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2024 DIGILAW 1077 (ALL)

Ram Singh v. D. D. C.

2024-04-18

CHANDRA KUMAR RAI

body2024
JUDGMENT : Chandra Kumar Rai, J. 1. Heard Mr. Bhola Nath Yadav, learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Mr. V.P. Singh Kushwaha, learned counsel for the substituted contesting respondent no.3. 2. Brief facts of the case are that the dispute relates to khata No.119 situated in village-Gongaband, Pargana-Kheragarh, District-Agra. One Mst. Phoola who was recorded tenure holder of the plot in question had executed a registered sale deed in favour of petitioner and respondent no.3 on 1.8.1966. On the basis of aforementioned sale deed dated 1.8.1966 petitioner and respondent no.3 came in possession over the same as well as both of them were recorded in the mutation proceeding initiated by them on the basis of registered sale deed dated 1.8.1966. In the basic year of consolidation operation, petitioner and respondent no.3 were recorded over the plot in question. Against the basic year entry of the plot in question, petitioner filed an objection under Section 9 A (2) of U.P. Consolidation of Holdings Act (hereinafter referred to as "U.P.C.H. Act") for partition of his 1/2 share. Respondent no.3 claimed 3/4 share in the plot in dispute. The objection under Section 9A (2) of U.P.C.H. Act was registered before the Consolidation Officer as Case No.809-810/ 428. Consolidation Officer framed issues in the aforementioned title objection about the share of the parties in the disputed plot. The parties adduced oral and documentary evidences in support of their case. Consolidation Officer after considering the oral and documentary evidence adduced by the parties decided the objection under Section 9A (2) of U.P.C.H. Act Act vide order dated 12.6.1984 holding that the petitioner and respondent no.3 shall be entitled to 1/2 share each and khata No.119 shall be partitioned between petitioner and respondent no.3 accordingly. Against the order of the Consolidation Officer dated 12.6.1984, appeal under Section 11 (1) of U.P.C.H. Act was filed by respondent no.3, which was registered as Appeal No.293 of 1984. Settlement Officer of Consolidation heard the parties and vide order dated 27.9.1984 allowed the appeal and held that the petitioner will be entitled to 1/4 share and respondent no.3 shall be entitled to 3/4 share. The petitioner challenged the appellate order dated 27.9.1984 by way of revision under Section 48 (1) of U.P.C.H. Act before the Deputy Direction of Consolidation, Agra which was registered as Revision No.50. The petitioner challenged the appellate order dated 27.9.1984 by way of revision under Section 48 (1) of U.P.C.H. Act before the Deputy Direction of Consolidation, Agra which was registered as Revision No.50. Deputy Director of Consolidation after hearing the parties dismissed the revision vide order dated 1.11.1985, hence this writ petition on behalf of the petitioner challenging the revisional order dated 1.11.1985 and appellate order dated 27.9.1984. 3. This Court vide order dated 6.2.1986 admitted the writ petition and granted interim order staying the dispossession of the petitioner from his existing chaks. This Court vide subsequent order dated 11.5.1987 modified the interim order dated 6.2.1986 to the extent that parties to the writ petition shall maintain status quo with regard to their possession over the land in dispute. 4. Learned counsel for the petitioner submitted that the objection under Section 9 A (2) of U.P. Consolidation of Holdings Act, 1953 filed by the petitioner for partition of 1/2 share was allowed by the Consolidation Officer on the basis of evidence on record giving 1/2 share each to the petitioner as well as contesting respondent no.3. He further submitted that in the sale deed executed by Phoola in favour of petitioner as well as respondent no.3 on 1.8.1966, the share has not been defined, as such, both parties will be entitled to 1/2 share each. He next submitted that the Consolidation Officer has recorded finding of fact that both parties will be entitled to 1/2 share in the plot in dispute. He next submitted that the evidence relied upon by the contesting respondent no.3 in the proceeding under Section 176 of U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as "U.P.Z.A. & L.R. Act") has been taken into consideration and it has been found that the proceeding of that suit has been abated, as such, the order passed by the trial Court in the proceeding under Section 176 of U.P.Z.A. & L.R. Act cannot be relied upon. He further submitted that the Settlement Officer of Consolidation has illegally set aside the order passed by the Consolidation Officer without reversing the finding of fact in accordance with law. He next submitted that the revision filed by the petitioner has been dismissed in arbitrary manner. He further submitted that the Settlement Officer of Consolidation has illegally set aside the order passed by the Consolidation Officer without reversing the finding of fact in accordance with law. He next submitted that the revision filed by the petitioner has been dismissed in arbitrary manner. He further placed reliance upon the judgment of this Court reported in (2020) 5 ADJ 278 , Smt. Rama Dei vs. Joint Director of Consolidation and Others in order to demonstrate that the judgment passed in the suit which has been abated cannot be relied upon. He further submitted that the impugned revisional order and appellate order be set aside and order of Consolidation officer be affirmed. 5. On the other hand, V.P. Singh Kushwaha, learned counsel for the substituted contesting respondent no.3 submitted that respondent no.3 has paid 3/4th amount of the sale consideration, as such, the claim of respondent no.3 for 3/4 share was rightly accepted by the Settlement Officer of Consolidation in appeal on the basis of oral evidence adduced by the witnesses appeared in the proceeding. He further submitted that in the suit under Section 176 of U.P.Z.A. & L.R. Act trial Court has held that respondent no.3 shall be entitled to 3/4 share in the plot in dispute, as such, Settlement Officer of Consolidation has rightly allowed the appeal filed by respondent no.3 and rejected the claim of petitioner for 1/2 share. He next submitted that the revision filed by the petitioner has been rightly dismissed, as such, no interference is required in the matter. 6. I have considered the argument advanced by learned counsel for the parties and perused the records. 7. There is no dispute about the fact that the plot in dispute was recorded in the basic year in the name of petitioner or respondent no.3. There is also no dispute about the fact that the objection under Section 9 A (2) of U.P.C.H. Act was filed by the petitioner for partition of 1/2 share in the plot in question and respondent no.3 has claimed 3/4 share in the plot in question. There is also no dispute about the fact that the objection under Section 9 A (2) of U.P.C.H. Act was filed by the petitioner for partition of 1/2 share in the plot in question and respondent no.3 has claimed 3/4 share in the plot in question. There is also no dispute about the fact that the Consolidation Officer has allowed the claim of the petitioner for partition of 1/2 share but Settlement Officer of Consolidation has held that the petitioner will be entitled to 1/4 share and respondent no.3 shall be entitled to 3/4 share, which has been maintained in revision. 8. The crux of the matter is that the plot in question was purchased by the petitioner and respondent no.3 by way of common sale deed dated 1.8.1966 in which the share has not been defined, as such, what will be the share of petitioner and respondent no.3. 9. The Consolidation Officer has taken into consideration the entire oral and documentary evidence including sale deed in question and has found that the petitioner and respondent no.3 shall be entitled to 1/2 share each as the share has not been defined in the sale deed. The relevant portion of the judgment of Consolidation Officer dated 12.6.1984 is as under: 10. The perusal of finding of fact recorded by Consolidation Officer as quoted above fully demonstrates that there is proper exercise of jurisdiction by Consolidation Officer in holding that petitioner and respondent no.3 shall be entitled to 1/2 share each in the Khata in dispute but appellate Court as well as revisional Court have illegally held on misconceived ground that petitioner shall be entitled to 1/4 share & respondent no.3 shall be entitled to 3/4 share, which is not proper exercise of appellate & revisional jurisdiction. 11. So far as the judgment / order passed in the suit under Section 176 of U.P.Z.A. & L.R. Act is concerned for allotting 3/4 share in favour of respondent no.3, the same cannot be relied upon as the proceeding of alleged partition suit has been ultimately abated due to consolidation operation in the village in question. 11. So far as the judgment / order passed in the suit under Section 176 of U.P.Z.A. & L.R. Act is concerned for allotting 3/4 share in favour of respondent no.3, the same cannot be relied upon as the proceeding of alleged partition suit has been ultimately abated due to consolidation operation in the village in question. Settlement Officer of Consolidation and Deputy Director of Consolidation has placed much reliance upon the judgment passed in the partition suit, which has been ultimately abated in the consolidation operation, as such, impugned judgment passed by Settlement Officer of Consolidation and Deputy Director of Consolidation cannot be sustained in the eye of law. 12. On the point of abatement of the suit due to consolidation operation, this Court in the case of Smt. Rama Dei (supra) has held as under in paragraph no.51 of the judgment: "51. A perusal of these findings by the Appellate and the Revisional Authorities show that these Authorities have considered for relevant evidence, the decision of the Mutation Authorities inter partes as also the judgments in the declaratory suit. The proceedings of the suit never reached terminus ad quem. So far as the decisions of the Mutation Authorities are concerned, it is settled beyond cavil that those findings are in no way relevant in title proceedings. Mutation proceedings are summary proceedings to identify the person to be recorded, primarily for fiscal purposes. The proceedings in hand arise out of objections under Section 9-A (2) of the Act, which to all intents and purposes, are title proceedings. Thus, there is absolutely no justification for the Authorities below to have considered the findings of the Mutation Authorities as relevant evidence in title proceedings." 13. Considering the entire facts and circumstances as well as ratio of law laid down by this Court in Smt. Smt. Rama Dei (supra), the impugned judgment dated 1.11.1985 passed by respondent no.1/ Deputy Director of Consolidation, Agra and order dated 27.9.1984 passed by respondent no.2/ Settlement Officer of Consolidation, Agra are liable to be set aside and the same are hereby set aside. 14. The writ petition stands allowed and the order passed by the Consolidation Officer dated 12.6.1984 is hereby affirmed. 15. No order as to cost.