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2018 DIGILAW 2374 (ALL)

Hasnu v. Addl. Collector(J)/D. D. C. Balrampur

2018-11-20

DEVENDRA KUMAR UPADHYAYA

body2018
JUDGMENT : Devendra Kumar Upadhyaya, J. 1. Heard Sri Q.M. Haq, learned counsel for the petitioner, learned Standing Counsel representing the State-respondents and Sri Ram Kewal Tripathi, learned counsel representing the respondent No.4. 2. Since during the pendency of the proceedings before the learned court below, Smt. Nankana-respondent No.6 is said to have parted her rights by executing sale deed in favour of Raksha Ram-respondent No.5 on 23.05.2001 and Raksha Ram-respondent No.5 also is said to have parted his rights to Smt. Manju Devi-respondent No.4 by executing sale deed on 31.10.2008, the Court is not inclined to issue notice to the respondent Nos. 5 and 6. 3. With the consent of learned counsel representing the parties, the Court proceeds to decide the matter at the admission stage. 4. Subject matter of this petition relates to Gata No. 2943 etc. of Chak No. 427, having an area of 0.60 acre, situate in Village Maharajganj Jangal, Pargana, Tehsil and District Balrampur. 5. Undisputed recorded tenure holder of land in dispute was one Mata Prasad who, according to the case set up by the petitioner, was minor under the guardianship of his mother Shyamkala. According to the petitioner, Mata Prasad and Shyamkala, both died in the year 1996 which opened the claim on devolution of rights of deceased Mata Prasad on the land in question. 6. It appears that an application was moved by Smt. Nankanarespondent No.6, under Section 12 of the U.P. Consolidation of Holdings Act for getting her name recorded in place of deceased Mata Prasad claiming herself to be the widow of deceased Mata Prasad. The Assistant Consolidation Officer on the basis of conciliation and also on the basis of statement said to have been made by the Village Pradhan, passed an order on 27.11.1997 whereby he ordered for recording the name of Smt. Nankana in place of deceased tenure holder, Mata Prasad. 7. Feeling aggrieved by the said order dated 27.11.1997, the petitioner-Hasnu filed an appeal before the Settlement Officer of Consolidation, which was pending. In the meantime i.e. during pendency of appeal by the petitioner-Hasnu, Smt. Nankanarespondent No.6 executed a sale deed in respect of the property in favour of Raksha Ram-respondent No.5 on 23.05.2001, on the basis of which, Raksha Ram-respondent No.5 moved an application seeking mutation in his favour. In the meantime i.e. during pendency of appeal by the petitioner-Hasnu, Smt. Nankanarespondent No.6 executed a sale deed in respect of the property in favour of Raksha Ram-respondent No.5 on 23.05.2001, on the basis of which, Raksha Ram-respondent No.5 moved an application seeking mutation in his favour. In the said case, an application was moved by Smt. Manju Devi-respondent No.4 seeking her impleadment stating therein that Raksha Ram had executed a sale deed in her favour on 31.10.2008. The said application seeking impleadment was allowed. 8. In the case instituted by Raksha Ram-respondent No.5, under Section 12 of the U.P. Consolidation of Holdings Act, the Consolidation Officer passed an order dated 15.02.2017 whereby he directed for recording of name of Smt. Manju Devi-respondent No.4. 9. It has been submitted by learned counsel appearing for the petitioner that in the application moved under Section 12 of the U.P. Consolidation of Holdings Act by Raksha Ram, the petitioner-Hasnu filed objections and a prayer in the said proceedings was made for taking decision on the preliminary issue as regards the maintainability of the objections filed by the him. It has further been stated by the learned counsel for the petitioner that before the Consolidation Officer in the proceedings under Section 12 of the U.P. Consolidation of Holdings Act, the petitioner had though filed objections and had also filed certain documents, however, opportunity of adducing evidence to establish his case and also to prove documentary evidence was not provided by the Consolidation Officer for the reason that after hearing the arguments on preliminary objection raised by Smt. Manju Devi, the Consolidation Officer proceeded to decide the matter finally, vide his order dated 15.02.2017. 10. It is also submitted by the learned counsel for the petitioner that the appeal filed by the petitioner against the order dated 27.11.1997 was also pending before the Settlement Officer of Consolidation where the very right of Smt. Nankana who is said to have executed sale deed in favour of Raksha Ram was challenged and as such, as a matter of fact, before disposal of said appeal, the proceedings under Section 12 of the U.P. Consolidation of Holdings Act initiated by Raksha Ram on the basis of sale deed dated 23.05.2001 could not have proceeded. However, learned Consolidation Officer only after hearing the parties on preliminary issue regarding maintainability of the objections filed by the petitioner before him, proceeded to decide the matter finally by order dated 15.02.2017. 11. Against the order dated 15.02.2017, the petitioner filed a revision petition under Section 48(1) of the U.P. Consolidation of Holdings Act before the Deputy Director of Consolidation, who allowed the revision petition, vide his judgment and order dated 02.03.2017 and remanded the matter to the Settlement Officer of Consolidation, perhaps considering the fact that the appeal filed by the petitioner against the order dated 27.11.1997, passed by the Consolidation Officer, at that relevant point of time, was pending before the Settlement Officer of Consolidation. 12. Challenging the order dated 02.03.2017, a Writ Petition was filed by the respondent No. 4 before this Court, namely, Writ Petition No. 6248(Cons.) of 2017, which was disposed of by this Court without interfering in the order of remand dated 02.03.2017, passed by the Deputy Director of Consolidation. 13. In terms of the remand order dated 02.03.2017, passed by the Deputy Director of Consolidation, the Settlement Officer of Consolidation decided the matter along with appeal preferred by the petitioner against the order dated 27.11.1997, passed by the Additional Consolidation Officer. The matter after remand was, thus, decided by the Settlement Officer of Consolidation, vide his judgment and order dated 04.01.2018, whereby he rejected the objections raised by the petitioner and maintained the recording of the name of respondent No.4. Against the judgment and order dated 04.01.2018, the revision petition preferred by the petitioner has also been dismissed by the Deputy Director of Consolidation by means of order dated 01.08.2018. Thus, three orders, namely, order dated 01.08.2018, 04.01.2018 and 15.02.2017, passed by the Deputy Director of Consolidation, Settlement Officer of Consolidation and Consolidation Officer respectively along with order passed by the Assistant Consolidation Officer on the basis of alleged conciliation, dated 27.11.1997 are under challenge in these proceedings. 14. The question which needs for determination in this case is as to whether after filing objections against the application moved by Raksh Ram under Section 12 of the U.P. Consolidation of Holdings Act, on the basis of which, the order dated 15.02.2017 has been passed by the Consolidation Officer, the petitioner was afforded adequate opportunity of adducing evidence and putting forth his case or not. Another question in this case which also needs to be determined is as to whether the appeal filed by the petitioner against the order dated 27.11.1997, passed by the Assistant Consolidation Officer on the basis of conciliation has appropriately been decided by affording opportunity of adducing evidence to the petitioner or not. 15. Admittedly, in the proceedings drawn before the Assistant Consolidation Officer, which culminated in the order dated 27.11.1997, the petitioner was not a party; rather he challenged the said order by filing the appeal before the Settlement Officer of Consolidation. 16. Thus, so far as the proceedings instituted on the death of Mata Prasad which resulted in the order dated 27.11.1997 passed by the Assistant Consolidation Officer, are concerned, admittedly, the petitioner was never had any occasion to lead evidence to establish his case. The case set up by the petitioner before the appellate court while challenging the order dated 27.11.1997 was that Smt. Nankana had remarried firstly with the son of the petitioner, namely, Atwari and thereafter she again went with one Patiram and as such in terms of the provisions of Section 171 of the U.P. Z.A. & L.R. Act, if the widow succeeding the land from her husband remarries, her rights get extinguished. However, as to whether Smt. Nankana had remarried is a fact which was though asserted and alleged by the petitioner before the appellate court, but, as observed above, he did not have any occasion to lead evidence to prove his case for the reason that before the court of Assistant Consolidation Officer, he was not a party and any evidence could not have been led by him before the appellate court to prove the case which was set up by the petitioner. 17. It is also interesting to note that so far as the second proceedings initiated under Section 12 of the U.P. Consolidation of Holdings Act by Raksha Ram-respondent No.5 is concerned, the petitioner could not get any opportunity to lead any evidence to establish his case. The fact that he was deprived of opportunity to lead evidence in these proceedings is clear from perusal of the order passed by the Consolidation Officer. The fact that he was deprived of opportunity to lead evidence in these proceedings is clear from perusal of the order passed by the Consolidation Officer. In fact, the Consolidation Officer had heard the argument on preliminary point raised by Smt. Manju Devi-respondent No.4 on the maintainability of the objections filed by the petitioner, however, the Consolidation Officer decided the entire case on merit, vide his judgment and order dated 15.02.2017. Though, revision petition preferred by the petitioner against the order dated 15.02.2017, passed by the Consolidation Officer was allowed by the revisional court, however, Deputy Director of Consolidation, vide order dated 02.03.2017, instead of remanding the matter to the court of first instance i.e. trial court (Court of Consolidation Officer), he remanded the matter to the Settlement Officer of Consolidation. 18. The Deputy Director of Consolidation appears to have remanded the matter to the Settlement Officer of Consolidation perhaps considering the fact that the earlier appeal filed by the petitioner against the order dated 27.11.1997, passed by the Assistant Consolidation Officer was pending before the Settlement Officer of Consolidation. The learned Deputy Director of Consolidation has completely failed to take into account the very relevant aspect of the case i.e. that the petitioner had to be given opportunity to lead evidence to establish his case and such evidence could have been led by the petitioner before the trial court i.e. before the Court of Consolidation Officer and not before the learned appellate court. 19. Learned counsel appearing for the respondent No.4, at this juncture, has vehemently argued that in fact there is no evidence available with the petitioner to prove that Smt. Nankana had remarried and whatsoever evidence was available that had been filed by the petitioner before the appellate court and, thus, appellate court while considering the evidence adduced by the petitioner has given his finding which ought not be interfered with. 20. Though, submission made by the learned counsel for the respondent No.4 on the first sight appears to be attractive, however, the same needs to be rejected on the basis of discussions made in the preceding paragraphs of this judgment. It is clear that the petitioner has been deprived of opportunity, for one reason or the other to lead his evidence to establish his case. Any assertion made by the parties need not be necessarily proved only by leading documentary evidence. It is clear that the petitioner has been deprived of opportunity, for one reason or the other to lead his evidence to establish his case. Any assertion made by the parties need not be necessarily proved only by leading documentary evidence. Certain facts pleaded may be proved or attempted to be proved by adducing oral evidence as well. The petitioner while filing appeal against the order dated 15.02.2017 had filed certain documentary evidence, but the fact remains that he was deprived of to lead evidence before the learned trial court. Accordingly, the submission made by learned counsel for the respondent No.4 merits rejection, which is hereby rejected. 21. In view of the discussions made above, the judgment and order dated 01.08.2018, passed by the Deputy Director of Consolidation, judgment and order dated 04.01.2018, passed by the Settlement Officer of Consolidation, judgment and order dated 15.02.2017, passed by the Consolidation Officer and the judgment and order dated 27.11.1997, passed by the Assistant Consolidation Officer, are hereby quashed and the Writ Petition is allowed. 22. The entire matter is remitted to the Consolidation Officer concerned with the direction to decide the same afresh. It is further directed that the parties to the proceedings before the Consolidation Officer shall be given ample opportunity of not only hearing but also adducing evidence. It is also directed that the entire matter shall be decided by the Consolidation Officer within a maximum period of four months from the date of production of certified copy of this order. 23. Since the parties who may be affected by the proceedings to be drawn before the Consolidation Officer under this order are present before this Court, they are directed to be present before the Consolidation Officer on 29.11.2018 where they will make application along with certified copy of this order to commence the proceedings. 24. Parties before the Consolidation Officer shall not seek any unnecessary adjournments and adjournment, if sought, may be permissible to be granted by the Presiding Officer only in exceptional circumstances. 25. It is further directed that till disposal of the matter by the Consolidation Officer under this order, parties shall maintain status-quo as on spot and they shall neither alienate the property nor shall they change its nature. 26. Having regard to the facts and circumstances of the case, there will be no order as to costs.