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2023 DIGILAW 914 (ALL)

Suman Kumar Pandey v. State of U. P.

2023-04-05

CHANDRA KUMAR RAI

body2023
JUDGMENT : CHANDRA KUMAR RAI, J. 1. Heard Sri Shashi Ranjan Srivastava, learned counsel for the petitioners and Sri Ayush Mittal, learned counsel for the respondent nos. 8 and 17. 2. The brief facts of the case are that one Smt. Pyari Devi had executed a registered agreement on 10.06.1960 in favour of Bechan Pandey in respect of the plot no. 180, 181 and 182 situated in Village Sarvanpur Pargana Kaswar Sarkari, Tehsil and District Varanasi (new plot no. 320/182, 322/180 and 323/181). The aforementioned agreement had been entered on 28.10.1960 and Smt. Pyari Devi had died in the year 1964. Respondents No. 4, 5 and 6 have filed a case and challenged the entry of Ram Nath before the Sub-Divisional Magistrate but the case had been dismissed on 23.06.1971 by the Sub-Divisional Magistrate. Consolidation operation intervened in the village in question in the year 1977-78 by way of notification under Section 4 of U.P.C.H. Act. In the basic year of the consolidation operation respondents no. 4, 5 and 6 were recorded in respect to the plot in question. Against the basic year entry objection under Section 9(A)(2) of the U.P.C.H. Act had been filed by Bechan, Sahu, Sanktha and Vindhyawasini. Consolidation Officer allowed the objection vide order dated 03.03.1992. On the basis of order of Consolidation Officer dated 03.03.1992 petitioner’s ancestors had been recorded in the revenue records and they have established the educational institution in the year 1992 namely Atal Bihari Bajpayee Inter College which is functioning till date. Respondents no. 4, 5 and 6 had filed an appeal before the Settlement Officer Consolidation after more than 7 years under Section 11 of the U.P.C.H Act. Settlement Officer Consolidation vide order dated 25.06.2002 allowed the appeal and set aside the order of Consolidation Officer dated 03.03.1992 and maintained the basic year entry of the plot in dispute. Husband of respondent no. 7 namely Chhavi Nath and husband of respondent no. 17 namely Lallu have purchased aforesaid disputed plot no. 180, 181 and 182 (new plot no. 320/182, 322/180 and 323/181) from respondent nos. 4, 5 and 6 in the year 2013 in fraudulent manner. Raj Kapoor, husband of Shashi and others alongwith petitioner have filed a suit for cancellation of sale deed before the Civil Court. 17 namely Lallu have purchased aforesaid disputed plot no. 180, 181 and 182 (new plot no. 320/182, 322/180 and 323/181) from respondent nos. 4, 5 and 6 in the year 2013 in fraudulent manner. Raj Kapoor, husband of Shashi and others alongwith petitioner have filed a suit for cancellation of sale deed before the Civil Court. Raj Kapoor, husband of Shashi and others alongwith petitioner have also filed a revision under Section 48 of the U.P.C.H. Act on 29.11.2013 against the order of Settlement Officer Consolidation dated 25.06.2002. During pendency of the revision before the revisional court Raj Kapoor and Shashi have entered into compromise, accordingly, they withdraw the case on 03.02.2017. Deputy Director Consolidation on 25.01.2018 allowed the revision, set aside the appellate order dated 25.06.2002 and remanded the matter before the Settlement Officer Consolidation with the direction that appeal be decided afresh after impleading Gaon Sabha and affording the opportunity of hearing to all the parties as well as to lead evidence. On 01.02.2018/16.02.2018 a substitution application was filed by Parvati , Sudama and Shashi with the prayer that they may be treated as appellant in appeal in place of Vipin Bihari and others on the basis of sale deed executed in favour of Sudama and others. After filing of the aforementioned substitution application a collusive compromise has been filed in the aforementioned proceedings. On 24.07.2018 petitioners have filed objection against the substitution application dated 16.02.2018 filed on behalf of Parvati, Sudama and Shashi in the appeal. On 03.05.2018 Settlement Officer Consolidation has rejected the substitution application of Parvati, Sudama and Shashi. On 06.06.2019, Parvati, Sudama and Shashi have filed another application with the prayer that in the earlier substitution application in place of word substitution word party to the proceeding be amended. On 06.11.2019 Settlement Officer Consolidation, Varanasi allowed the application dated 6.6.2019 and ordered that Parvati, Sudama and Shashi be substituted/impleaded as appellant. Against the order dated 06.11.2019 passed by Settlement Officer Consolidation petitioners have filed revision under Section 48 of the U.P.C.H. Act which was registered as revision no. 912/2019 before Deputy Director Consolidation. Deputy Director Consolidation vide order dated 10.01.2023 dismissed the petitioners revision. Hence, this writ petition. 3. Against the order dated 06.11.2019 passed by Settlement Officer Consolidation petitioners have filed revision under Section 48 of the U.P.C.H. Act which was registered as revision no. 912/2019 before Deputy Director Consolidation. Deputy Director Consolidation vide order dated 10.01.2023 dismissed the petitioners revision. Hence, this writ petition. 3. Counsel for the petitioners submitted that the Deputy Director Consolidation, Varanasi has allowed the revision filed under Section 48 of U.P.C.H. Act setting aside the order of Settlement Officer Consolidation dated 25.06.2002 and remanded the matter before Settlement Officer Consolidation to decide the appeal afresh, as such there was no question of substitution of the appellant on the basis of sale deed alleged to be executed by the appellants in favour of person who are seeking substitution/impleadment. He further submitted that on 01.02.2018/16.02.2018 substitution application filed on behalf of Parvati, Sudama and Shashi for their substitution in place of appellant on the basis of sale deed executed by appellant in favour of Parvati, Sudama and Shashi, was rejected by the Settlement Officer Consolidation. He further submitted that Parvati, Sudama and Shashi have filed another application on 06.06.2019 to amend the earlier application dated 16.02.2019 to the effect that in place of substitution word impleadment to the proceeding be mentioned and the Settlement Officer Consolidation without applying the mind has allowed the application, as such the order allowing the second application dated 06.06.2019 is liable to be set aside. He further submitted that appellant of the appeal have not died during pendency of the proceeding as such there was no question of any substitution or impleadment during pendency of the proceeding specially when the matter has been remanded by the higher court to decide the appeal afresh after impleadment of Gaon Sabha. Learned counsel for the petitioner has placed reliance upon the judgment of this Court reported in Bhoodev Singh and Others vs. U.P. State Electricity Board and Others, 2007 (25) LCD 112 in order to demonstrate that when the matter has been remanded by the higher court to the subordinate court for fresh decision of the matter in accordance with law then only the parties who had been before the higher court can be heard and none else. 4. On the other hand, learned counsel for the contesting respondent nos. 4. On the other hand, learned counsel for the contesting respondent nos. 8 and 17 submitted that impugned order allowing the application is interlocutory order as such the revision filed by the petitioners has been rightly dismissed as not maintainable. He further submitted that in view of the provisions contained under Section 48 of U.P.C.H. Act revision under Section 48 of U.P.C.H. Act is not maintainable. He further submitted that no prejudice will be caused to the petitioners by allowing the application of the vendees of the sale deed in the appeal. He further submitted that appeal is pending before the Settlement Officer Consolidation in pursuance of the revisional order as such the petitioners should appear in the appeal for decision of the same in accordance with law. He further placed reliance upon the judgment reported in Abdul Raqeeb vs. Board of Revenue U.P. at Allahabad and Others, 2018 (138) RD 273 . 5. I have considered the arguments advanced by the learned counsel for the parties and perused the record. 6. There is no dispute about the fact that appeal under Section 11(1) of the U.P.C.H. Act is pending before the Settlement Officer Consolidation. There is also no dispute about the fact that during pendency of the appeal initially a substitution application has been filed on behalf of Parvati, Sudama and Shashi on 01.02.2018/16.02.2018 that they may be substituted as appellant in place of impleaded appellants Vipin Bihari and others on the basis of sale deed executed in their favour by the impleaded appellant. There is also no dispute about the fact that Settlement Officer Consolidation vide order dated 13.05.2019 has rejected the substitution application of Parvati, Sudama and Shashi. There is also no dispute about the fact that Parvati, Sudama and Shashi have filed another application dated 06.06.2019 for amending the earlier prayer accordingly, Settlement Officer Consolidation has allowed the subsequent application dated 06.06.2019. There is also no dispute about the fact that revision filed by the petitioners against the order allowing the application dated 06.06.2019 has been dismissed. 7. Since the provisions of Civil Procedure Code is not applicable in U.P.C.H. Act as such the provisions of Order 22 of Civil Procedure Code is not applicable but the principle of substitution/impleadment are applicable in the consolidation proceedings so that the parties may be substituted/impleaded in the proceeding for proper compliance of principle of natural justice. 8. 7. Since the provisions of Civil Procedure Code is not applicable in U.P.C.H. Act as such the provisions of Order 22 of Civil Procedure Code is not applicable but the principle of substitution/impleadment are applicable in the consolidation proceedings so that the parties may be substituted/impleaded in the proceeding for proper compliance of principle of natural justice. 8. This court in the case reported in Bansi vs. Deputy Director of Consolidation and Others, 1967 RD 154 has considered the scope of substitution/impleadment in the consolidation proceedings. The relevant paragraph of the judgment rendered in Bansi (supra) is as under: “I have heard the learned counsel for the parties. The contention raised before me by the learned counsel for the petitioner is that the provisions of the Code of Civil Procedure do not apply to proceedings before the Consolidation authorities and as such there was no occasion for the Deputy Director to treat the revision as abated. It is also urged that at any rate when the petitioner applied before the Deputy Director for opposite party No. 5 being brought on record along with opposite party No. 4 as heirs of Srimati Dulara there was no occasion for the Deputy Director to reject the application on the ground of delay since the provisions of the Limitation Act do not apply to the proceedings before the consolidation authorities. In my view the contentions raised by the learned counsel are not without substance. I see no substance in the contention raised by the learned counsel for the contesting opposite parties that by virtue of Section 141 of the Code of Civil Procedure the provisions contained in order 22 of the Code would apply to the proceedings before the consolidation authorities. Section 141 of the Code of Civil Procedure provides that the procedure provided in the Code in regard to the suits shall be followed as far as possible in all proceedings in any Court of civil jurisdiction. It shall thus be seen that Section 141 can be invoked for the applicability of the procedure provided in the Code only in relation to proceedings in a Court of civil jurisdiction. The consolidation authorities cannot be termed as courts of civil jurisdiction. That being so, Section 141 cannot be invoked for applying the procedure laid down in the Code of Civil Procedure to the proceedings before the consolidation authorities. The consolidation authorities cannot be termed as courts of civil jurisdiction. That being so, Section 141 cannot be invoked for applying the procedure laid down in the Code of Civil Procedure to the proceedings before the consolidation authorities. The U.P. Consolidation of Holdings Act provides period of limitation for different kinds of proceedings envisaged by it. By virtue of Section 53-B only Section 5 of the Limitation Act is made applicable to the proceedings before the consolidation authorities. It is thus obvious that (Limitation Act does not apply to the proceedings before the consolidation authorities even though certain provisions thereof by virtue of Section 29 of the Limitation Act may be applicable to proceedings before the consolidation authorities. In that view of the matter it appears that the Deputy Director committed a legal error manifest on the record in rejecting the application moved by the petitioner for bringing opposite party No. 5 on the record as one of the heirs of Srimati Dulara merely on the ground that the application was made after some delay and in ordering that the revision before him stood abated. I, therefore, conclude that the impugned order cannot be sustained. In the end the petition is allowed with costs and the impugned order dated November 30, 1965 passed by the Deputy Director is quashed with the direction that he shall proceed to dispose of the revision on merits after allowing the petitioner's application for brigning on record both daughters of Srimati Dulara in place of the deceased respondent Srimati Dulara.” 9. This court in the case reported in Ram Swaroop vs. D.D.C. Unnao Kushambi and Others, 2015 (129) RD 393 has considered the scope of impleadment in the consolidation proceeding on the basis of sale deed and has found the impleadment on the basis of sale-deed just and equitable. Paragraph Nos. 7, 12 and 13 of the judgment rendered in Ram Swaroop (supra) are relevant which are as under: “7. Section 52 of Transfer of Property Act, 1882 safeguard the right of the litigant from pendete lite transfer. The Court is empowered to have the control over the subject-matter of the suit so that decree obtained by successful party may not be defeated by pendente lite transfer. However it does not impose a complete prohibition of the transfer of subject-matter of the suit as the Court is given jurisdiction to grant leave to transfer. The Court is empowered to have the control over the subject-matter of the suit so that decree obtained by successful party may not be defeated by pendente lite transfer. However it does not impose a complete prohibition of the transfer of subject-matter of the suit as the Court is given jurisdiction to grant leave to transfer. The issue in this respect came for consideration before a bench of three Hon'ble Judges of Supreme Court Jayaram Mudaliar vs. Ayyaswami, in which it has been held that expositions of the doctrine of is pendence indicate that the heed for it arises from the very nature of the jurisdiction of Courts and their control over the subject-matter of litigation so that parties litigating before it may not remove any part of the subject-matter outside the power of the Court to deal with it and thus make the proceedings infructuous. The purpose of section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward. Supreme Court again in Hardev Singh vs. Gurmail Singh, held that section. 52 of the Transfer of Property Act, 1882 merely prohibits a transfer. It does not state that the same would result in an illegality. Only effect of this provision is the purchaser during the pendency of a suit would be bound by the result of the litigation. The transaction, therefore, was not rendered void and/or of no effect. Same view has been taken in T.G. Ashok Kumar vs. Govind Ammal and Thomson Press (India) Ltd. vs. Nanak Builders and Investors (P) Ltd. 12. Only effect of this provision is the purchaser during the pendency of a suit would be bound by the result of the litigation. The transaction, therefore, was not rendered void and/or of no effect. Same view has been taken in T.G. Ashok Kumar vs. Govind Ammal and Thomson Press (India) Ltd. vs. Nanak Builders and Investors (P) Ltd. 12. Thus in view of judgment of Supreme Court in ayaram Mudaliar's case (supra) that purpose of section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward and such a transfer is not void and in Saila Bala Dassi's case (supra) holding that the object of section 146 is to facilitate the exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. 13. In view of the aforesaid discussions, the orders of consolidation authorities allowing impleadment application of respondent-5, do not suffer from any illegality. The writ petition has no merit and is dismissed.” 10. In view of ratio of law laid down in Ram Swaroop (supra) the impugned order passed by consolidation authorities are in accordance with law. 11. It is also material that under the impugned order Parvati, Sudama and Shashi have been impleaded in the appeal on the basis of application filed by them which will not prejudice the interest of the petitioners in any manner rather the same will be also helpful to the petitioners that proper decision/order will come in presence of the persons who are alleging that they are vendees of the original appellant of appeal. 12. The case law cited by learned counsel for the petitioner will not be applicable in the facts and circumstances of the present case as well as in view of law laid down by this court in Ram Swaroop (supra). 13. Considering the ratio of law laid down by this Court in Ram Swaroop (supra), no interference is required against the impugned orders. 14. The writ petition has no merit and the same is accordingly dismissed.