JUDGMENT S.N. Srivastava, J.
1. This writ petition is directed against the order dated 7.4.06 passed by District Deputy Director of Consolidation Sarit Ravi Das Nagar, Bhadohi allowing restoration application dated 19.2.2005, setting aside the ex parte order dated 22.12.2001 and directing the parties to appear before him for hearing on merit,
2. The dispute relates to plot Nos. 576 and 577 situated in village Bankat Uparwar, Tahsil Gyanpur, District Sant Ravidas Nagar, Bhadohi.
3. Heard learned Counsel for the parties.
4. Learned Counsel for the petitioner urged that impugned order of Deputy Director of Consolidation is without jurisdiction as notification under Section 52 of U.P. Consolidation of Holdings Act (hereinafter referred to as the Act) had already been published and Application to recall the ex parte order passed prior to notification under Section 52 of the Act, was not maintainable and was liable to be set aside. He further urged that the impugned order otherwise also suffers from error of law apparent on the face of record and is liable to be quashed. It was urged that Pandhari was recorded tenure holder. Petitioner purchased the land in dispute through sale deed from Pandhari and was recorded in revenue record in his place by the impugned order dated 22.12,2001, The impugned order recalling the order dated 22.12.2001 was wrongly passed, writ petition deserves to be allowed. In support of his argument, petitioner has relied upon case law 1989 RD 281 Hari Ram v. D.D.C. Azamgarh and Ors. 1995 RD 264 Nankkhi v. Deputy Director of Consolidation, Pratapgarh and Ors. 2004 (97) RD 409 Manoj Kumar v. Deputy Director of Consolidation, Basti and Ors. 1986 RD 40 Ram Pal Singh and Ors. v. D.D.C. Meerut and Ors. 2005 (99) RD 86 Shyam Manohar v. Board of Revenue and Ors. 2005(59) ALR 743 Badhu and Anr. v. Civil Judge, Azamgarh and Ors. .
5. In reply to the same, learned Counsel for caveator urged that the order dated 22.12,2001 was an ex parte order against respondent's father Satya Narain who was dead on the date of order without impleading his heirs and legal representatives. He urged that on the basis of impugned order, the petitioner is trying to take possession illegally of a part of land of respondents situated on the main road. The impugned order was rightly passed in accordance with law. In support of his case, learned Counsel for the contesting opposite parties relied upon 2004(96) RD 284 Ram Pact and Anr. v. State of U.P. and Ors. 2004(96) RD 559 Fateh Singh v. Deputy Director of Consolidation, Matura and Ors. 1983 ALL.L.J 1250 Bhawati v. DDC and Ors. 1998 (89) RD-204 Ram Rati v. Dy. Director of Consolidation and Ors. and 1974 RD -53 (DB) Ram Bahadur v. Dy. Director of Consolidation, Ballia and Ors. .
6. Considered the arguments of learned Counsel for the parties and carefully gone through the record as well case law relied upon by the parties.
7. The first question arises to be considered in the present case is whether after notification under Section 52 of the Act, any application for recalling an order passed ex parte or order against a dead person by heirs of the deceased-party passed prior to notification under Section 52 of the Act is maintainable. It was urged on behalf of petitioner that as no proceeding under Section 52(2) of the Act was pending on the date of notification, no such application was maintainable.
8. For ready reference of the case, Section 52(1) and (2) of U.P. Consolidation of Holdings Act is being quoted below:
52.Close of consolidation operations (1) As soon as may be, after fresh maps and records have been prepared [under Sub-section (1) of Section 27], the State Government shall issue a notification in the official gazette that the consolidation operations have been closed in the (unit and the village or villages forming a part of the unit) shall then cease to be under consolidation operations]:
Provided that the issue of the notification under this section shall not effect the powers of the State Government to fix, distribute and recover the cost of operations under this Act.] (1-A) The notification issued under Sub-section (1) shall be published also in a daily newspaper having circulation in the area and in such other manner as may be considered proper.] (2) Notwithstanding anything contained in Sub-section (1), any order passed by a court of competent jurisdiction in cases of writs filed under the provisions of the Constitution of India, or in cases or proceedings pending under this Act on the date of issue of the notification under Sub-section (1), shall be given effect to by such authorities, as may be prescribed and the consolidation operations shall, for that purpose, be deemed to have not been closed.
9. Section 52(1) of U.P. Consolidation of Holdings Act makes it clear that the consolidation proceedings after notification under Section 52 of the Act shall be closed. For the purposes of matter pending or for giving effect the order mentioned in Sub-section 52 (2) of the Act, it shall be deemed that the consolidation operation is not closed.
10. Now in the present case, from the findings of Deputy Director of Consolidation and from the materials on record it is borne out that respondent's father Satya Narain was dead when the orders were passed. It further borne out that the order-dated 22,12.2001 was passed also ex parte. By this order, name of petitioner was mutated in place of Pandhari. Pandahari had 1/2 share in the land in dispute. There is nothing on record to show that there was any partition amongst co-tenants. The finding recorded by Deputy Director of Consolidation makes it clear that petitioner tried to take possession of exclusive land on the main road on the basis of sale deed, allegedly executed by Pandhari. It is only thereafter contesting Opposite Parties came to know about the ex parte order dated 22.12,2001 and filed application to recall the order which was allowed by Deputy Director of Consolidation and parties were directed to appear before Consolidation Officer to be heard on merits in accordance with law.
11. In support of the case of petitioner, Sri H.N. Shukla, learned Counsel for the petitioner relied upon the case law reported in 1989 RD (DB) Page 281(supra). This case is not applicable in the facts of the present case. In that case, an application was filed by Hari Ram on the apprehension that Deputy Director of Consolidation may exercise powers under Section 48(3) of U.P. Consolidation of Holdings Act, This Court was of the view that Deputy Director of Consolidation should decide this fact whether any notification under Section 52 (1) of the Act has been issued or not and thereafter pass appropriate orders. This Court did not consider the effect of notification under Sub-section 2 of Section 52 of the Act in this case.
12. Similarly, the case law relied upon in 1995 RD 264 (Supra) is also not a case where scope of Section 52 (2) of the Act and other relevant provisions were considered by learned Single Judge.
13. Other case law relied upon by petitioner's counsel reported in 2004 (97) RD 409 (supra) of Single Judge, is also not applicable in the facts of the present case. In that case notices were served to Gram Pradhan and he did not appear before the Court and filed restoration application after 23 years, The other case law relied upon 1986 RD 40 (supra) is also not applicable in the facts of the present case. In that case adjudication on Patta executed by Gram Sabha after notification under Section 52 of the Act was held to be beyond jurisdiction of consolidation authority.
14. Similarly the other case law reported in 2005 (99) RD Page 86 (supra) was also a case, which is not applicable in the facts of the present case as delivery of possession given by Advocate Commissioner after auction where restoration application was filed after six years. The Case law reported in 2005 (59) ALR 743 (Supra) is also not a case under Section 52(2) of U.P. Consolidation of Holdings All aforesaid cases cited by learned Counsel for the petitioner are not applicable in the facts of the present case.
15. Considered the cases relied upon by learned Counsel for contesting Opposite Parties. Case law reported in 2004 (96) RD 559 (supra) is a case where an application after notification under Section 52 of the Act along with an application under Section 5 of the Limitation Act was filed. Learned Single Judge of this Court held that even after notification under Section 52(1) of the Act, appeal or revision could be entertained and Consolidation Authorities are competent to decide the same. It was found that an appeal does not initiate a fresh proceeding and on the institution of the appeal the proceedings which had become dormant on the decision of the Trial Court revive and remain pending.
16. Similarly in the case reported in 1983 ALL.L.J. 1250 (Supra), learned Singh Judge held that an application under Rule 109-A of the U.P. Consolidation of Holdings Rules filed by the respondents after notification was maintainable.
17. Case law reported in 1998 (89) RD 204 (Supra), learned Single Judge held that after notification under Section 52 of the Act, Deputy Director of Consolidation may recall an ex parte order. Learned Single Judge relied upon a number of other cases in the judgment. This view was further supported by Anr. Single Judge judgment reported in 1990 RD 258 Nathani Singh v. Assistant Director of Consolidation, Ghazipur.
18. This question of law was already decided by a Division Bench of this Court in Ram Bahadur v. Dy. Director Consolidation Camp at Ballia and Ors. reported in 1974 RD 53 (supra) which is squarely applicable to the facts and question of law involved in the present case. This Court in paragraph 2 of the judgment aforesaid held that:
It was also held that the notification under Section 52(1) does not have the effect of destroying vested rights of the litigants. For instance, if a litigant has a right of appeal against a particular order he can exercise it notwithstanding the publication of the notification under Section 52(1) and the moment an appeal is filed the effect in law is that the original proceedings stand revived.
19. This Court further held that:
In our opinion the principle laid down in this case is applicable to an application for setting aside an ex-parte order. Section 41 of the Consolidation of Holdings Act makes the provisions of Chapters IX and X of the U.P. Land Revenue Act applicable to all proceedings under the Consolidation of Holdings Act. Section 200 and 201 of the U.P. Land Revenue Act are in Chapter IX. Section 200 provides that whenever any party to such proceeding neglects to attend on the day specified in the summons, or on any day to which the case may have been postponed, the court may dismiss the case for default or may hear and determine it ex parte. Section 201 says that no appeal shall lie from an order passed under Section 200 ex parte or by default. That section provides for re-hearing on proof of good cause for non-appearance. The petitioner had made an application under this provision for the re-hearing of the case on showing'good cause for non-appearance.
20. In view of the law laid down by a Division Bench of this Court, this question is decided in favour of Opposite Parties and against petitioner holding that a person has right to move an application for recalling the order passed ex parte or against a dead person through his heirs and legal representative even after notification under Section 52 of the Act.
21. From the materials on record it transpires that in the present case only Srinarain, Ram Krishna son of Ram Pratap Misra, Sakha Ram, Madan Lal, Mast Ram sons of Gaj Prasidha Narain, Lallan Prasad sons of Mewa Lal executed a sale deed in favour of Pandhari with regard to 1/2 share on 8.11.90. The land in dispute was recorded in the names of Mewa Lal, Amrit Lal, Sri Narain sons of Shiv Moorat, Prasidha Narain deceased, heirs Vishnu Charan, Sakha Ram, Madan Lal, Mast Ram sons of Prasidha Narain, Satya Narain, Jeet Narain, Udit Narain, Ram Narain sons of Prayag and Ram Pratap. These transferors neither executed sale deed of the land on roadside nor for any specific area in land in dispute, which was admittedly a cotenancy.
22. It further appears that Pandhari executed a sale deed in favour of petitioner on 17.6.2004 with specific boundary of the plot in dispute of which respondents are also co-tenure holders. There is nothing on record to show that any partition had taken place. On the basis of this sale deed, petitioner tried to take possession of the specific area of land on the main road.
23. This Court is of the firm view that in case a person has purchased any land in a joint holding from any or some of co-tenants, transferee will get only right to the extent of share in joint tenancy of transferor unless a partition was made in accordance with law and Quras allotted under the final decree of partition or partition takes place under family settlement through registered document or other requirements of family settlement are satisfied. My view is supported by a judgment of this Court reported in 1982 (8) A.L.R. 720 Daya Kishun v. Assistant Director of Consolidation and Ors. where Single Judge has held that:
Unless a final decree for partition is passed on the basis of Quras submitted by the parties no exclusive rights could be claimed by Swami Prasad over the said plots. It is admitted that no final decree for partition was passed nor delivery of possession over the plots was given through Court. The Quras submitted by the parties, therefore, remained a mutual partition between the parties for the sake of convenience in cultivation. The quas submitted by the parties remained merely an arrangement between the parities since no final decree was passed on the basis of quras submitted by the parties. On the basis of mutual partition and exclusive possession over the land the rights and title of Shambu Dayal in the said plots to the extent of half share could not, therefore be taken have extinguished.
24. This view was further supported by a Division Bench of this Court reported in 1940 RD 132 Ram Kripal v. Abdul Wahid and Anr. case reported in (1920) 18 A.L.J. 129 Jamma v. Jhalli.
25. In view of the above, if there is no partition and unless partition actually takes place between the parties, in case petitioner purchases any such land, he will get share to the extent of share of Pandhari.
26. As matter has been directed to be heard and decided by the Consolidation Officer on merits, all these questions may be decided after providing opportunity of adducing evidence and of hearing to the concerned parties.
27. So far recalling the order dated 22.12.2001 is concerned, it was rightly passed by Deputy Director of Consolidation being an order passed against a dead person without bringing heirs and legal representative of the deceased on record.
28. In view of the above, writ petition is dismissed. No order as to costs.