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2020 Supreme(All) 518
IN THE HIGH COURT OF ALLAHABAD
SANGEETA CHANDRA, J.
Ram Chander – Petitioner
Versus
Deputy Director Consolidation Faizabad and Others – Respondents
Consolidation Nos. 47, 49 of 2013
Decided On : 19-05-2020
Advocate Appeared:
For the Petitioners: M.E. Khan, Nitin Kumar Mishra, Abhishek Shukla, Kamlesh Kumar Singh, Rajeiv Kumar Tripathi.
For the Respondents: Ajay Pandey, Balram Yadava, Rajendra Pratap Singh, Shiv Kumar Yadav.
Point of Law:
Under Section 52 of the Transfer of Property Act, a person purchasing property from the judgment debtor during the pendency of the suit has no independent right to property to resist, obstruct or object to the execution of such a decree. The transferee pendente lite having derived his title from the original transferor, his right is subservient and subject to decision in the suit which was pending.
Headnote:
Code of Civil Procedure, 1908 – Rule 102 of Order XXI, Order XXII Rule 10, Order IX Rule 13 – Limitation Act – Section 5 – Transfer of Property Act – Section 52 – Property Dispute – Possession of – Petitioner in Writ Petition claims to have purchased half of property in dispute from one of its co-tenure holders Nitya Kumar S/o Shankar, while Anil Kumar, the petitioner in Writ Petition claims to have inherited the property in question from his father Pateshwar Kumar – Two writ petitions have been taken up together, as they both seek to challenge order passed by Deputy Director of Consolidation, in Revision – Held, Deputy Director of Consolidation could have only considered reasons given in order of Settlement Officer of Consolidation, rejecting Appeal on grounds of limitation and passed appropriate orders thereon if he was convinced reasons given in the Application for condonation of delay were sufficient but were arbitrarily ignored – Order could have been passed only after affording opportunity of hearing to all concerned – It has been submitted on basis of judgments cited by respondents that when ample evidence was available with Deputy Director of Consolidation, he could have analyzed evidence and could have decided case as question regarding title to property in dispute was pending since 1991, when objections were filed before Assistant Consolidation Officer – Order impugned impugned in both the writ petition, is set aside – Writ Petitions Allowed (Paras 53, 54, 55, 56)
Facts of the Case:
Petitioner Ram Chander, Sri. M.E. Khan that Shankar, the father of opposite party no. 2 (Parmeshwar Deen) and opposite party no. 4 (Nitya Kumar) and the grandfather of opposite party no. 3 (Anil Kumar), out of his own funds, purchased 10 Biswa 10 Biswansi of land of Gata No. 167 from Orauni in the name of his eldest son Parmeshwar, the opposite party no. 2 through a registered sale-deed dated 8.2.1982. During consolidation operations, a compromise was filed by the opposite parties nos. 2 and 4 along with Pateshwar Kumar, the father of opposite party no. 3, on the basis of which, by an order dated 19.12.1982 passed by the Assistant Consolidation Officer, he gave 1/3rd share of Gata No. 167 to each of the three sons of Shankar, namely, Parameshwar Deen, Pateshwar Kumar and Nitya Kumar.
Finding of the Court:
Deputy Director of Consolidation could have only considered reasons given in order of Settlement Officer of Consolidation, rejecting Appeal on grounds of limitation and passed appropriate orders thereon if he was convinced reasons given in the Application for condonation of delay were sufficient but were arbitrarily ignored – Order could have been passed only after affording opportunity of hearing to all concerned – It has been submitted on basis of judgments cited by respondents that when ample evidence was available with Deputy Director of Consolidation, he could have analyzed evidence and could have decided case as question regarding title to property in dispute was pending since 1991, when objections were filed before Assistant Consolidation Officer – Order impugned impugned in both the writ petition, is set aside.
Result: Writ Petitions Allowed
JUDGMENT :
SANGEETA CHANDRA, J.
1. These two writ petitions have been taken up together, as they both seek to challenge the order dated 14.12.2012 passed by the Deputy Director of Consolidation, Faizabad in Revision No. 505, Parameshwar Deen vs. Pateshwar Kumar and Others.
2. The dispute relates to Khata No. 77 comprising of old Gata No. 167 (New Gata No. 457) in Village Hansapur, Tehsil Sadar, District Faizabad (Now Ayodhya). Gata No. 167 was originally recorded in the name of Orauni son of Rameshwar in the basic year Khatauni.
3. The petitioner Ram Chander in Writ Petition No. 47 (Consolidation) of 2013, claims to have purchased half of the property in dispute from one of its co-tenure holders Nitya Kumar S/o Shankar, while Anil Kumar, the petitioner in Writ Petition No. 49 (Consolidation) of 2013, claims to have inherited the property in question from his father Pateshwar Kumar.
4. It has been submitted by the learned counsel for the petitioner Ram Chander, Sri. M.E. Khan that Shankar, the father of opposite party no. 2 (Parmeshwar Deen) and opposite party no. 4 (Nitya Kumar) and the grandfather of opposite party no. 3 (Anil Kumar), out of his own funds, purchased 10 Biswa 10 Biswansi of land of Gata No. 167 from Orauni in the name of his eldest son Parmeshwar, the opposite party no. 2 through a registered sale-deed dated 8.2.1982. During consolidation operations, a compromise was filed by the opposite parties nos. 2 and 4 along with Pateshwar Kumar, the father of opposite party no. 3, on the basis of which, by an order dated 19.12.1982 passed by the Assistant Consolidation Officer, he gave 1/3rd share of Gata No. 167 to each of the three sons of Shankar, namely, Parameshwar Deen, Pateshwar Kumar and Nitya Kumar. There is an entry of the order dated 19.12.1982 in the Khatauni of 1383-1388 Fasli. Similarly, in CH Form No. 23, all the three brothers/sons of Shankar have been shown to have 1/3rd share each of Gata No. 167. Despite having knowledge of the entry in the revenue record on the basis of the order passed by the Assistant Consolidation Officer and also in CH Form No. 23, Parameshwar Deen did not raise any dispute so long as Shankar, his father and the father of the opposite parties nos.2 to 4 was alive. Shankar died on 5.3.2001. Then after keeping quiet for almost nine years, Parameshwar all of a sudden filed an Appeal on 15.2.2010 before the Settlement Officer of Consolidation alleging that he being an employee of the Electricity Board had purchased Gata No. 167 in 1982 out of his own earnings and had filed application for entry in the revenue records in his name. However, being a government servant, he could not pursue the application and entrusted the same to his brother Pateshwar Kumar, who in collusion with his father and the consolidation authorities, was able to get the name of all three brothers recorded in the revenue records as having 1/3rd share each of the land in dispute.
5. The Settlement Officer of Consolidation rejected the appeal on 20.8.2010 on the ground that the record was summoned from the office of the Assistant Consolidation Officer, which was found to have been weeded out in 1995 itself. Besides, the delay had not been explained properly by the appellant.
6. Being aggrieved against the order date 20.8.2010 of dismissal of the appeal on the grounds of unexplained delay, Parameshwar Deen, filed a Revision before the Deputy Director of Consolidation. The copy of the Revision shows that it was filed only against the order dated 20.8.2011, rejecting the appeal on grounds of unexplained delay. However, the Deputy Director of Consolidation for extraneous considerations, has allowed the Revision by the order impugned dated 14.12.2012 and has set aside the order of the Settlement Officer of Consolidation dated 20.8.2010 as also the order dated 19.12.1982.
7. It has been submitted that during the pendency of the appeal filed by the petitioner, Nitya Kumar son of Shankar through a registered Sale-Deed dated 17.7.
