Hon'ble A.P. Sahi,J.
The dispute in this petition relates to claim of title over the agricultural holding of Khata No. 310 which at the commencement of the Consolidation proceedings was recorded in the name of one Gulab Lal, father of the petitioner and the respondent no.5. It would be appropriate to bring on record that the village was notified under Section 4 of the U.P. Consolidation of Holdings Act, 1953 on 24th July, 1973. Gulab Lal filed an objection for expunging the entry of the judgment dated 20.8.1971 in favour of the respondent no. 3-Ganga Prasad and his brother Jamuna Prasad, the husband of the respondent no. 4. One objection was filed by Kedar S/o Sarju claiming rights over four plots of the disputed Khata on the basis of adverse possession. Another dispute was raised claiming sirdari rights by Balwanta on the basis of possession reported during survey over the entire Khata. Mst. Hansau w/0 Jokhai claimed rights on the basis of a sale deed for two plots only executed by Gulab Lal in her favour.
The objection filed by Gulab Lal and Mst. Hansau were allowed on 27th October, 1975. It appears that a restoration application was filed by the contesting respondents which was allowed and the case was restored before the Consolidation Officer whereafter all the objections were consolidated and heard together.
After contest, once again the objections filed by Gulab Lal and Mst. Hansau were allowed and the objections of Kedar and Balwanta on the basis of possession were rejected. The entry endorsed in the record relating to the claim of Ganga Prasad and Jamuna Prasad on the basis of the judgment dated 20.8.1971 was directed to be expunged. The Consolidation Officer's order to that effect is dated 17.6.1977. The respondent- Ganga Prasad and his brother Jamuna Prasad filed an appeal before the Settlement Officer Consolidation. The said appeal was dismissed in default on 27th January, 1979. The village was de-notified under Section 52 of the 1953 Act on 24th April, 1982.
Jamuna Prasad the brother of the respondent no. 3 died on 5th December, 1991. Gulab Lal died on 2nd April, 1992. After a lapse of almost 13 years and after the death of the aforesaid two persons, Ganga Prasad alone filed a restoration application on 18th July, 1992 before the Settlement Officer Consolidation urging that since his brother Jamuna Prasad had been looking after the case before the appellate authority and he had no knowledge of the same having been dismissed in default in 1979, therefore, the delay in filing the restoration application be condoned and the appeal be restored back to its original number.
As noticed above, since Jamuna Prasad and Gulab Lal both were dead prior to the filing of the restoration application, Ganga Prasad filed a substitution application in the restoration itself. The appeal was restored on 9th December, 1993 and vide order dated 29th May, 1995 the Settlement Officer Consolidation passed an order to proceed ex-parte against the respondent in the appeal.
Ganga Prasad filed an application on 16.12.1997 making a request to the Settlement Officer Consolidation to summon the records of Original Suit No. 789 decided by the Sub Divisional Officer on 20.8.1971 under Section 229B of the U.P. Z.A. & L.R. Act, 1950 on the basis whereof Ganga Prasad and his brother Jamuna Prasad were claiming title over the land. The appellate authority on the same date on the said application passed an order for summoning the records. The appeal appears to have been heard ex-parte on 23.12.1997 and was ultimately allowed ex-parte on 22.1.1998.
It is in the aforesaid background that the dispute now commences with the filing of a restoration application by the petitioner who is the son of Gulab Lal on 20.11.2000. Another restoration application was filed on 27.12.2000 by the vendees of the respondent no. 5, who is the real brother of the petitioner and is also supporting the writ petition through his counter affidavit in the present proceedings. These restoration applications were proceeded with and the appellate authority again passed an order on 19th December, 2003 for summoning the records of the proceedings of the suit decided on 20.8.1971. The petitioner also filed an application to that effect on 27.12.2003 on which an order was passed that the said application be put up with the file on the date fixed on 27th December, 2003 itself. The appellate authority passed an order, that since the certified copy of the judgment and decree of the said suit was on record and no objection was filed to the same, therefore, it was not necessary to further proceed to inspect the said records.
The restoration application filed by the petitioner came to be dismissed on 2nd April, 2004, as a consequence whereof the petitioner filed two revisions before the Deputy Director of Consolidation, one against the order dated 22.1.1998 whereby the appeal had been allowed ex-parte against the petitioner and the second revision against the order dated 2nd April, 2004 dismissing the restoration application filed by the petitioner.
The revisions have been dismissed primarily on the ground of estoppel on the basis of the judgment dated 20.8.1971. The petitioner, has therefore, come up against the orders dated 22.1.1998, 2.4.2004 and the order passed in revision dated 30th June, 2006 contending that the impugned orders proceed on erroneous assumptions of fact and law, hence, they deserve to be set aside.
I have heard Sri S.C. Verma assisted by Sri Deepak Gaur for the petitioner, Sri Hari Om Khare for the contesting respondents no. 3 and 4, the learned Standing Counsel for the respondents No. 1 and 2. I have also perused the counter affidavit filed on behalf of the respondent no. 5 brother of the petitioner, through Sri Suresh Singh Advocate supporting the cause of the petitioner.
Sri Verma learned counsel for the petitioner submits that Ganga Prasad the respondent no. 3 was a very scheming person and he filed the restoration application after 13 years of the dismissal of the appeal filed by him. There was no explanation worth the name for the delay in filing of the restoration application and the same had been filed against dead persons. He contends that admittedly his real brother Jamuna Prasad had died on 5.12.1991 and Gulab Lal died on 2nd April, 1992. The restoration was moved without substituting the heirs and neither any notice was sent on the restoration application to the petitioner nor on the substitution application filed therein. He submits that the assumption of service on the petitioner and his brother the respondent no. 5 is incorrect as no service was ever effected either on the petitioner or on the respondent no. 5. It is undisputed that the restoration proceeded ex-parte and was allowed on 9.12.1993.
He contends that the order dated 9th December, 1993 nowhere condones the delay in filing of the restoration application nor does it in any way indicate the issuance of notice on the substitution application. The recital as contained in the order dated 22.1.1998 of the Settlement Officer Consolidation that the opposite parties had not turned up inspite of notice is absolutely incorrect and there is nothing on record to establish the service of notice either on the petitioner or on the respondent no. 5. He therefore contends that the order dated 22nd January, 1998 was absolutely ex-parte and without notice to the petitioner, hence, the same deserves to be set aside on this ground alone.
It is also submitted that while filing the restoration application on 20.11.2000, the petitioner had taken a clear stand that the order dated 20.8.1971 was an order without foundation and the entry of the said order was fake. The restoration application also assails the compromise dated 10.8.1971 on the basis whereof the order dated 20.8.1971 is said to have been passed. Not only this the original objection filed by Gulab Lal filed as Annexure-2 to this petition also denies the fact relating to the suit having been contested or compromised by him.
Sri Verma submits that a clear objection was taken to the veracity and correctness of the suit proceedings and the compromise therein and the same was challenged as being fake and not bearing the signatures of Gulab Lal. He therefore contends that this issue having been clearly raised in the restoration application, ought to have been taken notice of and adjudicated, which was never done and inspite of the request made by the petitioner for summoning the records of Case No. 789 decided on 20.8.1971, the same was rejected on an erroneous ground that no objection had been filed by the petitioner.
Sri Verma further submits that there were clear objections to the said judgment and decree and, therefore, the recital contained in the order dated 27.12.2003 that no objection had been filed by the petitioner is absolutely wrong. The Settlement Officer Consolidation should have first restored the appeal and thereafter should have allowed the parties to lead evidence on the correctness or otherwise of the allegations in respect of the said proceedings culminating in a compromise decree dated 20.8.1971. He therefore contends that the petitioner was denied opportunity to contest the said position by an erroneous order passed on 27.12.2003 and the dismissal of the restoration application on 2.4.2004.
Sri Verma then contends that once it is established that the petitioner has been denied the opportunity to contest the real issue, then the applicability of the principle of estoppel and the binding effect of the judgment and decree dated 20.8.1971 could not have been assumed against the petitioner. He therefore contends that the Deputy Director of Consolidation has completely overlooked this aspect of the matter as such the impugned order dated 30th June, 2006 is vitiated. He further submits that the Deputy Director of Consolidation has completely misunderstood the facts on record and on a misreading of the orders and the contention raised by the petitioner in his restoration application has wrongly affirmed the order dated 2nd April, 2004. He therefore urges that the aforesaid impugned order assailed in the second revision filed by the petitioner also deserves to be quashed.
On merits, Sri Verma has raised certain interesting questions, namely, that the judgment and decree dated 20.8.1971 is a nullity, firstly, because it does not bear the signatures of Gulab Lal and the compromise is forged. Secondly, such a compromise was even otherwise legally impermissible, inasmuch as, the Khata in dispute was a sirdari tenure as per the provisions of Section 131 of the U.P. Z.A. & L.R. Act, 1950 as it then stood, and the Sub Divisional Officer had no jurisdiction to co-opt the respondent Ganga Prasad or his brother Jamuna Prasad as a sirdar on the basis of a compromise. He contends that sirdari could not have been acquired by co-option in view of the settled position of law. He therefore submits that this aspect has also been overlooked by the Settlement Officer Consolidation as also the Deputy Director of Consolidation. The judgment and decree dated 20.8.1971 therefore is invalid on facts as a result of fraud and is even otherwise a nullity in law, and therefore no estoppel could have been assumed on that ground. On this score also Sri Verma submits that the contesting respondents had no claim on merits as such the petition deserves to be allowed.
Replying to the aforesaid submissions Sri Hari Om Khare contends that the judgment and decree dated 20.8.1971 is final between the parties, and is based on a valid compromise that was entered into between the plaintiffs and the defendants to the suit duly verified by their respective counsel. The compromise was in consonance with the provisions of Order 23 Rule 3 of the Civil Procedure Code. The said compromise was in the knowledge of Gulab Lal who never questioned the correctness of the same by filing any application in the proceedings of the suit itself, and therefore, Gulab Lal was not only bound by the judgment and decree but his successors are also estopped by conduct from questioning the correctness of the judgment and decree dated 20.8.1971. He submits that the petitioner and the respondent no. 5 have never questioned the judgment and decree dated 20.8.1971 by moving any application in the said proceedings, and as such, the judgment and decree cannot be permitted to be challenged collaterally during consolidation operations. He therefore contends that the order of the Consolidation Officer was rightly set aside in appeal and affirmed in revision which does not call for any interference.
Coming to the issue of restoration, Sri Khare contends that the appeal was restored after due notice to the petitioner and the respondent no. 5 and the finding so recorded by the Settlement Officer Consolidation in the order dated 22.1.1998 and 2.4.2004 has been affirmed by the Deputy Director of Consolidation. He therefore submits that this is a question of fact and such a finding cannot be permitted to be assailed before this Court in the exercise of jurisdiction under Article 226 of the Constitution of India.
Sri Khare has further invited the attention of the Court to the order-sheet of the original proceedings of Suit No. 789 decided on 20.8.1971, records whereof were summoned by this Court as well and has pointed out to the endorsements therein together with the alleged signatures of Gulab Lal on the compromise having been verified and also of his wife Amrawati Devi through their counsel. He therefore submits that the correctness of the said proceedings are unassailable and therefore the Deputy Director of Consolidation is perfectly justified in applying the principles of estoppel against the petitioner. He therefore submits that neither on facts or in law, the impugned orders require any interference by this Court under Article 226 of the Constitution of India and prays that the petition be dismissed.
Having heard learned counsel for the parties and having perused the records including the record of Original Suit No. 789, decided on 20.8.1971, this Court finds that one of the major issues relating to the impact of the decree dated 20.8.1971 has not been gone into in correct perspective, either by the Settlement Officer Consolidation or by the Deputy Director of Consolidation. Secondly, in my opinion, the matter relating to restoration appears to have been not dealt with appropriately in the background of the litigation between the parties, and therefore, the petition deserves to succeed on both counts.
Before proceeding further, it would be appropriate to jot down the genesis of the dispute as raised by the parties. The consolidation proceedings commenced with the filing of an objection by Gulab Lal. His objections were three fold. One against Balwanata and Kedar who were claiming adverse possession on the basis of certain entries. The second was in favour of Smt. Hansau on the basis of a sale deed said to have been executed in her favour by Gulab Lal in respect of the sold plots on 5.2.1972, and the third objection was for expunging the entry of the judgment dated 20.8.1971 in favour of respondent no. 3 Ganga Prasad and his brother Jamuna Prasad from the records on the ground that the said entry on the strength of the order dated 20.8.1971 was neither established nor proved. Gulab Lal contended that the judgment dated 20.8.1971 was endorsed in the record for which there was no basis and for which no evidence had been brought on record before the Consolidation Officer. The said objection was initially allowed ex-parte on 27.10.1975 but after restoration was finally allowed on 17.6.1977. While allowing the objection, the Consolidation Officer had also called for a report from the Assistant Consolidation Officer which categorically indicated that the endorsement of the order dated 20.8.1971 was not in accordance with the provisions of the Land Record Manual and did not bear the signatures of the concerned officials. This finding of the Consolidation Officer has nowhere been upset by the Settlement Officer Consolidation. Apart from this, the respondents Ganga Prasad and his brother Jamuna Prasad did not lead any evidence in relation to the said proceedings before the Consolidation Officer. They appear to have filed the certified copy of the judgment dated 20.8.1971 after the restoration application was filed by Ganga Prasad before the Settlement Officer Consolidation at the appellate stage. In such a situation, there was nothing before the Consolidation Officer to support the said entry in favour of the respondent no. 3 Ganga Prasad. The order of the Consolidation Officer, therefore, could not have been upturned nor could the Consolidation Officer have formed a different opinion in the absence of any such evidence.
At this juncture, it would be relevant to consider the argument of Sri S.C. Verma on the issue of the nature of the tenancy of the land. I have perused the original plaint of Case No. 789 which was a proceeding under Section 229B of the U.P. Z.A. & L.R. Act, 1950 for declaration. The said plaint contains a recital that the disputed land is a sirdari Khata. The tenure of sirdari was defined under Chapter VIII of the U.P. Z.A. & L.R. Act, 1950 as it then stood as follows:-
S. 131. Sirdar. Every person belonging to any of the following classes shall be called a sirdar and shall have all the rights and be subject to all the liabilities conferred or imposed upon sirdars by or under this Act, namely,
(a) every person who, as a consequence of the acquisition of estates, becomes a sirdar under Sec. 19;
(b) every person who is admitted as sirdar of vacant land under the provisions of this Act; and
(c) every person who in any other manner acquires the rights of a sirdar under or in accordance with the provisions of this Act or of any other law for the time being in force.
It is for this reason that Ganga Prasad who was the plaintiff in the suit along-with his brother Jamuna Prasad had set up the following pedigree to claim that the sirdari was ancestral. The pedigree is reproduced hereinunder:-
nsoh nhu yky jke lqUnj xuifr Ykky jke gj[k f'kocjr ykoYn & & HkxkSrh izlkn ykyth lgk;
The case set up by the respondent no. 3 was never proved by evidence and the suit came to be dismissed in default on 28.7.1971 as is evident from the order-sheet of the said proceedings. A restoration application was filed and according to the order-sheet the defendants in the suit represented through Sri Kamala Narain Srivastava Advocate did not raise any objection and the suit was restored on 10.8.1971. The compromise application is also of the same date and was filed in the court on which the orders were passed on 20.8.1971. This order of compromise is contained on the reverse of the compromise application itself and the order-sheet of the main case also endorses the said order. The compromise therefore was carried out within a very short span on the same day and the proceedings culminated.
The question is about the correctness and veracity of the signatures of Gulab Lal on the Vakalatnama and the compromise.
Apart from this, whether such a compromise could have been entered into in relation to a sirdari Khata. The law is settled that if the parties to the litigation were claiming the holding to be an ancestral sirdari, a share could have been claimed by them which required a contest in that regard. Before the matter could be contested to ascertain and establish the said facts, the compromise was abruptly set up. A sirdari cannot be created by co-option even though it can be claimed by possession. The State was defendant no. 4 and the Gaon Sabha was defendant no. 3 in the suit. There is no endorsement of the counsel for either the State or the Gaon Sabha nor is the compromise application endorsed or acknowledged by these defendants. The question that fell for determination and has not been addressed to at any stage is as to whether a Sirdari right could be created through a compromise between private parties without acquiescence on the part of the State. The other side of the coin is can the State be presumed to have accepted the compromise by conduct so as to infer estoppel by conduct and acquiescence. Even this legal aspect has not been addressed to at any stage of the proceedings either in the decree of the suit or by the Consolidation authorities in the present proceedings. A Sirdari tenancy as it then stood in 1971, was not transferable.
If the compromise was being contested by the petitioner then the aforesaid issues did require a examination on merits by the Settlement Officer Consolidation who proceeded to rely on the certified copy of the judgment and decree of the said suit. Admittedly, the bhumidhari sanad for the purpose of executing the sale deed in favour of Mst. Hansau was obtained by Gulab Lal on 5.2.1972, which was much after the judgment and decree dated 20.8.1971. The land in dispute was, therefore, a sirdari on the date of the judgment and decree dated 20.8.1971. Consequently, in my opinion, the aforesaid issues having not been examined by the Settlement Officer Consolidation, the order dated 22.1.1998 on merits cannot be sustained and has been erroneously affirmed by the Deputy Director of Consolidation without adverting to these aspects of the controversy.
Before applying estoppel on the strength of a judgment that was highly disputed on the allegation of fraud and legal nullity, the applicability of the provisions of Section 44 of the Indian Evidence Act, 1872 in view of the pleadings raised by the petitioner did require a serious consideration. The impugned orders therefore are vitiated on this count as well.
Coming to the issue of the matter being restored and then being decided, it is obvious that Gulab Lal had contested the correctness of the entry claimed by the respondent no. 3 and his brother on the basis of the judgment dated 20.8.1971 and the objection of Gulab Lal was allowed on 17.6.1977 by the Consolidation Officer. The respondent no. 3 did not file any restoration in the appeal which had already been dismissed on 27.1.1979 during the lifetime of Gulab Lal. Even Jamuna Prasad did not file any restoration who is said to have been contesting the appeal. It is only after Jamuna Prasad and Gulab Lal died that Ganga Prasad came up after 13 years with a plea that since he was in government service elsewhere and his brother had become very old, therefore, on return to his village he came to know about the dismissal of the appeal. This explanation coupled with 13 years of delay ought to have been first attended to by the Settlement Officer Consolidation before restoring the appeal. The order dated 9.12.1993 is an absolutely non-speaking order, and without adverting to either the issue of delay or the aforesaid facts, the appeal could not have been restored cursorily. Learned counsel for the respondent Sri Khare has not been able to point out any such explanation being considered by the Settlement Officer Consolidation at the time of the restoration of the appeal or even thereafter in the order dated 22.1.1998.
Apart from this, Sri S.C. Verma learned counsel for the petitioner is right in contending that there was a clear procedural defect in the filing of the restoration as it had been moved without substituting the heirs of Gulab Lal and Jamuna Prasad. This defect was sought to be cured by moving a substitution application subsequently on 4.9.1992. Even assuming that such substitution had been allowed in the interest of justice, the question was as to whether the petitioner and the respondent no. 5 had been issued any notice on the substitution application. There is no finding in the order of the Settlement Officer Consolidation that such a notice on the substitution was ever issued. The finding is that inspite of service of notice the opposite parties have not appeared. The said finding, in my opinion, is based on a total non-consideration of the aforesaid factors, and therefore, such a restoration ought to have been considered indepth and should not have been allowed cursorily as it had been filed in a background as discussed hereinabove. The restoration, therefore, in my opinion, was not allowed in accordance with law and is bereft of any appropriate reasoning for condoning of delay as also on the issue of issuance of notice on the substitution application. The decision of the Settlement Officer Consolidation, therefore, to proceed ex-parte against the petitioner and the respondent no. 5 was accordingly erroneous and the rejection of the restoration filed by the petitioner before the Settlement Officer Consolidation on 2.4.2004 and its affirmance by the Deputy Director of Consolidation by the impugned order is unsustainable.
Coming to the issue of the binding effect of the judgment and decree dated 20.8.1971, it is evident that the Settlement Officer Consolidation had proceeded ex-parte and the respondent no. 3 Ganga Prasad himself had filed an application for summoning of the original records. Inspite of this, even assuming that the certified copy of the order was on record, the appeal was heard on 23.12.1997 ex-parte to the petitioner and the respondent no.5. There was no opportunity to the petitioner or the respondent no. 5 to contest the entry of the order dated 20.8.1971 and the evidence of the proceedings which for the first time was pressed before the Settlement Officer Consolidation at the stage of appeal.
Apart from this, after the appeal was allowed ex-parte. A restoration was filed by the petitioner. A full explanation was given by the petitioner for the delay in the restoration application as also by the vendees of the respondent no. 5. Not only this the Settlement Officer Consolidation himself passed an order on 19.12.2003 for summoning the original records of Suit No. 789 decided on 20.8.1971. The Settlement Officer Consolidation passed orders that since the certified copy of the said judgment is on record and no objection has been taken, therefore, it is not necessary to further inspect the said file. This assumption of the Settlement Officer Consolidation that there was no objection filed in relation to the judgment dated 20.8.1971 is absolutely incorrect and against the weight of evidence on record. Not only Gulab Lal in his original objection, but also the petitioner and the respondent no. 5 in their restoration have categorically taken this plea and have also raised it in their written arguments before the Deputy Director of Consolidation. It was therefore wrong to assume that no objection had been taken to the status of the judgment and decree dated 20.8.1971. The petitioner and the respondent no. 5 were continuously contesting this claim of the respondent no.3. In such a situation, the only conclusion that can be drawn is that the order of the Settlement Officer Consolidation is perverse in refusing to further inspect the original records of the Suit No. 789 decided on 20.8.1971.
It is also necessary to mention that Sri Khare insisted that no effort was made either by Gulab Lal or by his heirs to get the judgment and decree dated 20.8.1971 set aside inspite of knowledge with regard to the same. Needless to mention that Gulab Lal himself had filed objections before the Consolidation Court in relation to the endorsement of the said order dated 20.8.1971 and had succeeded before the Consolidation Officer. It is the appeal filed by the petitioner which had been dismissed on 27.1.1979 for which a restoration was filed after 13 years in 1992. In this background, it would be reasonable to presume that neither Gulab Lal or his heirs had any occasion to contest a decree the entry whereof was being assailed by them as invalid and unenforceable in law. It is for the first time that the Settlement Officer Consolidation proceeded to consider the validity of the said decree by summoning the records and that was done without any opportunity to the petitioner and the respondent no. 5 as concluded hereinabove. In such a situation, and in the aforesaid background the contention of Sri Khare that Gulab Lal or his heirs did not choose to contest the said decree has to be rejected. The petitioner can always raise a plea on the strength of Section 44 of the Evidence Act to challenge a judgment collaterally before the consolidation authorities.
Coming to the order dated 2nd April, 2004, the restoration filed by the petitioner has been dismissed treating as if the petitioner and the respondent no.5 were represented during the proceedings. As indicated hereinabove, none of the explanation given by the petitioner in his restoration application has been considered and the order dated 2nd April, 2004 has been passed assuming that since the substitution of the heirs of Gulab Lal and Jamuna Prasad had been carried out, therefore, there was notice. This assumption is again wrong without any finding on the issuance of notice on the substitution application. The order dated 2nd April, 2004, therefore, is also unsustainable.
The impugned order of the Deputy Director of Consolidation dated 30th June, 2006, in my opinion, is a cursory order without any reasons and without adverting to the issues raised by the petitioner not only in their grounds of revision but also in the written arguments which extensively indicate the grounds taken for assailing the order dated 22.1.1998 and 2.4.2004. The Deputy Director of Consolidation on a erroneous consideration of the principles of estoppel has sealed the fate of the petitioner which was absolutely unjustified more so in the background that the restoration in the appeal had been filed by the respondent no. 3 after 13 years of its dismissal, and after the death of Gulab Lal, and his own real brother Jamuna Prasad who did not file any restoration during his lifetime.
In such a situation and the in the background above, the order dated 30th June, 2006 passed by the Deputy Director of Consolidation as well as the orders of the Settlement Officer Consolidation dated 22.1.1998 and 2.4.2004 are unsustainable. They are hereby quashed.
The matter would now stand remitted before the Settlement Officer Consolidation concerned who shall first decide the restoration application filed by the respondent no. 3 on 18th July, 1992 and the objections taken thereto by the petitioner and the respondent no. 5 or his vendees. The matter would proceed only on merits in the event the restoration filed by Ganga Prasad is allowed and not before that. If the issues proceed for determination on merit as well, then it shall be decided in the light of the observations made hereinabove including the context of the correctness and validity of the judgment and decree dated 20.8.1971 and its legal impact.
With the aforesaid directions, the writ petition is allowed.
Date: 17th February, 2012 Sahu