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2023 DIGILAW 1712 (ALL)

Anwar Beg v. Jabiullah

2023-07-17

SAURABH LAVANIA

body2023
JUDGMENT : Saurabh Lavania, J. Heard Sri Ishwar Dutt Shukla, learned Counsel for the petitioners, Sri Ajai Kumar Srivastava, learned Counsel for private opposite party and Sri Hemant Kumar Pandey, learned Counsel appearing for State. 2. By means of the present petition, the petitioners have challenged the order dated 18.5.2002 passed by Deputy Director of Consolidation, Sultanpur (in short ''D.D.C.'') in Revision Nos. 246/365 and 1958/157, which were filed under Section 48 of U.P. Consolidation and Holdings Act, 1953 (in short ''Act of 1953''). Relevant portion of the order impugned dated 18.5.2002 on reproduction reads as under : 3. It would be relevant to refer at this stage that the order impugned dated 18.5.2002 was passed in compliance of the judgment passed by this Court in Writ Petition No. 1920 of 1983 (Rafi Mohd. and others v. Deputy Direction of Consolidation and others), Writ Petition No. 1422 of 1983 (Zabiullah and another v. Deputy Director of Consolidation and others) and Writ Petition No. 2335 of 1983 (Anwar and others v. Deputy Director of Consolidation and others). 4. In above indicated writ petitions, as appears from the judgment and order of Writ Court dated 7.8.1989, three orders passed by the Consolidation Authorities, i.e. order dated 15.9.1981 passed by Consolidation Officer (in short ''C.O.''), the order dated 29.6.1982 passed by the Settlement Officer Consolidation (in short ''S.O.C.'') and the order dated 9.2.1983 passed by the D.D.C., Faizabad, were in issue and were quashed. 5. The order impugned dated 18.5.2002 is based upon the order dated 16.3.1971 passed by Consolidation Officer and the same was passed after the judgment and order of this Court dated 7.8.1989 whereby this Court remanded the matter back and directed the D.D.C. to decide the issue afresh. 6. As such, this Court is of the view that before entering into the facts of the case, the relevant portion of judgment of this Court dated 7.8.1989 is reproduced hereinunder : ''Learned counsel for the petitioners in the two writ petition Nos. 1920 of 1983 and 1422 of 1983 further submitted that in any view of the matter the order of 16.3.1971 having become final could not be reopened in the remand proceedings and that no case for remand was at all made out since the remand order as stated hereinabove was based on two non-existent grounds no further proceedings could take place. Be that as it may it is seen that in the proceedings in remand the contending parties and in particular petitioners in Writ Petition No. 2335 of 1983 did not appear to have raised any issue pertaining to the shares of the parties and that having become final the matter could not be examined again. The impugned orders passed by the consolidation authorities contained in annexures 14, 15 and 17 to writ petition No. 1920 of 1983, he submitted, could not be sustained. Learned Counsel for the petitioners in writ petition No. 2335 of 1983, contended that in any view of the matter the Deputy Director of Consolidation could not suo motu quash the earlier order by which Anwar and others have been granted co-tenancy rights in Khata No. 255 that not being the subject-matter of a dispute before him. It is not disputed that under Section 48 of the U.P. Consolidation of Holdings Act the Deputy Director of Consolidation is vested with authority to pass an order suo motu where ends of justice require to do so subject to the conditions imposed in Section 46 of the said Act. The learned counsel contended that in any view of the matter Anwar and others had to be given an opportunity to show-cause before exercise of such authority could be made and the order quashed. The contention of the learned counsel is not without force and there appears to be an error apparent on the face of record in the impugned order of the Deputy Director of Consolidation in as for as the exercise of suo moto power under Section 48 of the U.P. Consolidation of Holdings Act is concerned. The order cannot be sustained on this ground also. In the result Writ Petition No. 1920 of 1983, 1422 of 1983 and 2335 of 1983 succeed and are hereby allowed. The impugned orders dated 25.9.1981 passed by the Consolidation Officer, orders dated 26.9.1982 passed by the Settlement Officer, Consolidation and the orders dated 9.2.1983 passed by the Deputy Director of Consolidation, Faizabad (Annexure 14, 15 and 17 respectively to Writ Petition No. 1920 of 1983) are quashed. The matter is remanded back to the Deputy Director of Consolidation with a direction to examine the case of the contesting parties in respect of Khata Nos. The matter is remanded back to the Deputy Director of Consolidation with a direction to examine the case of the contesting parties in respect of Khata Nos. 255 and 349 on the basis of their admissions in terms of order dated 16.3.1971 passed by the Consolidation Officer, after examining the record of the case decided by the Consolidation Officer on 16.3.1971 as also the record of the case decided by the Consolidation Officer on 17.3.1971. He shall proceed to examine the matter on the basis of the records in the two cases after giving due notice to the contending parties and decide the matter as early as possible say within three months from the date of production of a certified copy of this order. In the circumstances there shall be no order as to costs.'' 7. A perusal of the judgment and order dated 7.8.1989 shows that this Court, after considering the fact that the D.D.C. suo-moto interfered in the order dated 16.3.1971, which was not permissible, directed the D.D.C. to decide the matter afresh. As per direction of this Court, the D.D.C. was under obligation to decide the dispute between the parties after examining the case of the contesting parties in respect of Khata Nos. 255 and 349 on the basis of the admissions in terms of order dated 16.3.1971 passed by the Consolidation Officer as also after examining the record of the case decided by the Consolidation Officer on 16.3.1971 as also the record of the case decided by the Consolidation Officer on 17.3.1971. 8. As per above, the D.D.C. was under obligation to consider the admission of concerned namely Shakoor Beg, predecessor-in-interest of the petitioner and Idris Beg, as indicated in the order dated 16.3.1971 and was also under obligation to consider the records of the case(s) decided vide order dated 16.3.1971 and 17.3.1971, respectively. 9. Now facts of the case, in brief, are to the effect that the objection(s) were filed during consolidation proceedings under Section 9-A(2) of the Act of 1953, which were registered as Case No. 2853, as appears from Annexure 3 to the present petition. This case was decided vide order dated 16.3.1971 by the Consolidation Officer. 10. It appears from the decision on Issue Nos. This case was decided vide order dated 16.3.1971 by the Consolidation Officer. 10. It appears from the decision on Issue Nos. 1, 2 and 4 and 5 that based upon the statement of Shakoor Beg and Idris Beg, the rights over Khata No. 349, which was recorded in the name of Shakoor Beg, was provided to Shakoor Beg, Zabiulla, Alaamasuddeen, Ibrahim Beg, Shafi Beg and Idris Beg and over Khata No. 255, which was recorded in the name of Ibrahim, Safi Mohammad and Idris Beg, the rights were provided to Shakoor Beg, Ibrahim Beg, Shami Beg and Idris Beg. 11. The objection(s) under Section 9-A(2) of the Act of 1953, registered as Case Nos. 2872, 2873 and 2874 were decided by the Consolidation Officer vide order dated 17.3.1971. This order was assailed by Shakoor Beg in the appeal filed under Section 11(1) of the Act of 1953. In the appeal, it has been alleged that the order dated 16.3.1971 was obtained by playing fraud, however, it appears from the memo of appeal as also from other documents on record that the order dated 16.3.1971 passed in Case No. 2863 by the Consolidation Officer, was never challenged. 12. The appeal challenging the order dated 17.3.1971, registered as Appeal No. 2565, preferred by the predecessor-in-interest of the petitioners, was dismissed vide order dated 30.11.1971 and being aggrieved, a revision was filed, which was allowed vide order dated 14.3.1975 and the matter was remanded back to the Consolidation Officer for deciding the matter afresh. By this order the Revisional Authority namely D.D.C. interfered in the order dated 16.3.1971. 13. Thereafter, the Consolidation Officer, considering the case of the parties, vide its order dated 15.9.1981 decline to provide the rights to the persons who got right based upon the statement(s) of Shakoor Beg and Idris Beg over Khata No. 349 and 255. The reason for the same, as appears from the order of D.D.C., which is on record as Annexure 11 to the present petition, was to the effect that the compromise has already been interfered with by the D.D.C. It would be apt to refer the relevant portion : 14. The order dated 15.9.1981 thereafter, was challenged before the Appellate Authority namely Settlement Officer of Consolidation. The appeal filed by the aggrieved parties namely Ibrahim and others was also dismissed vide order dated 29.6.1982. The order dated 15.9.1981 thereafter, was challenged before the Appellate Authority namely Settlement Officer of Consolidation. The appeal filed by the aggrieved parties namely Ibrahim and others was also dismissed vide order dated 29.6.1982. Thereafter, a revision was filed, which was also dismissed vide order dated 9.2.1983 by the D.D.C., Sultanpur. All these orders were challenged in the writ petition(s) indicated hereinabove and this Court, considering the entire aspects of the case including the fact that the D.D.C. in earlier round of litigation interfered in the order dated 16.3.1971, which was never challenged before any Authority under the Act of 1950, quashed the orders impugned dated 15.9.1981, 29.6.1982 and 9.2.1983 and remanded the matter back to the D.D.C. for deciding the same afresh. Thereafter, the impugned order was passed. In the aforesaid background of the case, the present petition has been filed assailing the order dated 18.5.2002. 15. Assailing the order dated 18.5.2002, Sri Ishwar Dutt Shukla, learned counsel for the petitioners submitted that as per order of remand, the D.D.C. was under obligation to examine the record of the case decided vide order dated 16.3.1971 as also the record of the case decided vide order dated 17.3.1971. However, D.D.C., without examining the record of the cases, based upon the order dated 16.3.1971, which in fact was not in existence, concluded the proceedings and provided the rights ¼lg[kkrsnkjh½ to the concerned over Khata Nos. 349 and 255 vide impugned order dated 18.5.2002. 16. He further submitted that the admission of Shakoor Beg regarding co-tenancy based upon which the Consolidation Officer passed the order dated 16.3.1971 was considered in the first round of litigation by the Revisional Authority in its order dated 14.3.1975 and after due consideration, the D.D.C. remanded the matter back to the Consolidation Officer for framing issues with regard to co-tenancy and thereafter, take decision after providing proper opportunity of hearing and producing the evidence to the parties to the litigation, as such, in this view of the matter, the D.D.C. was under obligation to consider the entire record including the impact of the admission, though, the same was not made in fact before the Consolidation Officer by Shakoor Beg. 17. It is further submitted that the observations of the D.D.C. that the order dated 16.3.1971 was not challenged, as such, the admission of parties is binding regarding Khata Nos. 17. It is further submitted that the observations of the D.D.C. that the order dated 16.3.1971 was not challenged, as such, the admission of parties is binding regarding Khata Nos. 349 and 255, is completely erroneous because the order was interfered vide order dated 14.3.1975 by the D.D.C. itself and the said order was not restored by any competent Court of law, as such, the order impugned dated 18.5.2002 completely based upon the order dated 16.3.1971, is liable to be interfered. 18. Further submitted that based upon the admission tenancy right cannot be provided to the parties and in support thereof, learned counsel for the petitioners placed reliance on the judgment passed by this Court in the case of Ram Lakhan (Deceased by L.Rs.) and others v. Deputy Director of Consolidation, Basti and others; 1983 SCC OnLine All 170 and the judgment passed in the case of Devi Shankar and others v. Deputy Director of Consolidation and others; 1984 SCC OnLine All 461. 19. He further submitted that D.D.C. taking note of earlier observations of the Consolidation Authorities namely Consolidation Officer as also Settlement Officer of Consolidation ought to have remanded the matter back to the Consolidation Officer concerned for deciding the issue afresh. However, in the instant case, D.D.C. itself decided the case, as such also the order impugned dated 18.5.2002 is liable to be interfered. 20. Opposing the present petition and supporting the impugned order dated 18.5.2002, learned counsel for the contesting opposite parties submitted that the Writ Court in the judgment of remand dated 7.8.1989, the terms of which were binding on D.D.C., specifically observed regarding order dated 16.3.1971 passed by the Consolidation Officer that suo moto interference by the D.D.C. in the order appears to be an error apparent on the face of record and after observing the same as also taking note of other facts of the case, quashed the order dated 25.9.1981, 26.9.1982 and 9.2.1983 and remanded the matter back to D.D.C. for deciding the right of the parties afresh after considering the admission, which reflects from the order dated 16.3.1971 and record of case(s) decided vide order dated 16.3.1971 and 17.3.1971 and being so the D.D.C. was under obligation to decide the matter and the D.D.C. decided the matter strictly in terms of judgment dated 7.8.1989, as such, no interference in the impugned order dated 18.5.2002 is required by this Court. 21. 21. Considered the submissions advanced by the learned counsel for the parties and perused the record. 22. A perusal of the record of the present petition particularly the order dated 15.9.1981, whereby the Consolidation Officer, Tanda Baskhari, Faizabad (Now-Ayodhya) decided three cases i.e. Case Nos. 2872, 2873 and 2874, shows that before Consolidation Officer certain documents were placed by the parties to the litigation and it further transpires therefrom that the statement(s) of Alamasuddeen, Abdul Hasan and Wahid Beg, sons of Ibrahim and Anool Haq as also the statements of Akram Beg S/o Late Shakoor Beg, were recorded and Akram, Anwar and Sarwar, sons of Shakoor Beg also filed some documents. Relevant portion of order dated 15.9.1981 on reproduction reads as under : 23. The law on the issue, dealing with the case in terms/directions of remand order, is settled by this Court as also by the Hon'ble Apex Court in various pronouncements. As per the same, the Court, to which the matter was remanded back for deciding the same a fresh with certain terms/directions, cannot deviate from the said terms/directions indicated in the the order of remand. Reference can be made to the following judgments. 24. In the case of Rama Kant v. Board of Revenue and others; 2005 SCC OnLine All 49, this Court observed as under : ''7. The order of remand dated 22.11.1979, became final between the parties an same was not challenged. Thus, it was not open to the trial Court being an inferior Court to reframe fresh issues and to record fresh findings. The only course open to the trial Court was to give finding on the two issues reframed by the first appellate Court and decide the suit accordingly as directed in the order of remand. The trial Court exceeded its jurisdiction by travelling beyond directions contained in the remand order and this vital aspect have been illegally ignored by the Court of first appeal as well as second appeal. 6. It is not open to an inferior Court or Tribunal to refuse to carry out the directions or to act contrary to directions issued by a superior Court or Tribunal. 6. It is not open to an inferior Court or Tribunal to refuse to carry out the directions or to act contrary to directions issued by a superior Court or Tribunal. Such refusal to carry out the directions or to act in defiance of the directions issued by the superior Court or Tribunal is in effect denial of justice and is destructive of the basic principle of the administration of justice based on hierarchy of Courts in our country. If a subordinate Court or Tribunal refuses to carry out the directions given to it by a superior Court or Tribunal in exercise of its appellate power, the result would be chaos in the administration of justice.'' 25. In the case of Radha Raman Samanta v. Bank of India; (2004) 1 SCC 605 , the Hon'ble Apex Court observed as under : ''12. On the earlier occasion when the matter was considered by the Division Bench, the respondent Bank did not raise any issue of alternative remedy or any question relating to non-maintainability of the writ petition. We may also notice that when such issues might and ought to have been raised but had not been done so, it must be taken that the Division Bench had rejected such contentions and the order of the Division Bench remanding the matter to the learned Single Judge was not carried in appeal and became final. Therefore, the learned Single Judge was bound to address only on one issue upon which the matter had been remanded. Thus, the Division Bench could not have overlooked these facts in the appeal arising from the order of the learned Single Judge on the second occasion after remand and need not have gone into the question as to whether the writ petition could have been entertained at all or not. Therefore, we are of the view that the High Court could not have overlooked these facts and interfered with the order of the learned Single Judge.'' 26. In the case of Paper Products Limited v. Commissioner of Central Excise, Mumbai; (1999) 7 SCC 84 , the Hon'ble Apex Court observed as under : ''10. A bare reading of para 10 makes the position clear that it only related to the particular plea and no other plea which was covered by para 8. In the case of Paper Products Limited v. Commissioner of Central Excise, Mumbai; (1999) 7 SCC 84 , the Hon'ble Apex Court observed as under : ''10. A bare reading of para 10 makes the position clear that it only related to the particular plea and no other plea which was covered by para 8. The scope of limited remand has been highlighted by this Court in Mohan Lal v. Anandibai [ (1971) 1 SCC 813 : AIR 1971 SC 2177 ]. It was observed at para 9 as follows: (SCC pp. 821-22) ''9. Lastly, counsel urged that now that the suit has been remanded to the trial Court for reconsidering the plea of res judicata, the appellant should have been given an opportunity to amend the written statement so as to include pleadings in respect of the fraudulent nature and antedating of the gift deed Exhibit P-3. These questions having been decided by the High Court could not appropriately be made the subject-matter of a fresh trial. Further, as pointed out by the High Court, any suit on such pleas is already time-barred and it would be unfair to the plaintiff-respondents to allow these pleas to be raised by amendment of the written statement at this late stage. In the order, the High Court has stated that the judgments and decrees and findings of both the lower Courts were being set aside and the case was being remanded to the trial Court for a fresh decision on merits with advertence to the remarks in the judgment of the High Court. It was argued by learned counsel that, in making this order, the High Court has set aside all findings recorded on all issues by the trial Court and the first appellate Court. This is not a correct interpretation of the order. Obviously, in directing that findings of both Courts are set aside, the High Court was referring to the points which the High Court considered and on which the High Court differed from the lower Courts. Findings on other issues, which the High Court was not called upon to consider, cannot be deemed to be set aside by this order. Obviously, in directing that findings of both Courts are set aside, the High Court was referring to the points which the High Court considered and on which the High Court differed from the lower Courts. Findings on other issues, which the High Court was not called upon to consider, cannot be deemed to be set aside by this order. Similarly, in permitting amendments, the High Court has given liberty to the present appellant to amend his written statement by setting out all the requisite particulars and details of his plea of res judicata, and has added that the trial Court may also consider his prayer for allowing any other amendments. On the face of it, those other amendments, which could be allowed, must relate to this very plea of res judicata. It cannot be interpreted as giving liberty to the appellant to raise new pleas altogether which were not raised at the initial stage. The other amendments have to be those which are consequential to the amendment in respect of the plea of res judicata.'' 27. As per remand order, the D.D.C. was under obligation to consider the admission made by the concerned namely Shakoor Beg and Idris Beg, which were considered while passing the judgment and order dated 16.3.1971 by Consolidation Officer as also the record of the case decided vide order dated 16.3.1971 i.e. Case No. 2863 and the record of the case(s) i.e. Case Nos. 2872, 2873 and 2874 decided vide order dated 17.3.1971. 28. From a perusal of the order impugned dated 18.5.2002, quoted above, it reflects that the D.D.C. after taking note of certain facts of the case based upon the order dated 16.3.1971 passed the impugned order and he has not taken note of the documents and evidence, as indicated in the order dated 15.9.1981 of which relevant portion has been quoted above and being so he failed to consider the record of the cases decided vide order dated 16.3.1971 and 17.3.1971, which were required to be considered in terms of judgment of Writ Court dated 7.8.1989. Thus, the D.D.C. committed error of law. 29. Taking note of aforesaid as also the observations made in the judgments, referred above, this Court is of the view that the interference is required in the matter. 30. Accordingly, the impugned order dated 18.5.2002 is set aside. Thus, the D.D.C. committed error of law. 29. Taking note of aforesaid as also the observations made in the judgments, referred above, this Court is of the view that the interference is required in the matter. 30. Accordingly, the impugned order dated 18.5.2002 is set aside. The matter is remanded back to Deputy Director of Consolidation concerned to decide the same afresh, strictly in terms of the judgment of the Writ Court dated 7.8.1989. The D.D.C. concerned shall decide the matter within a period of six months and for concluding the proceedings, in issue, he shall not grant any adjournment to either of the parties. The parties, who are present before this Court today, would also remain present before the D.D.C. on 9.8.2023. 31. With the aforesaid observations, writ petition is allowed.