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2017 DIGILAW 2310 (ALL)

SUSHIL KUMAR v. D. D. C. GORAKHPUR

2017-10-07

RAM SURAT RAM (MAURYA)

body2017
JUDGMENT : Ram Surat Ram (Maurya), J. Heard Sri Ram Niwas Singh, for the petitioner and Sri H.N. Singh, Senior Advocate, assisted by Sri Vineet Kumar Singh, for the contesting respondents. 2. The writ petition has been filed against the orders of Deputy Director of Consolidation dated 14.10.1985 (Annexures-15) passed in Revision No. 795/848/600/412/374 Shubhkaran v. Sushil Kumar and others and 14.10.1985 (Annexures-19) passed in Revision No. 604/5008 Shubhkaran v. Sushil Kumar and others, Revision No. 605/5010 Shubhkaran v. Sushil Kumar and others and Revision No. 606/5009 Shubhkaran v. Sushil Kumar and others, arising out of title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 3. Dispute between the parties is in respect of land of basic consolidation year khatas 207, 346 and 358 of village Chiuraha Mau Pakar, pargana Haveli, district Gorakhpur (at present Mahrajganj). In basic consolidation year, names of Damodar Prasad, Babu Lal, Shubhkaran and Sushil Kumar sons of Peet Ram were recorded over Khata 207 [consisting plots 1410 (area 0.16 acre) and 1443 (area 1.155 acre)], names of Babu Lal, Shubhkaran and Sushil Kumar sons of Peet Ram were recorded over Khata 346 [consisting plots 1409 (area 0.035 acre) and 1410 (area 0.10 acre)] and names of Babu Lal, Shubhkaran and Sushil Kumar sons of Peet Ram were recorded over Khata 358 [consisting plot 1418/2 (area 0.05 acre)]. 4. Shubhkaran (respondent-7) filed three objections on 30.04.1977 i.e. Case No. 8723, for khata 207, Case No. 8898, for khata 346 and Case No. 8915, for khata 358, under Section 9 of the Act, for deleting the names of other recorded tenure holders, stating therein that disputed land was acquired by him through sale deed and the names of his other brothers were wrongly recorded in it. Case No. 8916, for khata 358, was registered as at the time of partal, area of plot 1418/2 was noted as 0.035 acre and recorded tenure holders have raised dispute in this respect, as noted in CH Form-4. Shubhkaran (respondent-7) in his objection has stated that during partal area of plot 1418/2 was correctly noted as 0.035 acre. 5. According to respondent-7, the parties compromised their dispute before Assistant Consolidation Officer. Other brothers of Shubhkaran (respondent-7) agreed that their names were wrongly recorded over disputed land and their names be deleted. Shubhkaran (respondent-7) in his objection has stated that during partal area of plot 1418/2 was correctly noted as 0.035 acre. 5. According to respondent-7, the parties compromised their dispute before Assistant Consolidation Officer. Other brothers of Shubhkaran (respondent-7) agreed that their names were wrongly recorded over disputed land and their names be deleted. In view of compromise, Assistant Consolidation Officer recorded conciliation in all the three cases which were signed by the parties and two members of consolidation committee on 07.07.1977. Assistant Consolidation Officer by his order dated 07.07.1977 directed for deleting the names of other brothers of Shubhkaran from all the three khatas. 6. Sushil Kumar (the petitioner) filed three time barred appeals along with delay condonation application i.e. Appeal No. 214/552/1211, from order dated 07.07.1977 passed in Case No. 8723 and Appeal No. 215/553/1212, from order dated 07.07.1977 passed in Case No. 8898. These appeals were filed on 04.07.1978. Appeal No. 241/609/1275, from order dated 07.07.1977 passed in Case No. 8915 and 8916, was filed on 29.07.1978. He took grounds that no notice was served upon him by Assistant Consolidation Officer nor he ever appeared before him, his signatures on the conciliation dated 07.07.1977 were fabricated. The appeals were heard by Assistant Settlement Officer Consolidation, who by order dated 14.12.1979 passed in Appeal No. 241/609/1275, found that as in memorandum of appeal and affidavit filed in support of delay condonation application, signing of conciliation was denied as such delay was liable to be condoned. On the conciliation, signatures of the parties were on top and in bottom in right margin. Signature of Shambhu Saran, member of consolidation committee was in middle and there is no signature of other member of consolidation committee. As such conciliation was not signed by two members of consolidation committee, which is mandatory under Rule-25-A of U.P. Consolidation of Holdings Rules, 1954 (hereinafter referred to as the Rules). On these findings, he allowed the appeal and set aside order of Assistant Consolidation Officer and remanded the matter to Consolidation Officer for trial of the objection of respondent-7 on merit. 7. Assistant Settlement Officer Consolidation, by common order dated 26.12.1979 passed in Appeal Nos. 214/552/1211 and 215/553/1212, found that as in memorandum of appeal and affidavit filed in support of delay condonation application, signing of conciliation were denied as such delay was liable to be condoned. 7. Assistant Settlement Officer Consolidation, by common order dated 26.12.1979 passed in Appeal Nos. 214/552/1211 and 215/553/1212, found that as in memorandum of appeal and affidavit filed in support of delay condonation application, signing of conciliation were denied as such delay was liable to be condoned. On the conciliation, signatures of the parties were on top and in bottom in right margin. Shambhu Saran and Chokat, members of consolidation committee had made their signatures below the order of Assistant Consolidation Officer. As such conciliation was not signed by two members of consolidation committee, which is mandatory under Rule-25-A of the Rules. Although Shubhkaran has moved an application for obtaining expert report in respect of signatures of Sushil Kumar on compromise but as provisions of Rule-25-A of the Rules have not been complied with as such expert report is not necessary. On these findings, he allowed both these appeals and set aside orders of Assistant Consolidation Officer and remanded the matter to Consolidation Officer for trial of the objections of respondent-7 on merit. 8. Shubhkaran (respondent-7) filed three revisions (registered as Revision Nos. 604/5008, 605/5010 and 606/5009) from aforesaid orders dated 26.12.1979 and 14.12.1979. All these revisions were consolidated and heard together. Deputy Director of Consolidation, by his order dated 14.10.1985, held that conciliation contained signature of one member of consolidation committee, which was visible and signature of other member was erased, marks of which was visible. During arguments, it has been informed that Chokat, other member of consolidation committee filed his affidavit before court below, stating that the parties had signed the compromise in his presence, which was read over and explained to them and thereafter he had also signed it. Although Sushil Kumar has contradicted this affidavit but the conciliation were signed by Babu Lal also, who had not denied his signature. Findings of Assistant Settlement Officer Consolidation that conciliation were irregular was not liable to be accepted. On these findings, he allowed the revisions and set aside the orders of Assistant Settlement Officer Consolidation dated 14.12.1979 and 26.12.1979. Hence this writ petition has been filed. 9. Findings of Assistant Settlement Officer Consolidation that conciliation were irregular was not liable to be accepted. On these findings, he allowed the revisions and set aside the orders of Assistant Settlement Officer Consolidation dated 14.12.1979 and 26.12.1979. Hence this writ petition has been filed. 9. The counsel for the petitioner submitted that after registering of objection under Section 9 of the Act, in misilband register, Assistant Consolidation Officer is required to issue notices to the tenure holders/objectors/persons interested under Rule 25 (c) in CH Form-5-B. Assistant Consolidation Officer has to deal with the objections on the date fixed in the notice. If any objection is compromised between the parties, then according to provisions of Rule-25-A of the Rules, Assistant Consolidation Officer shall record terms of conciliation in presence of two members of consolidation committee. The conciliation as recorded has to be read over to the parties and their signatures and signatures of members of consolidation committee have to be obtained on it. Then Assistant Consolidation Officer shall pass his order according to the conciliation. Rule-25-A (1) further provides that no ex parte order should be passed by Assistant Consolidation Officer. Assistant Settlement Officer Consolidation found that in Case Nos. 8915 and 8916, for khata 358, conciliation and order dated 07.07.1977 were on single page. Signatures of the parties were on top of conciliation and in bottom of the order, while signature of Shambhu Saran was in middle, while in Case No. 8723, for khata 207 and Case No. 8898, for khata 346, the conciliation were on single page separately. On these pages, signatures of the parties were on top and in bottom in right margin. Shambhu Saran and Chokat, members of consolidation committee had made their signatures below the order of Assistant Consolidation Officer. As such conciliation was not signed by two members of consolidation committee. This Court in Hori Lal V. D.D.C. And others, 1982 ALJ 230, has held provisions of Rule-25-A of the Rules are mandatory. Assistant Consolidation Officer has not followed mandatory provisions under Rule-25-A of the Rules. Affidavit filed by the petitioner in support of memorandum of appeal and delay condonation application remained un-controverted before appellate court. In revision, respondent-7, filed fabricated affidavits of Shambhu Saran and Chokat, members of consolidation committee, behind the back of the petitioner. Deputy Director of Consolidation has illegally remarked that these affidavits were filed before the court below. Affidavit filed by the petitioner in support of memorandum of appeal and delay condonation application remained un-controverted before appellate court. In revision, respondent-7, filed fabricated affidavits of Shambhu Saran and Chokat, members of consolidation committee, behind the back of the petitioner. Deputy Director of Consolidation has illegally remarked that these affidavits were filed before the court below. Affidavit of Chokat was sworn on 16.03.1981 and Shambhu Saran was sworn on 27.03.1981, while the appeals were decided on 14.12.1979 and 26.12.1979. In any case, no reliance could be placed upon these affidavits, without permitting the petitioner to cross-examine them. He relied upon judgment of Supreme Court in Jagdamba Prasad v. Kripa Shankar, (2014) 5 SCC 707 , in which it has been held that the power of the revisional authority under Section 48 of the Act only extends to ascertaining whether the subordinate courts have exceeded their jurisdiction in coming to the conclusion. Therefore, if the original and the appellate authorities are within their jurisdiction, the revisional authority cannot exceed its jurisdiction to come to a contrary conclusion by admitting new facts either in the form of documents or otherwise, to come to the conclusion. He further submitted that in the present case, respondent-7 had committed fraud in collusion with Shambhu Saran, Chokat and Assistant Consolidation Officer. Without issuing any notice to the petitioner, the conciliation was fabricated and order was passed on it. In the objection, respondent-7 took plea that the disputed land was his self acquisition through sale deed but no such sale deed was filed. Supreme Court in Amar Nath v. Kewla Devi, (2014) 11 SCC 273 , held that if the Consolidation Officer has not discharged his duties properly and keeping with law has not given details of the objection or why the objection was not pressed by the appellant in his order, he has permitted a gross miscarriage of justice to continue by recording of the name of defendant 1 as the only rightful heir to the land in dispute. Such an order amounts to fraud. Appellate authority was fully satisfied that Assistant Consolidation has not followed the mandatory provisions of Rule-25-A of the Rules as such order passed by him is vitiated. Impugned orders are illegal and liable to be set aside. 10. Such an order amounts to fraud. Appellate authority was fully satisfied that Assistant Consolidation has not followed the mandatory provisions of Rule-25-A of the Rules as such order passed by him is vitiated. Impugned orders are illegal and liable to be set aside. 10. In reply to the aforesaid arguments, the counsel for the respondent submitted that the dispute was between the real brothers, whose names were recorded in basic consolidation year. It is admitted to the petitioner that land of khata-207 was purchased through sale deed in 1970 and khatas 346 and 358 were purchased in 1972. According to respondent-7, entire sale consideration were paid by him alone and names of his other brothers were wrongly mentioned in it. This fact was admitted to all the brothers and they compromised the dispute before Assistant Consolidation Officer. Assistant Consolidation Officer recorded the conciliation which were signed by all the brothers. Apart from the petitioner, the other brothers, namely Damodar and Babulal did not challenge the conciliation and order of Assistant Consolidation Officer dated 07.07.1977. After about one year, the petitioner malafide filed the appeals. Burden of proof was upon the petitioner to prove that conciliation was not signed by him and his other brothers but no evidence in this respect was adduced by him. Respondent-7 moved an application before appellate court for obtaining handwriting expert report in respect of signatures of the petitioner on the conciliation and his admitted signatures. Appellate court has illegally not passed any order on it on the pretext that as conciliation was not signed by two members of consolidation committee as such it is liable to be set aside. Reasons assigned by appellate court was found to be false, inasmuch as revisional court found that conciliation were signed by two members of consolidation committee, namely Shambhu Saran and Chokat, chairman and member of consolidation committee respectively, who also filed their affidavits before Deputy Director of Consolidation, stating therein that the parties voluntarily compromised the dispute before them and signed conciliation, which was signed by them also. Family dispute was compromised at one stage cannot be permitted to be reopened. So far as irregularity in respect of place of signatures on the conciliation is concerned, Assistant Consolidation Officer used to conduct conciliation proceeding at the village sitting on earth. Family dispute was compromised at one stage cannot be permitted to be reopened. So far as irregularity in respect of place of signatures on the conciliation is concerned, Assistant Consolidation Officer used to conduct conciliation proceeding at the village sitting on earth. After recording conciliation, and reading it over to the parties, the papers are forwarded to the parties and the members of consolidation committee for their signatures. If there is some irregularity in respect of place of signatures of the parties or the members of consolidation committee, then only for this reason, sanctity of conciliation cannot be questioned or it can be set aside. Deputy Director of Consolidation is last court of fact under the Act as such it has jurisdiction to take additional evidence also as held by this Court in Bihari v. State of U.P. and others, 1973 RD 342 (DB) and Shiv Pujan v. DDC and others, 1993 RD 73. Findings of fact recorded by Deputy Director of Consolidation cannot be interfered by this Court in exercise of writ jurisdiction. 11. I have considered the arguments of the counsel for the parties and examined the record. Rule-25-A of the Rules is quoted below:- "Rule-25-A.-Sections 9-A, 9-B and 9-C.-(1) The Assistant Consolidation Officer shall, as far as possible, deal with all the objections filed by a tenure holder with regard to matters referred to in clause (i) of sub-section (1) of section 9-A and sub-section (1) of section 9-B in village itself. In deciding disputes on the basis of conciliation in terms of sub-section (1) of section 9- A, he shall record the terms of conciliation in the presence of at least two members of the Consolidation Committee of the village. These term shall be read over to the parties concerned and their signatures or thumb impressions obtained. The members of the Consolidation Committee present shall also sign the terms of conciliation. The Assistant Consolidation Officer shall then pass orders deciding the dispute in terms of conciliation specifying the precise entries to be made in the records. Details of operative part of the orders passed by the Assistant Consolidation Officer shall be noted in misilband register. No ex-parte order or orders in default shall be passed by the Assistant Consolidation Officer." 12. During consolidation, right of the parties are decided finally. Details of operative part of the orders passed by the Assistant Consolidation Officer shall be noted in misilband register. No ex-parte order or orders in default shall be passed by the Assistant Consolidation Officer." 12. During consolidation, right of the parties are decided finally. Assistant Consolidation Officer has jurisdiction to decide the objection only in the cases, where parties enters into compromise. In order to ascertain identity of the parties, presence of two members of consolidation committee at the time of recording conciliation and signing by the parties, is necessary. In token of their presence, they are also required to sign the conciliation after signatures of the parties. This Court in Hori Lal v. D.D.C. And others, 1982 ALJ 230, has held provisions of Rule-25-A of the Rules are mandatory. It is only when procedure of Rule-25-A has been followed, sanctity to the compromise will be attached. 13. Respondent-7 has filed photostat copy of conciliation proceeding and order of Assistant Consolidation Officer dated 07.07.1977, along with his affidavit filed with application dated 13.09.2017. Assistant Settlement Officer Consolidation, in his order dated 14.12.1979 passed in Appeal No. 241/609/1275 found that in Case Nos. 8915 and 8916 for khata 358, conciliation and order dated 07.07.1977 were on single page. Signatures of the parties were on top of conciliation and in bottom of the order, while signature of Shambhu Saran was in middle. A perusal of photostat copy of conciliation and order dated 07.07.1977, shows that order of Assistant Consolidation Officer was any how adjusted after getting signatures at bottom. If the signatures of the parties were obtained after recording conciliation and reading it over to them, then there was no question of their signatures on top of right margin of the paper. This shows that signed papers were used in fabricating conciliation and order dated 07.07.1977. 14. Similarly Assistant Settlement Officer Consolidation, in his order dated 26.12.1979 passed in Appeal Nos. 214/552/1211 and 215/553/1212 found that Case No. 8723, for khata 207 and Case No. 8898, for khata 346, conciliation and order dated 07.07.1977 were on single page. Signatures of the parties were on top of conciliation and in bottom of the order, in right margin, while signatures of Shambhu Saran and Chokat were below the order of Assistant Consolidation Officer. A perusal of photostat copy of conciliation and order dated 07.07.1977, fully corroborate aforesaid position. Signatures of the parties were on top of conciliation and in bottom of the order, in right margin, while signatures of Shambhu Saran and Chokat were below the order of Assistant Consolidation Officer. A perusal of photostat copy of conciliation and order dated 07.07.1977, fully corroborate aforesaid position. If the signatures of the parties were obtained after recording conciliation and reading it over to them, then there was no question of their signatures on top and in bottom of right margin of the papers. This shows that signed papers were used in fabricating conciliation and order dated 07.07.1977. Shambhu Saran and Chokat, members of consolidation committee had made their signatures below the order of Assistant Consolidation Officer and not below the conciliation. As such, findings has been recorded that conciliation was not signed by two members of consolidation committee. 15. Deputy Director of Consolidation has mechanically allowed the revisions only on the ground that conciliation and order dated 07.07.1977 contained signatures of the parties and two members of consolidation committee. Issue was as to whether conciliation and order dated 07.07.1977 were recorded in presence of the parties and two members of consolidation committee. If there was irregularity in signatures of the parties and two members of consolidation committee then sanctity of conciliation is doubted. The petitioner has stated that Assistant Consolidation Officer has not issued any notice to him nor he appeared before him on 07.07.1977 or signed the conciliation. There is no evidence to prove that notice was issued by Assistant Consolidation Officer or it was served upon the petitioner. In totality of circumstance, Assistant Settlement Officer Consolidation found that conciliation was not entered into by the petitioner and the appeal was allowed. Deputy Director of Consolidation has mechanically allowed the appeal without considering the reasons recorded by the appellate court and on irrelevant consideration that conciliation and order dated 07.07.1977 contained the signatures of the parties and two members of consolidation committee. 16. So far as not filing the appeal by two other brothers of the petitioner is concerned, on that ground, the appeal of the petitioner cannot be dismissed. Similarly, affidavits of two members of consolidation committee was admitted as an additional evidence without providing any opportunity of rebuttal. In any case, these affidavits could not be relied upon, without giving opportunity to cross-examine to the deponents of the affidavit. Similarly, affidavits of two members of consolidation committee was admitted as an additional evidence without providing any opportunity of rebuttal. In any case, these affidavits could not be relied upon, without giving opportunity to cross-examine to the deponents of the affidavit. The order of Deputy Director of Consolidation dated 14.10.1985 (Annexures-15) to the writ petition passed in Revision No. 795/848/600/412/374 Shubhkaran v. Sushil Kumar and others, has been separately challenged in Writ B No. 999 of 1986 as such its validity is separately examined in decision of that writ petition. 17. In view of the aforesaid discussions, the writ petition succeeds and is allowed. The orders of Deputy Director of Consolidation dated 14.10.1985 passed in Revision No. 604/5008 Shubhkaran v. Sushil Kumar and others, Revision No. 605/5010 Shubhkaran v. Sushil Kumar and others and Revision No. 606/5009 Shubhkaran v. Sushil Kumar and others (Annexure-19 to the writ petition) is set aside. The orders of Assistant Settlement Officer Consolidation dated 14.12.1979 and 26.12.1979 are upheld.