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2024 DIGILAW 1602 (ALL)

Fazlurrahman v. State Of U. P.

2024-07-03

DINESH PATHAK

body2024
JUDGMENT : (Dinesh Pathak, J.) 1. Heard learned counsel for the petitioner, learned standing counsel for the state respondents no. 1 to 4 as well as learned counsel for the Land Management Committee (respondent no.5) and perused the record on board. 2. The petitioner has invoked the extraordinary jurisdiction of this court under Article 226 of the Constitution of India assailing the order dated 20.10.2023 passed by the Deputy Director of Consolidation (in brevity 'DDC') in Revision No.0554 of 2023 affirming the order dated 10.10.2023 passed by the Settlement Officer of Consolidation (in brevity 'SOC') in appeal No.0507 of 2023 arising out of order dated 14.06.2013 passed by Consolidation Officer (in brevity 'CO') in proceedings under Section 9A(2) of U.P. Consolidation of Holdings Act, 1953 (in brevity 'UPCH Act'). 3. Facts culled out from the record are that the plot in question are situated in Village Chanvar Taal and relates to 'Matrook' entry. The CO, has passed an order dated 26.12.2023 to record all the property in question under class 5 entry as Navin Parti. However, at a belated stage, Smt. Shayama Bano (respondent No.8) has moved a recall application dated 3.6.2012 claiming her right and title over the property in question being the daughter of Adalat. The CO, vide order dated 14.6.2013, has allowed the restoration application and issued a direction for recording the name of Adalat S/o Faizullah and, after deleting his name, record the name of Smt. Shayama Bano D/o Adalat (respondent No. 8) over the property in question. Having been aggrieved with the order of CO, respondents no. 6 and 7, who are claiming themselves as daughters of Adalat, have preferred an appeal. The SOC has allowed the appeal by its order dated 10.10.2023 and quashed the order dated 14.6.2013 passed by the CO. The DDC, on revision being filed on behalf of the present petitioner alongwith two other persons, namely, Mohd. Sayed and Mujiburrahman, has dismissed the revision, vide order dated 20.10.2023, affirming the order passed by the SOC, which are under challenge before this Court. 4. The DDC, on revision being filed on behalf of the present petitioner alongwith two other persons, namely, Mohd. Sayed and Mujiburrahman, has dismissed the revision, vide order dated 20.10.2023, affirming the order passed by the SOC, which are under challenge before this Court. 4. The solitary submission raised by the learned counsel for the petitioner is that the SOC has illegally made an observation that the present petitioner (who was revisionist no.2 before the DDC) has committed fraud to get the order passed by the CO in favour of his daughter, namely, Smt. Shayama Bano (respondent No.8), whereas he has no concern with the respondent no.8. Therefore, the observation made by the SOC for lodging an FIR against the present petitioner is illegal and unwarranted under the eye of law. 5. Per contra, learned standing counsel has vehemently opposed the submission as advanced by learned counsel for the petitioner and contended that petitioner is raising such plea first time before this court. It is further contended that the SOC, after going through the evidence on record, came to the conclusion that respondent no.8 is the daughter of present petitioner and she has committed fraud intending to usurp the gaon sabha property. It is next contended that there is no illegality, perversity or infirmity in the order impugned passed by the appellate court as well as revisional court, therefore, the instant writ petition is liable to be dismissed being misconceived and devoid on merits. 6. Having considered the submission as advanced by learned counsel for the petitioner as well as learned standing counsel and perusal of record, it is evident that the property in question which is situated in Village Chnvar Taal was recorded as Matrook in the consolidation record. The CO, vide order dated 26.12.2003, has directed to record the land in question under class 5 entry as a Navin Parti. Smt. Shayama Bano (respondent No.8) has made his claim under Section 9A(2) of UPCH Act with an averment that property was basically belonged to Adalat and she, being the daughter of Adalat, is entitled for succession with respect to the property in question. In support of her case, she has filed the extract of Khatauni 1359 Fasli Village Chnvar Taal, Tappa Chnvar, Tehsil -Bansi, District -Siddharth Nagar, wherein name of Adalat was recorded in Khata No.27. In support of her case, she has filed the extract of Khatauni 1359 Fasli Village Chnvar Taal, Tappa Chnvar, Tehsil -Bansi, District -Siddharth Nagar, wherein name of Adalat was recorded in Khata No.27. Relying upon the said document, the CO has passed the order dated 14.6.2013 for recording the name of Smt. Shayama Bano (respondent No.8) over the plots in question. While dealing with the claim of the Smt. Shayama Bano, the SOC has given a categorical finding that she, infact, is a daughter of Fazlurrahman (petitioner herein). She has pretended herself aged about 50 years being a daughter of Adalat, however, in the sale deed dated 29.4.2011 she has been shown aged about 14 years being a daughter of Fazlurrahman. It is further observed that Adalat son of Jainullah (in order of SOC and DDC mentioned as Faizullah) has, infact, two daughters, namely, Nazama Khatoon and Swaliha Khatoon. The present petitioner Fazlurrahman has fraudulently placed his daughter being a daughter of Adalat and, accordingly, submitted the forged extract of Khatauni 1359 fasli. He has committed fraud upon the court to get the land in dispute recorded in the name of his daughter. Speculating the copy of khatauni 1359 fasli being forged, the SOC has made a query from the District Magistrate concerned qua genuineness of the aforesaid documents. District Magistrate Basti, vide its reply letter dated 21.9.2023, has specifically clarified that on the particular folio number, a copy of CH 23 had been issued. Having considered the reply sent by District Magistrate, Basti, the SOC has came to the conclusion that extract of Khatauni 1359 fasli with respect to Khata No.27 is a forged document and same had not been issued by the record room of District Basti. It is further observed that owing to fraud committed by the present petitioner, the gaon sabha has suffered a loss of land measuring area 6 bighas, 6 biswas, and 7 dhurs for which present petitioner is fully responsible. 7. In this backdrop of the facts, the SOC has issued a direction for registering an FIR against the present petitioner, who has produced forged documents intending to obtain order in favour of his daughter. The specific finding of forgery returned by the SOC has not been assailed by the present petitioner in memo of revision filed before the DDC. 7. In this backdrop of the facts, the SOC has issued a direction for registering an FIR against the present petitioner, who has produced forged documents intending to obtain order in favour of his daughter. The specific finding of forgery returned by the SOC has not been assailed by the present petitioner in memo of revision filed before the DDC. Perusal of memo of revision dated 18.10.2023 (Annexure No.6) reveals that it has been filed by three persons, namely, Mohd. Sayed, Mujiburrahman and Fazlurrahman sons of Mohd. Idris. Total 17 grounds are mentioned in the memo of revision, however, no specific ground is taken by the present petitioner assailing the finding rendered by the SOC with respect to the forgery committed by him. Indirectly, the petitioner has admitted the finding rendered by the SOC for the commission of crime of forgery, prima facie, which is evident from the record as acknowledged by the SOC. 8. At this juncture, this court is not expected to conduct a mini trial to examine the fairness and bonafidi of the present petitioner who himself was reluctant in not challenging the observation made against him at the first instance, which was available before the DDC. Even, he has not made any effort to move any application before the SOC to prove his bonafidies. Moreover, genuineness of the extract of Khatauni 1359 fasli has not been tried to be established by the present petitioner before the SOC or DDC or before this Court. The genuineness of the document i.e. extract of Khatauni 1359 fasli adduced on behalf of the respondent no.8, who is prima facie the daughter of the present petitioner, as observed by the SOC and affirmed by DDC, is a matter of close scrutiny which can more appropriately be adjudicated upon the court concerned. Fresh plea taken by the petitioner, which has not been raised and pressed before the consolidation courts, is not liable to be entertained at this juncture. The petitioner has still an opportunity to prove his innocence before the court competent while he will be summoned. 9. In this conspectus, as above, I do not find any justifiable ground to entertain the instant writ petition and interfere in the order passed by the SOC, which has been affirmed by the DDC. The petitioner has still an opportunity to prove his innocence before the court competent while he will be summoned. 9. In this conspectus, as above, I do not find any justifiable ground to entertain the instant writ petition and interfere in the order passed by the SOC, which has been affirmed by the DDC. There is no illegality, perversity or infirmity in the order impugned so as to warrant the indulgence of this court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. There is nothing on the record to demonstrate as to how the present petitioner is prejudiced, or if there is any likelihood of causing a miscarriage of justice to him, owing to the order under challenge. Solitary submission raised by the learned counsel for the petitioner before this court is not sustainable in the eye of law inasmuch as, same has neither been raised and pressed before the consolidation courts nor any finding has been returned by the consolidation courts in that respect. 10. Resultantly, the instant writ petition, being misconceived and devoid of merits, is dismissed with no orders as to the costs.