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2023 DIGILAW 369 (ALL)

Shabbir v. Dupty Director of Consolidation

2023-02-06

DINESH PATHAK

body2023
JUDGMENT Dinesh Pathak, J. Heard learned counsel for the petitioner, learned Standing Counsel representing respondents No. 1 & 7 and learned counsel for Gaon Sabha (respondent No. 6) on admission of the writ petition and perused the record on board. 2. Petitioner has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India assailing the order dated 13.07.2021, passed by the Deputy Director of Consolidation rejecting the restoration application moved on behalf of the petitioner against the order dated 13.09.2019 passed by the Deputy Director of Consolidation in Revision No. 12/22/47/85/121 and Revisions No. 13/33/48/86/122. 3. Facts culled out from the averment made in the writ petition are that the property in question basically belongs to one Nanhe. Present petitioner is claiming his right and title over the property in question on basis of unregistered will-deed dated 28.07.1993, however, contesting respondent No. 2 (Mangata) is claiming his right and title on the basis of succession being nephew of the recorded tenure holder Nanhe. Third claim was put forward by Smt. Shakuntla (respondent No. 4) on the basis of registered sale-deed dated 15.05.1997 said to have been executed by one Lallu Singh who was alleged vendee of Nanhe. In mutation proceeding under Section 34 of U.P. Land Revenue Act (in brevity "L.R. Act"), present petitioner has got his name recorded vide order dated 21.12.1996. During consolidation operation, Smt. Shakuntala (respondent No. 4) has filed objection under Section 9-A(2) of the U.P. Consolidation of Holdings Act (in brevity "U.P.C.H. Act") for recording her name on the basis of registered sale-deed dated 15.05.1997. Objection filed by respondent No. 4 was allowed vide order dated 21.03.2003 passed by the Consolidation Officer. Having been aggrieved, petitioner has preferred appeal. Settlement Officer of Consolidation, vide order dated 01.10.2007, has allowed the appeal and quashed the order dated 21.03.2003 with a direction that name of the petitioner shall be recorded in the Revenue Record. It appears that, at subsequent stage, Mangata (respondent No. 2) has filed appeal assailing the order dated 21.03.2003 passed by the Consolidation Officer. Said appeal was dismissed by the Settlement Officer of Consolidation, vide order dated 25.02.2015, on the ground that earlier an appeal is already decided in favour of the petitioner vide order dated 01.10.2007. Having been aggrieved, respondent No. 2 has preferred two revisions assailing the order dated 01.10.2007 and 25.02.2015 respectively. Said appeal was dismissed by the Settlement Officer of Consolidation, vide order dated 25.02.2015, on the ground that earlier an appeal is already decided in favour of the petitioner vide order dated 01.10.2007. Having been aggrieved, respondent No. 2 has preferred two revisions assailing the order dated 01.10.2007 and 25.02.2015 respectively. Deputy Director of Consolidation has allowed both the revisions, vide order dated 13.09.019, remitting the matter before the Consolidation Officer to decide the case afresh after affording opportunity of hearing to the parties concerned. Having been aggrieved, petitioner has filed restoration application dated 18.09.2019 against the order dated 13.09.2019 which was dismissed by impugned order dated 13.07.2021, as such, instant petition has been filed assailing both the order passed by the Deputy Director of Consolidation. 4. Learned Counsel for the petitioner has submitted that Consolidation Authorities have no jurisdiction to quash the order passed by the Revenue Court in the proceeding under Section 34 of the L.R. Act. It is further submitted that on the face of record, order dated 13.09.2019 is an ex parte order passed in absence of the petitioner, therefore, restoration application has illegally been rejected by the Deputy Director of Consolidation. It is further submitted that unregistered will which has been executed in favour of the petitioner has not been challenged before any competent court, therefore, same can not be ignored. 5. Per contra, learned Standing Counsel has vehemently opposed the instant writ petition and has contended that the Deputy Director of Consolidation has rightly remitted the matter before the Consolidation Officer by raising serious question with respect to the genuineness of sale-deed executed in favour of Smt. Shakuntala (respondent No. 4) and unregistered will-deed said to have been bequeathed in favour of the petitioner. It is further contended that nothing has been decided finally by the Deputy Director of Consolidation and the petitioner still has full opportunity to contest the matter before the Consolidation Officer to protect his right on the basis of unregistered will-deed said to have been executed by Nanhe. It is next contended that, at this juncture, no ground is made out to interfere in the remand order passed by the Deputy Director of Consolidation, as such, instant writ petition be dismissed in limine being misconceived and devoid of merits. 6. It is next contended that, at this juncture, no ground is made out to interfere in the remand order passed by the Deputy Director of Consolidation, as such, instant writ petition be dismissed in limine being misconceived and devoid of merits. 6. Having considered the rival submissions advanced by counsel for the parties and perusal of record reveals that the property in question was initially belonged to Nanhe. Present petitioner is claiming his right and title on the basis of unregistered will-deed dated 28.07.1993 said to have been bequeathed by Nanhe. Contesting respondent No. 2 is claiming himself as successor of Nanhe being his nephew. Respondent No. 4 is claiming his right and title on the basis of registered sale-deed dated 15.05.1997 said to have been executed by Lallu Singh who was the vendee of Nanhe. So far as first point raised by learned counsel for the petitioner, questioning the jurisdiction of the consolidation court on the ground that order passed under Section 34 of the L.R. Act cannot be examined by the Consolidation Officer, is concerned, same is unfounded of the facts of the case and the law. Consolidation Officer, vide order dated 31.03.2003, has allowed the objection under Section 9-A(2) of the U.P.C.H. Act by issuing a direction to record the name of Smt. Shakuntla (respondent No. 4). Said order was reversed in the appeal filed on behalf of the petitioner. Deputy Director of Consolidation, while remitting the matter before the Consolidation Officer, has made an observation that order passed on the basis of sale-deed and the will-deed is quashed. Observation made by the Deputy Director of Consolidation did not indicate that it has been passed arising out of proceeding under Section 34 of the L.R. Act. Perusal of order dated 13.09.2019 passed by Deputy Director of Consolidation, it cannot be inferred that he was intended to quash the order passed in the mutation application under Section 34 of the L.R. Act. Deputy Director of Consolidation, prima facie, has simply discarded the claim of the petitioner on the basis of the unregistered will-deed dated 28.07.1993 and claim of the Smt. Shakuntla (respondent No. 4) on the basis of the registered sale-deed. On the basis thereof, inference cannot be drawn that mutation order was quashed. Learned counsel for the petitioner has tried to misread and misinterpret the observation made by Deputy Director of Consolidation. 7. On the basis thereof, inference cannot be drawn that mutation order was quashed. Learned counsel for the petitioner has tried to misread and misinterpret the observation made by Deputy Director of Consolidation. 7. So far as the second submission raised by the petitioner that earlier order dated 13.09.2019 has been passed ex parte is concerned, it would be apposite to consider that the Deputy Director of Consolidation has given specific finding in his order dated 13.09.2019 that despite knowledge, respondents were absent, therefore, case was decided ex parte against him. There is no case of the petitioner that no notice was issued to him or he was not served with notice in the revision. Specific finding returned by Deputy Director of Consolidation with respect to the service of notice upon him has not properly been rebutted by the petitioner in the instant writ petition. In the light of the finding returned by the Deputy Director of Consolidation, it cannot be said that the order was passed ex parte against him. 8. Even otherwise, considering the peculiar facts and circumstances of the present case, wherein, Deputy Director of Consolidation, vide order dated 13.09.2019, has questioned the genuineness of the unregistered will-deed said to have been executed in favour of petitioner as well as registered sale-deed said to have been executed in favour of respondent No. 4 by one Lallu Singh (vendee of the original tenure holder Nanhe), I am of the considered view that the Deputy Director of Consolidation has rightly remitted the matter before the Consolidation Officer to reexamine the right and title of the respective parties over the property in question. All the parties still have an opportunity to prove their will-deed, sale-deed and succession, as their respective cases, before the Consolidation Officer. Writ of Certiorary cannot be issued on the basis of technical grounds as raised by counsel for the petitioner. No justifiable ground is made out to interfere in the remand order and the rejection of the restoration application passed by Deputy Director of Consolidation. Petitioner has still an opportunity to defend his case before the Consolidation Officer on the basis of unregistered will deed dated 28.07.1993 said to have been bequeathed by the recorded tenure holder Nanhe. No justifiable ground is made out to interfere in the remand order and the rejection of the restoration application passed by Deputy Director of Consolidation. Petitioner has still an opportunity to defend his case before the Consolidation Officer on the basis of unregistered will deed dated 28.07.1993 said to have been bequeathed by the recorded tenure holder Nanhe. Nothing has been demonstrated from the record as to how petitioner is prejudiced, or is there any likelihood of causing miscarriage of justice to him, owing to the remand order passed by the Deputy Director of Consolidation. This Court did not found any illegality, perversity or ambiguity in the impugned orders dated 13.09.2019 and 13.07.2021 passed by the Deputy Director of Consolidation so as to warrant indulgence of this Court in exercise of its extraordinary jurisdiction under Section 226 of the Constitution of India. 9. As such, instant with petition, being misconceived and devoid of merits, is dismissed with no order as to the cost.