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2016 DIGILAW 802 (ALL)

Ganesh Prasad v. D. D. C.

2016-03-03

ANJANI KUMAR MISHRA

body2016
JUDGMENT Anjani Kumar Mishra, J. – Heard Sri Raj Kumar Singh, learned counsel for the petitioner and Sri R.C. Singh for the contesting respondents. 2. Since the counter and rejoinder affidavits have been exchanged, the matter is being heard and decided finally. 3. The writ petition arises out of proceedings for allotment of chaks and seeks quashing of the orders passed by the Consolidation Officer, the Settlement Officer Consolidation as also the Deputy Director of Consolidation on 10.10.2013, 04.06.2014 and 20.11.2014 respectively. 4. The submission of learned counsel for the petitioner is that the dispute between the parties pertains to plot no.192 which is valuable road side land and is their joint holding as the contesting respondent purchased an undivided share of this plot by means of a registered sale deed on 03.06.1975. 5. It is contended that at the Assistant Consolidation Officer stage, the petitioner had been proposed a chak abutting the road. However, on an objection filed by the contesting respondents, the Consolidation Officer shifted the petitioner way from the road side of plot no.192. The land abutting the road was allotted to the contesting respondents on the ground that he was in possession over this portion consequent upon a mutual partition between the parties which was admitted by the petitioner and his counsel. 6. Aggrieved by this order, the petitioner filed an appeal which was dismissed on the ground that the allotment was as per the possession of the parries. 7. The consequential revision was dismissed on the finding that the respondent had purchased the land allotted to him by means of a registered sale deed. 8. On the basis of the above factual situation, it has been contended that in fact, there was no mutual partition between the parties and there is absolutely no evidence of such partition, available on record. The factum of mutual partition was necessarily required to be established by the contesting respondents, by means of cogent evidence. No such evidence was adduced and therefore, the impugned orders are vitiated. 9. It is next contended that the respondents had purchased an undivided share in the plot in question. No partition had taken place and therefore in accordance with the Government orders, issued in this regard, the petitioner was also entitled to allotment of a chak abutting the road and in failing to do so, the subordinate consolidation authorities have committed manifest illegality. No partition had taken place and therefore in accordance with the Government orders, issued in this regard, the petitioner was also entitled to allotment of a chak abutting the road and in failing to do so, the subordinate consolidation authorities have committed manifest illegality. The petitioner has been deprived of his commercially valuable land. 10. It is next contended that the chak that has been allotted to the petitioner, is such, that it has no access to the main road. 11. Sri R.C. Singh, learned counsel for the respondent has supported the impugned orders. 12. I have considered the submissions made by the learned counsel for the parties and have perused the record. 13. The Consolidation Officer allowed the objection on the reasoning that the objector was admittedly in possession over the portion of plot no.1192 due north abutting the road while the petitioner was in possession over the Southern portion away from the main road, on the basis of a mutual partition as was admitted by the petitioner and his counsel during arguments. He therefore, allowed the objection of the respondents granting him a chak abutting the road side and shifting the petitioner to the rear of plot no.172, away from the road. 14. This statement of fact recorded in the order passed by the Consolidation Officer was never specifically challenged by the petitioner in the memo of appeal filed by him. 15. The ground No.2 in the memo of appeal is that the Consolation Officer took cognisance of an oral statement that mutual partition had taken place and the chak was modified on its basis. The ground taken, in my considered opinion, does not amount to a categorical denial of the admission of the petitioner before the Consolidation Officer. 16. Since the petitioner had admitted that by a mutual partition, the contesting respondents was in possession over the area abutting the road and the petitioner was in possession over the area away from the road, there was no necessity for the contesting respondent to adduce any evidence in this regard. A fact is required to be proved only if it is denied. In the case at hand, the Consolidation Officer has accepted the admission of the petitioner himself and decided the objection on its basis. The order of the Consolidation Officer therefore, cannot be faulted with. 17. A fact is required to be proved only if it is denied. In the case at hand, the Consolidation Officer has accepted the admission of the petitioner himself and decided the objection on its basis. The order of the Consolidation Officer therefore, cannot be faulted with. 17. The Settlement Officer Consolidation has dismissed the appeal on the ground that the chaks have been allotted as per the possession of the parties. This in my considered opinion amounts to acceptance of the admission of the petitioner contained in the order passed by the Consolidation Officer. Therefore, the submission that the appeal has been dismissed on yet another ground, cannot be accepted. 18. In my considered opinion, even the reasoning of the Deputy Director of Consolidation is in consonance with the admission of the petitioner referred to above. 19. The impugned orders, have rightly relied upon the admission of the petitioner which has not been categorically denied before Consolidation Courts. It is now not open for the petitioner to urge that no such admission was made. Besides since the petitioner admitted the factum of mutual partition and possession on its basis, no evidence was required to be adduced to establish the same. 20. The last contention of the learned counsel for the petitioner is that he has no access to the main road and therefore, the impugned orders are vitiated. This argument is also misconceived because the Consolidation Officer has observed that a chak road exists on the western side of the petitioner's chak and he has further extended this chak road. The petitioner therefore has a chak road for access to his chak. The last submission of learned counsel for the petitioner is also therefore, misconceived. 21. Learned counsel for the petitioner has also placed reliance upon a judgment of this Court in the case of Dasha v. Deputy Director of Consolidation, Mau and others, 2011 Law Suit (All) 1123. The above cited decision has no application in the facts and circumstances of the instant case. In the judgment cited, there was no evidence of any partition having been taken place between the parties. In the instant case, mutual partition has been admitted by the petitioner himself before the Consolidation Officer. The petitioner therefore, is not entitled to any benefit under the judgment cited. 22. In the judgment cited, there was no evidence of any partition having been taken place between the parties. In the instant case, mutual partition has been admitted by the petitioner himself before the Consolidation Officer. The petitioner therefore, is not entitled to any benefit under the judgment cited. 22. Learned counsel for the petitioner has also placed reliance on the judgment in the case of Pyare Ahmad v. Deputy Director of Consolidation, Sultanpur and others, 1985, RD 210, in support of his additional submission that no spot inspection was made by the Settlement Officer Consolidation. This submission is also not liable to be accepted because no such plea has been taken in the memo of revision. The petitioner cannot be permitted to raise a new plea in the writ petition which has not been raised before the Consolidation Courts. 23. Reliance has also been placed upon the case of Nathunee v. Deputy Director of Consolidation, 2005 (98) RD 92 , wherein it has been held that the Consolidation Authorities should pass orders assigning proper reasons and that in cases where equity has to be balanced, in the light of the spot situation, the Revisional Court should make a spot inspection himself, especially, where the orders have been passed by the subordinate consolidation authorities after making a spot inspection. This necessarily means that an order passed on the basis of the spot inspection should not be reversed by the Deputy Director of Consolidation without he having himself made a spot inspection. Even this authorities has no application in the facts and circumstances of the instant case. The Deputy Director of Consolidation has affirmed? the orders passed by the Consolidation Officer and Settlement Officer Consolidation and therefore, the petitioner cannot derive any benefit from the judgment cited. 24. The last judgment relied upon is the decision in the case of Gayatri Devi v. Deputy Director of Consolidation and others 2011(113) RD 594, wherein it has been held that in the absence of evidence by a party in support of his case, the Courts should draw an adverse inference against him. This judgment again has no application because as already discussed herein-above, the factum of a mutual partition has been admitted by the petitioner himself and therefore no evidence was required to be produced to establish the alleged mutual partition. 25. This judgment again has no application because as already discussed herein-above, the factum of a mutual partition has been admitted by the petitioner himself and therefore no evidence was required to be produced to establish the alleged mutual partition. 25. Accordingly and in view of the above discussion, the writ petition lacks force and is hereby dismissed . Petitioner Dismissed.