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2018 DIGILAW 144 (ALL)

Hincha Ram v. Dy. Director of Consolidation

2018-01-12

SUNITA AGARWAL

body2018
JUDGMENT & ORDER : Sunita Agarwal, J. Supplementary affidavit filed today is taken on record. 2. Heard Shri Anand Sagar Dubey, learned counsel for the petitioner and Shri Krishna Kumar Chaurasia, learned counsel for respondent No. 4. With the consent of learned counsel for the parties, the matter has been heard for final disposal at the admission stage itself. 3. By means of the present petition, the petitioner is challenging the orders dated 18.8.1987, 15.2.2013 and 28.8.2017 passed by the Consolidation Officer, Settlement Officer Consolidation and Deputy Director of Consolidation; respectively. It appears that in a suit filed by Shri Jai Shri Singh under Section 229-B read with Section 209 of U. P. Zamindari Abolition and Land Reforms Act, 1950 (in short 'the Act, 1950'), certain observations were made with regard to the rights of the petitioner's father Chhatradhari. It was held therein that the possession of Chhatradhari over Plot Nos. 410/2, 453, 445, 590/2, 596, 804, 807 & 808 was for more than six years though Shri Jai Shri Singh was the original tenureholder. In view of the possession of Chhatradhari found established over the land in dispute, no declaration can be made in favour of the plaintiff and further that the defendant could not be ejected. 4. This order was affirmed in appeal vide judgment and order dated 28.12.1968. The second appeal filed by Jai Shri Singh was dismissed on 30. 5. 1974 as abated under Order 22 Rule 3 C. P. C. 5. It appears that after the year 1974, when the village underwent consolidation operations, an application under Section 9-A(2) of the U. P. Consolidation of Holdings Act, 1953 (in short 'the Act, 1953') was moved by the petitioner in the year 1987 for recording his name in the revenue records. Shri Durga Singh son of Shambhu Singh namely respondent No. 4 was impleaded therein. 6. The objections under Section 9-A of the Act, 1953 of the petitioner was decided with the objections of Durga Singh and one Santosh. Several issues were framed and on issue of rights of the petitioner, the Consolidation Officer vide order dated 18.5.1987 had accepted the right of the petitioner over the aforementioned plots on the basis of the decree passed in the year, 1964. Several issues were framed and on issue of rights of the petitioner, the Consolidation Officer vide order dated 18.5.1987 had accepted the right of the petitioner over the aforementioned plots on the basis of the decree passed in the year, 1964. However, it was found that the said decree would not be operative with regard to the Plot No. 663 which was also recorded in the name of Durga Singh and the rights of Durga Singh in the said plots were approved therein. This order was challenged in two appeals filed by the petitioner and Durga Singh, sons of Shambhu Singh, who claimed to be the heir of Jai Shri Singh. 7. The Appellate Authority namely the Settlement Officer Consolidation found from the records that the name of Durga Singh was recorded in 1356 Fasli and name of Chhatradhari Singh was recorded in 1373 to 1375 Fasli in Category 9 against Paras 80-A and 80-B of the Land Record Manual. It was thus held that the entries in Category 9, were recorded against the prescribed procedure as the original tenureholder was not issued notice under Pa Ka-10. It is also recorded that Chhatradhari, father of the petitioner was mortgagee of the land in question and the land in dispute was given in lieu of some loan taken by Jai Shri Singh, the predecessor of Durga Singh. 8. The appeal filed by Durga Singh was, however, allowed and the mutation made in the name of Durga Singh was kept as it is. 9. This order was challenged in a revision which was also dismissed vide order dated 28. 8. 2017. 10. Challenging these orders, the contention of learned counsel for the petitioner is that the declaratory suit filed by Jai Shri Singh was dismissed by the Competent Authority and the adverse possession of the predecessor of the petitioner namely Chhatradhari had been duly recognised. 11. The order passed by the Trial Court was affirmed in appeal. After dismissal of the declaration and eviction suit, the petitioner being in possession of the land in question had perfected his right under Section 201 of the Act, 1950 as no further eviction suit had been filed against him. The declaration in favour of the petitioner made by the Consolidation Officer vide order dated 18. 5. 2017, therefore, could not have been disturbed in revision. 12. The declaration in favour of the petitioner made by the Consolidation Officer vide order dated 18. 5. 2017, therefore, could not have been disturbed in revision. 12. In so far as the entries in Category 9 are concerned, they are described as entries of unauthorized person who had entered in possession of the land without consent of the original land holder. These entries are made in Column IV of the khasras. 13. In the instant case, a categorical stand was taken by Jai Shri Singh that the petitioner's father was mortgagee of the land in question and he had entered into possession with the consent of the original land holder who had taken loan from the petitioner's father. 14. The question as to whether the loan had been repaid by the mortgagor is not reflected from the findings recorded by the Sub Divisional Officer while passing the judgment and decree dated 22.4.1968. The issue as to whether the possession of the petitioner's father over the land was permissive or it was an adverse possession which would accord him benefit of Section 201 of the Act, 1950 has not been duly examined by the Appellate Court i.e. Settlement Officer Consolidation. The effect of the judgment and decree dated 22.4.1968 and the order in appeal dated 28.12.1968 had also not been examined by the Settlement Officer Consolidation. 15. The findings returned by the Settlement Officer Consolidation for interfering in the order dated 18.5.1987 passed by the Consolidation Officer, therefore, cannot be sustained. The Revisional Court had also erred in affirming those findings. 16. For all the above noted reasons, the order dated 28.8.2017 passed by the Deputy Director of Consolidation and the order dated 18.2.2013 passed by the Settlement Officer Consolidation, Mirzapur are hereby quashed. The appeals filed by Hincha Ram namely the petitioner herein and Durga Singh namely Appeal Nos. 309 and 308/12-13 are hereby restored to their original number. The Settlement Officer Consolidation, Mirzapur shall examine all the issues as also the effect of the judgment and decree passed in the year 1968 and pass a reasoned and speaking order, in accordance with law preferably within two months from the date of submission of certified copy of this order. 17. At this stage, learned counsel for the petitioner submits that Durga Singh, respondent No. 4 cannot claim any right or interest through Jai Shri Singh over the land. 17. At this stage, learned counsel for the petitioner submits that Durga Singh, respondent No. 4 cannot claim any right or interest through Jai Shri Singh over the land. The declaration suit filed by Jai Shri Singh was dismissed during his lifetime and the decree of dismissal of suit for declaration and eviction had been affirmed in appeal. The position, therefore, would be that no objection can be taken by Durga Singh to the said decree. This aspect of the matter had also not been examined by the Settlement Officer Consolidation. 18. This Court is of the opinion that all the issues being raised by the petitioner herein can be raised before the Settlement Officer Consolidation who would be under obligation to examine the same and take a decision, in accordance with law. 19. With the above observations and directions, the writ petition is partly allowed.