Suryabali vs D.D.C., Azamgarh and Others

Ram Surat Ram (Maurya), J.—Heard Sri S.C. Verma, for the petitioner and Sri S.N. Tripathi alongwith Sri Nand Lal Yadav, for the contesting respondents. This writ petition has been filed against the orders of Deputy Director of Consolidation dated 7.5.1977, allowing the revision of Shyam Lal and setting aside the orders of Consolidation Officer dated 17.12.1974 and Settlement Officer Consolidation dated 6.9.1975, and 30.5.2015 dismissing recall application of the petitioner, in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).

Dispute between the parties is in respect of plot 28 (area 500 links) of village Samaisa, pargana Mahul, District Azamgarh. In basic consolidation year the land in dispute was recorded in the name Shyam Lal (now represented by respondents-5 to 7). The petitioner and his brothers Lodhi and Chandrabali jointly filed an objection (registered as Case No. 2810) under section 9-A of the Act, for recording their names as sirdar of the land in dispute. It has been stated by Lodhi and others that they had obtained the land in dispute on patta dated 10.7.1948 from Zamindar. Since then they were in possession of the land in dispute. After date of vesting they acquired sirdari right. The name of Shyam Lal was wrongly recorded over it.

Shyam Lal contested the objection and stated that Lodhi and others obtained patta dated 10.7.1948 in respect of an area of 437 link of plot 28 and their names were recorded over it. So far as remaining area of 500 link this plot is concerned, he had obtained patta of this land and on the basis of patta his name was recorded over it. He had been in possession of the land in dispute. The Consolidation Officer, by order dated 17.12.1974, held that Shyam Lal could not produce any document to prove his title over the land in dispute. On these findings, he allowed the objection of Lodhi and others and directed for deleting the name of Shyam Lal from the land in dispute and recording the names of Lodhi and others over it. Shyam Lal filed an appeal (registered as Appeal No. 1399) from the aforesaid order. The appeal was heard by Assistant Settlement Officer Consolidation, who by his order dated 6.9.1975 affirmed the findings and dismissed the appeal.

Shyam Lal filed a revision (registered as Revision Nos. 93) from the aforesaid orders. Before the revisional Court Shyam Lal filed two patta dated 10.4.1948 and 10.7.1948 and khasra 1359 F. By patta dated 10.4.1948 an area of 412 link of plot 28 was let out to Shyam Lal and by patta dated 10.7.1948 an area of 113 link of plot 28 was let out to Shyam Lal. In khasra 1359F, his possession over an area of 525 link of plot 28 was recorded. The revision was heard by Deputy Director of Consolidation, who by order dated 7.5.1977, held that from khasra 1359F it was proved that total area of plot 28 was 1.050 link out of which plot 28/1 (area 525 link) was recorded in the names of Lodhi and others and plot 28/2 (area of 525 link) was recorded in the name of Shyam Lal, who was granted patta of this land as such title and possession of Shyam Lal over plot 28/2 (area 500 link) was proved. On these findings, he allowed the revision and set aside the orders of Consolidation Officer dated 17.12.1974 and Settlement Officer Consolidation dated 6.9.1975 and restored basic year entry.

The petitioner filed an application dated 28.8.2010 for recall of the order dated 7.5.1977, along with delay condonation application. It has been stated by the petitioner that his brothers Lodhi and Chandrabali were living separately and their cultivation were also separate. The petitioner had no talking terms with them from long before 1977. After the order of Settlement Officer Consolidation no revision was filed by Shyam Lal. The petitioner was allotted chak of the land in dispute on the basis of order of Consolidation Officer dated 17.12.1974. No notice of the revision was served upon him. Notification of the village under section 52 of the Act had taken place in the year 1980. Shyam Lal illegally filed an application under Rule 109-A of the Rules in the year 2010. Through rumour, the petitioner came to know that his chak would be disturbed then he got inspected the record and came to know about the proceedings under Rule 109-A of the Rules on the basis of order of Deputy Director of Consolidation dated 7.5.1977. The recall application was contested by Shyam Lal, who stated that Lodhi was elder amongst the brothers as such he was doing pairavee in all the litigation on behalf of his brother Chandrabali and Suryabali. The objection before Consolidation Officer was filed by Lodhi jointly who had been doing pairavee on behalf of his bothers at all the stages. Apart from this revision there were other revisions also between the parties which were also pending before same Deputy Director of Consolidation. In all the four revisions in which the petitioner and his brothers were parties were listed on same date. The order sheet of the revision was signed by Lodhi and their counsel. The order dated 7.5.1977 was not an ex-parte order but has been passed after hearing the parties on merit. As Lodhi and others (including the petitioner) filed Writ-B No. 1943 of 1977, which was dismissed on 3.7.2006. Thereafter they filed a review petition as such delay has occurred in moving the application under Rule 10-9-A.

The recall application was heard by Deputy Director of Consolidation, who by order dated 30.5.2015 held that Lodhi (brother of the petitioner) had been doing pairavee in other three revisions between the parties, pending before same Deputy Director of Consolidation at that time. They contested the case up to High Court from where also they have lost. Thereafter this recall application was filed. It was duty of consolidation authorities to give effect to the orders passed in revision. Delay in moving the application under Rule-109-A does not create any doubt regarding the genuineness of the order. On these findings the recall application was dismissed. Hence this writ petition has been filed.

The Counsel for the petitioners submitted that the order of Deputy Director of Consolidation is a fabricated order. Shyam Lal did not claim any right on the basis of order dated 7.5.1977 for about 33 years and during this period the petitioner has been in possession of the land in dispute. A time barred revision is alleged to be filed by Shyam Lal against the order of Settlement Officer Consolidation dated 6.9.1975 of which no notice has been served upon the petitioner. The contesting respondents in paragraph-19 of Short Counter Affidavit have stated that there is no vakalatnama of the petitioner in the record of the revision. No notice of the revision was served upon the petitioner. The order dated 7.5.1977 passed in the revision was an ex-parte order and ought to have been recalled condoning the delay as no notice of the revision was served upon the petitioner. The revision was allowed admitting additional evidence without assigning any reason for admitting it. No opportunity of rebuttal has been given to the petitioner. Transfer by Zamindar through lease on 10.4.1948 was void. The orders of Deputy Director of Consolidation are illegal and is liable to be set aside.

I have considered the arguments of the Counsel for the parties and examined the record. The respondents along with Short Counter Affidavit have filed copy of the objection filed under section 9 of the Act, in respect of land in dispute, which was filed by Lodhi, Suryabali and Chandrabali jointly. Original record of Writ-B No. 1943 of 1979, decided on 3.7.2006 was also summoned. This writ petition was also filed jointly Lodhi, Suryabali and Chandrabali. Thus allegations of the petitioner that he was living separately from his brothers and had no talking terms with them is not liable to be believed.

A perusal of the order sheet of the revision shows that it was signed by Lodhi and his Counsel almost on every dates. Apart from this revision, three other revisions were also pending before Deputy Director of Consolidation. In all the revision same Counsel Sri Jagdamba Prasad Mishra was appearing on behalf of the petitioner and his brothers Lodhi and Chandrabali. Joint vakalatnama was also filed in other cases. The petitioner was not contesting any case separately from his brothers. The petitioner wants to take advantage of misplacing of vakalatnama filed in this revision. The petitioner and his brothers were joint tenants and relied upon same patta dated 10.7.1948. The revision was decided after hearing the brothers of the petitioner on merit by order dated 7.5.1977. This Court in Smt. Puja Gupta v. Puskar Kumar , 2008 (62) All LR 762 , held that decree passed after hearing one of the joint tenant cannot be set aside on the application of other joint tenant.

Deputy Director of Consolidation found that land in dispute was granted on patta to Shyam Lal by Zamindar. On its basis his name was recorded in the revenue record. His possession over the land in dispute was proved from khasra 1359F. While the land of the petitioner his brothers was separate. This finding could not be challenged by the petitioner either in the recall application or in this writ petition. The orders of Deputy Director of Consolidation do not suffer from any illegality. In view of the aforesaid discussion, the writ petition has no merit, it is dismissed.