Sesh Mani and Another vs D.D.C. and Others

Poonam Srivastav, J.—Heard Sri Govind Krishna, learned Counsel for the petitioners and Sri S. N. Pandey, advocate for the respondent Nos. 5, 6 and 7.

Counter and rejoinder- affidavits have been exchanged. The writ petition is listed for admission. As agreed between learned Counsel for the parties, I proceed to decide the writ petition finally.

The orders challenged in the writ petition are dated 21.9.1988, passed by the Consolidation Officer, Ramai Patti, Mirzapur, 28.9.1993 by Settlement Officer. Consolidation, Mirzapur and 22.5.2000 by the Deputy Director of Consolidation, Mirzapur, Annexures-3, 5 and 7 respectively to the writ petition.

The facts of the case are that on 18.7.1966 the disputed property was purchased by means of a registered sale deed. Claim of the petitioners is that the disputed property was purchased from the funds of undivided family which devolves upon the petitioners alongwith other co-tenure holders. Copy of sale deed is annexed as Annexure-9 to the writ petition, which shows that the property was purchased by Ram Jiyawan and Rajaram sons of Gaya and Alopi son of Ayodhya from one Smt. Balraji wife of Baram Bahadur Singh. The purchased property by means of the aforesaid sale deed is khata No. 17 situated in village Kanauhi Raja, Tappa Uprodh, Pargana Kantit, tehsil and district Mirzapur.

In the basic year names of Ram Jiyawan and Rajaram sons of Gaya and Alopi son of Ayodhya were recorded. The names of the petitioners were recorded after death of their father Alopi. The respondent Nos. 5, 6 and 7 filed their objections u/s 9A(2) of the U. P. Consolidation of Holdings Act (hereinafter referred to as the Act). The petitioners also preferred their objections to the claim of the contesting respondents. The objection of the contesting respondents was allowed and the Consolidation Officer was of the view that the name of father of the petitioners Alopi was recorded who had no right or title over the same. An appeal was preferred by the petitioners u/s 11 of the Act. The Settlement Officer, Consolidation affirmed the order of the Consolidation Officer and dismissed the appeal vide order dated 28.9.1993. A revision was preferred u/s 48 of the Act before the Deputy Director of Consolidation and revision was also dismissed on 22.5.2000.

A suit was instituted by the contesting respondents u/s 229B of U.P.Z.A. and L.R. Act in which the petitioners were arrayed as defendants. The suit was dismissed, against which an appeal was filed. During pendency of the appeal, father of the petitioners died and reference was made to the S.D.M. which stood abated on account of consolidation operation had come into operation in the said village. Since the consolidation proceeding had commenced, no substitution of Alopi could be carried out as the proceeding was abated. The respondents instituted a Case No. 634/433 of 1979 u/s 229B of the U.P.Z.A. and L.R. Act which was dismissed by the S.D.M. (Additional) Sadar, Mirzapur on 27.3.1981 which is Annexure-8 to the writ petition.

The submission of learned Counsel for the petitioners is that the sale deed by which the disputed property was purchased, has been brought on record to demonstrate that father of the petitioners was also one of the vendees but the contesting respondents neither raised objection at the time of mutation nor filed any suit for cancellation of the sale deed and, therefore, the basic year entry could not be expunged merely on the objection of the contesting respondents. The objection filed by the contesting respondents is Annexure-1 to the writ petition. Besides, the Deputy Director of Consolidation has clearly recorded a finding that both the parties deposited ten times in respect of khata No. 17. Sri Govind Krishna has tried to emphasize that the basic year entry could not be set aside in the manner as it has been done by the Consolidation Officer and, therefore, it caused great prejudice to the petitioner''s right which is liable to be interfered by this Court in writ jurisdiction.

Learned Counsel appearing on behalf of the contesting respondents has tried to support the objection which is Annexure-1 to the writ petition and has placed paragraphs 3 and 9 in support of his contention. His argument is that the appeal preferred by the objectors vide Appeal No. 149 of 1981 Ram Jiyawan v. Shesh Mani and Ors., before the Additional Commissioner, Varanasi was allowed and the said order challenged by the contesting respondents before the Board of Revenue stood abated and, therefore, the right of objectors stands perfected.

After hearing the respective counsel at length and going through the record. I am of the view that the argument of the counsel for the contesting respondents that the appeal of the contesting respondents was allowed, is incorrect. There is no such order on record to substantiate this argument that appeal filed at the instance of contesting respondents was allowed. Only a reference was made to the Board of Revenue which stood abated on account of advent of consolidation proceedings in the village. The argument on behalf of the contesting respondents that in fact the petitioners had gone to the office of the Sub-Registrar only to be a witness of the sale deed but they were wrongly mentioned as vendee, is far-fetched and only an imagination since the respondents did not object at the time of mutation or adopt any steps to get the name of the petitioners expunged from the revenue recorded at any stage. I cannot overlook that ten times of the valuation of the land was jointly deposited by the petitioners and respondents. There is specific finding to this effect in the Judgment of the Deputy Director of Consolidation. Besides, the Deputy Director of Consolidation has also recorded a finding that the sale deed dated 18.7.1966 was entered into from the joint Hindu nucleus and in case the respondents claim that it was from the exclusive earning of their father then a heavy responsibility was in their shoulders to substantiate that the subject-matter of the sale deed was not purchased from Joint Hindu Nucleus. Besides, the suit u/s 229B of the Act was admittedly dismissed. The petitioners were arrayed as defendants in the said suit. The argument of the learned Counsel on behalf of the respondents that even if no objection was raised at the time of mutation, it makes no difference and no right can be claimed by the petitioners, cannot be accepted in view of the revenue entries and the order passed u/s 229B of the Act. While advancing this argument, the respondents have completely overlooked that the appeal was dismissed and order of abatement was passed by the Board of Revenue in reference. The sale deed has not been disputed by the contesting respondents, on the contrary, only assertion is that the petitioners had accompanied the contesting respondents to act as a witness, is also without any basis. These questions of fact were liable to be raised before the consolidation authorities.

In view of what has been stated above, I am of the view that the courts below have failed to adjudicate the objections and respective claims in accordance with law and also without assigning any reason why the basic year entries should not be accepted specially when there was ample evidence to support petitioner''s submissions. In the circumstances, the orders dated 21.9.1988, passed by the Consolidation Officer. Ramai Patti, Mirzapur, 28.9.1993 by Settlement Officer, Consolidation, Mirzapur and 22.5.2000 by the Deputy Director of Consolidation, Mirzapur are set aside. The matter is remanded to the Consolidation Officer for a de novo decision after affording an opportunity to the respective parties. The parties shall maintain status quo till final decision is given by the Consolidation Officer. The writ petition is accordingly allowed. The Consolidation Officer concerned is directed to decide the aforesaid dispute within a period of four months from the date a certified copy of this order is produced before him. The parties are directed to move their applications alongwith certified copy of this order before the Consolidation Officer concerned within one month for decision of the dispute.