Ram Kumar and others vs Deputy Director of Consolidation, Varanasi and others

Prakash Krishna, J.—It is not in dispute between the parties that the land in question in the basic year was recorded in the name of Anant Ram. After the death of Anant Ram, two proceedings for mutation were initiated by the parties. The petitioners filed an application under section 9A (2) of the U.P. C.H. Act which was registered as case No. 212 for recording their names in place of deceased Anant Ram as his heirs and successors. Since the said application was barred by time, it was accompanied with an application for condonation of delay in its filing. The Consolidation Officer by the order dated 3.6.1998 refused to condone the delay and rejected the application filed by the petitioners.

Another application for mutation was filed by Satya Narain and Ram Saran sons of Shamu and Raju sons of Ram Lakhan (grand sons of the deceased) on the basis of a registered Will dated 2nd of April, 1994 in their favour. In this case, the Consolidation Officer by the order dated 5th of December, 1997, since there was no objection by other side, ordered mutation of the names of Satya Narain etc. in the light of the registered Will dated 2.4.1994.

Against the aforestated two orders, two appeals were filed before the Settlement Officer Consolidation. Appeal No. 1453 was directed against the order dated 5.12.1997 and it was accompanying an application for condonation of delay in its filing. Appeal No. 3672 was filed by the petitioners against the order dated 3.6.1998 whereby the Consolidation Officer refused to condone the delay in filing the application for mutation of their names.

Both the matters were heard together and were decided by a common judgment dated 31.8.2006 by the Settlement Officer Consolidation who found that no proper publication etc. was done while ordering the mutation of the names of Satya Narain etc. on the basis of the alleged registered Will in their favour. He was of the view that it is necessary in the interest of justice that opportunity be given to the parties to prove and contest the Will in question. The delay in filing the mutation application on the facts of the present case before the Consolidation Officer was condoned by the order dated 31.8.2006. Against the said order, a Revision No. 1857 of 2006 was filed which came up for consideration before the Deputy Director of Consolidation. The Deputy Director of Consolidation by '' the impugned order dated 27.10.2007 has set aside the order dated 31.8.2006 passed by the Settlement Officer Consolidation and restored the appeal No. 1463 to the Settlement Officer Consolidation to pass a fresh order after giving opportunity of hearing to the parties concerned on the question of limitation. It has been further provided that if a revision is filed against order dated 3.6.1998, the said revision shall be disposed of independently uninfluenced by any of the observations made by him in the impugned order. The Deputy Director of Consolidation was of the view that against the order dated 3.6.1998, the appeal before the Settlement Officer Consolidation was not maintainable as the objections were dismissed by the Consolidation Officer being barred by time and the delay in its filing was not condoned.

Shri V.K. Singh, learned Counsel appearing for the petitioners, submits that in view of the judgement of this Court in the case of Ibrahim v. D.D.C., 1973 RD 211 it is open to the Appellate Court to entertain an objection about the bar of limitation in presenting objection under section 9 and to decide whether the Consolidation Officer has applied his mind to the explanation for condoning the delay. It has been further held that it is wrong to say that once the discretion has been exercised by the Consolidation Officer, the same could not be interfered with by the Appellate Court and only the course open to the objector is to take up the matter in revision. The learned Counsel for the respondents, on the other hand, submits that in view of the decision of this Court in Paras Nath v. D.D.C. and others, 2008 (104) RD 516 only revision was maintainable against an order condoning or refusing to condone the delay.

Considered the respective submissions of the learned Counsel for the parties. It is apparent that in respect of the disputed property two proceedings were initiated one on behalf of the petitioners for mutation of their names on the basis of inheritance and another on behalf of the contesting respondents on the basis of the registered Will in their favour. Both these proceedings were initiated before the Consolidation Officer and were heard and decided separately by independent orders. It is also not in dispute that the application filed by the petitioners for mutation of their names was barred by time. So far as the proceedings initiated by the contesting respondents are concerned, it has been found by the Settlement Officer Consolidation that mutation of their names were ordered exparte without due publication etc. and notice to the petitioners. The Deputy Director of Consolidation in the impugned order has not set aside the said of the order but has restored back the matter to the Settlement Officer Consolidation to decide the question of limitation first. So far as the proceedings initiated by the petitioners are concerned, as already noted above, the Deputy Director of Consolidation has said that the appeal filed by them before the Settlement Officer Consolidation is not maintainable but the order of Consolidation Officer is revisable before him and he will consider the same when such an occasion arises i.e. when a revision is filed.

Taking into consideration the entire facts and circumstances of the case and also the fact that the parties belong to one family and there is a serious dispute regarding the succession of the property on account of death of Anant Ram, it is desirable that the entire matter be restored back to the Consolidation Officer stage who will consolidate both the proceedings, hear and decide the same after giving opportunities to the parties without entering into question of limitation. By awarding heavy cost, the contesting respondents herein may be compensated, instead of further delaying the matter on the question as to whether the delay in filing objections or the appeal is condonable or not. The basic question which is involved in the present proceedings is With regard to the validity of the Will of Anant Ram set up by the contesting respondents. The other issues are incidental and ancillary.

In view of the above discussion, this Court is of the considered view that all the impugned orders may be set aside and the matter be restored back to the Consolidation Officer to decide the respective claim of the parties on merits and not on the question of limitation subject to payment of Rs. 10,000/ (Rupees Ten Thousands only) as cost by the petitioners to the contesting respondents.

Viewed as above, the writ petition succeeds and is allowed and the orders of Consolidation Officer dated 5th of December, 1997 and 3rd of June, 1998 the orders of the Settlement Officer Consolidation passed in appeal Nos. 1463 and 3673 and of the Deputy Director of Consolidation in Revision No. 1857 of 2006 dated 27.10.2007, are hereby quashed and set aside. The matter is restored back to the Consolidation Officer who will hear and decide the matter afresh provided the petitioners deposit a sum of Rs. 10,000/ (Rupees Ten Thousands only) within a period of one month before the Consolidation Officer, Pindra, District Varanasi. The said amount shall be payable to the contesting respondents. It is made clear that in case of default in making the deposit as stipulated above within the stipulated time, the writ petition shall stand dismissed automatically.

Subject to the above, the writ petition succeeds and is allowed. No order as, to costs.