Mehrunnisha vs Distt. D.D.C.

Ran Vijai Singh, J.—Heard Sri R.K. Pandey, learned Counsel for the petitioner and learned Standing Counsel appearing for the State-respondents: Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the orders dated 10.3.2014, 22.3.2014 and 31.5.2014 passed by respondent Nos. 2 and 1 respectively. Vide order dated 10.3.2014, the-Settlement Officer of Consolidation (in short, ''the SOC'') has condoned the delay in filing the appeal and fixed 19.3.2014 for decision on merit, whereas by the subsequent order dated 22.3.2014, the appeal was allowed and the matter was remitted before the Consolidation Officer for hearing the case afresh after giving opportunity of hearing and adducing the evidence to the parties and vide order dated 31.5.2014, the revision filed by the petitioner against the order dated 22.3.2014 has been dismissed holding it to be not maintainable.

The facts giving rise to this case are that the present petitioner had purchased 1/3rd share of land belonging to respondent No. 5 through registered sale deed dated 23.9.2009. After the execution of the sale deed, she filed an application u/s 12 of the U.P. Consolidation of Holdings Act, 1953 (in short, ''the Act'') before the Consolidation Officer. The said application was allowed on 20.9.2010. Challenging the aforesaid judgment, a time barred appeal was filed by respondent No. 3, along with an application, for condonation of delay, for extending the period of limitation by condoning the delay, before the SOC. The SOC, in turn, condoned the delay vide order dated 10.3.2014. The restoration application was filed on the ground that the respondent No. 5 had entered into a registered agreement to transfer four acres land belonging to him. When the sale deed was not executed within time, the respondent No. 3 filed a suit in the Civil Court for a specific performance of agreement to sell. This suit was decreed in the year 2006. It has no where been discussed that against this judgment and decree, any appeal was filed or this judgment and decree has any where been challenged. From going through the records of the writ petition, it transpires that respondent No. 5, in stead of executing the decree by executing the sale deed in favour of respondent No. 3, had transferred the entire property in favour of the petitioner as well as one Ashiya Begum (the respondent No. 4).

Learned Counsel for the petitioner contends that the petitioner had purchased only 1/3rd share. The appeal was filed on the ground that the recording of name over the entire area of the land belonging to respondent No. 3 is unsustainable as four acres of land could not be transferred in view of Civil Court decree and the sale deed to that extent is void. The SOC has condoned the delay. It appears, in the meantime, respondent No. 4 also filed an application u/s 12 of the Act. The Appellate Court had allowed the appeal filed by respondent No. 3 and remanded the matter before the Consolidation Officer by observing that both the cases pending before the Consolidation Officer be consolidated and be decided together afresh.

Challenging the aforesaid order, the petitioner filed revision; that has been dismissed by the Deputy Director of Consolidation (in short, ''the DDC''), holding it to be not maintainable for the reasons that it has been filed against an interlocutory order.

The submissions of learned Counsel for the petitioner is two-fold;

(i) the revision filed by the petitioner against the order condoning the delay was pending and pending that revision, the present revision which was filed against the appellate order could not be allowed;

(ii) the very basis of allowing the revision is farce as the order passed by the SOC" was not an interlocutory order as the appeal was decided on merit and the decision rendered in that case would not fall in the ambit of interlocutory order.

I having heard learned Counsel for the parties and gone through the record of the writ petition.

It has not been disputed by the learned Counsel for the petitioner that the suit filed by respondent No. 3 against respondent No. 5 for specific performance to execute the sale deed was decreed and drat decree has become final. The respondent No. 5 had not performed his part of decree by executing the sale deed in favour of respondent No. 3 and clandestinely executed the sale deed of his entire holding, including the land which was part of the decree, in favour of the petitioner and respondent No. 4.

Prima facie, I am of the view that the sale deed for the land which was part of the decree was void ab initio, therefore, there was substance in the appeal to that extent and from the perusal of the Appellate Court judgment, it also transpires that respondent No. 3 is not harping or contesting the case seriously with respect to the land which is not part of the decree.

Learned Counsel for the petitioner submitted that the Revisional Court has erred in holding the revision filed by the petitioner as against an interlocutory order. There may be substance in the submissions of learned Counsel for the petitioner, but I am not inclined to address myself on this issue, for the reason that the consequence of allowing the writ petition would be a remand of the matter before the DDC to hear the revision on merit and in my view, no useful purpose will be served in doing so, for the simple reason that the matter has yet to be heard on merit before the Consolidation Officer, particularly, with regard to what was the total area of the land and which part of the total area has been transferred in favour of the petitioner as well as respondent No. 4. What would be the effect of the transfer of four acres land which was part of the Civil Court decree. All these aspects of the matter have to be gone into, which cannot be done either by the Revisional Court or by the Appellate Court under the facts and circumstances of the present case.

In view of the foregoing discussions, I do not find it to be a fit case for interference under Article 226 of the Constitution of India. The writ petition is dismissed. However, it is observed that the Consolidation Officer shall decide the case on its own merit without being influenced by any of the observations made in this judgment, here and there, touching the merit of the case.