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2016 DIGILAW 3877 (ALL)

Ram Awadh Singh v. D. D. C. Azamgarh

2016-12-01

ASHWANI KUMAR MISHRA

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JUDGMENT Ashwani Kumar Mishra,J. 1. These two writ petitions arise out of a dispute relating to the property held by Smt. Surya Mukhi wife of Jagannath. She was having following three holdings. (i) Chak No.846 in Village Ladaura (ii) Chak No.602 in Village Shambhupur (iii) Chak No.1540 (chak out) in Village Shambhupur 2. It appears that two sale deeds are stated to have been executed by Smt. Surya Mukhi in favour of respondent nos.2, 3 and 4 of Writ Petition No.19759 of 2003. Vide sale deed dated 13.5.981, land of Chak no.846 of Village Ladaura is stated to have been transferred, whereas by the other sale deed dated 29.5.1981, land of Chak No.602 as well as 0.456 hectare of plot no.1540 is stated to have been transferred. Assistant Consolidation Officer proceeded to effect the sale deed dated 13.5.1981 in the revenue records on 8.7.1981, and by a separate order passed on 10.7.1981, the land allegedly transferred vide other sale deed was mutated in proceedings under Section 12 of the U.P. Consolidation of Holdings Act, 1953. It is claimed that Smt. Surya Mukhi was alive, and she filed appeal no.341, which got renumbered as 475 against the order dated 8.7.1981, and appeal no.606, which got renumbered as 930 against the order dated 10.7.1981. It is not in dispute that these appeals are yet to be decided on merits. It may also be recorded, at this stage, that the respondents have disputed the factum of filing of appeal by Smt. Surya Mukhi. 3. Petitioners, Ram Awadh and others, claimed that Smt. Surya Mukhi executed a registered will in favour of them on 23rd February, 1982, and that she died on 6.7.1982. It further appears from the record that upon the remaining land of plot no.1540 measuring 1.937 Acre, name of present petitioners got mutated on the basis of will on 25.1.1983. The respondents dispute the very execution of will in favour of petitioners on 23rd February, 1992 as well as consequential proceedings. 4. It seems that while appeals were pending before the Settlement Officer Consolidation, four revisions came to be filed by the parties before the Deputy Director of Consolidation. Revision no.143 was filed by the respondents challenging the order of mutation dated 25.1.1983, pertaining to mutation of petitioners' name over 1.937 Acre's land of plot no.1540. Revision nos. 4. It seems that while appeals were pending before the Settlement Officer Consolidation, four revisions came to be filed by the parties before the Deputy Director of Consolidation. Revision no.143 was filed by the respondents challenging the order of mutation dated 25.1.1983, pertaining to mutation of petitioners' name over 1.937 Acre's land of plot no.1540. Revision nos. 684 and 270 were filed by the petitioners challenging the orders passed by Assistant Consolidation Officer dated 8.7.1981 and 10.7.1981, which were already sub-judice in appeal, referred to above. It further transpires that upon an application filed by the respondents, proceedings of appeal were stayed by an order dated 7.10.1983, which came to be assailed in Revision no.121. The Deputy Director of Consolidation heard all four revisions together and disposed it of by a common order dated 5.4.1991. Revision nos.143, 684 and 270 were rejected, and it was held that pending appeal before the Settlement Officer Consolidation be decided. The order dated 7.10.1983, whereby proceedings of appeal were stayed, was quashed, and consequently, Revision No.121 was allowed. It appears that an application for recall of the order dated 5.4.1991 was then filed on 2.1.2002, alongwith an application filed for condonation of delay. It was stated that the respondents were not aware about passing of the order dated 5.4.1991. The application filed under Section 5 of the Limitation Act has been allowed by the Deputy Director of Consolidation, vide his order dated 7.4.2003, which is assailed in Writ Petition No.19759 of 2003. 5. The other writ petition arises out of an order passed by Deputy Director of Consolidation dated 13.2.1996, wherein the Deputy Director of Consolidation observed that contest between the rival parties is continuing since long, and an objection against the alleged will, as well as sale deed, is also pending before the Consolidation Officer. In such circumstances, the Deputy Director of Consolidation set aside the order passed by Assistant Settlement Officer Consolidation dated 2.3.1995, and directed the Consolidation Officer to adjudicate all questions, including the question of genuineness of will and sale deeds both. It is this order, which is assailed in Writ Petition No.10464 of 1996. 6. In such circumstances, the Deputy Director of Consolidation set aside the order passed by Assistant Settlement Officer Consolidation dated 2.3.1995, and directed the Consolidation Officer to adjudicate all questions, including the question of genuineness of will and sale deeds both. It is this order, which is assailed in Writ Petition No.10464 of 1996. 6. I have heard Sri M.D. Singh 'Shekhar', learned Senior Counsel assisted by Sri Ashwani Kumar Srivastava for the petitioners in Writ Petition No.19759 of 2003, and Sri A.P. Singh as well as Sri Narendra Kumar for the respondents, as well as in Writ Petition No.10464 of 1996, and have perused the materials brought on record. 7. From the facts appearing on record, this Court finds that parties are at issue on the following two points: - (i). Whether the sale deeds alleged to have been executed by Smt. Surya Mukhi on 13.5.1981 as well as 29.5.1981 are valid, or have been procured through an imposter? (ii). Whether Smt. Surya Mukhi has executed registered will on 23.2.1982, in favour of present petitioners? 8. Learned counsel for the parties agree that these two questions require adjudication and all off-shorts in the nature of mutation proceedings, would be dependent upon the outcome of adjudication on these aspects. Learned counsel for the parties are further in agreement that on these two questions, there is no adjudication by any of the consolidation authorities, and that the parties have only been litigating upon the restoration and delay condonation matter for decades. 9. In the facts and circumstances, noticed above, it would be appropriate that the questions formulated be got adjudicated, at the first instance, by the Consolidation Officer. All records of the proceedings undertaken before the Settlement Officer Consolidation and the Deputy Director of Consolidation shall be remitted to the Consolidation Officer. The parties shall be at liberty to adduce their evidence in support of their respective case before the Consolidation Officer, within a period of two months from today. The Consolidation Officer shall proceed to hear the parties, in accordance with law, and adjudicate the questions formulated on the basis of materials brought on record before it, within a further period of four months, thereafter. The rights of the parties in respect of the land of Smt. Surya Mukhi shall be governed in accordance with the orders to be passed by the Consolidation Officer, subject to the remedy contemplated in law. The rights of the parties in respect of the land of Smt. Surya Mukhi shall be governed in accordance with the orders to be passed by the Consolidation Officer, subject to the remedy contemplated in law. 10. With the aforesaid observations/directions, both the writ petitions stand disposed of.