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Judgment
Ram Surat Ram (Maurya), J—Heard Sri Shashi Nandan, Senior Advocate, assisted by Sri Pankaj Kumar Mishra, for the petitioners, and Sri Arvind Srivastava and Sri Prabhakar Tripathi, for the respondents.
The writ petition has been filed against the orders of Settlement Officer Consolidation dated 18.06.2007, allowing the appeal of the contesting respondent, setting aside the order of Consolidation Officer dated 07.07.1994 and remanding the case to Consolidation Officer for trial on merits and Deputy Director of Consolidation, dated 07.04.2015, dismissing the revision of the petitioners against the aforesaid order, arising out of title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).
Murlidhar Dubey (now represented by the petitioners) filed an objection (registered as Case No. 8400) under Section 9-A of the Act, on 06.10.1993 for declaring him as sole owner of plot 921/1 (area 90 Ares) of village Amra Khaira Chak, pargana Dehat Amanat, district Varanasi, which was left as chak-out. Murlidhar Dubey took plea that in family partition, this chak out portion of plot 921 was given in his exclusive share and since then it was in his exclusive possession. It may be mentioned that total area of plot 921 was 401 Ares. Out of which 90 Ares, which was roadside land, was left as chak-out and for remaining area was included in consolidation and another dispute was referred for partition of share of co-sharers.
It is alleged that notices were issued to opposite parties by Assistant Consolidation Officer. The dispute was not settled before Assistant Consolidation Officer as such it was referred to Consolidation Officer, by report dated 25.11.1993 for decision after trial on merit. Thereafter, notices were issued on 25.12.1993, then the parties appeared. The case was adjourned on several dates for compromise but ultimately Consolidation Officer by order dated 02.06.1994, framed issues and fixed 24.06.1994 for evidence of Murlidhar Dubey. On 24.06.1994, the case was adjourned for 27.06.1994 for compromise. On 27.06.1994, a written compromise signed by Murlidhar Dubey, identified by Sri Vijay Kumar Dubey, Advocate and Rajit Dubey, Vindhyabasini Dubey and Chhannu Lal Dubey, identified by Sri Vinod Kumar Sharma, Advocate, whose vakalatnama was also filed by them on that day, was filed. The compromise was verified on 27.06.1994. Thereafter, the case was decided in terms of compromise by order of Consolidation Officer dated 07.07.1994.
Rajit Dubey filed a time barred appeal against the aforesaid order on 03.12.2001, along with delay condonation application, stating therein that no notice of the case was served upon him nor he ever appeared before Consolidation Officer or filed vakalatnama and compromise. The alleged compromise filed on 27.06.1994 was a forged document and was not signed by the appellant. It is only on 29.11.2001, when the petitioners tired to interfere in his joint possession of the land in dispute then on inquiry on 30.11.2001, he came to know about the compromise and order passed on it. Then the appeal was filed. The matter was contested by Murlidhar Dubey, who filed his Counter Affidavit and affidavit of Vijay Kumar Dubey, Advocate, who have stated that the parties have voluntarily entered into compromise on 27.06.1994, which was verified in presence of the parties and their counsel by Consolidation Officer and thereafter order was passed on 07.07.1994. Chhannu Lal Dubey also filed his affidavit to support compromise. The appeal was heard by Settlement Officer Consolidation, who by order dated 18.06.2007, found that in compromise dated 27.06.1994, a clause that "partition of remaining area of plot 921, of which valuation has been determined, will be according to proposal" has been added in small letters. Rajit Dubey has denied his signatures on the compromise, while it was proved that Vindhyabasini Dubey was on duty on 27.06.1994 in HINDALCO at Renukoot between 3.00 to 11.00 hours shift. Signatures of Vindhyabasini Dubey on the compromise was not tallying with his signatures on Power of Attorney executed by him. Notices were not served upon all the opposite parties nor any notice was issued to Chhannu and Vindhyabasini. In the case of forgery, delay was liable to be condoned. By the compromise, a fresh right has been created over immovable property as such compromise was liable to registered. By this compromise, the land which was chak-out and abadi, for which consolidation courts have no jurisdiction, were also allowed to be compromised. Rajit Dubey has purchased share of his uncle in the land in dispute, which was also surrendered in this compromise. For aforesaid reasons, it has been inferred that the compromise was a fabricated document. On these findings the appeal was allowed and order of Consolidation Officer dated 07.07.1994 was set aside and the case was remanded to Consolidation Officer for trial on merits.
Murlidhar Dubey filed a revision against the aforesaid order. The revision was heard by Deputy Director of Consolidation, who by order dated 07.04.2015 held that in the compromise, the land which was chak-out and abadi, for which consolidation courts have no jurisdiction, were also included. In compromise, a clause that "partition of remaining area of plot 921, of which valuation has been determined, will be according to proposal" has been added in small letters. Vindhyabasini Dubey was on duty on 27.06.1994 in HINDALCO at Renukoot between 3.00 to 11.00 hours shift. His signatures on the compromise appears to be forged. All the co-sharers are not accepting the compromise. On these findings, the revision was dismissed. Hence, this writ petition has been filed.
The counsel for the petitioners submits that Rajit Dubey alone challenged the order of Consolidation Officer dated 07.07.1994, based on compromise. Settlement Officer Consolidation and Deputy Director of Consolidation did not record any finding that the compromise was not signed by Rajit Dubey. Vindhyabasini Dubey never challenged the compromise nor he ever disputed his signatures on the compromise but the compromise has been illegally set aside on the ground that he was on duty on 27.06.1994 in HINDALCO at Renukoot between 3.00 to 11.00 hours shift. On 27.06.1994, a written compromise signed by Murlidhar Dubey, identified by Sri Vijay Kumar Dubey, Advocate and Rajit Dubey, Vindhyabasini Dubey and Chhannu Lal Dubey, identified by Sri Vinod Kumar Sharma, Advocate, whose vakalatnama was also filed by them on that day, was filed, which was duly verified by Consolidation Officer, in presence of the parties and their counsel. The order dated 07.07.1994, based on compromise, was challenged on 03.12.2001. In the meantime, separate chaks were carved out on the basis of order dated 07.07.1994 and the parties were given possession over their chaks. There was no reason for Rajit Dubey, for not coming to know about the order dated 07.07.1984 for such a long time. Delay in filing the appeal has been illegally condoned without any cause. Chhannu Lal Dubey, who was opposite party and had filed joint vakalatnama along with Rajit Dubey and Vindhyabasini Dubey, filed his affidavit and Vijay Kumar Dubey, Advocate also filed his affidavit before Settlement Officer Consolidation, admitting compromise. But these affidavits have been illegally ignored by the courts below. Signatures of Rajit Dubey on compromise was identified by Sri Vinod Kumar Sharma, Advocate, practicing before Consolidation Officer. Mere denial of signature on the compromise was not sufficient to disbelieve it. The disputes between co-sharers was settled on 07.07.1994, it has been illegally reopened by order dated 18.06.2007. Orders of respondents-1 and 2 are illegal and liable to be set aside.
I have considered the arguments of the counsel for the parties and examined the record. A perusal of the objection filed by Murlidhar Dubey shows that Kameshwar, Vindhyabasini, Rajit and Chhannu Lal were impleaded as opposite parties. Admittedly Kameshwar did not appear before Consolidation Officer nor signed the compromise. But on the basis of compromise, his name was also directed to be deleted from the land in dispute. Thus the compromise was not signed by all the parties and it could not have been acted upon. The order of Consolidation Officer is apparently illegal and has been rightly set aside. It is not proper for this Court to restore an illegal order, in exercise of writ jurisdiction.
So far as sufficiency of cause for condonation of delay is concerned, as the land of which valuation was determined and included in consolidation was partitioned according to the proposed share as noted in CH Form-4 as such chaks were carved out taking into account of sale deed dated 07.04.1961 executed by Babban Dubey in favour of Rajit Dubey and the parties were satisfied from their chaks. While the disputed land is a roadside land having commercial value and was chak-out on the spot. According to the appellant, it through out remained in joint possession of the parties. It is only when a dispute was raised in respect of his possession on the spot, then on inquiry on 30.11.2001, he came to know about the order dated 07.07.1994 and the appeal was filed on 03.12.2001. It was alleged that no notice was served upon him nor he signed the compromise as such he had no knowledge on the order dated 07.07.1994. These allegations have been believed by Settlement Officer Consolidation. This was sufficient cause for condonation of delay. In any case, this Court has no jurisdiction to examine sufficiency of the cause.
Settlement Officer Consolidation has recorded a finding that notices were not served upon all the opposite parties nor any notice was issued to Chhannu and Vindhyabasini. Presence of Vindhyabasini Dubey before Consolidation Officer on 27.06.1994 was found as impossibility as he was on duty on 27.06.1994 in HINDALCO at Renukoot between 3.00 to 11.00 hours shift. Although, Vindhyabasini Dubey did not file any appeal but on its basis inference has been drawn that compromise has been fabricated and was not a genuine compromise. 90 Ares land, which was roadside land having commercial value was given in exclusive share of Murlidhar Dubey, who had only 1/8 share in it. As such the compromise was not a lawful agreement. It amounts to transfer of 7/8 share of other co-sharers in favour of Murlidhar Dubey and its registration was compulsory. There is no illegality in the orders of consolidation authorities. It is still open for the petitioners to contest the case merit and no prejudice has been caused to them.
In view of the aforesaid discussions, the writ petition has no merit and is dismissed.