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2024 DIGILAW 1155 (ALL)

Khatun Begum v. State of U. P.

2024-04-29

CHANDRA KUMAR RAI

body2024
JUDGMENT Chandra Kumar Rai, J. Heard Mr. Udai Karan Saxena, learned Senior Counsel assisted by Mr. Ashok Kumar Singh Bais, learned Counsel for the petitioner, Mr. Manu Khare, learned counsel for respondent Nos.3 &4 and Mr. Jitendra Narain Rai, learned Additional Chief Standing Counsel for the State-respondents. 2. Brief facts of the case are that dispute relates to khasara No.121 area 0-5-13 situated at village-Shekhpura Kadeem, Pargana and Tehsil-Sadar, District-Saharanpur. A registered sale deed was executed by Arun Kumar (father of respondent No.3 and husband of respondent No.4) on 15.03.1982 in favour of Sumitra Devi wife of Dharampal Jain. After death of Sumitra Devi, Dharampal Jain inherited the plot in dispute. Dharampal Jain had executed a registered sale deed on 11.02.1987 in favour of Surendra Pal Singh in respect to plot in question. Surendra Pal Singh accordingly executed a registered Sale deed on 15.01.2000 in favour of petitioner. Consolidation operation intervened in the village in question in 1978. In the proceeding under Section 12 of U.P.Consolidation of Holdings Act 1953 (herein after referred to as U.P.C.H. Act) which was registered as Case No.224. An order dated 30.03.1998 was passed for recording the name of Surendra Pal Singh, after expunging the name of Arun Kumar on the basis of Sale deed executed on 15.03.1982/11.02.1987. In another proceeding under Section 12 of U.P.C.H. Act, an order dated 16.02.2000 was passed for recording the name of petitioner on the basis of sale deed dated 15.01.2000 after expunging the name of vendor Surendra Pal Singh. Respondents Nos.3 and 4 filed two appeals under section 11 (1) of U.P.C.H. Act against the order dated 30.03.1998 and 16.02.2000 which were registered as Appeal Nos.69/126 and 70/127. The aforementioned appeals were consolidated and heard together by Settlement Officer of Consolidation. The aforementioned appeals were dismissed vide order dated 27.08.2001. Respondent Nos. 3 and 4 filed two revisions under Section 48 of U.P. C.H. Act which were registered as Case No.0168/2021 and 0169/2021 before Deputy Director of Consolidation. The aforementioned appeals were consolidated and heard together by Settlement Officer of Consolidation. The aforementioned appeals were dismissed vide order dated 27.08.2001. Respondent Nos. 3 and 4 filed two revisions under Section 48 of U.P. C.H. Act which were registered as Case No.0168/2021 and 0169/2021 before Deputy Director of Consolidation. The aforementioned revisions have been allowed vide order dated 23.08.2023 setting aside the orders dated 30.03.1998, 16.02.2000, 27.08.2001 and matter has been sent back before Consolidation Officer to decide the proceeding under Section 12 of U.P.C.H. Act afresh hence this writ petition on behalf of the petitioner for the following reliefs.: "(1) Issue a writ order or direction in the nature of certiorari quashing the impugned judgment and order dated 23.08.2023 passed by the respondent No.2 in Revision No.202153090000168/ 2021 and Revision No.2021530960000169 Section 48 (1) of U. P. C. H. Act (Annexure No.1 to the writ petition) (2) Issue a writ order or direction in the nature of mandamus directing the respondent snot to give the effect to the impugned judgment and order dated 23.08.2023 passed by the respondent No.2 in Revision No.202153090000168/ 2021 and Revision No.2021530960000169 Section 48 (1) of U. P. C. H. Act (Annexure No.1to the Writ Petition) during the pendency of the present writ petition so that justice may be done." 3. A Civil Suit No.295 of 1998 filed by Arun Kumar for cancellation of sale deed is stated to be decided vide order dated 12.11.2002 on the ground that civil court has no jurisdiction and no fresh suit for cancellation of sale deed in question has been filed by anybody. 4. Learned Senior Counsel for the petitioner submitted that proceeding under Section 12 of Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as U.P.C.H. Act,) was rightly decided on 30.03.1998 and 16.02.2000 by the Consolidation Officer for recording the name of Surendra Pal Singh as well as petitioner on the basis of sale deed executed on 15.02.1982, 11.02.1987 and 15.01.2000. He further submitted that two appeals Under Section 11 (1) of U.P.C.H. Act were filed on 17.02.2020 by respondent Nos.3 and 4 (Son and widow of Arun Kumar) against the order dated 30.03.1998 and 16.02.2000 along with prayer for condonation of delay which were consolidated, heard and dismissed by Settlement Officer Consolidation vide order dated 27.08.2021. He further submitted that two appeals Under Section 11 (1) of U.P.C.H. Act were filed on 17.02.2020 by respondent Nos.3 and 4 (Son and widow of Arun Kumar) against the order dated 30.03.1998 and 16.02.2000 along with prayer for condonation of delay which were consolidated, heard and dismissed by Settlement Officer Consolidation vide order dated 27.08.2021. He submitted that in revision, Deputy Director of Consolidation has exceeded his jurisdiction in setting aside the orders dated 30.03.1998,16.02.2000 passed under Section 12 of of U.P.C.H. Act as well as Settlement Officer Consolidation dated 27.08.2021 passed under Section 11 (1) of U.P.C.H. Act without considering the case of the petitioner in accordance with law. He submitted that appeal filed by respondent Nos.3 and 4 was dismissed recording finding of fact that appeal filed by respondent Nos.3 and 4 are not maintainable but Deputy Director of Consolidation without reversing the finding of fact in accordance with law has allowed the revision and sent the matter back before Consolidation Officer for fresh decision of the proceeding under Section 12 of U.P.C.H.Act He further submitted that respondent Nos. 3 and 4 have no locus to file appeal under Section 11 (1) of U.P.C.H. Act as sale deeds were executed by their father and Civi Suit filed by him has been dismissed. He submitted that impugned revisional order be set aside and order passed by Consolidation officer and Settlement Officer of Consolidation be affirmed. 5. On the other hand, Mr. Manu Khare, learned counsel for respondent Nos. 3 and 4 submitted that sale deed dated 15.02.1982 was not executed by their predecessor. He further submitted that the orders which were passed in the proceeding under Section 12 of U.P.C.H. Act were without jurisdiction as petitioner has taken stand in the proceeding that the plots in question are abadi plot as such Consolidation Court has no jurisdiction to pass the order under Section 12 of U.P.C.H. Act in respect to plot in question. He submitted that Deputy Director of Consolidation has rightly allowed the revision and sent the matter back before the Consolidation officer to decide the entire issues in accordance with law and petitioner will have full opportunity to contest the matter before Consolidation Officer rather writ petition before this Court. He submitted that impugned revisional order is remand order, as such as such writ petition is not maintainable and is liable to be dismissed. He submitted that impugned revisional order is remand order, as such as such writ petition is not maintainable and is liable to be dismissed. He submitted that proper direction be issued to the Consolidation Officer to decide the matter afresh in compliance of the remand order passed by Deputy Director of Consolidation. 6. I have considered the arguments advanced by learned counsel for the parties and perused the record. 7. There is no dispute about the fact that in the proceeding under Section 12 of U.P.C.H. Act, name of the Surendra Pal Singh as well as petitioners were ordered to be recorded on the basis of sale deed executed in their favour. There is also no dispute about the fact that in appeal under Section 11 (1) of U.P.C.H. Act the order of Consolidation Officer dated 30.03.1998 and 16.02.2000 were maintained by appellate Court vide order dated 27.08.2001. There is also no dispute about the fact that Deputy Director of Consolidation has allowed the revision setting aside the order of Consolidation Officer and Settlement officer of Consolidation as well as remanded the matter back before the Consolidation officer to decide the proceeding under Section 12 of U.P.C.H. Act afresh. 8. In order to appreciate the controversy involved in the matter, the perusal of Section 12 of U.P.C.H. Act will be relevant, which is as under: [12. Decision of matters relating to changes and transactions affecting rights or interests recorded in revised records. - (1) All matters relating to changes and transfers affecting any of the rights or interests recorded in the revised records published under sub-section (1) of Section 10 for which a cause of action had not arisen when proceedings under Sections 7 to 9 were started or were in progress, may be raised before the Assistant Consolidation Officer as and when they arise, but not later than the date of notification under Section 52, or under sub-section (1) of Section 6. (2) The provisions of Sections 7 to 11 shall mutatis mutandis, apply to the hearing and decision of any matter raised under sub-section (1) as if it were a matter raised under the aforesaid sections.]" 9. (2) The provisions of Sections 7 to 11 shall mutatis mutandis, apply to the hearing and decision of any matter raised under sub-section (1) as if it were a matter raised under the aforesaid sections.]" 9. The Consolidation Officer has passed the order under Section 12 of U.PC.H. Act in favour of the Surendra Pal Singh as well as petitioner on the basis of registered sale deed executed on 15.02.1982/11.02.1987 by Arun Kumar as well as sale deed dated 15.01.2000 executed in favour of petitioner, which have not been cancelled by any Court of Law and appeal under Section 11 (1) of U.P.C.H Act filed by respondent Nos.3 and 4 (sons and widow of Arun Kumar) in the year 2020 against the order passed by Consolidation officer dated 30.03.1998 and 16.02.2000 has been dismissed. The Settlement Officer of Consolidation has recorded finding of fact that appeal is highly time barred as well as the appeal is not maintainable at the instance of the respondent Nos. 3 and 4. 10. It is also material that Deputy Director of Consolidation has allowed the revision filed by the respondent Nos. 3 & 4 setting aside the order of Settlement Officer of Consolidation, as well as the Consolidation officer and remanded the matter back before the Consolidation Officer to decide the proceeding under Section 12 of U.P.C.H. Act afresh without considering the limitation question in proper manner as well as locus of respondent Nos.3 and 4 in filing the appeal under Section 11 (1) of U.P.C. H. Act although the sale deeds was executed by the father of respondent Nos.3 on 15.03.1982. 11. The arguments advanced by learned counsel for respondent nos. 11. The arguments advanced by learned counsel for respondent nos. 3 and 4 is that petitioner has taken stand that plot in dispute is abadi plot and Consolidation officer had no jurisdiction to pass the order under Section 12 of U.P.C.H. act in respect to abadi plot as such there is no illegality in the order of Deputy Director of Consolidation and Consolidation Officer can decide the entire issue in accordance with law, cannot be accepted rather it will be appropriate that matter should be re-examined by Deputy Director of Consolidation himself by registering the revision on its original number and decide the same afresh after considering the limitation question, locus of respondent Nos.3 and 4 in filing appeal as well as the nature of the plot in question at the relevant point of time. 12. Considering the entire facts and circumstances of the case, impugned revisional order dated 23.08.2023 passed by respondent No2/ Additional District Magistrate (Finance and Revenue)/ Deputy Director of Consolidation is liable to be set aside and is hereby set aside. The writ petition stands allowed in part and the matter is remanded back before respondent No.2-Deputy Director of Consolidation/ Additional District Magistrate (Finance and Revenue) District-Saharanpur or any other competent authority to register the revision on its original number and decide the same afresh after proper notice and opportunity of hearing to both the parties in the light of the observation made in the body of the judgment expeditiously and preferably within a period of three months from the date of production of certified copy of this order before him.