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2019 DIGILAW 2589 (ALL)

Rama Nand v. Dy. Director of Consolidation

2019-11-18

SALIL KUMAR RAI

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JUDGMENT : Salil Kumar Rai, J. 1. Heard the Counsel for the petitioners. 2. The facts of the case are that Vishwanath was the common ancestor of the respondents and of the vendor of the petitioners. Vishwanath had two sons, namely, Mahadeo and Giriraj. Giriraj had two sons, namely, Ramhit and Pardeshi. The respondent Nos. 3 to 6 are the sons of Ramhit and respondent No. 2 is the son of Pardeshi. Sunra was the wife of Mahadeo. Mahadeo had one son, namely, Khedu. Sumari was the wife of Khedu. Sumari is the vendor of the petitioners. It is alleged by the respondents that Giriraj died in 1952, Mahadeo died in 1955, Sunra died in 1977 and Khedu died in 1952. The plea of the respondents in the proceedings from which the present writ petition arises is that Khedu had died before Mahadeo and his mother Sunra. However, no observation made in the present order shall be considered as a finding on the date of death of either of the aforesaid persons. 3. Case Nos. 342, 346, 710, 711 and 712 regarding Khata Nos. 16, 25, 44, 65, 82 and 83 which included the plots in village Parsia Shukla and Parsia Rawat were registered under section 9-A(2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') before the Consolidation Officer wherein the predecessors of the respondents and Sunra, i.e., the widow of Mahadeo denied any share to Sumari in the disputed khatas. However, the Consolidation Officer vide his order dated 31.5.1974 held that Sumari had share in the disputed khatas being the widow of Khedu and determined her share accordingly. It has been alleged by the respondents in the proceedings before the Consolidation Courts from which the present writ petition arises that against the order dated 31.5.1974 passed by the Consolidation Officer, the predecessors of the respondents filed Appeal No. 21 under section 11(1) of the Act, 1953 before the Settlement Officer of Consolidation and the Settlement Officer of Consolidation vide his order dated 16.9.1977 directed the Consolidation Officer to re-construct the records relating to the case and to decide the matter afresh after taking evidence from the parties. Subsequently, Sumari Devi executed a sale deed dated 10.3.1978 regarding her share in the disputed khatas in favour of the petitioners. Subsequently, Sumari Devi executed a sale deed dated 10.3.1978 regarding her share in the disputed khatas in favour of the petitioners. It appears that no action was taken by the Consolidation Officer in pursuance to the order dated 16.9.1977 passed by the Settlement Officer of Consolidation. Subsequently, the respondents filed another objection dated 20.4.1987 under section 9-A(2) of the Act, 1953 registering Case Nos. 8 to 10 of 1978 before the Consolidation Officer. The petitioners also filed an application under section 12 of the Act, 1953 praying for mutation of their name in the consolidation records in place of Sumari as a result of the sale deed dated 10.3.1978 and on the said application, Case No. 106 was registered before the Consolidation Officer. The Consolidation Officer vide his order dated 17.2.1992 dismissed Case Nos. 8 to 10 of 1978 instituted by the respondents but allowed Case No. 106 instituted by the petitioners. The Consolidation Officer vide his order dated 17.2.1992 dismissed Case Nos. 8 to 10 instituted by the respondents on the ground that the respondents had not filed any evidence to show that any appeal was filed against the order dated 31.5.1974 previously passed by the Consolidation Officer and as the previous objection filed by the predecessors of the respondents denying the share of Sumari Devi in the disputed khatas had already been rejected by the Consolidation Officer vide his order dated 31.5.1974, therefore, the second objection at the behest of the respondents was not maintainable. Further, through his order dated 17.2.1992, the Consolidation Officer refused to condone the delay in filing the objection. Against the order dated 17.2.1992 passed by the Consolidation Officer rejecting the objection filed by the respondents under section 9-A(2) of the Act, 1953, the respondents filed Appeal No. 628 under section 11 of the Act, 1953 which was also dismissed by the Settlement Officer of Consolidation vide his order dated 21.2.1997. In paragraph No. 5 of the memorandum of appeal, which has been annexed as Annexure No. 6 to the writ petition, the respondents had referred to the order dated 16.9.1977 passed by the Settlement Officer of Consolidation but in his order dated 21.2.1997, the Settlement Officer of Consolidation did not record any finding regarding the proceedings in the alleged Appeal No. 21 filed by the respondents or the order dated 16.9.1977 passed by the Settlement Officer of Consolidation in the said appeal. Aggrieved, the respondents filed Revision Nos. 282/365 of 2012-13, 283/366 of 2012-13 and 284/367 of 2012-13 against the order dated 21.2.1997 passed by the Settlement Officer of Consolidation as well as against the order dated 17.2.1992 passed by the Consolidation Officer and orders passed by the Settlement Officer of Consolidation granting permission to Sumari Devi to execute a sale deed in favour of the petitioners. The Deputy Director of Consolidation vide his order dated 26.9.2013 allowed the revisions filed by the respondents and set-aside the orders dated 17.2.1992 passed by the Consolidation Officer and 21.2.1997 passed by the Settlement Officer of Consolidation as well as the order dated 27.1.1978 passed by the Settlement Officer of Consolidation whereby the Settlement Officer of Consolidation had granted permission to Sumari Devi for executing the sale deed in favour of the petitioners and through his aforesaid order dated 26.9.2013, the Deputy Director of Consolidation has remanded back the matter to the Consolidation Officer to pass fresh orders on the objections filed by the respondents after giving the parties an opportunity of hearing and an opportunity to produce their evidence. Through his order dated 26.9.2013, the Deputy Director of Consolidation has allowed the revisions filed by the respondents on the ground that the order dated 31.5.1974 had been set-aside by order dated 16.9.1977 passed by the Settlement Officer of Consolidation in Appeal No. 21 and further the execution of the sale deed dated 10.3.1978 had also been challenged by the respondents and a criminal case had been registered against the petitioners under section 419 of the Indian Penal Code. It was held by the Deputy Director of Consolidation that in the aforesaid circumstances, it was a fit case where the delay in filing the objection should have been condoned and the matter should have been decided on merits after giving the parties an opportunity to produce their evidence. The order dated 26.9.2013 passed by the Deputy Director of Consolidation has been challenged in the present writ petition. 4. It was argued by the Counsel for the petitioners that in Revision Nos. The order dated 26.9.2013 passed by the Deputy Director of Consolidation has been challenged in the present writ petition. 4. It was argued by the Counsel for the petitioners that in Revision Nos. 282/365 of 2012-13, 283/366 of 2012-13 and 284/367 of 2012-13, the Deputy Director of Consolidation had not summoned the records from the Courts below and had thus committed a material irregularity of law in allowing the revisions filed by the respondents without summoning the records and, thus, the order dated 26.9.2013 was liable to be set-aside. To support the factual basis of his argument, the petitioners have annexed as Annexure No. 9 a document purporting to be an enquiry issued from the office of the Deputy Director of Consolidation, Gorakhpur showing that the records of the appeal were not summoned by the Deputy Director of Consolidation. In support of his aforesaid argument, the Counsel for the petitioners has relied on the judgments of this Court reported in Ram Naresh (Dead) v. Deputy Director of Consolidation, Azamgarh and others 1997 (88) RD 389, and Raj Nath v. D.D.C., Jaunpur and others 2016 (130) RD 12 . It was further argued by the Counsel for the petitioners that the second objection filed by the respondents was not maintainable as the appeal filed against the order dated 31.5.1974 was still pending and further even if the said appeal was disposed of by order dated 16.9.1977 even then the first objection filed by the predecessors of the respondents was still pending before the Consolidation Officer and, therefore, the second objection was not maintainable. It was argued that for the aforesaid reasons, the Consolidation Officer and the Settlement Officer of Consolidation committed no illegality in rejecting the objections filed by the respondents and the order dated 26.9.2013 passed by the Deputy Director of Consolidation allowing the revisions and directing the Consolidation Officer to pass fresh orders on merits on the objections filed by the respondents is vitiated by error of law apparent on the face of record and is, thus, liable to be set-aside. 5. I have considered the submissions of the Counsel for the petitioners. 6. 5. I have considered the submissions of the Counsel for the petitioners. 6. It is evident from the records that in their memorandum of appeal filed before the Settlement Officer of Consolidation and in the memorandum of revision instituting different revisions before the Deputy Director of Consolidation, the respondents had brought to the notice of the appellate and the revisional authorities that through the order dated 16.9.1977, the Settlement Officer of Consolidation had directed that the records of the case be re-constructed and fresh orders be passed after giving the parties an opportunity to produce their evidence. In the memorandum of revisions, the respondents had categorically stated that the order dated 31.5.1974 had been set-aside by order dated 16.9.1977 passed by the Settlement Officer of Consolidation. There is nothing on record to show that the aforesaid plea taken by the respondents in their memorandum of appeal or in the memorandum of revisions was denied by the petitioners and the petitioners had argued before either of the authorities that the said plea raised by the respondents was factually incorrect. A reading of the impugned order passed by the Deputy Director of Consolidation does not reveal that any such objections or arguments were raised by the petitioners before the Deputy Director of Consolidation. In the writ petition, the petitioners have not made any averment stating that the aforesaid argument was raised by the petitioners or that the petitioners had denied before the Deputy Director of Consolidation the plea of the respondents regarding the order dated 16.9.1977 passed by the Settlement Officer of Consolidation and the Deputy Director of Consolidation did not consider the aforesaid arguments. No ground has been raised in the writ petition that the finding recorded by the Deputy Director of Consolidation that the order dated 31.5.1974 passed by the Consolidation Officer had been set-aside by the Settlement Officer of Consolidation vide his order dated 16.9.1977 is either without any evidence or contrary to records or factually incorrect. In view of the aforesaid, this Court cannot enter into the controversy regarding the existence of the order dated 16.9.1977 passed by the Settlement Officer of Consolidation. In view of the aforesaid, this Court cannot enter into the controversy regarding the existence of the order dated 16.9.1977 passed by the Settlement Officer of Consolidation. No records were required to be summoned to decide the correctness of the plea raised by the respondents regarding the existence of any order dated 16.9.1977 passed by the Settlement Officer of Consolidation as the said fact was not denied by the petitioners in the courts below and there is no categorical averment in the writ petition itself denying either the existence of the order or the contents of the order dated 16.9.1977. 7. The document annexed as Annexure No. 9 to the writ petition relates to an enquiry regarding Appeal No. 21 and the question asked before the concerned officer was as to whether in Revision No. 283/366, the records of Appeal No. 21 of 1977 had been summoned by the Revisional Court. As held earlier, the records of the said appeal were not required to be summoned by the Revisional Court to verify the existence and contents of the order dated 16.9.1977 as the existence and the contents of the said order were not denied by the petitioners. The records of the aforesaid Appeal No. 21 were also not required to be summoned by the Revisional Court to decide the revisions filed before it as the said revisions were not filed against the order passed in Appeal No. 21 but were filed against the orders passed by the Consolidation Officer and the Settlement Officer of Consolidation in different appeals, namely, Appeal No. 574, Appeal No. 575 and Appeal No. 628 as well as Case Nos. 8 to 10 and other cases registered under section 12 of the Act, 1953. The judgments of this Court referred by the petitioners are not applicable in the present case in as much as the aforesaid judgments relate only to the summoning of the records of the case in which the orders challenged before the Revisional Authority have been passed and there is no statutory requirement mandating the Revisional Court to summon the records of other cases, i.e., the cases in which the impugned orders had not been passed. The order passed by the revisional Court cannot be faulted merely on the ground that the revisional authority had not summoned the records of a case in which the impugned orders had not been passed. 8. The order passed by the revisional Court cannot be faulted merely on the ground that the revisional authority had not summoned the records of a case in which the impugned orders had not been passed. 8. So far as the records of Appeal Nos. 574, 575 and 628 are concerned, it is evident from a reading of the order dated 26.9.2013 that the records of the said appeals had been summoned by the Deputy Director of Consolidation. For the aforesaid reason, there is no jurisdictional error in the order passed by the Deputy Director of Consolidation as argued by the petitioners. 9. It is not the case of the petitioners that after the order dated 16.9.1977, the Consolidation Officer had decided the objections and passed fresh orders on merits on the objections filed by the predecessors of the respondents. Evidently, the said objections remained pending. The second objections which were filed by the respondents would not have been maintainable, in case, the previous objections had been decided by the Consolidation Officer in accordance with the directions issued by the Settlement Officer of Consolidation vide his order dated 16.9.1977. The dispute regarding the right of Sumari Devi in the disputed khatas was still pending before the Consolidation Officer after the order dated 16.9.1977. In these circumstances, the second objections could not have been dismissed as not maintainable and the said objections were liable to be entertained and decided on merits. In their orders dated 17.2.1992 and 21.2.1997, the Consolidation Officer and the Settlement Officer of Consolidation did not consider the aforesaid aspect. For the aforesaid reasons, no illegality was committed by the Deputy Director of Consolidation in allowing the revisions filed by the respondents and in condoning the delay, if any, in filing the objections by the respondents. 10. For the aforesaid reasons, there is no illegality in the impugned order dated 26.9.2013 passed by the Deputy Director of Consolidation. The writ petition lacks merit and is, hereby, dismissed. 11. Interim order, if any, stands vacated.