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2016 DIGILAW 3215 (ALL)

Uma Shankar v. Deputy Director of Consolidation, Ballia

2016-09-20

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya), J. – Heard Sri Ashutosh Srivastava for the petitioner and Sri Awadhesh Kumar Singh for the contesting respondents. 2. The writ petition has been filed against the order of Deputy Director of Consolidation dated 11.8.2016 allowing the revision and setting aside the order of Settlement Officer Consolidation dated 14.9.1999. 3. In basic consolidation year Khata Nos. 645, 666 and 667 were recorded in the name of Gelhi and others, the predecessor of the respondents. While Khata No. 905 was recorded in the name of Uma Shankar, Rama Shankar and Daya Shankar sons of Surya Dev. Before Assistant Consolidation Officer, the parties accepted the share of each other accordingly the conciliation proceeding was recorded and Assistant Consolidation Officer by the order dated 5.7.1979 given ½ share in all the Khatas to the petitioner and his brother jointly and remaining ½ share in all the Khatas to the contesting respondents jointly. According to the order of Assistant Consolidation Officer CH form 11 was prepared giving the petitioner and his brothers land of Khata No. 645, 666 and 667 also and thereafter Chaks were carved out and the petitioner and his brothers were allotted joint Chak. 4. The petitioner filed a time barred appeal along with delay condonation application on 4.11.1995 alleging therein that he had neither appeared before the Assistant Consolidation Officer nor he signed the compromise rather the compromise was signed by some impostor of the petitioner. The land of Khata No. 905 was exclusive property of the petitioner and his brothers. The contesting respondents have been illegally awarded share in it by the order of Assistant Consolidation Officer dated 5.7.1979 without following the proceeding under Rule 25 A of the Rules. On 1.11.1995 the partition between the brothers of the petitioner was done then he made an enquiry on 2.11.1995 and came to know that the land of Khata No. 905 was given to the respondents by the order of Assistant Consolidation Officer dated 5.7.1979, therefore, the appeal was filed on 4.11.1995. The Settlement Officer Consolidation after hearing the parties by the order dated 14.9.1999 found that as during consolidation right of the parties is decided forever as such on the delay liberal view ought to have been taken. On this finding he condoned the delay and admitted the appeal. The contesting respondents filed a revision against the aforesaid order. The Settlement Officer Consolidation after hearing the parties by the order dated 14.9.1999 found that as during consolidation right of the parties is decided forever as such on the delay liberal view ought to have been taken. On this finding he condoned the delay and admitted the appeal. The contesting respondents filed a revision against the aforesaid order. The revision was heard by the Deputy Director of Consolidation who by the impugned order dated 11.8.2016 found that although by the order dated 5.7.1979 the compromise order was passed in respect of four Khatas i.e. Khata Nos. 645, 666, 667 and 905 but the petitioner is challenging the order in respect of Khata No. 905 alone and not in respect of remaining Khatas in which he has been given share along with his brothers. The Chaks were carved out in the village. During consolidation an application was filed by the petitioner and his brothers dated 13.10.1978 for giving their Chaks joint therefore they had knowledge of the consolidation proceeding from the very beginning. The Chaks were carved out and delivery of possession was taken as such it is not liable to be believed that after about 16 years, the petitioner could not know about the order of Assistant Consolidation Officer. There was no explanation of condoning the delay and it has been illegally condoned by the Settlement Officer Consolidation. On this finding, the revision was allowed and the order of Settlement Officer Consolidation was set aside. Hence this writ petition has been filed. 5. I have considered the arguments of the counsel for the parties and examined the record. 6. In paragraph 8 of the memorandum of appeal, the petitioner has stated that the petitioner is totally unknown about the proceeding. The finding of Deputy Director of Consolidation that the Chaks were carved out in the year 1979 and delivery of possession was taken place on its basis and it is not liable to be accepted that the petitioner has no knowledge about the order dated 5.7.1979, does not suffer from any illegality. 7. Similarly, the Deputy Director of Consolidation found that although by the order dated 5.7.1979, the petitioner has derive benefit and was given ½ share along with his brother in Khata Nos. 7. Similarly, the Deputy Director of Consolidation found that although by the order dated 5.7.1979, the petitioner has derive benefit and was given ½ share along with his brother in Khata Nos. 645, 666 and 667 but the petitioner is not challenging the order of Settlement Officer Consolidation in those Khatas which shows mala fide on the part of the petitioner as such no interference is required. The explanation given for delay condonation is not bona fide explanation rather it is mala fide explanation and Deputy Director of Consolidation has not committed any illegality to interfere in the matter. 8. The counsel for the petitioner has relied upon the judgement of this Court in Lalanjoo v. Deputy Director of Consolidation, 2013 (4) ADJ page 13 in which it has been held that revisional court should not interfere in the matter condoning the delay unless the delay has been condoned on non-existing grounds or without there being any explanation for the simple reason that the purpose of establishment of the Court is to impart substantial justice to the parties. 9. In this case, the delay has been condoned only for the reason that during consolidation liberal view has to be taken as right is decided forever. In such circumstances, the counter affidavit filed the by opposite parties has not been considered. The finding of the Deputy Director of Consolidation that the petitioner has derived benefit in respect of three Khatas and he had not challenged the remaining Khatas, shows that it is mala fide on the part of the petitioner. 10. In such circumstances, on the basis of the aforesaid case law, no relief can be granted to the petitioner. No interference is required by this Court. The writ petition has no merit. It is dismissed. Petition dismissed.