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2024 DIGILAW 1336 (ALL)

Jaikaran Lal v. State of U. P.

2024-05-16

CHANDRA KUMAR RAI

body2024
JUDGMENT : CHANDRA KUMAR RAI, J. 1. Heard Mr. Siddharth Nandan, learned counsel for the petitioner, Mr. Arpit Agarwal, learned counsel for the contesting respondent no. 3, Mr. Hari Mohan Srivastava, learned Additional Chief Standing Counsel for the State-respondents and Mr. Sher Bahadur Singh, learned counsel for the respondent-Gaon Sabha. 2. With the consent of the learned Counsel for the parties the writ petition is being heard finally without inviting counter affidavit. 3. Brief facts of the case are that plot no. 144 area 1.1210 hectare & plot No. 243 area 1.3480 hectare of Khata No. 168 situated at village-Gadha Kalan, Pergana & Tehsil-Puranpur, District-Pilibhit was recorded in the name of Lekhraj son of Kehar. Lekhraj had expired on 15.9.2004. Smt. Parvati Devi widow of Lekhraj also expired accordingly, petitioner filed an objection under Section-9A (2) of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as “U.P.C.H. Act”) to record her name as there are no son and daughter from the wedlock of Lekhraj & Smt. Parvati Devi. Respondent no. 3/Har Narayan alias Madho Ram filed his counter objection stating that Lekhraj during his lifetime had executed an unregistered Will-deed on 15.3.2004 in his favour, as such, respondent no. 3 is entitled to be recorded in the place of deceased Lekhraj. A sale deed is also alleged to be executed on 18.9.2004 by Lekhraj in favour of Umesh Kumar & Nitesh Kumar. A Civil Suit No. 152 of 2005 filed by respondent no. 3 for cancellation of sale-deed dated 18.9.2004 was decided vide judgment dated 31.5.2010 on the basis of compromise alleged to take place on 26.5.2010. In the title objection under Section 9A (2) of U.P.C.H. Act, 14 issues were framed and parties have adduced evidence in support of their cases. The Consolidation Officer vide judgment dated 29.7.2022 allowed the objection of petitioner and rejected the claim of respondent no. 3 setup on the basis of unregistered Will-deed dated 15.3.2004. Respondent no. 3 filed an appeal under Section 11 (1) of U.P.C.H. Act before Settlement Officer of Consolidation, which was heard and dismissed vide judgment dated 28.12.2022. Respondent no. The Consolidation Officer vide judgment dated 29.7.2022 allowed the objection of petitioner and rejected the claim of respondent no. 3 setup on the basis of unregistered Will-deed dated 15.3.2004. Respondent no. 3 filed an appeal under Section 11 (1) of U.P.C.H. Act before Settlement Officer of Consolidation, which was heard and dismissed vide judgment dated 28.12.2022. Respondent no. 3 filed a revision under Section 48 of U.P.C.H. Act before Deputy Director of Consolidation against the order dated 28.12.2022 & 29.7.2022, the same was allowed vide judgment dated 23.1.2024 setting aside the orders dated 29.7.2022 & 28.12.2022 and remanded the matter for fresh adjudication of title objection, hence the writ petition for the following reliefs: “(i) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 23.1.2024 passed by respondent no. 2 in Revision No. 0024 of 2023 (Hari Narayan Lal alias Madho Ram vs. Jaikaran Lal) under Section 48 (1) of U.P. Consolidation of Holdings Act, 1953 (contained as Annexure No. 01 to the writ petition). (ii) issue a writ, order or direction in the nature of mandamus directing the opposite parties not to interfere in the peaceful possession of the petitioner over khata no. 168 Gata no. 144 measuring 1.1210 hectares and Gata no. 243 measuring 1.3480 hectares i.e. total area 2.4690 hectares being situated at Gram Gadha Kalan, Pargana and Tahsil-Puranpur, District-Pilibhit.” 4. Learned counsel for the petitioner submitted that the title objection filed under Section 9-A (2) of U.P.C.H. Act was decided after framing issues and giving parties to lead evidence in support of their case. He further submitted that the Consolidation Officer while deciding the objection has found the Will deed alleged to be executed in favour of contesting respondent as suspicious, accordingly, ordered to record the name of the petitioner on the basis of succession. He next submitted that the appeal filed under Section 11 (1) of U.P.C.H. Act by the contesting respondent, was dismissed by the Settlement Officer of Consolidation. He also submitted that the revision filed under Section 48 of U.P.C.H. Act has been allowed and matter has been remanded back before the Consolidation Officer to decide the title objection afresh, which is abuse of process of law in view of the provisions contained under Section 48 Explanation-3 of U.P.C.H. Act. He also submitted that the revision filed under Section 48 of U.P.C.H. Act has been allowed and matter has been remanded back before the Consolidation Officer to decide the title objection afresh, which is abuse of process of law in view of the provisions contained under Section 48 Explanation-3 of U.P.C.H. Act. He further submitted that the impugned revisional order is illegal and liable to be set aside and the order passed by the Consolidation Officer be affirmed. He next submitted that in any case the revisional Court in place of remanding the matter back before the Consolidation Officer can himself decide the revision after perusing the evidence which was adduced by the parties before the Consolidation Officer rather remanding the matter back for fresh trial of the title objection under Section 9-A (2) of U.P.C.H. Act. He placed reliance upon the judgment of this Court reported in Chandrama vs. D.D.C. Ballia & Others, 2017 (134) RD 555 . 5. On the other hand, Mr. Arpit Agarwal, learned counsel for the contesting respondent no. 3 submitted that the Consolidation Officer has not rightly decided the title objection, as such, the order passed by the Consolidation Officer has been rightly set aside in order to examine the civil Court decree as well as other evidence in respect to the Issue no. 3. He further submitted that the Will-deed, which was executed in favour of respondent no. 3 was although unregistered but the same was proved in accordance with law, as such, the claim setup on the basis of Will-deed cannot be ignored by the consolidation authorities. He further submitted that in a civil suit for cancellation of sale deed has been decided on the basis of compromise, as such, the same should also be examined by the consolidation authorities while deciding the dispute between the parties. He also submitted that in view of the latest judgment of Division Bench of this Court dated 10.5.2024 passed in Matters Under Article 227 No. 8279 of 2022 (2024 AHC 85067-DB) on the point of Section 169 (3) of U.P. Zamindari Abolition & Land Reforms Act (hereinafter referred to as “U.P.Z.A. & L.R. Act, 1950”) unregistered Will-deed cannot be ignored by the consolidation authorities in arbitrary manner. He next submitted that no interference is required against the revisional order passed by the Deputy Director of Consolidation remanding the matter back before the Consolidation Officer to decide the title objection afresh. He further submitted that the petitioner has no locus to challenge the Will-deed executed in favour of respondent no. 3, as such, the objection filed by petitioner cannot be allowed by the Consolidation Officer. He further submitted that the effect of the concession made by Parvati about the genuineness of the Will-deed executed in favour of respondent no. 3 cannot be ignored by the Consolidation Authorities, as such, there is no illegality in the impugned revisional order. 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 title objection under Section 9-A (2) of U.P.C.H. Act has been decided by Consolidation Officer for recording the name of the petitioner on the basis of succession and the claim of respondent no. 3 on the basis of unregistered Will-deed has been refused. There is also no dispute about the fact that the title appeal filed by respondent no. 3 has been dismissed but revision filed by respondent no. 3 has been allowed and matter has been remanded back before the Consolidation Officer to decide the title objection afresh. 8. In order to appreciate the controversy involved in the matter, perusal of Section 48 Explanation-3 will be relevant, which is as under: “Explanation (3) - The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority and also includes the power to re-appreciate any oral or documentary evidence.” 9. Perusal of Section 48 Explanation 3 fully demonstrates that the Deputy Director of Consolidation has full power to examine finding of fact or law as well as appreciate the evidence recorded before the Consolidation Officer while deciding the title objection. 10. In the instant matter, the Consolidation Officer has framed the issues and permitted the parties to lead evidence in support of their cases, accordingly, Consolidation Officer has decided the title objection by passing reasoned order accepting the claim of the petitioner and rejecting the claim of respondent no. 3. 10. In the instant matter, the Consolidation Officer has framed the issues and permitted the parties to lead evidence in support of their cases, accordingly, Consolidation Officer has decided the title objection by passing reasoned order accepting the claim of the petitioner and rejecting the claim of respondent no. 3. The title appeal filed by the contesting respondent has been dismissed by the appellate Court. 11. In view of the jurisdiction exercised by the Consolidation Officer and Settlement Officer of Consolidation, there was no occasion to Deputy Director of Consolidation to remand the matter back for fresh trial rather he himself can decide the revision after considering the entire evidence which was adduced by the parties before the Consolidation Officer. 12. This Court in the case of Chandrama (supra) has held that Deputy Director of Consolidation should himself decide the revision in place of remanding the matter back to the Consolidation Officer. In another case reported in Lakshmania vs. D.D.C. and Others, (2020) 148 RD 114 it has been held by this Court that provisions contained under Section 48 Explanation 3 of U.P.C.H. Act is unique provision, which has been inserted by U.P. Act No. 3 of 2002, as such, Deputy Director of Consolidation should himself decide the revision rather to remand the matter specially in cases where the jurisdiction has been exercised by the Consolidation Officer after framing issues and giving parties to lead evidence. Paragraph no. 44 of the aforementioned judgment is relevant for perusal, which is as under: “44. In this case, the objections were filed in the year 1981, and, therefore, the amended provisions of Section 48, operative retrospectively, would squarely apply. Under the amended statute, the Revisional Court has been conferred with unique powers by virtue of the added Explanation 3 to go into the correctness, legality or propriety of an order passed by an Authority below, whether on fact or law, and includes the powers to appreciate any oral or documentary evidence. Thus, to the understanding of this Court, in view of the added Explanation by U.P. Act no. 3 of 2002, retrospectively w.e.f. 10.11.1980, the Revisional Court is in no manner inhibited from examining any question of fact or law, or appreciating evidence whether documentary or oral, virtually like any other Court of fact and law. Thus, to the understanding of this Court, in view of the added Explanation by U.P. Act no. 3 of 2002, retrospectively w.e.f. 10.11.1980, the Revisional Court is in no manner inhibited from examining any question of fact or law, or appreciating evidence whether documentary or oral, virtually like any other Court of fact and law. It is a unique position that the Revisional Authority enjoys, under Section 48 of the Act, conventionally not associated with the exercise of revisional jurisdiction.” 13. Considering the entire facts and circumstances as well as the ratio of law laid down by this Court in Chandrama (supra) as well as in Lakshmania (supra), the impugned revisional order dated 23.1.2024 is liable to be set aside and the same is hereby set aside. 14. The writ petition stands allowed in part and matter is remanded back before respondent no. 2 to restore the Revision No. 0024 of 2023 on its original number and decide the same afresh on merit after affording proper opportunity of hearing to the parties, expeditiously preferably within a period of six months from the date of production of certified copy of this order before him.