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2016 DIGILAW 3426 (ALL)

Prakash v. Dy. Director of Consolidation

2016-10-06

RAM SURAT RAM (MAURYA)

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JUDGMENT Ram Surat Ram (Maurya), J. – Heard Sri V.K. Singh for the petitioners and Sri Ashok Kumar Singh and Dr. V.K. Rai for the contesting respondents. 2. The aforesaid writ petitions have been filed against the orders of SOC dated 6.7.2013 and DDC dated 7.10.2013, passed in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the 'Act'). 3. In Writ - B No. 63782 of 2013, the dispute related to land recorded in basic consolidation year khata No. 81, in which, names of Prakash, Punna Singh, Raghuveer Singh, Km. Bala, Vikram Singh, Awal Singh, Ramesh Chand, Suresh Pal, Rishipal, Shimla, Dharam Pal Singh and Rajendra Singh were recorded. In Writ - B No. 63783 of 2013, the dispute related to land recorded in basic consolidation year khata No. 80, in which, names of Prakash, Punna Singh, Raghuveer Singh, Vikram Singh, Rajendra Singh and Dharampal were recorded. In Writ - B No. 63784 of 2013, the dispute related to land recorded in basic consolidation year khata No. 79, in which, names of Prakash, Punna Singh, Raghuveer Singh, Km. Bala, Vikram Singh, Mani Ram, Mahendra, Dharam Pal Singh and Rajendra Singh were recorded. In Writ - B No. 63785 of 2013, the dispute related to land recorded in basic consolidation year khata No. 82, in which, names of Prakash, Punna Singh, Raghuveer Singh, Km. Bala, Dharampal Singh, Rajendra Singh, Premwati, Malkhan Singh and Gautam Singh were recorded. In CH Form 5, shares of various recorded persons were noted at the time of partal. 4. It is alleged that the parties appeared before the ACO and in presence of Chairman, as well as Member of Consolidation Committee, they admitted their shares as mentioned in CH Form 5. Accordingly, a conciliation proceeding was drawn by ACO, which was signed by all the parties, as well as Chairman and Member of Consolidation Committee on 6.10.2012. On its basis, ACO decided the shares of parties by order dated 6.10.2012, holding 1/10 share of Punna Singh and 1/10 share of Raghuveer, in aforesaid khatas - Case No. 121, registered before ACO, was related to khata No. 79, Case No. 122 related to khata No. 81, Case No. 126 related to khata No. 82, Case No. 153 related to khata No. 80. 5. 5. Punna Singh and Raghuveer filed appeals from the aforesaid order on 1.1.2013, challenging the correctness of the order of ACO. Appeal No. 480 related to khata No. 39, Appeal No. 482 related to khata No. 80, Appeal No. 483 related to khata No. 81, Appeal No. 481 related to khata No. 82. According to them, the land in dispute was joint property of Nanda and Hira. They belonged to the branch of Hira, as such, they jointly had 1/2 share, while by the order of ACO, they were jointly given 1/5 share, which is incorrect and liable to be set aside. The matter was contested by the petitioners and they stated that as before the ACO, the parties have entered into compromise, as such, the order was passed by him. The appeals were consolidated and heard by SOC, who by order dated 7.6.2013 condoned the delay in filing the appeal. He found that the land in dispute was recorded in 1359 F in the name of Hamel Singh (son of Hira), Khushi and Harkesh (sons of Nanda), Kewal (son of Shankar), Chaman (son of Nahar), Maniram and Mahendra (sons of Juggu). Therefore, it was held that it was ancstral property of the branches of Nanda and Hira, in which, the branch of Nanda (now represented by the petitioners), had jointly 1/2 share and branch of Hira (respondents-4 and 5) had jointly 1/2 share. The order of ACO deciding the shares of respondents-4 and 5 as 1/10 each, is illegal. The petitioners filed a sale deed dated 25.5.1992, jointly executed by Punna Singh and Raghuveer, disclosing their shares as 1/5 in it, which was not relied upon, inasmuch as, it has been found that from the khatauni of 1359-F, they had 1/2 share jointly. On these findings, he allowed the appeals and set aside the order of ACO dated 6.10.2012 and held the share of Punna Singh as 1/4 and share of Raghuveer as 1/4. He has also decided the shares of the branch of the petitioners. The petitioners challenged the aforesaid order in revision before DDC. Revision No. 947 related to khata No. 79, Revision No. 946 related to khata No. 80, Revision No. 945 related to khata No. 81 and Revision No. 956 related to khata No. 82. The revisions were consolidated and decided by DDC. The petitioners challenged the aforesaid order in revision before DDC. Revision No. 947 related to khata No. 79, Revision No. 946 related to khata No. 80, Revision No. 945 related to khata No. 81 and Revision No. 956 related to khata No. 82. The revisions were consolidated and decided by DDC. DDC found that in the compromise before ACO, there was no signatures of Bala, Vikram and Mahendra. Thus, in the absence of signatures of all the recorded tenure holders, ACO had no jurisdiction to pass any order. The order of ACO was illegal and has rightly been set aside. 6. So far as order of SOC is concerned, he found that khatauni of 1324-F and 1359-F were filed, from which it was proved that the land in dispute was ancestral property. Further, plaint of Suit No. 12 of 1990-91 (Rajbala v. Dharam Pal) was filed, from which the pedigree of the parties were proved. Thus, according to the pedigree, branch of Hira was having 1/2 share and SOC has not committed any illegality in giving 1/4 share to Punna Singh and 1/4 share to Raghuveer. On these findings, he dismissed the revisions. Hence, these writ petitions have been filed. 7. The Counsel for the petitioners submits that before the ACO, Punna Singh and Raghuveer Singh had appeared and signed the conciliation proceeding. Finding of DDC that the conciliation proceeding was not signed by two Members of Consolidation Committee, is incorrect, inasmuch as, the conciliation proceeding bears the signature of Pradhan, who was the Chairman of Consolidation Committee and Vipin Kumar was Member of Consolidation Committee. The finding that the conciliation proceeding was not signed by Bala, Vikram and Mahendra is concerned, they were not aggrieved by the order of ACO and had not challenged it. In such circumstances, the conciliation proceeding and order passed on its basis was not liable to be set aside. In any case, no appeal was maintainable on behalf of Punna Singh and Raghuveer, who had signed the compromise. He further submits that there is a long pedigree, inasmuch as, Gayani had four sons, namely, Nanda, Hira, Bihari and Moonga. SOC has divided the property in dispute in the branches of Nanda and Hira alone and left the branches of Bihari and Moonga. He further submits that there is a long pedigree, inasmuch as, Gayani had four sons, namely, Nanda, Hira, Bihari and Moonga. SOC has divided the property in dispute in the branches of Nanda and Hira alone and left the branches of Bihari and Moonga. The parties were not allowed proper opportunity to agitate the matter and prove as to whether the land in dispute was ancestral property or not and the pedigree given by the respondent was correct. Even if the order of ACO is set aside, the matter ought to have been remanded to CO to decide the dispute afresh, after giving opportunity of evidence and hearing to the parties, but the SOC has illegally decided the matter finally. 8. I have considered the arguments of Counsel for the parties and examined the record. It has been pointed out by the Counsel for the respondents that in the compromise of khata No. 79, thumb impression of Raghuveer was affixed, while in conciliation proceeding of remaining three khatas, signature of Raghuveer was made. Thus, it is proved that Raghuveer did not appear before the ACO, nor signed the conciliation proceeding and the appeal filed by him was maintainable. In the circumstances, the argument that the appeal was filed against the compromise order is not liable to be accepted, in as much as, signature and thumb impression of Raghuveer before ACO on the same day, appears to be suspicious. It is not expected that Raghuveer would make signature on three places and affix thumb marks in one place. Although, no finding has been recorded by the consolidation authorities, but it was an apparent fact and the Counsel for the petitioner was unable to give any explanation of this discrepancy. This Court is therefore not inclined to accept the argument that it was a compromise order and the appeal was not maintainable. Share is a question of law, which can always be challenged and decided, if it has been illegally decided. 9. So far as share of other branches of Bihari and Moonga is concerned, in the basic consolidation record, names of the persons of branches of Nanda and Hira alone were recorded over the land in dispute. Share is a question of law, which can always be challenged and decided, if it has been illegally decided. 9. So far as share of other branches of Bihari and Moonga is concerned, in the basic consolidation record, names of the persons of branches of Nanda and Hira alone were recorded over the land in dispute. So far as the persons of branch of Bihari and Moonga are concerned, they were not recorded in basic consolidation record and they did not file any objection, claiming any right/share in the land in dispute. Thus, the petitioners cannot be permitted to raise the ground that other persons of the pedigree had share and whose shares were not considered / decided by the SOC. 10. So far as argument that Bala, Vikram and Mahendra have not challenged the order of ACO in appeal is concerned, it is a matter relating to jurisdiction. If all the parties are not signing the conciliation proceeding, then ACO had no jurisdiction to pass any order and he was bound to refer the dispute to CO. ACO had committed jurisdictional error in deciding the share of the parties, without their signatures on conciliation proceeding. 11. SOC as well as DDC found that khatauni of 1324-F and 1359-F were filed, in which, the land in dispute was recorded jointly in the branches of Nanda and Hira. On its basis, finding has been recorded that it was ancestral property of the branch of Nanda and Hira. So far as pedigree is concerned, from the entries made in this khatauni also, the pedigree was proved. They further relied upon the plaint of Suit No. 12 of 1990-91 (Rajbala v. Dharam Pal), in which the pedigree has been mentioned. The finding in this respect could not be challenged by the petitioner in the writ petition. In the supplementary affidavit also, a short pedigree has been given by the petitioners, showing Nanda and Hira, but they have not shown the descendants of Nanda and Hira, which were otherwise proved from khatauni 1324-F and 1359-F. The land in dispute was found to be ancestral property of the branch of Nanda and Hira, therefore, share of the branch of Hira was found to be 1/2 jointly and share of branch of Nanda was found to be 1/2 jointly. This finding could not be challenged by the petitioner from any contrary evidence on record. This finding could not be challenged by the petitioner from any contrary evidence on record. In the circumstances, substantial justice has been done and no interference is required by this Court. There is no need to remand the case for further trial on merit. 12. The writ petitions have no men: and are dismissed.