Jabahir vs D.D.C., Varanasi and Others

Anjani Kumar Mishra, J.—Heard Sri Shamimul Hasnain, learned Counsel for the petitioner and Sri Awadhesh Kumar Singh, learned Counsel for the contesting respondents. The writ petition arises out of an objection under section 9A-2 of the U.P. Consolidation of Holdings Act and has been filed seeking a writ of certiorari for quashing the order dated 5.4.2003 passed by the Deputy Director of Consolidation, Varanasi.

The dispute in the writ petition pertains to 7 plots having an area of 5.73 acres, situated in village Sarfudinpur, Pargana Barah, District Varanasi (Chandauli).

The facts of the case briefly stated are that the petitioner allegedly purchased 1/3rd share of the plots in question from Kalawati, by a registered sale deed dated 21.7.1971. An objection was filed claiming on the basis of the said sale deed. It is alleged by the petitioner that this objection was decided by the Consolidation Officer by his order dated 20.1.1976, on the basis of a forged and Farzi compromise, said to have been entered into between the petitioner and his brother on the same date. By this compromise order, the petitioner, Jabahir, as also his brother Lalta were ordered to be recorded as Bhumidhars over 1/3rd share of the 7 plots in question, each having half share therein.

Aggrieved by the compromise order, the petitioner filed an appeal, which was belated and supported by an application for condoning the delay. The appeal was allowed by the Settlement Officer, Consolidation by his order dated 12.10.1994. The compromise order was modified and it was directed that the petitioner alone be recorded over the 1/3rd share of the plots in question.

Against this order, Revision No. 582 of 1998 was filed by the respondents, which was allowed and the matter was remanded back to the Settlement Officer, Consolidation.

Consequent to the order of remand, the Assistant Settlement Officer, Consolidation on 12.7.2002 again allowed the appeal and maintained the earlier order, whereby the petitioner alone was ordered to be recorded over the 1/3rd share of the plots in question.

Against the order dated 12.7.2002, the respondents preferred a revision, which has been allowed by the impugned order dated 5.4.2003 holding that there was no proper explanation of the inordinate delay in filing the appeal against the compromise order and the A.S.O.C. had wrongly condoned the delay. The appellate order was therefore set aside and the compromise order stood affirmed.

It is further stated by the petitioner that during the pendency of the proceedings, the order dated 12.10.1994 passed by the Settlement Officer, Consolidation, was given effect to in the revenue records in proceedings under Rule 109.

It is contended by learned Counsel for the petitioner that the sale deed executed by Kalawati was in his name alone. A partition had taken place between the petitioner and his brother, Lalta, in 1965 and, therefore, there was no occasion for the name of Lalta also being recorded over the land, which was subject-matter of the sale deed, and there was no justification for any compromise and the compromise was a forged and fictitious document. He has further submitted that the Deputy Director of Consolidation has wrongly allowed the revision holding that the Settlement Officer, Consolidation had wrongly condoned the delay in filing the appeal. He has lastly submitted that the question of condonation of delay is a discretionary order and should not have been interfered with by the Deputy Director of Consolidation.

Learned Counsel for the respondents on the other hand contended that the appeal against the compromise order dated 20.1.1976 was filed on 20.1.1993, almost 17 years after the compromise order and, therefore, the order impugned has been rightly passed. He has further submitted that the consolidation operations were closed, as a result of publication of notification under section 52 of the U.P. Consolidation of Holdings Act, in the year 1984. Separate chaks had been carved out in the names of the petitioner and his brother, Lalta. Lalta died and was succeeded by his widow, who executed a sale-deed in favour of respondents 2 to 5. A suit was filed on 10.1.1996 by the petitioner for cancellation of this sale-deed, executed by the widow of Lalta, which was dismissed for default on 5.5.2000. In the appeal filed by the petitioner in 1993 before the A.S.O.C., challenging the compromise order, the petitioner had set up a will dated 15.1.1993, executed by Lalta, wherein the petitioner is the marginal witness, and the beneficiary under the will is the grand son of the petitioner. These facts have been brought on record by means of a supplementary affidavit.

Learned Counsel for the petitioner has filed a counter affidavit to this supplementary affidavit filed by the contesting respondents. In this counter affidavit, the petitioner has averred that since the dispute was pending in the Consolidation Courts, the petitioner was advised not to contest the civil suit and, therefore, the same was dismissed for non prosecution. In paragraph 7 of the counter affidavit, it has been stated that since the will deed dated 15.1.1993 was an unregistered one, no rights passed in favour of the grand son of the petitioner.

Upon consideration of the rival submissions and upon a perusal of the record, it emerges that on the basis of a will, allegedly executed by Lalta on 15.1.1993, name of the beneficiary Gaurav Kumar was mutated over the land in question. The petitioner was one of the attesting witnesses to this will. The said mutation order was set aside on an application filed by Ramadevi, widow of Lalta. It further emerges from the record that the contesting respondents, who are purchasers from Ramadevi, have been recorded over the land in question on the basis of the sale-deed in their favour.

The crucial point, which emerges from the facts noticed above, is that on 15.1.1993, the petitioner was aware that the land in dispute was also recorded in the name of Lalta Prasad and, therefore, the will was prepared, wherein the petitioner is a witness while at the same time and subsequent thereto the compromise order was challenged by him. This is an extremely relevant fact but has not been disclosed by the petitioner in the writ petition.

It is therefore clear that the petitioner has been taking contradictory stands and has not come to Court with clean hands and, therefore is not entitled to any relief from this Court.

It is also to be noted that since the will allegedly executed by Lalta on 15.1.1993 was set up by the petitioner wherein he is marginal witness, it would be safe to assume that the petitioner had accepted the compromise order dated 20.1.1976 and that this order was passed on the basis of a valid compromise, duly entered into between the parties and that the appeal was mala fidely filed after a gap of 17 years.

In the aforesaid circumstances, I find no illegality in the impugned order passed by the Deputy Director of Consolidation setting aside the order of Settlement Officer, Consolidation on the ground that the delay in filing the appeal had not been properly explained. As a consequence of this order the compromise order stands affirmed, and in my considered opinion, rightly so. The writ petition therefore is devoid of substance and is accordingly dismissed.