Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 632

IN THE HIGH COURT OF ALLAHABAD
RAJNISH KUMAR, J.
Jawahar And 2 Others – Appellants
Versus
Deputy Director Of Consolidation, Faizabad And 2 Others – Respondents
Consolidation No. 117 of 2005
Decided on : 12-07-2021

Advocates:
Advocate Appeared:
For the Appellant : Radhey Shyam Tiwari,Vinod Kumar Singh II
For the Respondent: M.A.Siddiqui

Point of Law: Tenure Land - Once a dispute was recorded by Assistant Consolidation Officer and on objection being filed same was referred to Consolidation Officer, it is incumbent to Consolidation Officer to decide same in accordance with law.

Headnote:
Consolidation of Holdings Act, 1953 - Section 9(2) , 27 (2) and 9A - Rule 25 A(2), Rule 26 and Rule 27 - Uttar Pradesh Land Revenue Act, 1901, - Section 10 and7 - Petitioners are cotenure holders of land in dispute so their names should also be recorded - On publication of records, an objection was filed under Section 9(2) of Consolidation of Holdings Act, 1953 by father of petitioners about half share in above land in dispute before Assistant A.C.O - Matter could not be settled therefore A.C.O. referred the matter to Consolidation Officer for adjudication - Consolidating all cases, framed six issues on basis of pleadings of parties - After considering evidence adduced be parties and pleadings, Consolidation Officer allowed objection and directed to record name of petitioners also as per their shares by means of order as their father had died during pendency of case. - Respondents no.2 and 3 filed an appeal because their father had also died during pendency of case before Consolidation Officer
Finding Of The Court : Court view that impugned Judgment and order is not sustainable in eyes of law and liable to be quashed - Court plea was also not taken before Consolidation Officer, therefore it could not be examined so it can not be said that objection filed by petitioner could not have been filed or examined - During enquiry (Padtal) it was recorded that petitioners are entitled for half share, therefore it has rightly been examined and decided - Present case undisputedly predecessor in interest of petitioner at relevant point of time at alleged time of earlier round of consolidation proceeding was out and it has also not been proved that any notice was served to him - Court present case undisputedly predecessor in interest of petitioner at relevant point of time alleged time of earlier round of consolidation proceeding was out and it has also not been proved that any notice was served to him
Result: Writ petition allowed.

JUDGMENT :

Rajnish Kumar,J.

1. Heard, Sri R.R. Upadhyaya, learned counsel for the petitioner and Sri Aftab Ahmad, Advocate holding brief of Sri M.A.Siddiqui, learned counsel for the respondents no. 2 and 3. Notice on behalf of respondent no.1 has been accepted by learned Chief Standing Counsel.

2. The instant writ petition has been filed challenging the order dated 27.11.2004 passed by the Deputy Director of Consolidation, Faizabad (respondent no.1) in Revision No.986/165.

3. The brief facts, for adjudication of the present case, are that the land in dispute relating to Khata No.169 situated in Village-Chandipur Nagahra was recorded in the name of Tulsi Ram son of Ram Sanehi, Khata No.87 situated in Bansawa was recorded in the name of Ram Sanehi son of Sahti and Khata No.857 situated in the Village- Mehdauna was recorded in the name of Tulsi Ram son of Ram Sanehi in the basic year. The dispute was also recorded, showing the mistake and on the basis of enquiry, that the petitioners are the cotenure holders of the land in dispute so their names should also be recorded. On publication of records, an objection was filed under Section 9(2) of the Consolidation of Holdings Act, 1953 (here-in-after referred as the Act of 1953) by the father of the petitioners about half share in above Khatas i.e. in the land in dispute before Assistant Consolidation Officer (here-in-after referred as the A.C.O.). The matter could not be settled therefore A.C.O. referred the matter to the Consolidation Officer for adjudication. The Consolidation Officer, after consolidating all the cases, framed six issues on the basis of pleadings of the parties. After considering the evidence adduced by the parties and the pleadings, the Consolidation Officer allowed the objection and directed to record the name of the petitioners also as per their shares by means of the order dated 08.02.2002 as their father had died during pendency of the case. The respondents no.2 and 3 filed an appeal because their father had also died during pendency of the case before the Consolidation Officer.

4. The Appeal No.6297/ 5474 under Section 11(1) of the Act of 1953 was dismissed by the Settlement Officer Consolidation (here-in-after referred as S.O.C.) by means of the order dated 18.04.2003. Being aggrieved a revision under Section 48 of the Act of 1953 was filed before the Deputy Director of Consolidation (here-in-after referred as D.D.C.), Faizabad now Ayodhya which was allowed by means of the order dated 19.11.2004 and the orders passed by the Consolidation Officer and the S.O.C. have been quashed. Hence the present writ petition has been filed.

5. Submission of learned counsel for the petitioners was that the land in dispute was acquired by a common ancestor of the petitioners and the respondents no.2 and 3, Sahti son of Bandhan. Sahti had two sons; Ram Sanehi and Budhai. Budhai was a dancer and living out in Burma for the purposes of earning therefore the name of only Ram Sanehi was recorded and the name of Budhai; predecessor-in-interest of the petitioners was left to be recorded in the records after death of Sahti, while the land in dispute which was coming from the common ancestor was devolved on both the sons as per section 171 of the U.P. Zamidari Abolition and Land Reforms Act, 1950 (here-in-after referred as the Act of 1950). Therefore in case the name of the predecessor in interest of the petitioners was left to be recorded it can not be said that their right was extinguished. Therefore at the time of verification of records during the consolidation proceedings a dispute was recorded in CH Form-5 to the effect that the petitioners are also entitled for half of the share in the land in dispute. Accordingly objection was duly considered and allowed after considering the evidence adduced by the parties.

6. The father of the respondents no.2 and 3 had admitted in his evidence that