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2016 DIGILAW 4035 (ALL)

Hari Shanker v. D. D. C.

2016-12-15

MANOJ KUMAR GUPTA

body2016
JUDGMENT Manoj Kumar Gupta, J. Heard learned counsel for the petitioners and learned counsel appearing on behalf of respondent nos. 4 and 5. Pleadings have been exchanged between the parties and with their consent, this writ petition is being decided finally. 2. The undisputed fact is that the land in dispute was recorded in the name of Data Ram. After his death in the year 1994, respondent nos. 4 and 5 claiming themselves to be the cousin brothers of the deceased tenure holder Data Ram, filed an application for mutation of their name in his place under Section 12 of the U.P. Consolidation of Holdings Act, 1953. They claimed that Data Ram died issueless and they had inherited the property. The application filed by the respondent nos. 4 and 5 was allowed by the Assistant Consolidation Officer, Bareilly by order dated 17.12.1996. According to the petitioners, Data Ram had not died issuless, but was survived by his two sons, the petitioners herein and his widow. At the time of the death of Data Ram, according to the petitioners, they were 7 and 5 years of age. The fourth and fifth respondents, thus succeeded in getting their name mutated by misrepresenting that Data Ram had died issueless. The petitioners on coming to know of the order dated 17.12.1996, filed an appeal before the second respondent alongwith an application for condoning the delay. The appeal was opposed by the respondent nos. 4 and 5 by contending that in the past, the petitioners had filed an appeal which was dismissed in default on 7.7.2001 and consequently, the appeal was not maintainable. The second respondent by order dated 18.12.2010 dismissed the appeal holding it to be incompetent in view of the earlier appeal of the petitioners being dismissed in default. 3. Although, according to the petitioners, the earlier appeal which came to be dismissed in default on 7.7.2001, was never filed by the petitioners but by some imposter and for which reason it was only respondent nos. 4 and 5 who had knowledge of the said proceedings. However, in view of the order dated 18.12.2010, by which their appeal was dismissed as not maintainable but it was observed that the parties should get the earlier appeal restored, they were advised to file an application seeking recall of the order dated 7.7.2001. 4 and 5 who had knowledge of the said proceedings. However, in view of the order dated 18.12.2010, by which their appeal was dismissed as not maintainable but it was observed that the parties should get the earlier appeal restored, they were advised to file an application seeking recall of the order dated 7.7.2001. Accordingly, an application for such purpose, was filed by the petitioners, which was allowed by the Settlement Officer, Consolidation by order dated 21.1.2011 and the appeal was restored to its original number. 4. Aggrieved by the order dated 21.1.2011 passed by the Settlement Officer, Consolidation allowing the restoration application, respondent nos. 4 and 5 filed a revision before the Deputy Director of Consolidation. On the other hand, the petitioners aggrieved by the order dated 18.12.2010 dismissing the appeal as not maintainable, also filed a revision before the Deputy Director of Consolidation. Both the revisions have been decided by the impugned order dated 16.3.2013. The revision filed by the petitioners has been dismissed, whereas the revision filed by the respondent nos. 4 and 5 has been allowed. The revisional authority has held that in case the petitioners were the sons of the deceased tenure holder, they would would not have kept silent for 12 years before filing the restoration application. The revisional authority also observed that there was no justification in getting the earlier appeal dismissed in default and in filing another appeal after lapse of considerable time. It has been noted that there is on record an extract from the electoral role in which name of the father of the petitioners has been mentioned as Sukhpal. It has been held that consequently, it cannot be believed that the petitioners were the sons of the deceased tenure holder Data Ram. 5. Learned counsel for the petitioners pointed out that at the appellate stage, the petitioners filed affidavits of Natthu Lal S/o Laxman, Ram Singh S/o Ved Ram, Dhani Ram S/o Pati Ram and a certificate issued by Kalawati, Pradhan of the village, certifying that the petitioners are the sons of deceased Data Ram. It is urged that at the time of death of the father of the petitioners, the petitioners were minor and their mother was turned out of the house by the contesting respondents and she started living with Sukhpal. It is urged that at the time of death of the father of the petitioners, the petitioners were minor and their mother was turned out of the house by the contesting respondents and she started living with Sukhpal. It is sought to be suggested that in such circumstances, in case her name was entered as wife of Sukhpal, the same would not be sufficient to divest the petitioners of their right and title in the disputed land. 6. On the other hand, learned counsel for respondent nos. 4 and 5 submitted before this Court that the findings recorded by the Deputy Director of Consolidation relying upon the electoral role is unassailable, inasmuch as there is no contrary evidence on record. 7. I have examined the contentions of the learned counsel for the parties and the evidence on record. 8. The petitioners while filing the appeal against the order dated 17.12.1996 on 15.5.2010 came up with the specific plea that they had no knowledge of the order dated 17.12.1996 and that the aforesaid order was obtained by respondent nos. 4 and 5 by misrepresenting that Data Ram had not left behind any issue. The petitioners never admitted that the earlier appeal which came to be dismissed in default on 7.7.2001 was in fact filed by them. On the contrary, their specific case was that the earlier appeal was not filed by them, rather, it was got filed by respondent nos. 4 and 5 through some imposter. They were minors at the time of filing of the alleged appeal. An appeal by a minor was itself incompetent. However, respondent no. 1 without going into these pleas, wrongly dismissed the revision filed by the petitioners. In the opinion of the Court, the said issue was germane to the controversy and ought to have been addressed by the revisional authority. 9. The petitioners claim to have filed the restoration application for recall of order dated 7.7.2001 on the basis of legal advise given to them. However, in view of their categorical stand that the appeal which came to be dismissed in default on 7.7.2001 was not filed them, but by some impostor, in the opinion of the Court, the restoration application seeking recall of order dated 7.7.2001 was not maintainable. Thus, the revision filed against the order dated 21.1.2011 was rightly allowed. 10. However, in view of their categorical stand that the appeal which came to be dismissed in default on 7.7.2001 was not filed them, but by some impostor, in the opinion of the Court, the restoration application seeking recall of order dated 7.7.2001 was not maintainable. Thus, the revision filed against the order dated 21.1.2011 was rightly allowed. 10. The findings recorded by the Deputy Director of Consolidation relying on the electoral role while ignoring the affidavits and the certificate of the Pradhan brought on record by the petitioners before the appellate authority to prove that they were sons of the deceased tenure holder cannot be sustained. 11. In the facts and circumstances of the case, the proper course was that the order passed on 21.1.2011 by the Settlement Officer, Consolidation should have been set aside but at the same time the order dated 18.12.2010 holding the appeal filed by the petitioners to be not maintainable also should have been set aside. The Settlement Officer, Consolidation ought to have been directed to decide the appeal filed by the petitioners after examining the following issues: - (i) Whether the petitioners are the sons of deceased Data Ram as claimed by them or not? (ii) Whether the appeal which was dismissed in default on 7.7.2001 was filed by the petitioners or by some imposter? 12. Accordingly, the impugned order of the Deputy Director of Consolidation dated 16.3.2013 in so far as it dismisses the revision filed by the petitioners cannot be sustained. Although, this Court has not found any error in the order of the Deputy Director of Consolidation in setting aside the order dated 21.1.2011 but at the same time the findings recorded by Deputy Director of Consolidation that the petitioners are not sons of deceased tenure holder shall stand set aside. The appeal filed by the petitioners shall stand restored to its original number and the second respondent is directed to decide the same in the light of the observations made above. 13. The writ petition stands allowed to the extent indicated above.