At, High Court of Judicature at Allahabad
By, THE HONOURABLE MR. JUSTICE RAM SURAT RAM (MAURYA)
For the Appellant: K.D. Tiwari, Narsingh Pandey, Advocates. For the Respondents: Ram Dubey, Advocate.
Ram Surat Ram (Maurya), J.
1. Heard Sri Narsingh Pandey for the petitioner and Sri Uma Nath Pandey for the respondents. The writ petition, has been filed against the order of Deputy Director of Consolidation dated 31.12.2013 passed in revision arising out of proceedings u/s 12 of UP Consolidation of Holdings Act (hereinafter referred to as the 'Act').
2. The dispute related to the mutation of the name of the petitioner over plot No. 465 of village Mathauli, pargana Mahuli Paschim, distt. Basti. This plot was left as out of consolidation during consolidation proceeding. An area of 0.019 hectare of this plot has been recorded in the name of Ramesh Chand Pal, and Gangesh Pal in khata No. 383. Similarl
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y, an area of 0.019 hectare of this plot was recorded in the name of Ramesh Chand Pal, Jai Shanker Pal S/o. Vishwanath Pal, Prem Shankar Pal S/o. Paras Nath Pal, Girijesh Pal, Gyanendra Pal, Umesh Pal in khata No. 161. The petitioner purchased 1/2 share on plot No. 465 from Ramesh Chand Pal through a sale-deed dated 25.8.2003 on the same day the petitioner obtained another sale-deed from Girjesh Pal in respect of his 1/6 share of plot No. 465. On the basis of two sale-deeds the petitioner applied for mutation of his name over the land in dispute. The Assistant Consolidation Officer by order dated 23.9.2003 directed for mutation of the name of the petitioner over the land in dispute on the basis of aforesaid sale-deeds in view of the compromise entered into between the parties.
3. Chandra Prakash Pal, respondents filed two separate appeals against the order of Assistant Consolidation Officer dated 23.9.2003. In the memorandum of appeal Chandra Pakash Pal has alleged that Girjesh Pal has executed a sale-deed of the land which was allotted in his share in the family partition between the co-sharers and the boundary of land which has been mentioned in the sale-deed was the land which has been given in his possession in family partition. He further submits that Assistant Consolidation Officer has not issued any notice and the compromise before him is fraudulent inasmuch as the member of Consolidation Committee namely Ram Avtar was already dead on the date of compromise but his signature has also been fabricated in it. The appeal was heard by Settlement Officer, Consolidation who by order dated 27.7.2007 dismissed both the appeals. Settlement Officer, Consolidation stated that as Chandra Prakash Pal, the appellant was not even a co-sharer in the land in dispute and has nothing to do with it and appeal on his behalf was not maintainable accordingly the appeal was dismissed. Chandra Prakash Pal filed two revisions from the aforesaid order. Both the revisions were consolidated and decided by Deputy Director of Consolidation and Deputy Director of Consolidation allowed the revisions and set aside the orders of Assistant Consolidation Officer dated 23.10.2003 and Settlement Officer Consolidation dated 27.7.2007 and remanded the matter to Consolidation Officer for trial of the issues on merit. Hence this writ petition has been filed.
4. The Counsel for the petitioner submits that the persons who have transferred the land to the petitioner, have already entered into the compromise. There had been a family settlement between the parties as such the transferor although joint co-sharer has right to transfer the land falling in their share. The other co-sharer namely Chandra Prakash Pal has no right to object the transfers or has no right to challenge the mutation order which has been passed on the basis of sale-deed as well as compromise. He further submits that on the allegation with the order of Assistant Consolidation Officer has been passed without issuing of notice, Chandra Prakash Pal ought to have been filed a recall application in stead of filing the appeal. He further submits that Deputy Director of Consolidation has vaguely mentioned that order of Settlement Officer, Consolidation is erroneous without pointing out any particular error in it. He further submits that Deputy Director of Consolidation has not decided the revisions on merit and has illegally set aside the impugned order.
5. I have considered the arguments of the Counsel for the petitioner and examined the record. A perusal of CH Form 23 filed as Annexure-1 to the writ petition shows that plot No. 495 was a big plot and has been recorded in the name of various tenure holders in several khatas. The allegation on Chandra Prakash Pal was that he was a co-sharer in it and in family settlement which has been allotted to him, is exactly covered in the sale-deed executed by Girjesh Pal. He further alleged in the memorandum of appeal that no notice has been issued by Assistant Consolidation Officer and the compromise executed before him was a forged compromise as one of the member of the Consolidation Committee namely Ram Avatar was dead on the date of compromise but his signature has also been fabricated on it. None of the grounds has been examined by Settlement Officer, Consolidation and he has dismissed the appeal. The allegation of the Counsel for the petitioner that Chandra Prakash Pal had remedy to file a recall application has noting to do with the appeal filed by him. The statute provides two remedy at a time and he chose file an appeal in stead of recall application therefore the appeal was competent and ought to have been decided on merit.
6. So far as the argument that Deputy Director of Consolidation has not pointed out any error in the orders of Assistant Consolidation Officer and Settlement Officer, Consolidation, is concerned. The Deputy Director of Consolidation has noticed that allegation was made that the sale-deed executed by Girjesh Pal was in respect of the land which has been allotted to Chandra Prakash Pal in family partition over which he had been in possession and that has not been considered by any of the authorities below. Therefore he held that orders of Assistant Consolidation Officer as well as appellate authority are erroneous.
7. In the proceedings u/s 12 of the Act title and possession both are relevant and have to be decided. As it is a final order, on the allegation that the sale-deed executed by Girjesh Pal was in respect of the land in Chandra Prakash Pal, the serious controversy has been raised in respect of possession, therefore, it ought to have been decided after giving opportunity to the parties concerned. In such circumstances the Deputy Director of Consolidation has rightly set aside the orders dated 27.7.2007 and 23.10.2003 and remanded the case to Consolidation Officer for trial on merit. The petitioner has remedy to satisfy the Consolidation Officer on merit and at present no material prejudice has been caused to him.
8. The Counsel for the petitioner submits that Assistant Consolidation Officer has found that proclamation have been issued in accordance with law, accordingly; it is incorrect to say that proclamation has not been issued. This very finding is challenged in the appeal as well as the revision but the appellate Court has failed to record any finding in this respect. The petitioner could not show that the proclamations or noticed were ever served upon Chandra Prakash Pal, before this Court. Thus the order was exparte. No interference is required by this Court. The writ petition is dismissed.