. Gul Mohammad, Idrish, Mst. Majeedan, Daud and Dilshad filed O.S. No. 95 of 1978, impleading Khuda Bande Tala Masuma Waqf Qabristan and Hafiz Mungesuddin as the defendants. They entered into a compromise in the suit and the suit was decreed in terms of compromise on 31.05.1978. On the basis of this decree, Naib Tahsildar recorded the names of Sakhawat and Mungesuddin, by order dated 25.07.1978. As Gaon Sabha and State of U.P. were not parties in this suit as such judgment and decree passed in it was not binding upon them. On the basis of this decree, Naib Tahsildar recorded the names of Sakhawat and Mungesuddin, by order dated 25.07.1978. As Gaon Sabha and State of U.P. were not parties in this suit as such judgment and decree passed in it was not binding upon them. Otherwise also Civil Court had no jurisdiction to decide title over the land and decree dated 31.05.1978, declaring title of the petitioners over the land in dispute was without jurisdiction. State of U.P. and Gaon Sabha challenged the aforesaid decree in O.S. No. 28 of 1983, which was abated under Section 5 (2) of the Act. Land in dispute, being land of the category mentioned under Section 132 of U.P. Act No. 1 of 1951 and no right can accrue to any one over it. Findings of facts recorded in this respect do not suffer from any illegality. 8. In view of the aforesaid discussions, writ petition has no merit and is dismissed. Petition Dismissed.