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2022 DIGILAW 1231 (ALL)

Kunwar v. D. D. C.

2022-08-04

CHANDRA KUMAR RAI

body2022
JUDGMENT : 1. Heard Mr. H.P. Mishra, learned counsel for the petitioners and Mr. Madhusudan Dixit, learned counsel for contesting respondent Nos.5 and 6. 2. Brief facts of the case are that in the Basic year of the Consolidation operation, Chandra Shekhar and Laxmi Shanker sons of Ram Dularey were recorded over plot of Khata Nos.5 and 13 situated in village-Shivpur, Pargana-Hathgaon, District-Fatehpur while Ram Kishore son of Ram Dularey and Vidya Sagar sons of Brij Kishore were recorded over Khata No.13. On 18.02.1975 Ram Kishore and Vidya Sagar transferred their interest in the land of Khata No.13 to petitioners by means of a registered sale deed. Chandra Shekhar and Laxmi Shanker also transferred their interest in favour of the petitioners by means of the registered sale deed dated 03.02.1975. An objection under Section 12 of U.P.C.H. Act was filed by petitioners to record their names on the basis of sale deed, the Assistant Consolidation Officer by his order dated 22.04.1975 ordered to record the names of petitioners on the basis of sale deed. Respondent No.4 Vidya Sagar filed an objection under Section 9A(2) of U.P.C.H, Act claiming right in the disputed plot but Consolidation Officer by his order dated 25.01.1979 held that order dated 22.04.1975 passed by Assistant Consolidation Officer is binding on the parties and he could not sit in appeal over the order of Assistant Consolidation Officer passed under Section 12 of U.P.C.H. Act accordingly, objection filed by respondent No.4 under Section 9A(2) of U.P.C.H,. Act was rejected. An appeal under Section 11 of U.P.C.H. Act was filed by respondent Nos.5 and 6 before Settlement Officer of Consolidation, the appeal was allowed vide order dated 05.12.1979 and matter was remanded before Consolidation Officer for fresh decision of objection on merit. Although, no appeal was filed by respondent No.4 against the order of Consolidation Officer dated 25.01.1979. Against the appellate order dated 05.12.1979 revision under Section 48 of U.P.C.H,. Act was filed by petitioners, Deputy Director of Consolidation by order dated 18.03.1982 dismissed the revision filed by petitioners as well as exercising the power under Section 48 of U.P.C.H. Act order dated 22.04.1975 passed under Section 12 of U.P.C.H.Act was set aside being without jurisdiction. Hence this writ petition. 3. Counsel for the petitioners submitted that one order under Section 12 of U.P.C.H,. Hence this writ petition. 3. Counsel for the petitioners submitted that one order under Section 12 of U.P.C.H,. Act has been passed in favour of petitioners and the order has attained finality then objection under Section 9A(2) of U.P.C.H. Act filed by respondent No.4 cannot be entertained as order passed under Section 12 of U.P.C.H. Act between the parties will operate as res judicata in the proceedings under Section 9A (2) of U.P.C.H. Act. He further submitted that order dated 22.04.1975 passed in the proceedings under Section 12 of U.P.C.H. was not challenged in Appeal or revision as such the same cannot be set aside in the present proceedings under Section 9A (2) of U.P.C.H,. Act exercising suo motu power under Section 48 of U.P.C.H. Act accordingly counsel for the petitioners submitted that impugned revisional order dated 18.03.1982 passed by revisional Court and order dated 5.12.1979 passed by appellate Court be set aside. 4. On the other hand, counsel for the respondent Nos.5 and 6 has submitted that order passed in the proceeding under Section 12 will not operate as res judicata in the title proceedings under Section 9 A(2) of U.P.C.H,. Act. He placed provisions of Sections 9A, 11-A and 12 of U.P.C.H. Act which are as follows:.............. "[9A. Disposal of Cases relating to claims to land and partition of joint holdings. Act. He placed provisions of Sections 9A, 11-A and 12 of U.P.C.H. Act which are as follows:.............. "[9A. Disposal of Cases relating to claims to land and partition of joint holdings. - (1) The Assistant Consolidation Officer shall - (i) where objections in respect of claims to land or partition of joint holdings are filed, after hearing the parties concerned, and (ii) where no objections are filed after making such enquiry as he may deem necessary, settle the disputes, correct the mistakes and effect partition as far as may be by conciliation between the parties appearing before him and pass orders on the basis of such conciliation : [Provided that where the Assistant Consolidation Officer, after making such enquiry as he may deem necessary, is satisfied that a case of succession is undisputed, he shall dispose of the case on the basis of such enquiry.] (2) All cases which are not disposed of by the Assistant Consolidation Officer under sub-section (1), all cases relating to valuation of plots and all cases relating to valuation of trees, wells or other improvements, for calculating compensation therefor, and its apportionment amongst co-owners, if there be more owners than one, shall be forwarded by the Assistant Consolidation Officer to the Consolidation Officer, who shall dispose of the same in the manner prescribed. (3) The Assistant Consolidation Officer, while acting under subsection (1) and the Consolidation Officer, while acting under subsection (2), shall be deemed to be a Court of competent jurisdiction, anything to the contrary contained in any other law for the time being in force notwithstanding.] [11A. Bar on objection. - No question in respect of - (i) claims to land, (ii) partition of joint holdings, and (iii) valuation of plots, trees, wells and other improvements, where the question is sought to be raised by a tenure-holder of the plot or the owner of the tree, well or other improvements recorded in the annual register under Section 10, relating to the consolidation area,] [which has been raised under Section 9 or which might or ought to have been raised under that section], but has not been so raised, shall be raised or heard at any subsequent stage of the consolidation proceedings.] [12. Decision of matters relating to changes and transactions affecting rights or interests recorded in revised records. Decision of matters relating to changes and transactions affecting rights or interests recorded in revised records. - (1) All matters relating to changes and transfers affecting any of the rights or interests recorded in the revised records published under sub-section (1) of Section 10 for which a cause of action had not arisen when proceedings under Sections 7 to 9 were started or were in progress, may be raised before the Assistant Consolidation Officer as and when they arise, but not later than the date of notification under Section 52, or under sub-section (1) of Section 6. (2) The provisions of Sections 7 to 11 shall mutatis mutandis, apply to the hearing and decision of any matter raised under sub-section (1) as if it were a matter raised under the aforesaid sections.]" 5. On the basis of the provisions contained in Section 9A, 11A and 12 of U.P.C.H. Act counsel for the respondents submitted that order passed under Section 9A(2) of U.P.C.H. Act will operate as res-judicata in the subsequent proceedings but alleged order passed under section 12 of U.P.C.H. Act cannot operate as res-judicata in the proceedings under Section 9A(2) of U.P.C.H. Act. He further submitted that appellate Court has rightly allowed the appeal of respondents and remitted the matter back to the court of Consolidation Officer for decision of proceedings under Section 9A(2) of U.P.C.H. Act on merit. He next submitted that Deputy Director of Consolidation rightly set aside the order dated 22.04.1975 passed under Section-12 of U.P.C.H. Act exercising power under Section 48 of U.P.C.H. Act on the ground that order was without jurisdiction according to the provisions contained under Sections 9A, 11-A and 12 of U.P.C.H. Act. He lastly submitted that interest of both parties will be examined under Section 9A(2)of U.P.C.H. Act in pursuance of the impugned appellate order and revisional order as such writ petition filed by petitioners is liable to be dismissed. 6. I have considered the arguments advanced by learned counsel for the parties and perused the records. 7. He lastly submitted that interest of both parties will be examined under Section 9A(2)of U.P.C.H. Act in pursuance of the impugned appellate order and revisional order as such writ petition filed by petitioners is liable to be dismissed. 6. I have considered the arguments advanced by learned counsel for the parties and perused the records. 7. There is no dispute about the fact that no objection under Section 9A(2) of U.P.C.H. Act was filed by petitioners under Section 9A(2)of U.P.C.H. Act rather alleged proceeding under Section-12 of U.P.C.H. Act was initiated at the instance of petitioners and order dated 22.04.1975 was passed under Section-12 of U.P.C.H. Act on the basis of alleged sale deed dated 18.02.1975 and 03.02.1975, which was before the notification under Section-9A of U.P.C.H. Act. Proceeding under Section 9A(2) of U.P.C.H. Act was initiated at the instance of respondents, according to the provisions of Section 9-A of U.P.C.H. Act, which has been ordered to be adjudicated on merit by Consolidation Officer under impugned orders. 8. On the basis of provisions contained under Section 9A, 11A and 12 of U.P.C.H. Act as quoted above, there appears to be no scope to file objection under Section 12 of U.P.C.H. Act first and get it decide as uncontested by Assistant Consolidation Officer without filing objection under Section 9-A of U.P.C.H. Act. In the case in hand cause of action for filing objection and laying claim on the basis of sale-deed had already arisen for which steps were not taken by petitioners under Section 9A(2) of U.P.C.H. Act rather initiated proceedings under Section 12 of U.P.C.H. Act and got the order passed by Assistant Consolidation Officer, which appears to be without jurisdiction as Section 11-A of U.P.C.H. Act will come in picture. The regular objection under Section 9A(2) of U.P.C.H. Act at the instance of the respondents cannot be held to be bar by res judicata due to decision/order alleged to be passed under Section 12 of U.P.C.H. Act. 9. This Court in a case reported in 2003 (95) R.D.44 Aparbal Yadav and another vs. Deputy Director of Consolidation, Gorakhpur and others has considered the scope of Section 9A and 12, the relevant paragraph No.7 of the judgment is as follows: ....7. 9. This Court in a case reported in 2003 (95) R.D.44 Aparbal Yadav and another vs. Deputy Director of Consolidation, Gorakhpur and others has considered the scope of Section 9A and 12, the relevant paragraph No.7 of the judgment is as follows: ....7. In view of the aforesaid it is clear that in the event a question had already arisen when proceedings under Sections 7 to 9 were started or were in progress and an objection under Section 9-A(2) of the U.P.C.H. Act claiming right in the land on the basis of the sale deed dated 27.06.67 was already filed by the predecessor of the petitioners, there appears to be no scope of filing fresh objection under Section 12 of the U.P.C.H. Act. Section 11-A of the Act clearly bars raising of any question in respect to claim of the land, which has been raised under Section 9 or which might or ought to have been raised under that Section. It is clearly mentioned in sub-section (2) of Section 12 that provisions of Sections 7 to 11 shall mutatis mutandis apply to the hearing and decision of any matter raised under Sub-Section (1) of the Act. In view of this it is clear that the objection and claim in respect to the land in dispute on the basis of the sale-deed. In question was not only decided on merits but also concurred by all three Consolidations Courts which was never challenged before this court. Whatever law as existed to that time the judgment of the Consolidation Courts attained finality. it is in the case where any fresh cause of action has arisen to a party after publication of the revised record under Section 10 (1) of the Act which was not available when the proceedings under Sections 7 to 9 were started or where in progress filing of objection under Section 12 of the act could be permitted. it is in the case where any fresh cause of action has arisen to a party after publication of the revised record under Section 10 (1) of the Act which was not available when the proceedings under Sections 7 to 9 were started or where in progress filing of objection under Section 12 of the act could be permitted. Hence in the case in hand, as the cause of action for filing objection and laying claim on the basis of the sale-deed dated 27.06.67 had already arisen for which steps were also taken in the proceedings under Sections 9-A(2) of the Act the finality which has attained cannot be permitted to be re-opened in the garb of filing of objection under Section 12 of the Act which was filed in the year 1976 after the final judgment of the Deputy Director Consolidation which was passed in the year 1970. Three Consolidation Courts have rightly not permitted the petitioner to get fresh inning opened for adjudication of their claim on the merits in the garb of the proceedings under Section 12 of the Act. It could only be entertained when the matter relating to change and transfer affecting any of the right or interest recorded in the revised records published under Sub-Section (1) of Section 10 for which a cause of action had not arisen when proceedings under Sections 7 to 9 were started or were in progress. This being not the situation, so far the case in hand is concerned rather cause of action having already arisen, to which petitioner's predecessor having reacted had filed objection under Section 9-A (2) of the Act has failed and thus filing of the fresh objection under Section 12 of the Act by the petitioners is clearly barred under Section 11-A of the Act read with Section 12 (2) of the Act. It is not to be repeated that by change of law or if earlier judgment has been over ruled, that do not give any cause of action for re-adjudicating the claim on the merits and to get earlier order reviewed as has been clearly opined by the Apex Court in the decision given in case of Shanti Devi (Supra). It is not to be repeated that by change of law or if earlier judgment has been over ruled, that do not give any cause of action for re-adjudicating the claim on the merits and to get earlier order reviewed as has been clearly opined by the Apex Court in the decision given in case of Shanti Devi (Supra). Thus arguments of the learned counsel for the petitioner that as vendor has got Bhumidhari rights in view of the subsequent declaration of law petitioner's claim is to be accepted, on the facts of present case of no help to them. Other decisions also as cited by the learned counsel for the petitioners on the fact and reasoning given above have no application to the case in hand." 10. Considering the provisions of Section 9A, 11A and 12 of U.P.C.H. Act, ratio of law laid down by which Court in Aparbal Yadav (supra) as well as facts and circumstances of the case ends of justice requires that objection under Section 9A(2)of U.P.C.H. Act in respect to disputed plot initiated at the instance of respondents be adjudicated on merit, in which both parties will have opportunity to contest their claim on merit under the impugned order, the same things has been done as such no interference is required against the impugned orders. Writ petition filed by petitioners fails and is dismissed. No order as to costs. 11. Since the matter is very old, it is directed that Consolidation Officer Fatehpur, shall decide the objection under Section 9A(2) of U.P.C.H. Act after notice and opportunity of hearing to both parties on merit expeditiously preferably within six months from the date of production of certified copy of this Judgment.