Ram Autar and Others vs Deputy Director of Consolidation and Others

S.R. Misra, J.—By means of this writ petition, Petitioners seek a relief for quashing the order of the Deputy Director of Consolidation, Ballia dated 24-11-1973 and the orders of the Settlement offices of Consolidation, and Consolidation Officer.

Brief facts giving rise to the present petition, are that in the basic year plot Nos. 133 and 135, which are subject matters of dispute situated in village Rekua Nasirpur, Pargana Sikandarpur Garbi, distict Ballia, were entered in the name of the Petitioners as Sirdars Contesting Respondent Jarnuna and others filed an objection u/s 9 of U.P. Consolidation of Holdings Act (hereinafter referred to as the Act) claiming their exclusive possession since long over the disputed plots and other several plots but I am not concerned with those objections or dispute except the two plots referred to above. The Petitioners contested the claim and objection of Jamuna and others that it was their exclusive sridari and there has already been a litigation between the Petitioners and contesting Respondents Jarnuna and others and the Petitioners instituted Suit No. 707 of 1964. The sail was decreed exparte on 28-6-1964.

The Consolidation Officer by his order dated 3112-1965 directed for expunging the names of the Petitioners from plot Nos. 133 and 135. Against the order of the Consolidation Officer, Petitioner preferred an appeal which was numbered as 709 and the tame was allowed by the Settlement Officer of Consolidation on 19-5-1966 and the Petitioners were held to be sirdars. On revision filed by some strangers against the order of settlement Officer of Consolidation, Deputy Director of Consolidation allowed the revision and remanded the case for a fresh decision, After the remand the Assistant Settlement Officer of consolidation dismissed the appeal filed by the Petitioners on 10-9-1971 and ordered that the names of the Petitioners by expunged The Petitioners filed Revision before Deputy Director of Consolidation u/s 48 of the Act against the order of the Settlement Officer of Consolidation which too was dismissed on 24-11-1975. Aggrieved by the order of the consolidation authorities Petitioners have approached this Court under Article 226 of the Constitution

I have heard Sri R.S. Dwivedi, who has urged before me that there was a final litigation between the Petitioners and Jamauna and others and successive restoration applications were filed against the exparte decree in favour of the Petitioners dated 28-6-1964. It is submitted that no objection or restoration was filed by Gaon Sabha nor any objection was filed by the Gaon Sabha in proceedings u/s 9 of the Act, First restoration application filed by Jamuna was dismissed in default on 30-9-1965 and second restoration was dismissed on 3-3-1967 and the third on 18 5-1967 A fourth application was filed which was allowed on 1-9-1967. Against this order Petitioners filed a Revision and the Additional Commissioner made a recommendation to the Board of Revenue for netting aside the order dated 1-9-1967 and the Board of Revenue by its order dated 19-10-1969 allowed the revision, set aside the order of the trial court restoring the suit and setting aside the decree vide its order dated 1-9-1967. In view of the final decision between Petitioners and Respondents once the decree became final, the question of granting any relief or rejecting the claim of the Petitioners at the instance of Jamuna and others, the contesting Respondents, who were parties to a suit u/s 229-B of U.P. Zamindari Abolition and Land Reforms Act having been finalised, no relief could be granted to the Respondents in ''consolidation proceedings.

It has also come in the pleadings of the parties that Jamuna and others were also setting up the claim for the Gaon Sabha but admittedly, at no stage has come forward to deny or dispute the rights of the Petitioners. According to the Petitioners once that order u/s 229-B attained finality no other materials was to be considered and on the strength of that decree the Petitioners were entitled to succeed and the orders of the consolidation authorities for expunging the names of the Petitioners over the two plots, are erroneous on the face of It. It has also been urged that a perusal of the order of the Deputy Director of Consolidation would go to show that the Deputy Director of Consolidation has carved out a new case for which there was no material and no occasion arose for carving out such a case. The Deputy Director of Consolidation has completely ignored the effect of the final decree It may be an exparte decree but once it has attained finality, the Respondents are debarred from agitating the same matter in proceedings u/s 9 of the Act and the observations of the Deputy Director of Consolidation on merit about possession and title of the parties was neither permissible under the law nor it was the case of Jamuna Prasad and others that after the decree dated 28-6-1964 they have acquired fresh rights. The observations of the Deputy Director of Consolidation that at one place in the Judgment of the Board of Revenue instead of 28-6-1964--14-8-1964 has been written and on account of this typing error or accidental mistake incorporating a wrong date without ascertaining it as a question of fact, the Deputy Director of Consolidation has taken the view that there appears to be two decrees and on that ground he has totally ignored the finality of the decision inter parties in proceedings u/s 229-B.

A counter-affidavit has been filed by Thakur Prasad Dubey at Pairokar of the opposite-party No. 4 In para 11 he has stated that the village was notified on 31-10-1964 and the suit u/s 229-B which was restored on 1-9-1967 shall be deemed to have abated and neither an appeal or revision lays against the order of the trial court restoring the exparte decree on 1-9-1967 and the Additional Commissioner has no jurisdiction to pass an order as the suit automatically abated u/s 5(2) of the Act. In this paragraph a conspiracy has been alleged between the pradhan and the Petitioners.

Having heard the learned Counsel for the Petitioners, perused the orders and the counter-affidavit, I am satisfied, that the view taken by the Deputy Director of Consolidation in dismissing the revision is manifestly erroneous and the same is liable to be set aside as once an experte decree dated 18-6-1964 has attained finality, the view of the consolidation authorities and the reply of the contesting Respondents that after notification u/s 4(2) of the Act will be an automatic abatement is erroneous as the remedy for the Respondents was to have agitated the matter before the Board of Revenue that on account of the notification u/s 4(2), the restoration cannot be considered. The order of restoration cannot be set aside but as it is well settled and as has been held by this Court in various judgments that a restoration will not abate and once in pursuance of the order of the Board of Revenue, the exparte decree remains intact and that decree has not been challenged under Article 226 of the Constitution and the same having become final, it is not open for the consolidation authorities to ignore that decree and again go into the merits of the case. The exparte decree having become final, the rights of the parties are to be determined in accordance with that final judgment and not on other consideration for which there was no material especially under the facts and circumstances of the case that the Gaon Sabha has not contested the suit or the proceedings u/s 9 of the Act.

In view of what has been stated above, the writ petition succeeds and is allowed the order of the Deputy Director of Consolidation dated 24-11-1975 is set aside. He is directed to decide the revision afresh in accordance with law and in the light of the observations made above. Since it is an old case, the Deputy Director of Consolidation will decide the revision within four months from the date of production of a certified copy of this order. Parties are directed to bear their own costs.