Court No. - 22
Case :- WRIT - B No. - 16049 of 1984 Petitioner :- Dallu Respondent :- D.D.C. And Others Counsel for Petitioner :- Pradeep Chandra,S.K.Chaturvedi,S.K.Srivastava Counsel for Respondent :- S.C.,Narendra Bhushan Nigam,R.P.Tiwari,Raghu Nandan Pd.Tiwari,Raghunandan Pd. Tiwari
Hon'ble Salil Kumar Rai,J.
1. Heard Shri S.K. Chaturvedi, learned counsel for the petitioner and Shri N.B. Nigam, learned counsel for respondent No. 2.
2. The dispute in the present writ petition and in the consolidation proceedings under the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') from which the present writ petition arises relate to Plot No. 244 area 3.20 acres in Village Rajpura Pargana Mau, District-Jhansi and Plot No. 276/2 area 1.24 acres in Village Sijraon, Pargana Mau, District-Jhansi.
3. The facts of the case as can be gathered from the pleadings of the parties and the different documents annexed with the writ petition and the counter affidavit are that one Khandua was the Sirdar of Plot No. 244 area 3.20 acres and Plot No. 276/2 area 1.24 acres (hereinafter referred to as, 'disputed plots') and subsequently after depositing the requisite amount on 28.12.1967 became the Bhumidhar of the disputed plots. The petitioner is son of said Khandua. There appears to have been some dispute during the consolidation proceedings regarding the date on which Bhumidhari rights in the disputed plots accrued in favour of Khandua and the relationship between the petitioner and Khandua. However, the facts and the reasons stated subsequently would show that the said dispute is not relevant to decide the title of the parties regarding the disputed plots and the issues raised in the present writ petition.
4. The petitioner claimed his Bhumidhari rights over the disputed plots by virtue of a gift deed dated 28.12.1967 allegedly executed by Khandua in favour of the petitioner. Respondent No. 2 claimed Bhumidhari rights over the disputed plots by virtue of a sale-deed dated 28.9.1968 executed by Khandua in his favour. It may be relevant to note that, at the time of alleged execution of the sale-deed 28.9.1968, respondent No. 2 was minor and the sale-deed was executed in his favour while he was under the guardianship of his mother. It also appears from the records that both the petitioner and respondent No. 2 filed applications for mutation of their names in the revenue records relating to the disputed plots in place of Khandua on the basis of instruments of transfer allegedly executed in their favour by Khandua. The applications for mutations were filed while Khandua was still alive. During the mutation proceedings which were held before the Sub Divisional Magistrate, Mau, Ranipur, District-Jhansi (hereinafter referred to as, S.D.M.'), Khandua appeared as a witness and denied the execution of the gift-deed in favour of the petitioner but admitted the execution of sale- deed in favour of respondent No. 2. Khandua died during the pendency of the mutation proceedings. The S.D.M. vide his order dated 14.3.1972 allowed the mutation application filed by respondent No. 2 and dismissed the mutation application filed by the petitioner and directed that name of respondent No. 2 be recorded in the revenue records relating to the disputed plots. However, despite the aforesaid order, the name of respondent No. 2 was not recorded in the revenue records. Consequently, in the revenue records relating to the basic year when the consolidation proceedings under the Act, 1953 started in the Village, Khandua was recorded as Bhumidhar of the disputed plots.
5. It appears that petitioner filed some application before the Assistant Consolidation Officer (hereinafter referred to as, 'A.C.O.') and on the said application the petitioner was recorded in the revenue records relating to the disputed plots in place of Khandua. It appears from the records that the order of the A.C.O. was passed on the basis of succession and not on the basis of the alleged gift-deed dated 28.12.1967. It is also apparent from the records that the said order was passed by the A.C.O. without issuing any notice to the respondent No. 2 and was an ex-parte order. Subsequently, respondent No. 2, through his mother, filed objections under Section 9-A(2) of the Act, 1953 stating that the name of the petitioner had been fraudulently recorded and the respondent No. 2 was entitled to be recorded as Bhumidhar of the disputed plots. On the aforesaid objections, Case Nos. 2833 and 2834 were registered before the concerned Consolidation Officer ((hereinafter referred to as, 'C.O.'). The plea of respondent No. 2 was based on the sale-deed dated 28.9.1968. In the aforesaid cases, the petitioner did not file any counter affidavit or any reply to the objections filed by respondent No. 2 denying the claim of respondent No. 2. However it appears that in the said cases, counsel for the petitioner objected to the legality of the proceedings and pleaded that the objections were not maintainable and the proper remedy for respondent No. 2 was to file an appeal before the concerned Settlement Officer of Consolidation ((hereinafter referred to as, 'S.O.C.') against the order passed by the A.C.O. The C.O. vide his order dated 23.6.1980 allowed the objections filed by respondent No. 2 and held the respondent No. 2 to be the Bhumidhar of the disputed plots. In his order dated 23.6.1980, the C.O. rejected the plea of the petitioner regarding the maintainability of the objections on the ground that the proceedings before the A.C.O. were ex-parte against respondent No. 2 and respondent No. 2 was not a party in the said proceedings.
6. Aggrieved by the order dated 23.6.1980 passed by the C.O., the petitioner filed Appeal Nos. 245 and 246 before the S.O.C. which were allowed by the S.O.C. vide his judgement and order dated 31.8.1981 and the order dated 23.6.1980 passed by the C.O. was set aside. The order dated 31.8.1981 passed by the S.O.C. was challenged by respondent No. 2 in Revision No. 538 instituted under Section 48 of the Act, 1953 before the Deputy Director of Consolidation, Jhansi, i.e., respondent No. 1 ((hereinafter referred to as, 'D.D.C.'). The D.D.C. vide his order dated 19.5.1984 allowed Revision No. 538 and set aside the order dated 31.8.1981 passed by the S.O.C. and consequently restored the order dated 23.6.1980 passed by the C.O. The judgement and order dated 19.5.1984 passed by the D.D.C. has been challenged in the present writ petition.
7. It has been argued by learned counsel for the petitioner that mutation proceedings are summary proceedings and the orders passed in the same are not binding in a title suit and consequently did not create resjudicata in proceedings under Section 9-A(2) of the Act, 1953. It was argued that the D.D.C. had erred in relying on the order passed by the S.D.M. in mutation proceedings while accepting the claim of respondent No. 2. It was argued that for the aforesaid reasons, the order dated 19.5.1984 passed by the D.D.C. was illegal and contrary to law and is liable to be set aside.
8. I have considered the submissions of the learned counsel for the petitioner.
9. A reading of the order dated 19.5.1984 passed by the D.D.C. shows that while passing the aforesaid order and accepting the claim of respondent No. 2, the D.D.C. has relied on the testimony of Khandua recorded in the mutation proceedings wherein Khandua had denied the exeuction of the alleged gift-deed in favour of the petitioner, but had admitted the execution of sale-deed in favour of respondent No. 2. Apart from the aforesaid testimony of Khandua, the D.D.C. has also recorded his opinion that the order passed in mutation proceedings would create a resjudicata regarding the dispute between the petitioner and respondent No. 2 in relation to the disputed plots and were therefore binding in proceedings under Section 9-A(2) of the Act, 1953. It is true that the opinion of the D.D.C. as recorded in his judgement dated 19.5.1984 so far as it relates to the binding effect of the order passed in the mutation proceedings is concerned is not correct. However, the alleged binding effect of the orders passed in mutation proceedings is not the only reason on which the D.D.C. has held in favour of respondent No. 2. In his order dated 19.5.1984, the D.D.C. has accepted the claim of respondent No. 2 relying on the testimony of Khandua given during the mutation proceedings. The testimony of Khandua recorded during the mutation proceedings were relevant and admissible evidence in proceedings under Section 9-A(2) of the Act, 1953. No error has been committed by the D.D.C. in relying on the aforesaid testimony. It has not been denied by the petitioner that Khandua had not testified during the mutation proceedings or that his testimony was not correctly recorded by the S.D.M. in his order dated 14.3.1972.
10. In view of the aforesaid, the order dated 19.5.1984 passed by the D.D.C. accepting the claim of respondent No. 2 cannot be set aside merely on the ground that the D.D.C. has held that the order dated 14.3.1972 passed during the consolidation proceedings had a binding effect in proceedings under Section 9-A(2) of the Act, 1953.
11. The next argument that has been raised by the counsel for the petitioner was that the execution of the sale-deed dated 28.9.1968 was not proved by respondent No. 2 before the consolidation authorities, and therefore, the D.D.C. had erred in accepting the claim of respondent No. 2 on the basis of the aforesaid sale-deed. The respondent No. 2 had filed his objections under Section 9-A(2) of the Act, 1953 pleading sale of the disputed plots in his favour by sale-deed dated 28.9.1968. The petitioner did not file any reply to the said objections before the C.O. denying the execution of the sale-deed. The said fact would be evident from a reading of the order dated 23.6.1980 passed by the C.O. It is not the case of the petitioner that he had filed his reply before the C.O. denying the claim of respondent No. 2 or had filed his reply denying the execution of the sale- deed dated 28.9.1968. Evidently, in absence of any opposition to the factual foundation alleged by respondent No. 2 in support of his claim, the execution of the sale-deed dated 28.9.1968 stood unrebutted before the C.O. and no formal proof of the same was required. Thus, the orders dated 23.6.1980 and 19.5.1984 passed by the consolidation officer and the D.D.C. respectively cannot be faulted merely on the ground that the execution of the sale-deed dated 28.9.1968 was not formally proved by respondent No. 2 before the consolidation authorities. A reading of the judgement and order dated 19.5.1984 also shows that the petitioner had challenged the validity of the sale-deed on the ground that the sale-deed was void inasmuch as the disputed plots were transferred to him by Khandua through gift-deed dated 28.12.1967 which was previous in time to the execution of the sale-deed. Further, as recorded before, Khandua had testified in the mutation proceedings accepting the execution of the sale-deed dated 28.9.1968 and had denied the execution of the gift- deed dated 28.12.1967. It is also noticeable that the execution of the gift-deed dated 28.12.1967 was also not formally proved by the petitioner either before the C.O. or the S.O.C. or even before the D.D.C. In view of the aforesaid, the argument of the learned counsel for the petitioner regarding the requirement of formally proving the sale-deed dated 28.9.1968 is also not acceptable and is rejected.
12. In view of the reasons given above, the controversy between the parties regarding the date on which the Bhumidhari rights in the disputed plots accrued in favour of Khandua and the relationship between Khandua and petitioner were not necessary to be decided during the consolidation proceedings and are not necessary to be decided in the present writ petition. It is for the aforesaid reasons that the Court has not adverted, in detail, to the arguments of the counsel for the parties relating to the said controversies.
13. For the aforesaid reasons, there is no illegality in the order dated 19.5.1984 passed by the Deputy Director of Consolidation, Jhansi, i.e., respondent No. 1 in Revision No.
538. The order passed by the D.D.C. is based on record and merely because another opinion on the same facts may be possible can not be a ground for interference under Article 226 of the Constitution of India. There is no perversity in the findings of the D.D.C. in his order dated 19.5.1984. The writ petition lacks merit and is dismissed.
Order Date :- 22.2.2019 Anurag/-