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2024 DIGILAW 1189 (ALL)

Lallan Singh v. D. D. C.

2024-05-02

CHANDRA KUMAR RAI

body2024
JUDGMENT Chandra Kumar Rai, J. Heard Sri. A.P. Singh, learned counsel for the petitioner, Sri. Kashi Nath Shukla, learned counsel for respondent nos. 2 & 3 and Sri. Jitendra Narain Rai, learned Addl. C.S.C. for the state-respondents. 2. Brief facts of the case are that the dispute relates to plots of khata no.299 situated in village Baddopur, pargana- Nizamabad, Tehsil- Sadar, District- Azamgarh. The aforementioned disputed plot was recorded in the name of Ram Bachhan (father of petitioner as well as respondent no. 4 & 5) and Ram Lakhan (father of Smt. Kantraji and brother of Ramdas). According to respondent nos. 2 & 3, Ram Lakhan had executed a registered will deed on 15.5.1993 in favour of Smt. Kantraji and Ram Das. According to petitioner, Ram Lakhan had executed an unregistered will deed on 24.9.1994 in favour of petitioner as well as respondent nos. 4 & 5 and the earlier will deed dated 15.5.1993 was revoked. In the proceeding under Section 12 of the U.P. Consolidation of Holdings Act (hereinafter referred to "U.P. C.H. Act"), which was registered as Case No.1460 of 1995, the consolidation officer passed an order on 15.5.1995 for recording the name of petitioner along with respondent nos. 4 & 5 on the basis of will deed dated 24.9.1994. Smt. Kantraji and Ramdas also initiated proceeding under Section 12 of the U.P. C.H. Act on the basis of registered will deed dated 15.5.1995 which was registered as Case No.1485 of 1995. According to petitioner, against the order dated 15.5.1995, Ramdas Singh and Smt. Kantraji jointly filed a revision under Section 48 of the U.P. C.H. Act which was registered as Revision No.1393 but respondent nos. 2 & 3 are denying this fact. On 11.3.1996, the aforementioned revision was not pressed by revisionist, accordingly, the aforementioned revision was dismissed vide order dated 11.3.1996. Ramdas and Smt. Kantraji filed a restoration application on 26.6.1998 for recalling the order dated 15.5.1995 before the consolidation officer. Petitioner filed an objection to the restoration application, stating that the delay condonation matter be decided first. The consolidation officer vide order dated 30.1.2001 directed that the delay condonation matter as well as the merit will be decided together. The consolidation officer vide order dated 26.4.2006 dismissed the restoration application dated 26.6.1998 filed by Ramdas and Smt. Kantraji. Petitioner filed an objection to the restoration application, stating that the delay condonation matter be decided first. The consolidation officer vide order dated 30.1.2001 directed that the delay condonation matter as well as the merit will be decided together. The consolidation officer vide order dated 26.4.2006 dismissed the restoration application dated 26.6.1998 filed by Ramdas and Smt. Kantraji. Against the order dated 26.4.2006 passed by the consolidation officer, an appeal was filed by Smt. Kantraji and Ramdas under Section 11(1) of the U.P. C.H. Act which was registered as Appeal No.255/280. On the same date, the restoration application dated 4.5.2006 was also filed by Smt. Kantraji and Ramdas before the deputy director of consolidation for recalling the order dated 11.3.1996 passed in Revision No.1393 which was registered as Restoration Case No.274. The Appeal No.255/280 filed by Ramdas and Smt. Kantraji was dismissed due to non-substitution of legal heirs of deceased Ramdas by settlement officer of consolidation on 3.8.2009. Against the order dated 3.8.2009, passed by the settlement officer of consolidation, a restoration application dated 29.9.2010 was filed by Smt. Kantraji which was dismissed by the settlement officer of consolidation vide order dated 21.4.2011. Smt. Kantraji and one Girja Devi, daughter of Ramdas, filed a revision before the deputy director of consolidation under Section 48 of the U.P. C.H. Act against the order dated 21.4.2011 which was registered as Revision No.394/11. During pendency of the aforementioned Revision No.344/11, Kant Raji expired, accordingly, Prem Chand Singh (respondent no.2) was substituted in the memorandum of revision. In Restoration Case No.274, the deputy director of consolidation vide order dated 5.5.2017 condoned the delay in filing the restoration application dated 4.5.2006 against the order dated 11.3.1996 and fixed the restoration matter for argument, hence, this writ petition on behalf of the petitioner, challenging the order dated 5.5.2017, passed by the deputy director of consolidation in Restoration Case No.274 as well as for quashing the entire proceeding of Restoration Case No.274. 3. This Court vide order dated 31.5.2017 entertained the matter and stayed the further proceeding of Restoration Case No.274. In pursuance of the order of this Court dated 31.5.2017, parties have exchanged their pleadings. 4. Counsel for the petitioner submitted that the impugned order passed by the deputy director of consolidation, condoning the inordinate delay in filing the restoration application is wholly illegal. In pursuance of the order of this Court dated 31.5.2017, parties have exchanged their pleadings. 4. Counsel for the petitioner submitted that the impugned order passed by the deputy director of consolidation, condoning the inordinate delay in filing the restoration application is wholly illegal. He further submitted that the order dated 11.3.1996 was well within the knowledge of Smt. Kantraji and Ramdas, as such, the restoration application filed with inordinate delay against the order dated 11.3.1996, cannot be allowed. He also submitted that revision filed by Ramdas and Smt. Kantraji was dismissed as not pressed on 11.3.1996, without any liberty, as such, there was no occasion to file restoration application on 4.5.2006 against the order dated 11.3.1996. He further submitted that on the principle of res judicata, the restoration proceeding initiated by Smt. Kantraji and Ramdas, cannot be continued. He also submitted that in view of the provisions contained under Order 23 of the Code of Civil Procedure, the impugned order is wholly illegal. He further submitted that the compromise filed in the year 2009 before the settlement officer of consolidation, Ramdas has admitted the filing of revision and withdrawal thereof, as such, the order impugned, condoning the inordinate delay on the misconceived grounds, is liable to be set aside and the entire proceeding arises out of restoration application, is liable to be quashed. He further placed reliance on the following judgments in support of his arguments:- Raja v. D.D.C. and Others, (2020) 146 RD 548 ; Zamil v. D.D.C., Saharanpur and Others, (2013) 119 RD 291 ; Dayawati and Others v. D.D.C., Baghpat and Others, 2011 (4) ADJ 579 ; Priyambada v. D.D.C., Chandauli, ADJ (2011) 8, 136 & Nanda v. D.D.C., (2018) 138 RD 422 . 5. On the other hand, Mr. Kashi Nath Shukla, learned counsel appearing for respondent nos. 2 & 3 submitted that Ram Lakhan was not having male child, therefore, he had executed a registered will deed on 15.5.1993 in favour of his only daughter Smt. Kantraji and his brother Ramdas and petitioner has set up a unregistered will deed dated 24.9.1994 which cannot be relied upon in view of registered will deed dated 15.5.1993. 2 & 3 submitted that Ram Lakhan was not having male child, therefore, he had executed a registered will deed on 15.5.1993 in favour of his only daughter Smt. Kantraji and his brother Ramdas and petitioner has set up a unregistered will deed dated 24.9.1994 which cannot be relied upon in view of registered will deed dated 15.5.1993. He further submitted that an application under Section 12 of the U.P. C.H. Act was filed by Lallan Singh and others on the basis of will deed, alleged to be executed in their favour and the consolidation officer has passed the order on 15.5.1995 in favour of Lallan Singh in illegal and arbitrary manner. He further submitted that mutation application was also filed by Smt. Kantraji and Ramdas on the basis of registered will deed dated 15.5.1993 which was registered as Case No.1485, under Section 12 of the U.P. C.H. Act. He also submitted that as soon as Smt. Kantraji and Ramdas came to know about the order dated 15.5.1995 obtained by the petitioner for recording his name, have filed application dated 26.6.1998 before the consolidation officer for recalling the order dated 15.5.1995. He also submitted that no revision was filed by Smt. Kantraji and Ramdas against the order dated 15.5.1995, passed by the consolidation officer nor any advocate was engaged by Smt. Kantraji and Ramdas for filing revision against the order dated 15.5.1995. He also submitted that Ram Lakhan had executed a registered will deed on 15.5.1993 in favour of Smt. Kantraji and Ramdas and Ram Lakhan expired on 12.10.1994. He further submitted that petitioner Lallan Singh is claiming right on the basis of unregistered fraudulent will deed alleged to be executed in his favour on 24.9.1994 by Ram Lakhan Singh. He further submitted that petitioner has not come with clean hand and has not disclosed the material facts in the writ petition, as such, the writ petition is liable to be dismissed. He further submitted that under the impugned order dated 5.5.2017, delay in filing the restoration application against the order dated 11.3.1996 has been condoned and the date has been fixed for arguments on merit on the restoration application, as such, no interference is required against the order condoning the delay in filing the restoration application. He further submitted that under the impugned order dated 5.5.2017, delay in filing the restoration application against the order dated 11.3.1996 has been condoned and the date has been fixed for arguments on merit on the restoration application, as such, no interference is required against the order condoning the delay in filing the restoration application. He also submitted that the application under Section 12 of the U.P. C.H. Act filed by Smt. Kantraji and Ramdas being Case No.1485 was pending before the consolidation officer and during pendency of Case No.1485 the consolidation officer has referred the mutation report with regard to Case No.1460 before the consolidation officer but he deliberately kept the Case No.1485 pending in collusion of the petitioner. He further submitted that the order dated 15.5.1995 under Section 12 of the U.P. C.H. Act was obtained by the petitioner in illegal manner, as such, no interference is required against the discretionary order passed by the deputy director of consolidation, granting the benefit of Section 5 of the Limitation Act and the matter is to be decided on merit before the deputy director of consolidation. He further placed the following judgment in support of his argument:- State (NCT of Delhi) v. Ahmed Jaan, (2008) 0 Supreme (SC) 1218; Krishna Kumar v. Special Judge/Additional District Judge, Pilibhit and Others, 2002(1) A.R.C. 485; Abdul Wadood v. The Upper Ziladhikari (Bhu Rajswa)/The D.D.C. and Another in Writ B No.53748 of 2015, decided on 1.10.2015 and Arvind Kumar and 3 Others v. D.D.C. and Others in Writ B No.644 of 2021, decided on 9.8.2021. 6. I have considered the arguments advanced by learned counsel for the parties and perused the records as well as the case laws cited by learned counsel for the parties. 7. There is no dispute about the fact that both the parties are claiming right on the basis of their respective will deed in respect to the holdings of Ram Lakhan. There is also no dispute about the fact that petitioner along with proforma respondent nos. 4 & 5 are claiming on the basis of unregistered will deed executed on 24.9.1994 by Ram Lakhan and predecessor of respondent nos. 2 & 3 were claiming on the basis of registered will deed executed on 15.5.1993. There is also no dispute about the fact that the consolidation officer vide order dated 15.5.1995 recorded the name of petitioner and proforma respondent nos. 2 & 3 were claiming on the basis of registered will deed executed on 15.5.1993. There is also no dispute about the fact that the consolidation officer vide order dated 15.5.1995 recorded the name of petitioner and proforma respondent nos. 4 & 5 in place of Ram Lakhan in Case No.1460, under Section 12 of the U.P. C.H. Act. There is also no dispute about the fact that impugned order has been passed, granting benefit of Section 5 of the Limitation Act in filing the restoration application dated 4.5.2006 filed by predecessor of contesting respondent nos. 2 & 3, fixing the proceeding for arguments on merit in the restoration matter. 8. The crux of the matter is whether the rival claim set up by the petitioner as well as respondent nos. 2 & 3 by way of their respective will deed has been examined on merit by the Consolidation Officer or not. 9. Petitioner along with respondent nos. 4 & 5 are claiming on the basis of unregistered will deed dated 24.4.1994 and predecessor of respondent nos. 2 & 3 were claiming on the basis of registered will deed dated 15.5.1993 but there is no adjudication of the rival claim on merit, as such, the rival claim is to be examined by the consolidation authorities in proper manner subject to the disposal of pending proceedings in accordance with law rather non-suit the either of the parties on the technical grounds. 10. The perusal of the order sheet of Case No.1460 under Section 12 of the U.P. C.H. Act in which order dated 15.5.1995 was passed in favour of petitioner and non-consideration of Case No.1485 under Section 12 of the U.P. C.H. Act filed by Smt. Kantraji and Ramdas as well as other proceeding which were initiated by the respective parties and decided, demonstrate that predecessor of respondent nos. 2 & 3 have been deprived to contest their claim on merit. 11. Under the impugned order, only delay in filing the restoration application has been condoned by the deputy director of consolidation vide impugned order dated 5.5.2017 and restoration application is still to be examined on merit, as such, no interference is required against the impugned order otherwise claim of respondent nos. 2 & 3 will be prejudiced. 12. 11. Under the impugned order, only delay in filing the restoration application has been condoned by the deputy director of consolidation vide impugned order dated 5.5.2017 and restoration application is still to be examined on merit, as such, no interference is required against the impugned order otherwise claim of respondent nos. 2 & 3 will be prejudiced. 12. Considering the entire facts and circumstances, no interference is required against impugned order dated 5.5.2017, granting benefit of Section 5 of the Limitation Act in filing the restoration application. 13. The writ petition is dismissed. 14. However, respondent no.1/Deputy Director of Consolidation, Azamgarh is directed to conclude the pending restoration proceeding, after affording proper opportunity of hearing to both the parties, expeditiously, preferably within a period of 4 months from the date of production of the certified copy of the order, in accordance with law.