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IN THE HIGH COURT OF ALLAHABAD
Prakash Padia, J.
Sibtulain Khan – Petitioner
Versus
State Of U.P. And Ors. – Respondents
WRIT - B No. - 39148 of 2017
Decided On : 06-01-2021
U.P. Consolidation of Holdings Rules, 1954 - Rule 109 - Consolidation of Holdings Act, 1953 - Section 48 – Plot - Legal heirs – Change of name in revenue record - Petitioner as well as his brother - The aforesaid lands were recorded in revenue records as Sirdar - After death of brother of petitioner, name of his legal heirs were duly substituted in revenue records - Since matter is pending consideration before authorities from last about 50 years, in special facts and circumstances of case, no useful purpose will be served in remitting matter back before authorities - In view of same, application submitted by petitioner under Rule 109 is liable to be allowed and authorities are directed to make the necessary Amal Daramadin revenue record within a period of two months from the date of presentation of the copy of the order.
Facts of the case: An objection under Section 9 of Act, 1953 was moved by one Riyaz and others - Aforesaid objection was decided by Consolidation Officer vide his order directing that name of petitioner and his brother be struck off from revenue records and name of Gaon Sabha be recorded over plots in question - Petitioner as well as aforesaid Riyaz and Sohrab have preferred appeals under Section 11(1) of Act, 1953 before Consolidation Officer being Appeal (Sibtulain Khan Vs. Goan Sabha, Village Bairedih). The Settlement Officer Consolidation vide its order allowed appeal filed by petitioner and dismissed the other two appeals filed by Riyaz and Sohrab and directions were given by him that name of petitioner and his brother Sikandar be restored as it was recorded earlier –
Findings of the court: It is clear that the controversy starts in the year 1971 when the objection was filed by Riyaz and others which was decided on 16.12.1971 by which the name of the petitioner and his brother was struck off - Against aforesaid order, petitioner and others filed appeals before the Settlement Officer, Consideration and the same were allowed by order by which name of the petitioner and his brother was restored and appeal filed by Riyaz and Sohrab were dismissed - Apart from the fact that order impugned is non-speaking order, it appears from perusal of record that matter is pending consideration before authorities since 1972 - Time and again orders after orders were passed, but till date no final decision has been taken in matter by authorities. It further appears from perusal of record that in pursuance of order of High Court Deputy Director of Consolidation has dismissed revision filed by Riyaz and Sohrab - Application for setting aside order was also dismissed by Deputy Director of Consolidation.
Result: Writ petition is allowed.
JUDGMENT :
1. Heard Sri S. Rashid, learned counsel for the petitioner and learned Standing Counsel appearing for the respondent Nos.1 to 4.
2. The petitioner has preferred the present writ petition inter-alia with the prayer to quash the order dated 30.11.2016 passed by Deputy Director of Consolidation, Azamgarh in Revision No.100 under Section 48 of the Consolidation of Holdings Act, 1953 (hereinafter referred to as “the Act, 1953”) with further prayer to allow the application filed by the petitioner under Rule 109 of the U.P. Consolidation of Holdings Rules, 1954 (hereinafter referred to as “the Rules, 1954).
3. Facts in brief as contained in the writ petition are that plot No.228 area 2-0000 acres, 235/2 area 1-205 Kadi and 237 area 1.640 Kadi in the name of the petitioner as well as his brother namely Sri Sikandar, The aforesaid lands were recorded in the revenue records as Sirdar. After the death of the brother of the petitioner, the name of his legal heirs were duly substituted in the revenue records.
4. An objection under Section 9 of the Act, 1953 was moved by one Riyaz and others. The aforesaid objection was decided by the Consolidation Officer vide his order dated 16.12.1971 directing that the name of the petitioner and his brother be struck off from the revenue records and the name of Gaon Sabha be recorded over plots in question. The petitioner as well as aforesaid Riyaz and Sohrab have preferred appeals under Section 11(1) of the Act, 1953 before the Consolidation Officer being Appeal Nos.842, 843 and 934 (Sibtulain Khan Vs. Goan Sabha, Village Bairedih). The Settlement Officer Consolidation vide its order dated 31.07.1972 allowed the appeal filed by the petitioner and dismissed the other two appeals filed by Riyaz and Sohrab and directions were given by him that the name of the petitioner and his brother Sikandar be restored as it was recorded earlier. Against the aforesaid orders, revisions were preferred by Sri Riyaz and Sohrab and Gaon Sabha before the Deputy Director of Consolidation. The Deputy Director of Consolidation vide order dated 25.08.1972 remained back the matter before the Consolidation Officer.
5. Against the aforesaid order dated 25.08.1972 passed by the Deputy Director of Consolidation, the petitioner preferred a writ petition being Writ Petition No.7637 of 1973 (Sibtul Ain Khan and others Vs. Assistant Director of Consolidation Azamgarh and others). The aforesaid writ petition was finally allowed by a co-ordinate Bench of this Court vide its judgment and order dated 12.09.1979. The order passed in the aforesaid writ petition is reproduced below:-
It is noteworthy that the petitioners claim in the disputed land was recognized by the appellate authority on the basis of an ex-parte decree in favour of the petitioners. The revisional court has dealt with the claims of the parties in the following words:-
“PAKSHON KI BAHAS SUNI GAI TATHA SAKSHYA KA SATARKATA PURVAK AVLOKAN KIYA GAYA. PATRAWALI PAR UPLABDH SAKSHYA SE YAH PRATIT HOTA HAI KI 1368F. KE KHASRE TATHA 1376F. KE KHASRE KEE VIVARAN BHOOMI YA TO AKSHATAR YA PURTAH BANZAR DARJ RAHI HAI, KUCHH VARSHON MEN PHASAL DIKHAY GAI HAI. KUCH BATAJAT MEN SADAK BHI DIKHY GAI HAI, PAKSHO KE BICH TATHA GAON SABHA KE BICH KUKAD ….. HAI PARANTU AISA PRATIT HOTA HAI KI KISI ASTAR PAR MAUKA MAUANA NAHIN KIYA GAYA JISASE YAH ISPASHT HO PATA KI VIVADHAST BHOOMI MEN KHETI KI JATI HAI TO KITNA KHESTRAPHAL MEN IN NIRNIYON KE NIRNAY LIYE UKTA PRACHHA KE IRNAYA KA HONA ATYANT AWASHYAK HAI. CHUNKI IS PRASHNA KA NIRNAYA APNISTHA NYAYALAYON PARA NAHI DIYA GAYA HAI ATAH UKTA NIRNAYA VIDHASTAR SAHI NAHI PRATIT HOTA 1968 R.D. PRISTH SAN 337, 1969 A.L.J. 88 882 TATHA 1969 D, 30KI SANKAREH BHI DIYA SAY PARANTU JAB TAK YAH KA SUKISHCHIT KAR LIYA JAI KI VADGRAST BHOMI MEN KHETI KI JATI HAI ATHW
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