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2024 DIGILAW 966 (ALL)

Nanki Bai v. D. D. C.

2024-04-04

CHANDRA KUMAR RAI

body2024
JUDGMENT : In Re: Civil Misc. Impleadment Application No.3 of 2019 1. Heard Mr. Himanshu Pandey, learned counsel for the applicant and Mr. C.S. Agnihotri, learned counsel for respondent no.4/1. 2. The instant application has been filed on behalf of the applicant-Rajendra Kumar Rai to implead him as petitioner no.2 in the instant petition on the ground that the applicant-Rajendra Kumar Rai has purchased the plot in question by way of registered sale deed executed on 22.1.2001. 3. On the other hand, Mr. C.S. Agnihotri, learned counsel for respondent no.4/1 submitted that the applicant-Rajendra Kumar Rai has committed forgery and he is not bona fide purchaser, as such, he cannot be permitted to be impleaded in the instant petition. He further submitted that the petitioner no.1 has already sold the land in favour of several persons, as such, the applicant is not entitled to be impleaded in the instant petition. 4. I have considered the argument advanced by learned counsel for the parties. 5. Considering the entire facts and circumstances of the case coupled with the fact that the writ petition against the order of the consolidation officer dated 26.3.1981 and Deputy Director of Consolidation dated 26.4.1989 is pending before this Court since 1990, as such, in order to decide the dispute finally between the parties, the applicant-Rajendra Kumar Rai is permitted to be impleaded in the instant petition as petitioner no.2. 6. The impleadment application is accordingly, allowed. 7. Office is directed to implead the applicant-Rajendra Kumar Rai as petitioner no.2 in the array of the parties to the writ petition. Order on Writ Petition 1. Heard Mr. Himanshu Pandey, Mr. Awadhesh Prasad Pandey & Mr. J.P. Rai, learned counsel for petitioner no.2, Mr. C.S. Agnihotri, learned counsel for respondent no.4/1 and Mr. Rajesh Kumar Tiwari, learned Additional Chief Standing Counsel for the State-respondents. 2. Brief facts of the case are that dispute relates to Khata no.569, plot no.2083 area 0.30 acres and plot no.2086/1 area 0.70 acres situated at Mauza Mau, Pargana and Tahsil-Muranipur, District-Jhansi. In the basic year of the consolidation operation plot in question was recorded in the name of respondent no.4-Bhagwan Das. 2. Brief facts of the case are that dispute relates to Khata no.569, plot no.2083 area 0.30 acres and plot no.2086/1 area 0.70 acres situated at Mauza Mau, Pargana and Tahsil-Muranipur, District-Jhansi. In the basic year of the consolidation operation plot in question was recorded in the name of respondent no.4-Bhagwan Das. Against the basic year entry of the aforementioned plot in question petitioner no.1/ Nanhi Bai filed an objection under Section 9-A (2) of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "U.P.C.H. Act") claiming to be bhumidar of the plot in question on the ground that the plot in question was given to petitioner's father by the Zamindar of the area on lease. Consolidation Officer framed issues in the aforementioned title objection filed by the petitioner and afforded opportunity to the parties to lead evidence in support of their cases. Consolidation Officer vide order dated 26.3.1981 decided the aforementioned title objection maintaining the basic year entry as well as expunged the entry of possession made in favour of the petitioner. In place of filing appeal against the order of Consolidation Officer dated 26.3.1981, petitioner filed a Civil Suit No-799 of 1982 for permanent injunction in respect to plot in question along with certain other plots impleading the respondent No-4 as defendant. The aforementioned civil suit was dismissed vide judgment dated 5.11.1984. The village in question was de-notified, under Section 52 of U.P.C.H. Act on 16.12.1985. Against the order of Consolidation Officer dated 26.3.1981, appeal under Section 11 (1) of U.P.C.H. Act along with the prayer for condonation of delay of about 6 years was filed by the petitioner before Settlement Officer of Consolidation on 20.1.1987. The aforementioned appeal was registered as Appeal No.22 and Assistant Settlement Officer of Consolidation, Jhansi vide order dated 26.4.1989 granted benefit of Section 5 of Limitation Act as well as allowed the appeal setting aside the order of Consolidation Officer dated 26.3.1981 and directed to record the name of the petitioner as bhumidhar with transferable right after expunging the name of respondent no.4 from the plot in question. Against the appellate order dated 26.4.1989, a revision under Section 48 of U.P.C.H. Act was filed by respondent no.4 before Deputy Director of Consolidation. The aforementioned revision was registered as Revision No.195 / 203. Against the appellate order dated 26.4.1989, a revision under Section 48 of U.P.C.H. Act was filed by respondent no.4 before Deputy Director of Consolidation. The aforementioned revision was registered as Revision No.195 / 203. The Deputy Director of Consolidation vide order dated 23.3.1990 allowed the revision and set aside the appellate order dated 26.4.1989, hence this writ petition on behalf of the petitioner challenging the impugned revisional order dated 23.3.1990 passed by respondent no.1 and to restore the appellate order dated 26.4.1989. 3. This Court vide order dated 6.4.1990 entertained the matter, issued notice to respondent no.4 and granted interim protection staying the operation of the order dated 23.3.1990 passed by the Deputy Director of Consolidation. 4. Since, the date of grant of interim order dated 6.4.1990, petitioner has not taken steps to serve the respondent no.4. Respondent no.4 has expired in the year 1993 but petitioner has not taken steps to substitute the legal heir of respondent no.4, accordingly, abatement application no.2 of 2019 was filed on behalf of respondent no.4/1 in the instant petition but no step was taken on behalf petitioner no.1, accordingly, this Court vide order dated 8.8.2022 dismissed the writ petition as abated due to non-substitution of legal heirs of deceased respondent no.4 and vacated the interim order. On the recall / restoration application filed on behalf of petitioner no.2, the order dated 8.8.2022 was recalled and writ petition was restored to its original number vide order dated 5.3.2024. The application for substitution of legal heir of respondent no.4 along with the prayer for condonation of delay was allowed by this Court vide order dated 5.3.2024. Respondent no.4/1 has filed her counter affidavit to the main writ petition and petitioner has filed his rejoinder affidavit also. 5. Learned counsel for the petitioner submitted that the title objection was filed by the petitioner under Section 9 A (2) of U.P.C.H. Act for recording her name as bhumidhar with transferable right as petitioner is in possession for last 50 years over the plot in question. He further submitted that the Consolidation Officer has rejected the objection filed by the petitioner on misconceived ground that petitioner has failed to prove his adverse possession over the plot in question. He further submitted that the Consolidation Officer has rejected the objection filed by the petitioner on misconceived ground that petitioner has failed to prove his adverse possession over the plot in question. He next submitted that basis of the petitioner's objection is long possession of the petitioner since before the date of vesting, as such, in view of the provisions contained under Section 20 & 240 A of U.P. Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to as "U.P.Z.A. & L.R. Act"), petitioner is entitled to be recorded as bhumidhar of the plot in question. He further submitted that the appellate Court has rightly considered the controversy and allowed the appeal filed by the petitioner directing the authorities to record the name of the petitioner as bhumidhar with transferable rights after expunging the name of respondent no.4. He further submitted that the revisional Court has illegally allowed the revision setting aside the appellate order on the ground that the petitioner has failed to prove his adverse possession in respect to the plot in question. He further submitted that the case of the petitioner has not been examined by the Consolidation Officer as well as Deputy Director of Consolidation taking into consideration the provisions of Section 20 & 240A of U.P.Z.A. & L.R. Act. He next submitted that the revisional Court has not afforded proper opportunity of hearing to petitioner no.1 while deciding the revision under the impugned order. He further placed reliance upon the judgment of this Court reported in 1963 LawSuit (All) 92=1964 AIR (ALL)213, Nanhoo Mal vs. Mulloo as well as 1963 LawSuit (All) 101= 1963 RD 221 , Ram Dular Singh & Others vs. Babu Sukhu Ram & Others in support of his argument with respect to the provisions contained under Sections 20 & 240A of U.P.Z.A. & L.R. Act. 6. On the other hand, learned counsel appearing on behalf of respondent no.4/1 submitted that nobody is representing the petitioner no.1, as such, the writ petition cannot be entertained and liable to be dismissed. He further submitted that the petitioner no.1 has misused the process of law by executing the sale deed in favour of petitioner no.2 without getting permission from this Court, as such, the writ petition filed by the petitioner no.1 is liable to be dismissed with cost. He further submitted that the petitioner no.1 has misused the process of law by executing the sale deed in favour of petitioner no.2 without getting permission from this Court, as such, the writ petition filed by the petitioner no.1 is liable to be dismissed with cost. He further submitted that the petitioner no.1 has not taken steps to serve the respondent no.4 after getting the interim order from this Court in the year 1990, as such, petitioners are not entitled to any relief in the matter. He next submitted that the title objection filed by the petitioner has been rightly rejected by the Consolidation Officer holding that the entry of possession in favour of petitioner is illegal. He next submitted that no document regarding lease by the Zamindar was filed before the Consolidation Officer nor the Zamindar was examined before the Consolidation Officer, as such, the claim of the petitioner was rightly rejected by the Consolidation Officer. He next submitted that the petitioner has failed to prove the issuance of P.A.-10, as such, the entry of possession will not give any right to petitioner. He further submitted that after decision of Consolidation Officer dated 26.3.1981 petitioner no.1 filed a civil suit for injunction in respect to the plot in question, which was dismissed with finding that petitioner no.1 is neither owner nor in possession of the plot in question. He further submitted that C.H. Form-45 was prepared in the name of respondent no.4 as well as respondent no.4/1 as respondent no. 4 had executed sale-deed in favour of his daughter/respondent no.4/1 on 20.10.1985. He further submitted that village in question was de-notified, under Section 52 of U.P.C.H. Act on 16.12.1985 and appeal under Section 11 (1) of U.P.C.H. Act was filed on 20.1.1987, which has been illegally entertained & allowed by appellate Court vide order dated 26.4.1989, hence revisional Court has rightly exercised his jurisdiction under Section 48 of U.P.C.H. Act in setting aside the appellate order dated 26.4.1989. He further placed reliance upon the judgments of this Court as well as Hon'ble Supreme Court on the point of opportunity of hearing as well as the provisions contained under Section 20 & 240-A of U.P.Z.A. & L.R. Act in order to demonstrate that no right will accrue to the petitioners. He further placed reliance upon the judgments of this Court as well as Hon'ble Supreme Court on the point of opportunity of hearing as well as the provisions contained under Section 20 & 240-A of U.P.Z.A. & L.R. Act in order to demonstrate that no right will accrue to the petitioners. The particulars of the judgments cited by learned counsel for respondent no.4/1 are as under: "i. 2022 LawSuit (MP) 1678, Shanti w/o Late Ramdas Laxmi w/o Ramswaroop vs. State of Madhya Prasad Executive Engineer PWD Division 1 Gwalior: Sub Divisional Officer PWD. ii. AIR 1978 Allahabad 139, Raghubir Sahai Bhatnagar vs. Bhakt Sajja. iii. Civil Revision No.19 of 2012, Kamleshwar Shahi vs. Rajeev Khurana, judgement dated 20.5.2014. iv. Civil Misc. Appeal No.5971 of 1985 in Writ Petition No.6178 of 1984. v. Civil Appeal No.7550-7553 of 2021 (arising out of S.L.P. (C) Nos.26374-26377 of 2013), Shri K. Jaya Ram & Others Vs. Bangalore Development Authority & Others, judgment dated 8.12.2021. vi. 2020 0 Supreme (SC) 504, Narasamma and Others vs. A.Krishnappa (dead) through LRs. vii. 2018 0 Supreme (All) 850, Chauthi vs. D.D.C. And Others. viii. 2013 LawSuit (All) 1533, Sri Pal vs. D.D.C. & Others. ix. 2022 LawSuit (All) 708, Bhagwati Deen vs. Sheetladin and Others." 7. I have considered the argument advanced by learned counsel for the parties and perused the records. 8. There is no dispute about the fact that the title objection filed by the petitioner has been dismissed by the Consolidation Officer vide order dated 26.3.1981. There is also no dispute about the fact that village in question was de-notified, under Section 52 of U.P.C.H on 16.12.1985, but in appeal filed by the petitioner on 20.1.1987, the order of Consolidation Officer dated 26.3.1981 was set aside and petitioner was ordered to be recorded as bhumidhar with transferable rights. There is also no dispute about the fact that in revision filed by respondent no.4, the appellate order dated 26.4.1989 has been set aside affirming the order of Consolidation Officer dated 26.3.1981. There is also no dispute about the fact that Civil Suit No799 of 1982 filed by petitioner was dismissed by civil Court on 15.11.1984 holding that petitioner is not in possession of the plot in question. 9. There is also no dispute about the fact that Civil Suit No799 of 1982 filed by petitioner was dismissed by civil Court on 15.11.1984 holding that petitioner is not in possession of the plot in question. 9. In order to appreciate the controversy involved in the matter, perusal of the order dated 26.3.1981 passed by the Consolidation Officer will be relevant, which is as under: 10. The perusal of the order passed by the Consolidation Officer dated 26.3.1981 demonstrate that the Consolidation Officer has exercised the jurisdiction in proper manner by framing issues and considering the evidence adduced by the parties in support of their cases. The perusal of the order further demonstrates that the Consolidation Officer while rejecting the title objection filed by the petitioner against the basic year entry as recorded finding that petitioner is not in actual cultivatory possession of the plot in question, as such, petitioner is not entitled to be recorded as bhumidhar with transferable rights. 11. It is material to state that the appeal under Section 11 of U.P.C.H. Act was filed on behalf of the petitioner on 20.1.1987 although village was de-notified under Section 52 of U.P.C.H. Act on 16.12.1985. It is also material that title objection filed by the petitioner herself was rejected by the Consolidation Officer on 26.3.1981 and civil suit for permanent injunction filed by the petitioner herself was dismissed on 5.11.1984, as such, the filing of appeal at the instance of the petitioner on 20.1.1987 after de-notification of the village was misuse of the process of law. The Settlement Officer of Consolidation has illegally entertained and allowed the appeal under Section 11 of U.P.C.H. Act filed by the petitioner. The filing of appeal and revision after de-notification of the village of under Section 52 of U.P.C.H. Act has been considered by this Court in the case reported in 2015 (127) RD 702 , Sharda Prasad Tiwari vs. State of U.P. and Others as well as 2007 (103) RD 627, Siddh Narayan Vs. Deputy Director of Consolidation and Others. In the aforementioned cases, this Court has held that the appeal and revision can be filed even after de-notification of the village under Section 52 of U.P.C.H. Act in the facts and circumstances of the cases. Deputy Director of Consolidation and Others. In the aforementioned cases, this Court has held that the appeal and revision can be filed even after de-notification of the village under Section 52 of U.P.C.H. Act in the facts and circumstances of the cases. In the instant matter, petitioner was fully aware about the order of Consolidation Officer dated 26.3.1981 even petitioner no.1 had filed a civil suit after decision of title objection by the Consolidation Officer, which was dismissed on 5.11.1984. The C.H. Form-45 was prepared by the Consolidation Authorities and village has been de-notified on 6.12.1985, as such, the filing of appeal under Section 11 of U.P.C.H. Act on 20.1.1987 was misuse of the process of law. The appeal and revision cannot be filed after de-notification of the village in each and every cases particularly where the parties were fully aware about the order of Consolidation Officer passed during consolidation operation. The Deputy Director of Consolidation has rightly set aside the order passed by the Settlement Officer of Consolidation although on different ground holding that petitioner has not been found in cultivatory possession of the plot in question and maintained the basic year entry of the plot in question. 12. The Settlement Officer of Consolidation while allowing the appeal filed by the petitioner has held that the petitioner has filed the lagan receipt of 1357 fasli and 1362 fasli, which proves the possession of the petitioner, accordingly, petitioner is entitled to be recorded on the basis of adverse possession as bhumidhar with transferable rights but the finding recorded by the Consolidation Officer while deciding the title objection has not been reversed in proper manner. The Deputy Director of Consolidation while deciding the revision has recorded the finding of fact that in order to prove the adverse possession the issuance of P.A.-10 is mandatory but the same has not been proved that P.A.-10 was issued in the matter, accordingly, Deputy Director of Consolidation allowed the appeal filed by respondent no.4 setting aside the appellate order dated 26.4.1989, which is just and proper exercise of jurisdiction by the Deputy Director of Consolidation. 13. 13. It is material in the instant matter that petitioner no.1 has filed the instant petition in the year 1990 and obtained interim order on 6.4.1990 but she herself transferred the property in question by way of sale deed in favour of petitioner no.2 on 22.1.2001 without getting permission of this Court, which is misuse of the interim order passed by this Court on 6.4.1990 in the writ petition filed by the petitioner no.1 herself. Petitioner has not taken steps to serve respondent no.4 in proper manner rather transferred the property in question from time to time in favour of strangers, as such, petitioners are not entitled to any relief in the matter. 14. Considering the conduct of petitioner no.1 as well as the order dated 26.3.1981 passed by the Consolidation Officer rejecting the title objection filed by the petitioner, no interference is required in the matter, the writ petition is accordingly, dismissed. 15. No order as to cost.