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2023 DIGILAW 1865 (ALL)

Feram Singh v. State of U. P.

2023-08-03

SAURABH SHYAM SHAMSHERY

body2023
JUDGMENT Saurabh Shyam Shamshery, J. Petitioners and respondents are real brothers and are claiming their respective shares from a sale-deed dated 02.02.1960 in regard to land in dispute situated in village- Nagla Dariyay, Mauja Salempur, Paragana Safai, District- Etawah. 2. The parties were in a cultivatory possession of their respective land. It was the case of petitioners that respondents were in possession of land in excess of their respective shares and in these circumstances, petitioners have filed an objection under Section 9 of U.P. Consolidation of Holdings Act, 1953 i.e. after about 33 years of sale-deed. The relevant part of application is mentioned hereinafter :- 3. The Consolidation Officer has considered the above referred objections and vide order dated 27.08.1994 rejected the objections mainly on the ground that petitioners were failed to explain the extra-ordinary delay of more than 30 years by any reasonable ground. 4. The petitioners being aggrieved filed an appeal before the Settlement Officer, Consolidation, Etawah and the same was rejected vide an order dated 29.12.1995 on the ground that appeal was not maintainable against the order where objections were rejected only on ground of delay. 5. The petitioners further being aggrieved, have filed a revision petition before Deputy Director of Consolidation, Etawah, however, the same was also dismissed by impugned order dated 19.04.2023 mainly on the ground of being not maintainable since the order impugned was only in regard to rejection of application on ground of delay, however, there was rejection on merit also i.e. belated proceedings were barred under Section 11A and Section 49 of U.P. Consolidation of Holdings Act, 1953. 6. Sri Sarvesh Kumar Pandey, learned counsel for petitioners submits that they belong to rural background, therefore, they have no knowledge that at their back the respondents have committed a fraud and got entries recorded for land being more than their respective shares and when they came to know about such fraud, they approached the Consolidation Officer by way of filing an objection under Section 9A (2) of U.P. Consolidation of Holdings Act, 1953, after more than three decade. 7. Learned counsel further submits that appeal as well as revision was dismissed on the ground being not maintainable against the order whereby belated objections were rejected on ground of delay only. The petitioners' case were not considered on merit that it was a case of fraud committed by the respondents. 8. 7. Learned counsel further submits that appeal as well as revision was dismissed on the ground being not maintainable against the order whereby belated objections were rejected on ground of delay only. The petitioners' case were not considered on merit that it was a case of fraud committed by the respondents. 8. The petitioners in order to give support to above submissions has placed reliance on a judgment passed by co-ordinate Bench of this Court in Shankar and another v. Deputy Director of Consolidation and 8 others, 2013 LawSuit(All) 2469 and Om Prakash v. Deputy Director of Consolidation and 2 others, 2014 LawSuit(All) 651 that while considering the application for condonation of delay, approach of the Court or Authority should be lenient. Judgments passed by Supreme Court in the case of Collector (LA) v. Katiji, (1987) 2 SCC 107 and B. Madhuri Goud v. B. Damodar Reddy, (2012) 12 SCC 693 , were also referred in support of his contentions, as well as that closure of consolidation proceedings by notification under Section 52 of the Act does not effect right, privilege, obligation or liability incurred during consolidation. 9. Per Contra, Sri Prabal Kumar Dixit, learned counsel appearing on behalf of respondent Nos. 5 and 6 submits that they are in possession of their respective lands in accordance of their share i.e. 1/4 and it was always in knowledge of petitioners that all the parties are in cultivatory possession of their respective lands and, therefore, petitioners are estopped from raising any objection at belated stage i.e. after 30 years, without any explanation for such huge delay. 10. Learned counsel further submits that application filed by petitioners was barred under the provision of Section 11 of U.P. Consolidation of Holdings Act, 1953. 11. Sri Ashutosh Kumar Rai, learned Additional C.S.C. for State has referred Section 11 and Section 49 and submitted that proceedings initiated by petitioners after a period of 30 years on face of it are belated and they are unable to provide any reasonable explanation for the same. 12. Heard counsel for the parties and perused the record. 13. In the above background of facts, rival submissions and records, it is not under dispute that both parties are claiming their respective shares on basis of sale-deed issued in the year 1960 and they are in cultivatory possession of their respective shares. 12. Heard counsel for the parties and perused the record. 13. In the above background of facts, rival submissions and records, it is not under dispute that both parties are claiming their respective shares on basis of sale-deed issued in the year 1960 and they are in cultivatory possession of their respective shares. It is also not under dispute that for about 30 years, petitioners have never challenged or made any objection even in case that the respondents have tried to take land in excess to their respective shares. 14. The petitioners have filed an objection under Section 9A (2) of U.P. Consolidation of Holdings Act, 1953, after about 30 years and, therefore, in order to make out a good case to condone the extra-ordinary delay, they have to explain the reasons for such huge delay, however, as referred above, in paragraph of the application/objection, it is petitioners' case that suddenly one day they have got examined their papers by someone and then only they came to know that respondents have allegedly in possession of land in excess of their respective share and instead of 1/4 share they have got recorded their share to be 1/2. 15. Section 11A and Section 49 of Act of 1953, which would be relevant for the purpose of consideration of this case are mentioned hereinafter:- "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. 49. Bar to civil Courts jurisdiction. 49. Bar to civil Courts jurisdiction. - Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of right of tenure-holder in respect of land lying in an area, for which a notification has been issued under sub-section (2) of Section 4 or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no Civil or Revenue Court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act : Provided that nothing in this section shall preclude the Assistant Collector from initiating proceedings under Section 122B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 in respect of any land, possession over which has been delivered or deemed to be delivered to a Gaon Sabha under or in accordance with the provisions of this Act." 16. Section 11A as referred above puts a bar on raising objections or to consider the same at any subsequent stage of consolidation proceedings, if it were not taken or raised when an objection under Section 9 was filed, or which might or ought to have been raised at that point of time. 17. In the present case, petitioners have not raised any objections for about 30 years. Section 49 provides that in a case no objection was raised during the first consolidation proceedings there will be a bar to raise the same in subsequent consolidation proceedings. The Section also provides for bar to Civil Court jurisdiction. The Supreme Court in the case of Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and Others, (2013) 12 SCC 649 has dealt with the issue of approach of Court while considering the application for condonation of delay and it was held that it should be liberal and not pedantic, however, a caveat has also been mentioned that in case of extra-ordinary delay, as the case in hand the doctrine of prejudice would be attracted, which warrants a strict approach, instead of liberal approach, and for reference paragraph No.21 of Esha Bhattacharjee(supra) is reproduced hereinafter:- "21. From the aforesaid authorities the principles that can broadly be culled out are: 21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. 21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. 21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. 21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11. 21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude." (Emphasis Supplied) 18. Learned counsel for petitioners have vehemently pressed upon the argument of fraud that respondents have got entered their share in excess provided in sale-deeds, however, for that petitioners ought to have been more careful to disclose in the application but instead they relied upon a very vague assertion without any substantive averment being made in this regard and even no document was referred in the said application. The element of fraud has to be asserted on substantive basis, however, the same is absent in the pleadings before authorities as well as in present writ petition. 19. The facts of Om Prakash(supra) are distinguishable to the extent that the Court was dealing to set aside an order passed under Section 9A on the ground being ex-parte and later point of time the parties therein have tried to take possession on the basis of said order and thereafter they approached to file an appeal with condonation of delay application, therefore, there was a specific assertion in regard to knowledge, however, as referred above there is nothing in this regard in the case at hand, since it has been referred therein that when one day when they examined their revenue papers then only they came to know about alleged fraud. This will not be a substantial reason to believe that they for the first time came into knowledge about alleged fraud after a period of 30 years. 20. This will not be a substantial reason to believe that they for the first time came into knowledge about alleged fraud after a period of 30 years. 20. In these circumstances, the reasons for sufficient cause could not be construed in liberal sense as the petitioners are on default for not raising the objection within a reasonable time as well as failed to provide any substantial and reasonable reason to condone the delay of about 30 years. 21. In these circumstances, I do not find any error in impugned orders. Accordingly, this writ petition is dismissed.