Brij Kishore vs Deputy Director of Consolidation Banda

Anjani Kumar Mishra, J.—Heard Shri Rishikesh Tripathi for the petitioner. None has appeared on behalf of respondents even in the revised call.

The writ petition arises out of an objection under Section 9A(2) of the U.P. Consolidation of Holdings Act and seeks quashing of the order dated 06.07.1985, which is a compromise order passed by the Settlement Officer Consolidation, the order dated 18.12.2013, which has been passed by the Settlement Officer Consolidation on a restoration application filed by the petitioner and the order dated 15.06.2015, whereby the order of the Settlement Officer Consolidation has been affirmed by the Deputy Director of Consolidation.

The facts of the case briefly stated are that land of khata No. 180, situated in Mauja Anathuwa, District Banda, in the basic year record, was recorded in the name of one Saikuwa, the father of the petitioners.

An objection claiming co-tenancy was filed by the contesting respondents. At the appellate stage, the objection was decided by means of a compromise entered into between the parties on 25.06.1985.

The Settlement Officer Consolidation in terms of the compromise passed an order on 06.07.1985 accepting the compromise and directing the names of the parties to be recorded over the khata in question. The share of the father of the petitioner were held to be 1/3, that of Pancharam son of Kaluwa, 1/3 while that of Vishwanath and Badaluwa sons of Kaira was held to be 1/6 each.

Against this order, the petitioners sons of Saikuwa preferred a recall application two decades, hence. The restoration application was filed on 17.01.2005 and in this application it was alleged that they came to know about compromise order, the same day and that the thumb impression of their father on the compromise was farzi.

It appears that the Settlement Officer Consolidation vide order dated 26.09.2012 allowed the restoration application.

Aggrieved by the order allowing the restoration application, the contesting respondent preferred a revision. This revision was allowed vide order dated 13.05.2013 on the ground that the inordinate delay of 20 years in filing the restoration application had not been considered or condoned by the Settlement Officer Consolidation.

The matter was accordingly remanded back for consideration of the delay condonation application after setting aside the order allowing the restoration application.

Upon remand, the Settlement Officer Consolidation by order dated 18.12.2013, dismissed the restoration application as barred by time and this order has been affirmed upon dismissal of the revision filed by the petitioners vide order dated 15.06.2015. Hence this writ petition challenging the compromise order passed in the year 1985 as also the orders whereby the appellate and revisional Court have dismissed the restoration application on the ground of delay.

The contention of learned counsel for the petitioner is that the case set up by the petitioners was one of fraud. In cases of fraud the question of delay is of no consequence. A finding of fraud had been returned by the Settlement Officer Consolidation in his earlier order allowing the restoration application. It is additionally submitted that although this order was set aside, the finding returned therein have not been set aside and, therefore, the same would be still operative.

The next contention is that the question of fraud should necessarily have been considered by the Courts below and in limiting the consideration only to the question of condonation of delay, the Court below have committed manifest illegality. The orders impugned therefore, are liable to be set aside.

I have considered the submissions made by learned counsel for the petitioners and have perused the record.

The contention that the question of fraud should also have been considered by the Courts below is being dealt with first. In this connection, it would be relevant to note that the restoration application was allowed initially but the order was set aside in revision and the matter was remanded back to the Settlement Officer Consolidation with a specific direction that the question of condonation of delay be considered by the appellate Court, first. This order of remand was never challenged by the petitioner and was allowed to attain finality.

The operative portion of the order dated 13.05.2013, the order of remand, categorically directs the appellate Court to pass a clear order on the issue of condonation of delay. This order having attained finality, it is not open for the petitioner to claim that the merits of the restoration application should also have been considered. Therefore, the contention of counsel for the petitioner is without substance and is repelled.

On the merits of the delay condonation application, the Courts below have observed that the petitioners had set-up a false case in the restoration application. The compromise order was sought to be implemented in the revenue records by means of proceedings under Rule 109A of the U.P. Consolidation of Holdings Rules. In these proceedings, the petitioners had put in appearance on or prior to 26.07.2004 and, therefore, the date of knowledge, namely 13.01.2015, given in the restoration application was incorrect. A further observation has been made that no affidavit was filed in support of the averments made in the restoration application.

In this connection, counsel for the petitioner has placed reliance on the averments made in paragraph 16 in the writ petition, wherein it has been alleged that not only was the compromise a forged one, the alleged appearance of the petitioners in the proceedings under Rule 109A was not at the instance of the petitioner and even the vakalatnama in this regard was forged and was manipulated by the contesting respondent in the writ petition. In this very same paragraph, it has been averred that the petitioners had no knowledge of the order dated 06.07.1985 before moving restoration application in January, 2005.

The averments made in paragraph 16 of the writ petition have been denied in the counter affidavit.

In view of the allegations and counter allegations, the question as to the filing of vakalatnama on behalf of petitioner in the proceedings under Rule 109A is rendered a disputed question of fact. Such a disputed question of fact cannot be decided by the writ Court merely on the basis of affidavits. The petitioners have not filed any other material on record in support of the contentions made in paragraph 16 of the writ petition. The averment therefore, does not help the petitioner in any manner, also because there appears no justification for the respondents to have resorted to forgery in July, 2004 when admittedly the petitioners claim to have acquired knowledge of the compromise order in 2005. There was no justification for the respondents to have imagined that a restoration application would be filed in the year 2005, which imagination enabled them to prepare for something which took place, six months, later.

Even otherwise, this Court finds that the actual signatory to the compromise, the father of the petitioners, never objected to the compromise, during his life time. The restoration application was filed alleging the compromise to be forged without any iota of evidence in this regard and on the basis of bald assertions.

Besides, this Court fails to understand as to how the sons of the signatory to the compromise can allege that their father had not entered into a compromise or was not a signatory thereto.

In view of the above discussion, I do not find any substance in the writ petition.

It is therefore, dismissed.