Chhotey Lal vs D.D.C.

Anjani Kumar Mishra, J.—Heard learned counsel for the petitioners and Shri Pradeep Kumar Rai for the contesting respondents.

The instant writ petition arises out of an objection under Section 9-A(2) of the U.P. Consolidation of Holdings Act and is directed against the order dated 14.01.2016, passed by the Deputy Director of Consolidation, Etawah, Camp at Agra.

The case has a very long and chequered history. However, the relevant facts briefly stated are that the dispute in the writ petition pertains to land belonging to one Gopali. This land, in the basic record, was recorded in the names of Pooran Chandra, Alan Singh and Chhotey Lal sons of Gopali and Chandan singh son of Chhotey Lal.

As many as, five objections, under Section 9-A(2) was filed.

The first objection was filed by petitioners, Chhotey Lal and Ashok claiming ? share each in the land in dispute, the remaining ? share being that of Pooran Chandra.

The second objection was filed by Phool Singh, Bhuri Singh and Chandan Singh sons of Hola Ram claiming half share in the land in question, on the basis of a sale deed executed in their favour by Pooran Chandra.

The third objection was filed by Imtiyaz Mohammad, Salim Mohammad and Ejaj Mohammad, sons of Fateh Mohammad, respondent Nos.7 to 9, claiming half share in the disputed land on the basis of a sale deed, executed in their favour by Smt. Vaijanti Devi wife of Pooran Chand.

The fourth objection was filed by the State claiming that the sale deed executed by Pooran Chand on 21.05.1984, in favour of Phool Singh and his brothers to be hit by Section 157-A of the U.P. Zamindari Abolition and Land Reforms Act.

The fifth objection was filed by Shri Chandan Singh son of Tota Ram claiming � share in the disputed land on the basis of a sale deed, executed in his favour by Smt. Vaijanti Devi wife of Pooran Chand.

It appears that several times, the matter was decided by the Consolidation Officer. The orders were either set aside in appeal and the matter remanded back or restoration applications were allowed and thereafter the matter was decided again.

Ultimately, a restoration application was allowed on 12.04.2005 and the matter was again restored to its original number before the Consolidation Officer.

On 22.12.2006, an application was filed by Smt. Mohan Devi, respondent No. 6 for summoning the mother of the petitioners to depose before the Court. This application was rejected on 22.12.2005.

Thereafter the Consolidation Officer vide order dated 24.12.2005 decided the objections. It was held that Ashok Kumar and Chhotey Lal had ? share each in the disputed land and the remaining ? share was held to be that of Pool Singh, Bhuri Singh and Chandan Singh sons of Bhola Ram.

Against the order of the Consolidation Officer, four revisions were filed.

Revision No.352/2005/148 of 2006-07 was filed by Phool Singh and others challenging the order dated 22.12.2005, whereby the application of the respondent No. 6 for summoning the mother of the petitioner to the witness box, has been rejected.

Revision No.356 of 2005/150 of 2006-07 was filed by Phool Singh and others against the order of the Consolidation Officer dated 24.12.2005, on its merits.

Revision No.357/2005/147 of 2006-07 was filed by respondent No. 6, Smt. Mohan Devi against the order dated 22.12.2005 rejecting her application. She also filed revision No.354 of 2005/149 of 2006- 07, against the order dated 24.12.2005.

The Deputy Director of Consolidation by his order dated 21.05.2007 dismissed the revisions as not maintainable.

It is contended that the order dated 21.05.2007 was not challenged any further.

The other parties to the litigation before the Consolidation Officer, did not file any appeal or revision against the order dated 24.12.2005. As a consequence thereof, the respondent Nos. 7 to 9 ceased to have any concern to the land in dispute as they had not been held to have any share therein yet, the said respondents executed a sale deed in favour of respondent Nos. 4 and 5 in the writ petition.

After the sale deed was executed, Alan Singh, respondent No. 4 filed revision No.162 of 2016, challenging the order of the Consolidation Officer dated 21.08.1993, which was an order of the Consolidation Officer passed on the basis of a compromise dated 16.10.1992.

In my considered opinion, this revision was not maintainable, as the order dated 28.1.1993 had been set aside long back in appeal by the order of the Settlement Officer Consolidation dated 14.11.1994.

However, the revision was dismissed by order dated 16.05.2015.

It is the case of the petitioner that this order has become final as it was not challenged any further.

Thereafter, two restorations were filed on 25/26.03.2015. These restoration applications were filed by the respondent Nos.3 and 4 respectively, namely, Pooran Chand and Alan Singh. It is submitted that these restoration applications were filed by persons, who were opposite parties in the revision, which had been dismissed by the order dated 21.05.2007.

With regard to the restoration filed by Pooran Chand, respondent No. 3, it is contended that since the applicant was an opposite party in the revision, which had been dismissed, it was not open for him to file a restoration application. The restoration was not maintainable but the same has not only been entertained but has also been allowed by the impugned order.

In so far as, the restoration application of the opposite party No. 4 is concerned, it has been submitted that the opposite party No. 4 was claiming on the basis of a sale deed executed in his favour on 21.11.2014 by persons, who were held to have no share in the land in question vide order of the Consolidation Officer dated 24.12.2005. Even this restoration application was therefore, not maintainable.

Shri Pradeep Kumar Rai, who appears for the respondent No. 4 has supported the impugned order.

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

The sole question which arises for consideration in the writ petition is whether an opposite party in a revision, which has been dismissed can seek recall of the order, dismissing the revision.

In my considered opinion, the answer to this question can only be a categorical No. The person, who filed the revision, alone can be aggrieved by the order dismissing it and rejecting his challenge. An opposite party in the revision would necessarily be a person in whose favour, the order had been passed.

For this reason alone, he cannot be aggrieved by an order, dismissing the revision. It is therefore, not open for the opposite party in a revision to seek recall of an order dismissing the revision. The reasoning given to the contrary in the impugned order passed by the Deputy Director of Consolidation for allowing the restoration application, filed by the respondents, therefore, cannot be accepted.

In case, respondent No. 3, Pooran Chandra was aggrieved by the order of the Consolidation Officer, his remedy was by means of a revision against the same. Once he choose not to file a revision, he cannot be permitted to re-open the proceedings in the garb of a restoration application for seeking recall of an order passed by the Deputy Director of Consolidation, dismissing a revision filed by another party.

By not filing a revision, Pooran Chandra had acquiesced to the order passed by the Consolidation Officer on 24.12.2005 and by filing a restoration application, after this order was affirmed by the Deputy Director of Consolidation on 21.05.2007, by seeking its recall, he was only trying to challenge the order of the Consolidation Officer indirectly, having failed to challenge it directly, within limitation. Such a challenge, in my considered opinion, cannot be permitted, as it is clearly malafide.

In view of the foregoing discussion, the impugned order passed by the Deputy Director of Consolidation, Etawah, Camp Agra on 14.01.2016 cannot be sustained and must necessarily be set aside.

Accordingly, the writ petition is allowed, and the impugned order dated 14.01.2016 passed by the respondent No. 1, Deputy Director of Consolidation, Etawah, Camp Agra, is hereby set aside.

No order as to costs.