Court No. - 36
Case :- WRIT - B No. - 3279 of 2018 Petitioner :- Bhagwan Singh @ Bhagwandas Singh Respondent :- Deputy Director Of Consolidation And 7 Others Counsel for Petitioner :- Anil Kumar Mishra Counsel for Respondent :- C.S.C.
Hon'ble Mrs. Sunita Agarwal,J.
The present petition is directed against the orders dated 5.10.2017 and 13.1.2017 passed by the Deputy Director of Consolidation and the Settlement Officer Consolidation whereby the order dated 2.12.1978 passed by the Assistant Consolidation Officer allegedly based on the compromise between the parties has been set aside.
The petitioner claims to have filed an objection under Section 9 of the U.P. Consolidation of Holdings Act, 1953 (in short 'the U.P. C.H. Act') claiming his right over the land in question on the ground of adverse possession. Admittedly, the land in question was recorded in the name of the tenureholders who belong to the Scheduled Caste Category. The petitioner, however, belongs to General Category and submits that he has perfected his right by way of the adverse possession and the recorded tenureholders had admitted his possession during the course of proceeding before the Assistant Consolidation Officer. It is, thus, sought to be submitted that the objection filed by the petitioner under Section 9 of the U.P. C.H. Act were allowed on the compromise between the parties vide order dated 2.12.1978.
After a period of approximately 19 years, an appeal was filed.
Initially, the said appeal was allowed vide order dated 19.8.2004 setting aside the order passed by the Assistant Consolidation Officer. However, the said order passed was set aside vide order dated 20.6.2006 passed by the Deputy Director of Consolidation and the matter was remitted back. It is noteworthy that the writ petition filed against the revisional order was decided on 31.3.2016 and a direction was issued therein to the Settlement Officer Consolidation to decide the matter after considering the evidence on record.
It is contended by the learned counsel for the petitioner that the Settlement Officer Consolidation had erred in setting aside the order dated 2.12.1978 after denotification of the village and in view of the fact that C.H. Forms 23 and 45 were prepared and distributed amongst the tenureholders which also include the appellants therein.
Heard learned counsel for the parties and perused the record. Dealing with the contention of learned counsel for the petitioner regarding the delay in filing appeal, it is suffice to note that in view of the findings of forgery in the records, the delay in filing the appeal would not come in the way of the appellants. It is settled law that the fraud vitiates ever solemn act. Any order which is based on a forged proceeding or forged compromise cannot be sustained. The fact that C.H. Forms 23 & 45 were distributed amongst the parties would not vitiate the proceeding in appeal.
In so far as merits of the appellate order, it is contended that the Appellate Court has erred in holding that the land in question could not have been transferred on the alleged compromise between the parties. On the merits of compromise order dated 2.12.1978 is concerned, no finding whatsoever has been recorded by the Settlement Officer Consolidation in compliance of the directions given by this Court vide judgment and order dated 31.3.2016. The Revisional Court has committed the same illegality in upholding the order of the Appellate Court.
Dealing with this submission of learned counsel for the petitioner, it is pertinent to note that the Revisional Court has recorded a categorical finding of fact on the validity of the compromise, which was the basis of order dated 2.12.1978, it is recorded by the Revisional Court that the alleged compromise dated 2.12.1978 is an outcome of fraud and illegal proceeding. The said compromise though is allegedly signed by Kinno, Rama Shankar, Ram Sundar and Daya Ram and bears the thumb impression of Ganesh but it was not signed by the revisionist/petitioner herein i.e. the person who claimed his adverse possession over the land of the tenureholders. It was thus not clear as to how the said compromise was valid exercise of proceeding before the Assistant Consolidation Officer.
The said finding recorded by the Revisional Court is further substantiated from a perusal of the alleged compromise which is at Page '28' of the paper book. A perusal thereof indicates that it does not even contain the number of the proceedings in which it was entered into. Thus, it is not substantiated as to whether the said compromise was arrived in the alleged objections filed by the petitioner before the Assistant Consolidation Officer. It is not signed by the petitioner himself. Any compromise which has been arrived outside the Court is required to be verified by the Court. It is more than apparent from the findings recorded by the Revisional Court that no such exercise was made.
This apart, it is more than apparent that the parties to the proceeding namely the recorded tenureholders did not sign the compromise.
For all the above noted reasons, the writ petition is found devoid of merits and hence dismissed.
Order Date :- 27.3.2018 Jyotsana