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2016 DIGILAW 361 (ALL)

Kewal v. Deputy Director of Consolidation Hardoi

2016-01-28

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya), J. – Notice on behalf of respondents - 1 and 2 has been accepted by Chief Standing Counsel. Sri U.S. Sahai has filed vakalatnama and counter affidavit on behalf of respondent-3. 2. Heard Sri Anurag Shukla for the petitioner and Sri U.S. Sahai for contesting respondent-3. 3. The writ petition has been filed against the order of Deputy Director of Consolidation dated 18.11.2015 and Consolidation Officer dated 30.1.1997 passed in title proceeding under UP Consolidation of Holdings Act 1953. 4. The dispute between the parties relates to land recorded in basic consolidation year of khata no. 22 of village Mautakamlapur, pargana Gopamau, distt. Hardoi. In basic consolidation record names of Smt. Kusuma and Smt. Tikana, widows of Chhotai were recorded over the land in dispute. During the consolidation Smt. Tikana filed an objection for deleting the name of Smt. Kusuma on the ground that Smt. Kusuma and Smt. Tikana were widows of Chhotai and after the death of Smt. Kusuma her estate was inherited by Smt. Tikana. Another objection was filed by Indrapal for recording his name over the land in dispute on the basis of sale deed dated 30.3.1988 executed by Smt. Tikana of the land in dispute. The Consolidation Officer by order dated 30.1.1997 directed for recording the name of Indrapal over the land in dispute on the basis of sale deed dated 30.3.1988 executed by Smt. Tikana in his favour. It appears that the name of Smt. Kusuma was not deleted . Therefore, another order relating to correction dated 28.4.1997 was passed directing deletion of the name of Smt. Kusuma from khata in dispute. Kewal, the petitioner, filed an objection before the Consolidation Officer that although he had filed objection under Section 9 of the Act claiming his right over the land in dispute but while passing the orders dated 30.1.1997 and 28.4.1997 he was not given any notice or opportunity of hearing. The orders have been passed without considering his objection in respect of the land in dispute. The Consolidation Officer by order dated 27.3.1998 dismissed the objection of Kewal on the ground that he has already decided the dispute relating to khata no. 22 as such has no jurisdiction to pass fresh order. 5. The petitioner filed two appeals registered as Appeal Nos. 1093 and 100/1547 from the aforesaid orders dated 30.1.1997 (as corrected by order dated 28.4.1997) and 27.3.1998. 22 as such has no jurisdiction to pass fresh order. 5. The petitioner filed two appeals registered as Appeal Nos. 1093 and 100/1547 from the aforesaid orders dated 30.1.1997 (as corrected by order dated 28.4.1997) and 27.3.1998. Both the appeals were consolidated and heard by Assistant Settlement Officer, Consolidation, who by the order dated 27.7.2006 found that a perusal of the report of Assistant Consolidation Officer showed that various disputes were referred to Consolidation Officer including the objection of Kewal claiming his right over the khata in dispute. The Consolidation Officer without giving any notice to the petitioner decided the objections of Smt. Tikana and Indrapal only. Thus order dated 30.1.1997 (as corrected by order dated 28.4.1997) was an ex parte order and was liable to be set aside but the objection of the petitioner was illegally dismissed on 27.3.1998. On this finding he allowed the appeals of the petitioner, set aside the orders dated 30.1.1997 (as corrected by order dated 28.4.1997) and 27.3.1998 and remanded the matter to Consolidation Officer to decide the dispute after hearing the parties. 6. Indrapal filed two revisions against the aforesaid order registered as Revision Nos. 31 of 2015-16 and 32 of 2015-16. Both the revisions were consolidated and heard by Deputy Director of Consolidation, who by order dated 18.11.2015 found that Kewal had not got any dispute registered at the time of partal and no such claim was mentioned in CH form 5 of the Act. Therefore, the subsequent objection of Kewal was not maintainable. A perusal of pariwar register shows that name of Smt. Tikana was mentioned in it as widow of Chhotai. The Pradhan has also issued a certificate showing that Smt.Tikana was widow of Chhotai and was still alive. Thus during life time of Smt. Tikana, Kewal could not claim any title over the land in dispute. Smt. Tikana had already executed a sale deed dated 30.3.1988 of the land in dispute in favour of Indrapal, therefore, his name was rightly mutated over the land in dispute by order dated 30.1.1997. On this finding he allowed the revisions and set aside the order of Assistant Settlement Officer Consolidation dated 27.7.2006. Hence, this writ petition has been filed. 7. I have considered the arguments of the counsel for the parties. 8. The petitioner has filed a report of Assistant Consolidation Officer as Annexure - 4 to the writ petition. On this finding he allowed the revisions and set aside the order of Assistant Settlement Officer Consolidation dated 27.7.2006. Hence, this writ petition has been filed. 7. I have considered the arguments of the counsel for the parties. 8. The petitioner has filed a report of Assistant Consolidation Officer as Annexure - 4 to the writ petition. Although in the counter affidavit it has been denied and stated that it is a manufactured document but the report of Assistant Consolidation Officer has been relied upon by the Assistant Settlement Officer Consolidation in the order dated 27.7.2006 and Deputy Director of Consolidation has not recorded any finding to the effect that the report of Assistant Consolidation Officer is a fabricated document. A perusal of the report of Assistant Consolidation Officer shows that he had forwarded seven disputes in respect of khata no. 22 to Consolidation Officer and at Serial No. 5, objection of the petitioner claiming for deleting the name of Smt. Tikana and recording his name over it, has been mentioned. Thus the finding of Assistant Settlement Officer Consolidation that the petitioner has filed objection under Section 9 of the Act and Consolidation Officer ignoring the objection of the petitioner and without giving any opportunity of hearing/evidence to him, has passed the order dated 30.1.1997, does not suffer from any illegality. 9. Finding of respondent-1 that as the dispute was not noted in CH form 5 as such subsequent objection is not maintainable, is incorrect. At the time of partal, dispute can be raised by tenure holder, which is noted in CH Form -4. Notice of which is given in CH Form 5. Tenure holders are again given right to file objections under Section 9(2) of the Act, after service of notice in CH Form 5 and such objections, if not decided through conciliation by Assistant Consolidation Officer, are forwarded to Consolidation Officer. 10. The Deputy Director of Consolidation has not considered the fact that in spite of the objections being filed by the petitioner under Section 9 of the Act, the Consolidation Officer has not conducted any trial in his objection. 10. The Deputy Director of Consolidation has not considered the fact that in spite of the objections being filed by the petitioner under Section 9 of the Act, the Consolidation Officer has not conducted any trial in his objection. Deputy Director of Consolidation has illegally proceeded to record his own independent finding and held that during life time of Smt. Tikana, the petitioner has no right over the land in dispute, although the case of the petitioner was that Smt. Tikana was second wife of Chhotai and after his death she was re-married. Although, counsel for the petitioner relied upon the order of mutation passed by Tehsildar dated 30.11.1990 in the proceeding under Section 34 of UP Land Revenue Act 1901 but the order dated 30.11.1990 is not admissible in evidence for the reason that this order was passed in the mutation proceeding and is not relevant in title proceeding. Secondly, mutation proceeding was abated as such the order has become non-est. As such this Court is not inclined to place any reliance upon the order dated 30.11.1990. However, the case of the petitioner remains that Smt. Tikana re-married immediately after the death of Chhotai in the year 1982 and after the death of Smt. Kusuma the other co-widow of Chhotai, he has inherited the property in dispute, being brother's son of Chhotai, remained to be decided on its own evidence. For which after framing issues trail was necessary according to the provisions of Rule 26 of UP Consolidation of Holdings Rules 1954 and Deputy Director of Consolidation while deciding the revisions, was not justified by recording finding that giving any opportunity to the parties to adduce their oral/documentary evidence. 11. In view of the aforesaid discussions, the writ petition succeeds and is allowed. The order of Deputy Director of Consolidation dated 18.11.2015 is set aside. The Consolidation Officer shall proceed to decide the case on merit, in pursuance of the order dated 27.7.2007, expeditiously. Petition Allowed.