Sanno Devi vs D.D.C. and Others

Ram Surat Ram (Maurya), J.—Notice on behalf of respondent-1 has been accepted by Chief Standing Counsel, on behalf of respondent-2 has been accepted by Sri S.A. Murtaza and on behalf of respondent-11 has been accepted by Sri Brij Kumar Yadav. Apart from respondent-2, the other respondents are proforma parties. The Counsel for respondent-2 states that the facts necessary for decision of the writ petition have been stated in the writ petition are admitted. Counter-affidavit is not required to be filed. With the consent of the parties the writ petition is decided finally on merit Heard Kunal Ravi Singh, for the petitioner and Sri S.A. Murtaza, for respondent-2.

The writ petition has been filed against the order of Deputy Director of Consolidation dated 30.09.2013, by which the revision filed by respondent-2 has been allowed and the orders of Consolidation Officer dated 8.3.2000, 10.3.2004 and 27.1.2005 and the order of Settlement Officer Consolidation dated 9.9.2011, passed in title proceedings, under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act) have set aside and the matter has been remanded to Consolidation Officer, for fresh trial on merit.

The dispute relates to land recorded in Khatas 29, 72 and 94 of village Sambharpur, district Kanpur, which were recorded in the name of Maiku son of Sukkha. One Shiv Dulare filed an objection (registered as Case No. 442) u/s 9A of the Act, claiming 1/2 share in the land in dispute. Ganga Prasad, father of respondent-2 filed an objection, claiming his right by adverse possession over the khatas in dispute. Gajodhar, Sadhari and Chhote Lal filed an objection claiming themselves to the heir of Maiku, recorded tenure holder on the basis of Will executed by him. The objections were consolidated and tried by Consolidation Officer, who after recording the evidence of the parties and hearing them, by order dated 8.3.2000, held that the name of Ganga Prasad was wrongly recorded over khata 94. Neither adverse possession of Ganga Prasad was not proved nor he was heir of Maiku. On these findings objection of Ganga Prasad was dismissed and his name was directed to be deleted from khata 94. The objection of Gajodhar, Sadhari and Chhote Lal was allowed and the names of Sadhari and heirs of Gajodhar and Chhote Lal were, directed to be recorded. The petitioner is an heir of Sadhari.

None of the parties challenged the order of the Consolidation Officer within the time or till the sale-deed dated 1.8.2003. In the meantime, in the proceedings u/s 52(2) of the Act, the Consolidation Officer by order dated 6.9.2000 recorded the names of the persons as directed by the order dated 8.3.2000. Sadhari died and was inherited by his widow Smt. Rajeshwari. After the death of Smt. Rajeshwari, the petitioner is her heir.

Tekchand, (respondent-2) filed an application on 6.11.2003 for recall of the order dated 8.3.2000. In the application Tekchand filed his affidavit stating therein that he had fallen from the roof of the house and received head injury due to which he had lost his memory as such order dated 8.3.2000 was passed ex parte against him. Along with the recall application, an application for condonation of delay has been filed. The recall application was heard by the Consolidation Officer, who by order dated 10.3.2004 rejected the recall application of respondent-2. Respondent-2 then filed another application for recall of the order dated 10.3.2004, which was also rejected by order dated 27.1.2005. Respondent-2 then filed an appeal (registered as Appeal No. 22/51 of 2010-11). The appeal was heard by Settlement Officer Consolidation, who by order dated 9.9.2011, dismissed the appeal.

Thereafter, respondent-2 filed a revision (registered as Revision No. 112). During the pendency of the revision, respondent-2 amended the prayer in the memorandum of revision and prayed for setting aside the order of the Consolidation Officer dated 8.3.2000 also. Thereafter the revision was heard and allowed by the impugned order dated 30.9.2013, holding that the Consolidation Officer in his order had held that recall application was dismissed for want of prosecution as such the order ought to have been recalled but the recall application was rejected on technical grounds. The order dated 8.3.2000 was ex parte order as such the parties were required to be given opportunity of hearing. On these findings, the orders of the Consolidation Officer and Settlement Officer Consolidation were set aside and the matter was remanded to the Consolidation Officer for trial afresh on merit.

The Counsel for the petitioners submits that Deputy Director of Consolidation has not pointed any illegality in the order dated 8.3.2000 and without recording any finding as to whether the order dated 8.3.2000 was an ex parte order, he has illegally set aside the order. Respondent-2, in recall application, has not given any date as to when he received injury and when he was cured fully nor he filed any evidence relating to his injury and treatment. He has not made any allegation that he was deprived from hearing due to his injuries. In the absence of there being any allegation that he had been deprived from hearing in the proceeding before the Consolidation Officer due to his head injury, the order could not have been set aside. After the death of Ganga Prasad, his heirs were brought on record, who fully contested the matter and led their evidence and the order was passed on merit. Ganga Prasad claimed his adverse possession over the land in dispute, which was not proved. As Ganga Prasad was himself an objector and as such respondent-2 cannot blame, the other parties that all the heirs of Ganga Prasad were not substituted. The order of Consolidation Officer was passed on merit after hearing the heir of Ganga Prasad and was not an ex parte order, the restoration application was not maintainable but the Deputy Director of Consolidation has illegally allowed the restoration application and set aside the order of the Consolidation Officer dated 8.3.2000. The petitioner has also filed an order dated 22.11.2013 passed by this Court in Writ-B No. 63786 of 2013, by which order of Deputy Director of Consolidation dated 30.9.2013 has been set aside and the matter has been remanded to Deputy Director of Consolidation for deciding the revision of respondent-2 afresh.

In reply to the aforesaid arguments, he submits that Deputy Director of Consolidation found that the Consolidation Officer himself found that the recall application has been dismissed for want of prosecution as such the orders of the Consolidation Officer was ex parte and ought to have been recalled. He submits that before the Consolidation Officer all the heirs of Ganga Prasad were not brought on record as such the recall application filed by respondent-2 was maintainable. In the circumstances the Deputy Director of Consolidation has rightly held that the order of the Consolidation Officer was ex parte against him.

I have considered the arguments of the Counsel for the parties and examined the records. Respondent-2, in recall application, has not given any date as to when he received injury and when he was cured fully nor he filed any evidence relating to his injury and treatment. He has not made any allegation that he was deprived from hearing due to his injuries. In the absence of there being any allegation that he had been deprived from hearing in the proceeding before the Consolidation Officer due to his head injury, the order could not have been set aside.

Admittedly, the order of the Consolidation Officer dated 8.3.2000 was challenged by respondent-2 in by way of amendment. Deputy Director of Consolidation has not recorded any findings as to whether the order of Consolidation Officer was ex-parte order nor he has not pointed out any illegality on merit in it. In the absence of any finding that the order of Consolidation Officer dated 8.3.2000 was an ex parte order or it suffered from any illegality, it could not have been set aside. The order of Deputy Director of Consolidation is liable to be set aside on this ground alone.

After the death of Ganga Prasad, his heirs were brought on record, who contested the matter and led evidence and the order was passed on merit. Ganga Prasad claimed his adverse possession over the land in dispute, which was not proved. As Ganga Prasad was himself an objector and as such respondent-2 cannot blame that some of the heirs of Ganga Prasad were not substituted. The order of Consolidation Officer was passed on merit after hearing the heir of Ganga Prasad and the order was not an ex parte order, the restoration application was not maintainable but the Deputy Director of Consolidation has illegally allowed the restoration application and set aside the order of the Consolidation Officer dated 8.3.2000. In the result, the writ petition succeeds and is allowed. The order of the Deputy Director of Consolidation dated 30.9.2013 has already been set aside in Writ-B No. 63786 of 2013 by judgment dated 22.11.2013 and the matter has been remanded to the Deputy Director of Consolidation, for fresh decision in revision filed by respondent-2 as such this writ petition is also allowed. Deputy Director of Consolidation may hear the petitioner also at the time of decision in the revision on merit.