Ram Dhani and Others vs Dy. Director of Consolidation and Others

Ram Surat Ram (Maurya), J.—Heard Sri P.R. Maurya, for the petitioners and Sri R.C. Singh for the respondents. Initially, the writ petition was heard on 28.10.2013 as a fresh case. On that day, the Counsel for the petitioners argued that order of Consolidation Officer was ex parte. The petitioners, were granted time to file their evidence,. in order to prove the prejudice caused to them. Thereafter Supplementary Affidavits were filed on 6.11.2013 and 14.11.2013, annexing some papers. The Counsel for the respondents filed Short Counter Affidavit and Supplementary Counter Affidavit and argued that evidence of the parties were already recorded upto the year 1990. After order of this Court, the petitioners engaged Sri Shoorvir Singh, Advocate on 4.8.2013 but at the time of hearing he walked out to the Court. The petitioners also filed Rejoinder Affidavit. The writ petition has been filed against the orders of Dy. Director of Consolidation dated 4.10.2013 and Consolidation Officer dated 29.8.2012 and 4.10.2012, passed in title proceedings, under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).

The dispute relates to the land of khata 505 of village Naurangia, tappa Batesara, pargana Sidhuwa Jobna, district Kushi Nagar, which was recorded in basic consolidation year, in the names of Sukhal, Bihari, Vishuni, Kithuni, Tofa sons of Jamuna, Shyam Lal son of Sukai, Swami Nath son of Budhai, Jhapsi, Chokat, Bhagi sons of Sarju, Faujdar, Shankar, Buddhu and Suddhu sons of Ram Autar, Moti Chand, Mangal, Gore sons of Nanhku. Sighasan son of Nathai and Dukkhi son of Billar (respondents-3 and 4) (hereinafter referred to as the respondents) filed an objection (registered as Case Nos. 303 to 309) u/s 9A of the Act, for recording their names as co-tenure holders having 1/3 share, in the land in dispute. It has been stated by the respondents that the land in dispute was ancestral property of the parties and coming in the family from the time of common ancestor Bandhu. Bandhu was inherited by his three sons Ramesar, Sumesar and Parmesar alias Ram Lakhan. The respondents belong to the branch of Parmesar alias Ram Lakhan. After death of Parmesar, their names were not recorded over the land in dispute although they through out remained in joint possession of it. They filed a suit u/s 229B of U.P. Act No. 1 of 1951, for recording their names, but the suit was abated due to consolidation. There were some uncontested objections for recording the heirs of Vishuni and Faujdar. The Consolidation Officer, by order dated 13.1.1984 rejected the objection of the respondents in default and determined share of other recorded tenure holders, on the basis of pedigree, amongst remaining persons.

The respondents filed an application for recall of the order dated 13.1.1984, which was allowed by order dated 8.2.1984 and order dated 13.1.1984 was recalled. Thereafter, Sukhal and the respondents filed a written compromise before Consolidation Officer on 14.3.1984, admitting the 1/3 share of the respondents, in the land in dispute. Jhapsi, Chokat, Shyam Lal and Swaminath and the respondents filed another written compromise before Consolidation Officer on 22.5.1985, admitting the 1/3 share of the respondents, in the land in dispute, which was verified by the Consolidation Officer on the same day. Other recorded tenure holders contested the objection of the respondents. The Consolidation Officer proceeded with the trial and examined the witnesses. Statement of Rajdev son of Gajadhar was recorded on 30.5.1984, Bhagi son of Sarju was recorded on 16.12.1984, Nathuni wife of Kauri was recorded on 26.6.1985, Kanhaiya son of Faujdar was recorded on 13.1.1987, Sighasan son of Nathai was recorded on 14.1.1999 and Dukkhi son of Billar was recorded on 24.1.1999. Thereafter the matter remained pending before the Consolidation Officer for a long time. The respondents filed Writ B No. 42669 of 2012, before this Court, which was disposed of by order dated 18.5.2012, directing the Consolidation Officer to decide the case within stipulated time. Thereafter, the petitioners filed vakalatnama of Sri Shoorvir Singh, Advocate, on 4.8.2012. The Consolidation Officer, again issued notices to the parties on 8.8.2012 fixing 14.8.2012 for hearing/arguments. On date of arguments, Counsel for the petitioners and other co-sharers abstained from the arguments. The Consolidation Officer, after hearing the respondents, by order dated 29.8.2012, held that Sukhal filed written compromise before Consolidation Officer on 14.3.1984, admitting the pedigree given by the respondents, in their objection. The land in dispute was recorded in 1322-F in the names of Ramesar, Sumesar and Parmesar sons of Bandhu and the same plots came to be recorded in disputed khata 505 as such it was proved to be ancestral property. According to the pedigree the respondents have 1/3 share in it. On this finding the objection of the respondents was allowed by order dated 29.8.2012, their names were directed to be recorded over the land in dispute, holding their 1/3 share in it.

The petitioners filed an application on 4.9.2012, for recall of the order dated 29.8.2012, in which they raised an objection that no notice has been issued to the heirs of deceased parties and the order was passed against the dead persons, without considering the evidence on record. The Consolidation Officer, by order dated 4.10.2012, held that heirs of the deceased parties have been substituted and notices issued on 8.8.2012 were served on them. No such heirs have filed any recall application. The petitioners have not given any reasons for their absence on the date of arguments. As the case was decided on merit as such he had no jurisdiction to recall the order. On these findings, the restoration application was rejected.

The petitioners filed an appeal (registered as Appeal No. 1877) from the aforesaid order. Swami Nath and others filed another appeal (registered as Appeal No. 1883) from the aforesaid order. Both the appeals were consolidated and heard by the Settlement Officer Consolidation. During arguments, Swami Nath and others did not press their appeal and admitted filing of compromise dated 22.5.1985, admitting pedigree and share of the respondents. The appeal of the petitioners was decided by Settlement Officer Consolidation, who by order dated 26.9.2013 held that as the Consolidation Officer, in the order dated 29.8.2012 found that some of the opposite parties were not present and even then he proceeded to decide ex parte against them as such the judgment was ex parte. On these findings, the appeal of the petitioners was allowed and orders of Consolidation Officer dated 29.8.2012 and 4.10. 2012 were set aside and the matter was remanded to Consolidation Officer to decide the objection afresh after taking evidence of the parties.

The respondents filed a revision (registered as Revision No. 852/2013). The revision was heard by the Deputy Director of Consolidation, who by order dated 4.10.2013 found that in view of law laid down by this Court, revision was maintainable against the remand order. The evidence of the parties were already recorded and after cross-examination of the witnesses, evidence was closed. Some of the parties have accepted the pedigree given by the respondents as such the order of Consolidation Officer was not suffering from any illegality. Settlement Officer Consolidation illegally remanded the case instead of deciding the case on merit. On these findings, the revision was allowed and order of Settlement Officer Consolidation dated 26.9.2013 was set aside and order of Consolidation Officer dated 29.8.2012 was reinstated. Hence this writ petition has been filed.

The Counsel for the petitioners submitted that the objection of the respondents was already dismissed on 13.1.1984. Second objection was filed on 24.3.2000, which was not maintainable. No notice of the second objection was issued to the petitioners. Mangal died but his heirs were not substituted and order was passed against dead person. Notice issued by the Consolidation Officer was not served upon the petitioners. Settlement Officer Consolidation found that proper opportunity of evidence hearing was not given to the petitioners by the Consolidation Officer. This findings has been illegally set aside. Respondent-1 has not given any reason in his judgment and it is a cryptic order and has been passed without discussing any evidence on record. Parmesar died issue-less and was inherited by his brothers. Names of the branches of Ramesar and Sumesar alone were continuing in the record from long time and long standing entries were not liable to be changed. The pedigree set up by the respondents was not proved. The Consolidation Officer has not framed any issue nor recorded any findings and his judgment was illegal. The respondents could not adduce any evidence to prove that Parmesar and Ram Lakhan were same persons and from the evidence of the respondents, only this fact has been proved that Nathai and Billar were sons of Ram Lakhan but they are illegally entering in the pedigree of the petitioners. The Consolidation Officer has illegally held that the land in dispute was attached in 1322-F although, from khatauni 1322-F, it is not proved.

I have considered the arguments of the Counsel for the parties and examined the record. So far as the arguments of the Counsel for the petitioners that the objection of the respondents was dismissed on 13.1.1984 and second objection was not maintainable, is concerned, the petitioners, along with Second Supplementary Affidavit, filed the copy of the order dated 8.2.1984, by which order dated 13.1.1984 was recalled on the costs of Rs. 16/-. It has been stated that out of total costs of Rs. 16/- only Rs. 12/- was paid and remaining Rs. 4/- was not paid as such order of dismissal was not set aside. A perusal of the order dated 8.2.1984 does not show that payment of costs was a condition precedent for recall of the order dated 13.1.1984 as such arguments that due to non payment of Rs. 4/- of the costs, the order dated 13.1.1984 was not set aside, is not liable to be accepted. There is nothing on record to show that second objection was filed by the respondents on 24.3.2000. On the other hand copy of the objection filed as Annexure-2 to the writ petition and Annexure SA-1 shows that substitutions were incorporated in it, on the basis of the orders passed in the year 1992. Thus it is proved that original objection, which was dismissed in default on 13.1.1984 was restored and there was no second objection.

The other points raised by the Counsel for the petitioner that the Consolidation Officer has not issued any notice to the petitioners and his judgment was ex parte and the findings of Settlement Officer Consolidation that opportunity of evidence/hearing was not given to the petitioners by the Consolidation Officer, has been illegally set aside by respondent-1 without giving any reason in his judgment, is concern, Deputy Director of Consolidation found that after restoration, Sukhal filed a written compromise and admitted pedigree and share of the respondents on 14.3.1984. Along with Second Short Counter Affidavit, a copy of the compromise filed Jhapsi, Chokat, Shyam Lal and Swaminath on 22.5.1985 was also filed, who also admitted pedigree and the 1/3 share of the respondents, in the land in dispute. Thus the branch of Ramesar admitted claim of the respondents and entered into compromise. Appeal No. 1883, filed by the branch of Ramesar was dismissed as withdrawn on the ground that they had compromised the dispute. They further did not challenge the order. Branch of Sumesar contested the case and statement of witnesses examined by the parties were recorded by Consolidation Officer, which has been noted in the order of Deputy Director of Consolidation and has not been challenged. Kanhaiya, who belonged to the branch of the petitioners appeared in the witness box, a copy of his statement has been filed by the respondents as Annexure-SCA-1. Thus the arguments, in this respect that notices were not issued by Consolidation Officer is baseless. Findings of Settlement Officer Consolidation that opportunity of evidence/hearing was not given to the petitioners by the Consolidation Officer, was illegal. Respondent-1 found that statement of the witnesses were recorded. Respondent-1 has not committed any illegality in setting aside the order of Settlement Officer Consolidation.

Apart from it, the respondents filed photostat copy of vakalatnama filed by the petitioners before Consolidation Officer on 4.8.2012 as Annexure SCA-3. Then, in paragraph-6 of the Short Rejoinder Affidavit, it has been stated that Mangal, father of the petitioners died on 10.2.2010, then they engaged Sri P.K. Mishra and Sri Shoorvir Singh, Advocate on 4.8.2012. But it has been stated that Sri Shoorvir Singh, Advocate has not argued the case and order dated 29.8.2012 was passed ex parte as such restoration application was filed. Thus from the aforesaid facts, it is clear that the petitioners have concealed the material facts and various false statements have been made by them. It is proved that after death of Mangal Singh, the petitioners were substituted and they engaged Sri P.K. Mishra and Sri Shoorvir Singh, Advocate on 4.8.2012, before the Consolidation Officer. The evidence in the case was already completed during life time of Mangal Singh, in the year 1990. No reason has been given as to why Sri P.K. Mishra and Sri Shoorvir Singh have not argued the case. In such circumstance, the Consolidation Officer has not committed any error in not setting aside the order dated 29.8.2012. Settlement Officer Consolidation, without looking to the record held as such order of Consolidation Officer was ex parte as such it is liable to be set aside. If a parties voluntarily avoid the proceedings before the Court then there is no denial of hearing. He cannot be permitted to take benefit of his own manoeuvrings.

On merits, the Counsel for the petitioners argued that Parmesar died issue-less and was inherited by his brothers. The pedigree set up by the respondents was not proved. The arguments that the Consolidation Officer has illegally held that the land in dispute was attached in 1322-F, was raised due to typographical error in the typed copy of the order of Consolidation Officer. In the photostat copy of the certified copy of the order dated 29.8.2012, it had been written that on 5.6.1985, Sighasan filed 8 documents. Thereafter it has been written that the plots which were recorded in basic consolidation year khata 505 were recorded in 1322-F khatauni, in the names of Ramesar, Sumesar and Parmesar sons of Bandhu, by caste ''Kurmi''. The word "akwam Kurmi ke nam darj" has been typed as "awasan kurki adesh". Apart from it various khasras were filed to show that the objectors were in possession over the disputed land. The pedigree set up by the petitioners have been admitted by the persons of the branch of Ramesar. It was also proved from the statements of Sighasan and Dukkhi, recorded before the Consolidation Officer. Thus Consolidation Officer rightly held that title and possession of the respondents over the land in dispute has been proved and according to the pedigree they had 1/3 share in it. In spite of the hearing of the writ petition, has been adjourned on several times, the petitioners could not adduce any evidence to contradict the findings recorded by the Consolidation Officer.

The Counsel for the petitioners submitted that Sukhal filed an application on 13.1.1986, in which he had denied filing of compromise by him as such no reliance can be placed on it. There is nothing on record to show that after filing this application, Sukhal ever pressed this application. It is proved that after filing the compromise, Sukhal never contested the case or adduced any evidence. On the other hand the appeal filed by the persons of his branch was got dismissed as withdrawn on the basis of compromise. Thus branch of Ramesar admitted filing of the compromise and now not contesting the matter. An admission of a co-tenure holder against his interest is the best evidence which can be relied upon. Pedigree has been also proved from the statements of Sighasan and Dukkhi, recorded before the Consolidation Officer, which were admissible u/s 50 of the Evidence Act. Krishna Kumar, in his statement merely denied of knowing his pedigree as such his evidence is worthless. The order of Consolidation Officer does not suffer from any illegality and is not liable to be set aside. In view of the aforesaid discussion, the writ petition has no merit and is dismissed.