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2024 DIGILAW 201 (ALL)

Ashok Nishad v. State of U. P.

2024-01-18

DINESH PATHAK

body2024
JUDGMENT : Dinesh Pathak, J. Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondent Nos.1 & 2. 2. Petitioner is aggrieved with the order dated 07.08.2023 passed by Deputy Director of Consolidation in proceeding under Section 48 (3) of the U.P. Consolidation of Holdings Act, 1953 (in brevity ‘U.P.C.H. Act') whereby name of Jamuna (predecessor in the interest of the petitioner) has been ordered to be deleted from plot No.116 measuring area 0.238 hectare. 3. Facts culled out from the record are that Smt.Gulabi wife of Daulat (predecessor in the interest of Chandra Shekhar-respondent No.3) and Jamuna (predecessor in the interest of the present petitioner) are co-tenure holders in Khata No.24/1, plot No.55 measuring area 0.376. During consolidation operation they have been proposed chak over plot No.54M. area 0.048 hectare, plot No.55M. area 0.308 hectare and plot No.105M. area 0.001 hectare, total three plots area 0.357 hectare. By order dated 02.06.1990 passed in Case No.4688 under Section 9 of U.P.C.H. Act, share of the recorded tenure holders have been determined, accordingly, 2/3 share has been accorded to Smt.Gulabi and 1/3 share has been accorded to Jamuna. Deputy Director of Consolidation, vide order dated 31.12.1990 passed in reference proceeding being Reference Case No.987, has allocated the area to both the recorded tenure holders according to their respective shares. In pursuance thereof plot No.54M. measuring area 0.041 hectare and plot No.55M. measuring area 0.197 hectare, total two plots measuring area 0.238 hectare has been given into the share of Smt.Gulabi, however, remaining area i.e. 1/3 share over plot No.54M. measuring area 0.007, plot No.55M. measuring area 0.111 hectare and plot No.105M. area 0.001 hectare, total three plots measuring area 0.119 hectare has been given into the share of Jamuna. C.H. Form-41 reveals that plot No.54M area 0.041 hectare and plot No.55M area 0.197 hectare, which were allocated in share of Gulabi, came with the new identity as plot No.116 measuring area 0.238 hectare. However, on the other side, plot No.54M area 0.007 hectare, plot No.55M area 0.111 hectare and plot No.105M. area 0.001 hectare came with the new identity as plot No.117 measuring area 0.119 hectare, which had been allocated in the share of Jamuna. Due to clerical error, however, name of Jamuna son of Ram Daur was continued with the name of Gulabi Devi being a co-sharer over new plot No.116 measuring area 0.238 hectare. area 0.001 hectare came with the new identity as plot No.117 measuring area 0.119 hectare, which had been allocated in the share of Jamuna. Due to clerical error, however, name of Jamuna son of Ram Daur was continued with the name of Gulabi Devi being a co-sharer over new plot No.116 measuring area 0.238 hectare. To correct the aforesaid error, respondent No.3 Chandra Shekhar son of Gulabi has moved an application dated 02.06.2022 under Section 48 (3) of U.P.C.H. Act. After enquiry, Consolidation Officer has submitted his report dated 14.06.2022 which was forwarded by Settlement Officer of Consolidation, vide order dated 17.06.2022, and on the basis thereof Deputy Director of Consolidation has passed final order dated 28.06.2022 by which entry in the name of Jamuna over new plot No.116 has been ordered to be deleted. Having been aggrieved, present petitioner has moved a recall application against the order dated 28.06.2022 which was allowed vide order dated 07.09.2022 and matter was restored to its original number. Deputy Director of Consolidation has reexamined the reference proceeding and, after scrutinizing the consolidation record, came to conclusion that new plot No.116 is exclusively belongs to Smt.Gulabi, accordingly, passed an order impugned affirming the previous order dated 28.06.2022. 4. Learned counsel for the petitioner, while assailing the impugned order dated 07.08.2023, submits that petitioner is bonafide purchaser of the partial area of new plot No.116 by registered sale deed dated 17.02.2006 executed by Khajanchi Prasad (deceased) son of Jamuna and Smt.Patiraji (deceased) wife of Jamuna. Chandra Shekhar (son of Gulabi) has illegally moved an application at a very belated stage to delete the name of Jamuna from new plot No.116, which is unsustainable in the eye of law. It is further submitted that valuable rights of the petitioner is occurred on the plot in question on the basis of the sale deed dated 17.02.2006 who is in possession over the property in question. It is further submitted that Deputy Director of Consolidation has misread and misinterpreted the entry in C.H. Form-23, wherein predecessor in the interest of the petitioner and Gulabi were recorded as a co-tenure holders, therefore, at subsequent stage name of Jamuna being a co-tenure holder cannot be treated to be an illegal without any order passed by the court competent. 5. 5. Per contra learned Standing Counsel has contended that Deputy Director of Consolidation has carefully scrutinized the consolidation record and, accordingly, passed the order impugned to delete the name of Jamuna from new plot No.116. It is further contended that Deputy Director of Consolidation has made it clear that plot No.116 was created from old plot Nos.54 and 55, which was allocated in the share of Smt.Gulabi. It is further contended that Khajanchi Prasad and Smt.Patiraji have illegally executed registered sale deed on the basis of the incorrect entry. Present petitioner may approach before the civil court for appropriate remedy against his vendors or their descendants. There is no illegality or perversity in the order passed by Deputy Director of Consolidation, therefore, instant writ petition is liable to be dismissed being misconceived and devoid of merits. 6. Having considered the rival submissions advanced by learned counsel for the petitioner as well as learned Standing Counsel and perusal of record, it is manifested that Smt.Gulabi wife of Daulat and Jamuna son of Ram Daur are co-tenure holders in Khata No.24/1. However, in Case No.4688 Consolidation Officer has accorded 2/3 share to Smt.Gulabi and 1/3 share to Jamuna. Details qua share of both parties and creation of new plot numbers i.e. 116 and 117 are summarized herein following table: Smt.Gulabi Jamuna 1. 2/3 share given in Case No.4688, date of decision 02.06.1990. 1/3 share given in Case No.4688, date of decision 02.06.1990. 2. In Reference No.987 decided on 31.12.1990:- Plot No.54M. area 0.041 and Plot No.55M. area 0.197. Total two plots area 0.238 hectare. In Reference No.987 decided on 31.12.1990:- Plot No.84M. area 0.007, Plot No.55M. area 0.111 and Plot No.105M. area 0.001. Total three plots area 0.119 hectare. 3. In C.H. Form -41, new plot created being Plot No.116 measuring area 0.238 hectare. In C.H. Form -41, new plot created being Plot No.117 measuring area 0.119 hectare. 7. It is evident from the record that there is no confusion with respect to the number of plots allocated in the share of Smt.Gulabi and Jamuna and, accordingly, creation of new plot Nos.116 and 117 respectively. In final consolidation record (C.H. Form-45) khata No.38 was created in the name of Jamuna and khata No.21 was created in the name of Smt.Gulabi. In final consolidation record (C.H. Form-45) khata No.38 was created in the name of Jamuna and khata No.21 was created in the name of Smt.Gulabi. It appears that due to inadvertent clerical mistake name of Jamuna was remain recorded with the name of Smt.Gulabi being a co-tenure holder over new plot No.116 measuring area 0.238 hectare, Khata No.21, in C.H. Form-45. Taking benefit of the aforesaid entry, sale deed dated 17.02.2006 had been executed by son and wife of Jamuna, though, in fact, Jamuna was allocated new plot No.117 measuring area 0.119 hectare and he had no concerned with new plot No.116. Deputy Director of Consolidation has not committed any error in passing the order impugned dated 07.08.2023. He has figured out incorrect entry in C.H. Form-45 wherein name of Jamuna (predecessor in the interest of vendors of the present petitioner) had been got recorded due to clerical error. It is no more res-integra that entry in the land record does not confer any right and title in favour of the recorded person and same is always subject to prove. Record of rights are meant for the purposes of realization of land revenue. Any person who is claiming his right and title over the land in question on the basis of the revenue entry has to prove his ownership in accordance with law. Thus, mere entry in the land record is not sufficient to prove petitioner's right and title over the land in question. At this juncture, this Court is not raising any question qua bonafides of the present petitioner, who has purchased the property in question, through registered sale deed dated 17.02.2006. He might be a bonafide purchaser of the property in question, however, he cannot get better title than that of his vendors. While the entry in the name of Jamuna in the land revenue record itself has been proved to be illegal, his descendants (vendors of petitioner) cannot claim their legal right and title over the land in question, coming from the time of their predecessor. However, petitioner can resort to legal remedy to be compensated, as advised, in accordance with law. 8. However, petitioner can resort to legal remedy to be compensated, as advised, in accordance with law. 8. In the instant matter petitioner is not entitled to get any relief on the basis of alleged sale deed dated 17.02.2006, which is prima-facie questionable in the light of the finding returned by Deputy Director of Consolidation in order impugned dated 07.08.2023, which has been passed after giving full opportunity of hearing to the present petitioner and scrutinizing the consolidation record in depth. 9. In this conspectus, as above, I do not find any justifiable ground to entertain the instant writ petition and interfere in the order impugned dated 07.08.2023. There is no illegality, perversity, infirmity or ambiguity in the order under challenge so as to warrant the indulgence of this Court in exercise of its extraordinatry jurisdiction under Article 226 of the Constitution of India. 10. Resultantly, instant writ petition, being misconceived and devoid on merits, is dismissed with no order as to costs.