IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition No. 817 of 2002 (M/S)

Sri

Kailash

son

of

late

Bharta

resident

of

village

Brahampur, post office – Roorkee, Tehsil Roorkee, District

Haridwar.

…………. Petitioner.

Versus

Up Sanchalak Chakbandi / Additional Collector, Haridwar at

Roorkee and three others.

……………. Respondents.

Date: - 9.1.2009

Hon’ble B.S. Verma, J.

Heard Sri A.K. Sharma, learned counsel for the

petitioner. Despite service there is no representation on

behalf of respondent no. 4.

By means of this writ petition, the petitioner has

sought a writ for quashing the order dated 16.9.2002 passed

by Deputy Director of Consolidation / Additional Collector,

Haridwar Camp, Roorkee, order dated 30.11.1999 passed by

Settlement Officer Consolidation, Haridwar, Roorkee, and

order dated 20.10.1993 passed by Assistant Consolidation

Officer (Annexure Nos. 6,4 and 2 to the writ petition

respectively).

According to the petitioner, briefly stated the facts

giving rise to the writ petition are that he never executed the

sale deed in favour of Smt. Gandhi-respondent no. 4. Being a

clever lady, she obtained thumb impression on sale deed. The

petitioner has also filed the suit (Suit No. 340 of 1992) for

cancellation of the sale deed in the court of Munsiff, Roorkee.

The respondent has filed application under Section

9-A before the Assistant Consolidation Officer for recording

his name in the revenue record on the basis of sale deed. The

mutation was made in her favour by way of compromise on

the basis of sale deed.

According to the petitioner, he never entered into

compromise. The order of mutation was also passed with

collusion of the Lekhpal and Kanoongo. The appeal was

preferred

before

the

Settlement

Officer

Consolidation,

Roorkee by the petitioner. After hearing of the parties, the

appeal was dismissed on 30.11.1999. Further aggrieved by

the order of the Appellate Court, the petitioner preferred

revision before the Deputy Director of Consolidation on the

same grounds. The revision was also dismissed on 16.9.2002.

Hence, this writ petition.

The only controversy to be decided before this

Court is whether the petitioner had executed sale deed in

favour of Smt. Gandhi-respondent no. 4. According to the

petitioner, he himself has stated in the writ petition that Smt.

Gandhi obtained thumb impression by fraud on the sale

deed. He never received consideration for which he filed civil

suit. According to him, the appeal is pending against the

Judgment and decree of Munsiff Court. The appeal is in

continuation of the suit.

It is well settled that the Consolidation Court has

no jurisdiction to cancel the sale deed. On account of fraud or

misrepresentation, if the sale deed is void ab initio in that

event the Consolidation Court has a right to ignore the sale

deed.

If the petitioner succeeds to get the sale deed

cancelled through civil court then automatically after the

cancellation of the sale deed the name of the respondent no.

4 may be expunged thereafter.

Since the mutation was ordered by the Assistant

Consolidation Officer by way of compromise no effort was

made before the Appellate Court to adduce the evidence that

the compromise was forged one. The name was entered on

the basis of sale deed and unless and until the sale deed is

cancelled by the Civil Court, the entry will remain in the

name of the respondent no.4 as ordered by the Trial Court.

For the reasons mentioned above, the writ petition

is devoid of merit and is liable to be dismissed.

The writ petition is dismissed. No order as to costs.

All

the

pending

applications

disposed

of

a