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2024 DIGILAW 1157 (ALL)

Shiv Ram v. D. D. C.

2024-04-29

CHANDRA KUMAR RAI

body2024
JUDGMENT : (Chandra Kumar Rai, J.) 1. Heard Mr. Santosh Kumar Yadav, learned counsel for the petitioners and Mr. Bansh Narayan Pathak, learned Standing Counsel for the State-respondents. 2. Brief facts of the case are that dispute relates to plot no.134 situated in Village-Jagdishpur Pure Chandra, Pargana-Soraon, District-Allahabad. The aforementioned plot was recorded in the name of respondent nos.4 to 8 (Mathura Prasad and Others). At the time of the verification of the records during consolidation operation, it was found that plot no.134 had two division, i.e. 134/1 & 134/2. 134/1 area 9 biswa, 10 biswansi and plot no.134/2 area 2 biswa 10 biswansi. Plot no. 134/2 was found to be abadi of petitioners' father (Sita Ram). Petitioners' father filed an objection with respect to the plot no.134/2 area 2 biswa, 10 biswansi to the effect that he had been possession over the 2 biswa land of the aforementioned plot since long and remaining area was in possession of one Hari Lal, as such, both have become Sirdar. The aforementioned objection was registered as Case No.13405 under Section 9-A (2) of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "U.P.C.H. Act"). The Consolidation Officer vide order dated 20.9.1977 directed to expunge the name of respondent nos.4 to 8 and further ordered to record the name of the petitioners' father in respect to plot no.134 /2 area 1 biswa, 18 biswansi and remaining area (12 biswansi) was ordered to be recorded in the name of Hari Ram. Petitioners' father (Sita Ram) filed a civil Suit No.906/1980 for permanent injunction against respondents nos.4 to 8. The aforementioned suit was decreed by the trial Court. Petitioners' father filed an application for implementation of the order dated 20.9.1977 passed under Section 9-A (2) of U.P.C.H. Act on the basis of decree of civil Court. The Consolidation Officer directed the Assistant Consolidation Officer vide order dated 7.2.1985 to submit report in the matter. The Consolidation Officer vide order dated 20.3.1985 allowed the application and directed for amaldaramad of the order passed by civil Court. Against the order dated 20.3.1985 respondent no.4 filed an application dated 13.6.2002 for restoration on the ground that order dated 20.3.1985 was an ex-parte order. Consolidation Officer vide order dated 18.9.2002 allowed the restoration application dated 13.6.2002 filed by respondent no.4 and set aside the order dated 20.3.1985. Against the order dated 20.3.1985 respondent no.4 filed an application dated 13.6.2002 for restoration on the ground that order dated 20.3.1985 was an ex-parte order. Consolidation Officer vide order dated 18.9.2002 allowed the restoration application dated 13.6.2002 filed by respondent no.4 and set aside the order dated 20.3.1985. Consolidation Officer has also dismissed the application dated 7.2.1985 as not maintainable. Petitioners' challenged the order dated 18.9.2002 by way of appeal under Rule 109-A (3) of U.P. Consolidation of Holdings Rules (hereinafter referred to as "U.P.C.H. Rules), which was dismissed vide order dated 29.7.2004. Against the order dated 29.7.2004, petitioners filed revision under Section 48 of U.P.C.H. Act, which was registered as Revision No. 1473, Respondent No.4 also filed a revision, which was registered as Revision No.1880 before Deputy Director of Consolidation. The aforementioned Revision No-1473 filed by petitioners was dismissed vide order dated 19.10.2004, while the Revision No. 1880 filed by respondent No. 4 was admitted, hence this writ petition on behalf of the petitioners challenging the orders dated 19.10.2004, 29.7.2004 & 18.9.2002 passed by respondent nos.1, 2 & 3. 3. This Court entertained the mater vide order dated 29.10.2004 and granted interim order staying the further proceedings in Revision No.1880, under Section 48 of U.P.C.H. Act. 4. Learned counsel for the petitioners submitted that an objection under Section 9-A (2) of U.P.C.H. Act filed by petitioners' father was allowed on 20.3.1977. He further submitted that the Civil Suit No.906 / 1980 for permanent injunction filed by petitioners' father was decreed, as such, the application filed under Rule 109-A of U.P.C.H. Rules was rightly entertained by the Consolidation Officer and order was passed for necessary amaldaramad in respect to plot in question but on the restoration application filed by contesting respondents the earlier was recalled. He further submitted that the consolidation authorities have illegally held that the proceedings initiated by the petitioner's father under Rule 109-A of U.P.C.H. Rules is not maintainable. He further submitted that the impugned orders passed by the consolidation authorities be set aside and direction be issued for recording the name of petitioner on the basis of orders passed by the Consolidation Court as well as the civil Court. He further submitted that revisional Court has adopted double stander by admitting the revision of respondent No.4 & dismissing the revision of petitioners against the same impugned order. 5. He further submitted that revisional Court has adopted double stander by admitting the revision of respondent No.4 & dismissing the revision of petitioners against the same impugned order. 5. On the other hand, learned Standing Counsel for the State-respondents submitted that the application filed by the petitioners' father under Rule 109-A of U.P.C.H. Rules for implementation of the order / judgment / decree of civil Court under Rule 109-A of U.P.C.H. Rules is not maintainable under Rule 109-A of U.P.C.H. Rules. He further submitted that the village in question was de-notified on 23.6.1979, as such, the proceedings under Rule 109-A of U.P.C.H. Rules initiated by the petitioners' father for the implementation of the order of Civil Court passed in injunction suit is wholly illegal and without jurisdiction. He next submitted that the consolidation authorities have rightly held that application filed by the petitioners' father is not maintainable. He finally submitted that no interference is required in the matter and the writ petition is liable to be dismissed. 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 proceeding under Rule 109-A of U.P.C.H. Rules initiated by the petitioners' father was initially decided on 20.3.1985 for recording the name of the petitioners' father over the plot in question but on the restoration application filed by respondent no.4 the order dated 20.3.1985 has been set aside vide order dated 18.9.2002 and the application under Rule 109-A of the U.P.C.H. Rules filed by petitioners' father has been rejected as not maintainable. There is also no dispute about the fact the appeal filed by petitioners under Rule 109-A (3) of U.P.C.H. Rules and revision filed under Section 48 of U.P.C.H. Act have been dismissed under the impugned order. 8. In order to appreciate the controversy involved in the matter, the perusal of Rule 109-A of U.P.C.H. Rules will be necessary, which is as under:- "109-A. Section 52 (2)-(1) Order passed in cases coverd by subsection (2) of Section 52 shall be given effect to by the consolidation authorities, authorised in this behalf under subsection (2) of Section 42. 8. In order to appreciate the controversy involved in the matter, the perusal of Rule 109-A of U.P.C.H. Rules will be necessary, which is as under:- "109-A. Section 52 (2)-(1) Order passed in cases coverd by subsection (2) of Section 52 shall be given effect to by the consolidation authorities, authorised in this behalf under subsection (2) of Section 42. In case there be no such authority, the Assistant Collectorincharge of the sub-division, the Tahsildar, the Naib-Tahsildar, the Supervisor Kanungo, and the Lekhpal of the area to which the case relates shall, respectively, perform the functions and discharge the duties as the Settlement Officer, Consolidation, Consolidation Officer, the Assistant Consolidation Officer, the Consolidator, and the Consolidation Lekhpal respectively for the propose of giving effect to the order, aforesaid. (2) If for the purpose of giving effect to an order referred to in sub-rule (1) it becomes necessary to reallocate affected chaks, necessary orders may be passed by the Consolidation Officer, or the Tahsildar, as the case may be, after affording proper opportunity of hearing to the parties concerned. (3) Any person aggrieved by the order of the Consolidation Officer, or the Tahsildar, as the case may be, may, within 15 days of the order passed under sub-rule (2), file appeal before the Settlement Officer, Consolidation or the Assistant Collector incharge of the sub-division, as the case may be, who shall decide the appeal after affording reasonable opportunity of being heard to the parties concerned, which shall be final. (4) In case delivery of possession becomes necessary as a result of orders passed under sub-rule (2) or sub-rule (3), as the case may be, for the provisions of Rules 55 and 56 and shall, mutatis mutandis, be followed." 9. It is material to mention that in the instant matter proceeding under Rule 109-A of U.P.C.H. Rules has been initiated by the petitioners' father on the basis of decree of civil Court in a suit for permanent injunction which cannot be entertained by the Consolidation Officer under Rule 109-A of U.P.C.H. Rules. Consolidation Officer, Settlement Officer of Consolidation as well as Deputy Director of Consolidation have rightly held that judgment / decree passed by the Civil Court in injunction suit cannot be implemented in the record under Rule 109-A of U.P.C.H. Rules. 10. Consolidation Officer, Settlement Officer of Consolidation as well as Deputy Director of Consolidation have rightly held that judgment / decree passed by the Civil Court in injunction suit cannot be implemented in the record under Rule 109-A of U.P.C.H. Rules. 10. So far as the order dated 20.9.1977 passed under Section 9-A (2) of U.P.C.H. Act is concern, the perusal of the order demonstrates that there was no proper exercise of jurisdiction by Consolidation Officer, under Section 9-A (2) of U.P.C.H. Act, as such. the same cannot be relied upon or implemented under Rule 109-A of U.P.C.H. Rules. 11. Considering the entire facts and circumstances as well as the provisions contained under Rule 109-A of U.P.C.H. Rules, no interference is required in the matter against the impugned orders passed by the consolidation authorities in the proceeding under Rule 109-A of U.P.C.H. Rules. 12. The writ petition is dismissed accordingly.