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Allahabad High Court · body

2016 DIGILAW 2717 (ALL)

Shivdhari Prasad Goswami v. D. D. C.

2016-08-05

RAM SURAT RAM (MAURYA)

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JUDGMENT Ram Surat Ram (Maurya), J. – Heard Sri R.C. Singh for the petitioner. 2. Although counter affidavit has been filed through Sri A.P. Paul and Sri B.B. Paul but Sri A.P. Paul informs that instructions has been withdrawn from him by the respondents and respondents have also taken entire record of the case with him as such he is unable to argue the case. The respondents have not engaged any other counsel as such the writ petition is being decided finally after hearing the counsel for the petitioner. 3. The writ petition has been filed against the orders of Consolidation Officer dated 17.5.2007 and Deputy Director of Consolidation dated 20.2.2013 passed in title proceeding under UP Consolidation of Holdings Act 1953 (hereinafter referred to as the 'Act'). 4. In basic consolidation record khata no. 345 of village Narepar, post Sitamarhi, Tehsil Gyanpur, distt. Sant Ravidas Nagar, Bhadohi was record in the name of Shivdhari Prasad, the petitioner alone. While khata no. 380 was jointly record in the names of Ram Narain (now represented by respondents 3 and 4) and Shivdhari Prasad both. Before the Settlement Officer Consolidation Ram Narain, father of respondents – 3 and 4 filed an appeal on 23.2.1987 against the order of Assistant Consolidation Officer dated 18.1.1985. In the memorandum of appeal Ram Narain had admitted that Jagannath has sold his half share in the land of khata no. 380 to Shivdhari Prasad and a separate khata no. 345 has been carved out in the name of Shivdhari Prasad as such neither Jagannath nor Shivdhari Prasad has any share in khata no. 380. The appeal had been decided in terms of compromise. The village was notified under Section 52 of the Act on 24.1.2000. Thereafter respondents filed an application dated 30.12.2004 that his father has filed an objection under Section 9 of the Act on 23.10.1999 claiming ¾ share in khata no. 345 but that objection was misplaced in the court of Consolidation Officer as such after taking report from Assistant Consolidation Officer his objection be decided on merit. Along with this application dated 30.12.2004, the respondents have filed a copy of objection dated 23.10.1999. Thus the application was remitted by the Settlement Officer Consolidation to Consolidation Officer who by order dated 25.2.2005 directed for issue of registered notice to the petitioner and fixed 9.3.2005. Along with this application dated 30.12.2004, the respondents have filed a copy of objection dated 23.10.1999. Thus the application was remitted by the Settlement Officer Consolidation to Consolidation Officer who by order dated 25.2.2005 directed for issue of registered notice to the petitioner and fixed 9.3.2005. On 10.3.2005 the Consolidation Officer condoned the delay and fixed 21.3.2005 for issue. Thereafter by a subsequent order dated 21.9.2006 the Consolidation Officer has allowed the objection and directed for recording the names of respondents over ¾ share in the khata no. 345. The petitioner challenged the aforesaid order in Writ B No. 65321 of 2006. The petitioner also filed a recall application for recalling the aforesaid order. The Consolidation Officer by the order dated 14.12.2006 recalled the order dated 21.9.2006. The respondents thereafter filed an application for recalling the order dated 14.12.2006 which was allowed by order dated 17.5.2007. The petitioner challenged the aforesaid order in revision which was allowed by the Deputy Director of Consolidation by order dated 14.7.2010. The order dated 14.7.2010 was challenged by the respondents in Writ B No. 52031 of 2010 which was allowed by this Court by order dated 6.9.2010 and the matter was remanded to the Deputy Director of Consolidation to decide the revision afresh after hearing the parties. After remand the Deputy Director of Consolidation by the impugned order dated 20.2.2013 dismissed the revision of the petitioner. Hence this writ petition has been filed. 5. I have considered the arguments of the counsel for the petitioner. 6. A perusal of memorandum of appeal filed by the father of the respondents shows that he has clearly admitted that khata no. 345 was exclusive holding of the petitioner. The appeal was filed on 20.3.1987. Thus after admission there was no occasion for father of the respondents – 3 and 4 to file any objection under Section 9 of the Act claiming co-tenancy in khata no. 345 on 23.10.1999. Otherwise also as admitted that Jagannath was co-sharer of the father of respondents – 3 and 4 and Jagannath has transferred his share in the land record in khata no. 380 and new khata no. 345 was carved out from the land transferred to the petitioner. Therefore there has been no share of the respondents-3 and 4 in it. 7. Otherwise also as admitted that Jagannath was co-sharer of the father of respondents – 3 and 4 and Jagannath has transferred his share in the land record in khata no. 380 and new khata no. 345 was carved out from the land transferred to the petitioner. Therefore there has been no share of the respondents-3 and 4 in it. 7. In any case the allegation of the respondents- 3 and 4 was that their objection under Section 9 of the Act was misplaced, therefore in order to reconstruct the record, the Consolidation Officer was required to verify as to whether any objection was filed within time and it was registered in misalband register maintained by him. Without reconstruction of the record the Consolidation Officer has decided the application of the respondents on merit. The procedure adopted by the Consolidation Officer is incorrect and it has been illegally approved by the Deputy Director of Consolidation. 8. In the results, the writ petition succeeds and is allowed. The orders of Consolidation Officer dated 17.5.2007 and Deputy Director of Consolidation dated 20.2.2013 are set aside. The Consolidation Officer shall decide the application of the respondents-3 and 4 for reconstruction of the record, afresh after hearing the parties and after ascertaining that as to whether any objection under Section 9 of the Act was filed and it was registered in misalband register, in accordance with law before notification of the village under Section 52 of the Act and then he can only proceed with the case. Petition Allowed.