IMPORTANT POINT
Land consolidation – Determination of share of parties – Authorities cannot import principles of Hindu law while determining share of parties who are Mohammedans.

JUDGMENT :

UJJAL BHUYAN, J.

1. Heard learned counsel for the parties.

2. The two appeals by special leave are directed against the judgment and order dated 05.01.2009 passed by a Division Bench of the High Court of Judicature at Allahabad in Civil Misc. Writ Petition No. 6635 of 1974 (Nisar Ahmad and Others vs. Deputy Director of Consolidation, Sultanpur and Others) and in Writ Petition No. 18 of 1975 (Sami Ullah and Another vs. Nisar Ahmed and Others). By the aforesaid judgment and order dated 05.01.2009, Civil Misc. Writ Petition No. 6635 of 1974 was dismissed and Writ Petition No. 18 of 1975 has been allowed.

3. By order dated 27.04.2009, this Court had issued notice on the special leave petition as well as on the prayer for interim relief. Subsequently, by order dated 15.01.2010, both the parties were directed to maintain status quo prevailing as on 15.01.2010. Thereafter, by order dated 03.11.2011, leave was granted directing the status quo order to be continued in the meantime.

4. At the outset, it may be useful to make a brief reference to the relevant facts. Zahoor Ahmed, son of Abdul Shakoor, father of the appellants, had moved the Consolidation Officer, Sultanpur under Section 9(2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (briefly ‘the 1953 Act’ hereinafter) raising a dispute as to Khata Nos. 99 and 100 of village Bhati Jarouli of Miranpur, District Sultanpur, U.P. recorded in the name of respondent Sami Ullah and Others. Zahoor Ahmed claimed co-tenancy in both the Khatas to the extent of half share. Since the dispute could not be reconciled, he approached the Consolidation Officer. After notice and hearing, the Consolidation Officer passed an order dated 06.12.1972 directing that the name of Zahoor Ahmed be entered as a co-tenant in Khata No. 99 and accordingly partition be made. The shares of Sami Ullah and another (respondents herein) were determined to the extent of 1/4 each. However, the claim of Zahoor Ahmed of co-tenancy qua Khata No. 100 was rejected. Accordingly, direction was issued to intimate the parties and to correct the areas of the land in respect of the parties so determined by the Consolidation Officer.

5. Aggrieved by the aforesaid order dated 06.12.1972, respondents Sami Ullah and others filed appeals before the Assistant Settlement Officer under Section 11(1) of the 1953 Act. Similarly, Zahoor Ahmed also filed an appeal under Section 11(1) of the 1953 Act against the said order dated 06.12.1972 rejecting his claim qua Khata No. 100. By order dated 25.04.1973, the appellate authority i.e. the Assistant Settlement Officer, Sultanpur dismissed all the appeals. In other words, order of the Consolidation Officer dated 06.12.1972 was upheld.

6. Thereafter, respondents Sami Ullah and others filed a revision application before the Deputy Director of Consolidation, Gorakhpur (‘Deputy Director’ hereinafter). Likewise, the legal heirs of Zahoor Ahmed, Nisar Ahmed and others (‘appellants’ herein) also filed revision before the Deputy Director against rejection of their appeal. By the order dated 20.09.1974, the Deputy Director opined that Zahoor Ahmed was not entitled to get share in the above Khatas and accordingly the order of the Consolidation Officer as affirmed by the Assistant Settlement Officer i.e. the appellate authority was modified. Deputy Director while dismissing the revision of Zahoor Ahmed, Nisar Ahmed and others allowed the revision of the respondent Sami Ullah and others.

7. Appellants thereafter preferred Civil Misc. Writ Petition No. 6635 of 1974 before the High Court of Judicature at Allahabad (briefly ‘the High Court’ hereinafter). By the judgment and order dated 05.01.2009, the High Court held that Deputy Director was not justified in importing principles of Hindu law while determining the share of the parties who were admittedly Mohammedans. Accordingly, the High Court held