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2017 DIGILAW 101 (ALL)

Shakarun Nisha v. State of U. P.

2017-01-09

ANJANI KUMAR MISHRA

body2017
JUDGMENT Anjani Kumar Mishra,J. Heard Shri Syed Wajid Ali, learned counsel for the petitioner, Shri Markanday Rai, counsel for respondents 4 to 7 and learned Standing Counsel for the State-respondents. The instant writ petition arises out an objection under Section 9-A (2) of the UP Consolidation of Holdings Act (henceforth referred as 'Act') filed by the petitioner seeking half share in the disputed land. The objection was allowed by the Consolidation Officer (henceforth referred as 'CO'). However, the consequential appeal was allowed, the order passed in favour of the petitioner was set aside and basic year entry was maintained. This order has been affirmed by the revisional court. Hence this writ petition challenging the appeallate and revisional order. The contention of the learned counsel for the petitioner is that the property in question was ancestral property belonging to one Sardar, who was survived by two sons; Suleman and Hamin. Suleman had two sons, Murtaza and Kutubuddin. The petitioner is daughter of Murtaza. The claim, therefore, for the consolidation authorities was that since Murtaza inherited half share of Suleman, the same would devolve upon the petitioner. However, brother of Murtaza, namely, Kutubduddin got the name of his sons wrongly and illegally mutated over the share of Murtaza. Accepting this contention made, learned counsel for the petitioner, the CO allowed the objection. At the appellate stage, the Settlement Officer Consolidation (henceforth referred as 'SOC') found that Suleman, during his life time executed a Hibbanama in favour of the sons of Kutubuddin and on its basis, mutation was also made in the revenue records. Even during the mutation proceedings, an objection was raised by Murtaza son of Suleman with regard to the alleged Hibbanama. This objection was not accepted. Subsequently Murtaza filed a suit for cancellation of the Hibbanama being Suit No. 1148 of 1969. This suit was dismissed on 24.10.1972. It is, therefore, clear from the facts narrated above that even in the objection under Section 9-A (2) of the Act the case of the petitioner primarily is that the Hibbanama was not valid. However, since challenge to this Hibbanama before the Court competent jurisdiction failed in view of the judgement and decree dated 24.10.1972 in Civil Suit (1148 of 1969), this question has attained finality and it is not open for the Consolidation Court to take a view to the contrary. However, since challenge to this Hibbanama before the Court competent jurisdiction failed in view of the judgement and decree dated 24.10.1972 in Civil Suit (1148 of 1969), this question has attained finality and it is not open for the Consolidation Court to take a view to the contrary. In this regard, contention of the learned counsel for the petitioner is that in 1981 Smt. Junaina, mother of the petitioner, filed another subsequent suit, which was dismissed but an appeal against the same is pending. Therefore, the Consolidation Courts were necessarily required to apply their independent mind to the controversy in question and could not have decided the matter merely on the reasoning that the suit, filed by the Murtaza, had been dismissed. In support of this contention, reliance has been placed upon the judgement of the Apex Court in a case of Paras Nath Rai vs. State of Bihar : 2012 AIR SCW 5428 . In my considered opinion the case law cited has no application in the facts and circumstances of the case. It is settled law that any proceeding wherein the question of title to agricultural land is involved shall on the start of consolidation operations, abate, whether pending and the trial, first appellate or even second appellate stage. The case law cited has been passed in the aforesaid facts and circumstances. However, as already observed, herein above, the suit filed by the petitioners predecessor-in-interest, her father Murtaza, in the year 1969, had been dismissed in the year 1972. This judgement has clearly attained finality as there is nothing on record to show that it was subjected to any further challenge. The judgement was by a competent court and since it is attained finality, it is not open for the Consolidation Courts to hold to the contrary. Even the Deputy Director of Consolidation, in the order impugned, has observed that challenge to the Hibbanama by Murtaza and the allegations on which the challenge was made, would render the Hibbanama a voidable document. A voidable document can only be cancelled by the competent Civil Court. The Consolidation Courts, while deciding disputes of the title can ignore a document which is void ab initio but cannot cancel a voidable document. This again is another valid reason, the contention of learned counsel for the petitioner, cannot be accepted and the impugned orders are liable to be affirmed. The Consolidation Courts, while deciding disputes of the title can ignore a document which is void ab initio but cannot cancel a voidable document. This again is another valid reason, the contention of learned counsel for the petitioner, cannot be accepted and the impugned orders are liable to be affirmed. In view of the above discussion, this writ petition is found to be devoid of merits and is accordingly, dismissed.