Heard Sri Udit Chandra learned counsel for the petitioner and Sri Rajesh Yadav for the respondent Nos. 1 and 2. In view of the nature of the order that is proposed to be passed, in the opinion of the court, it is not necessary to issue notice to the respondent nos. 3 to 8 at this stage.
The petitioner was recorded in the basic year. Against the share allocated an objection was filed by the respondent nos. 1 and 2 under Section 9 of the U.P. Consolidation of Holdings Act, 1953. The same was allowed by the Consolidation Officer on 19th September, 2006 by which the said respondents 1 and 2 were allocated 1/4th share each whereas the petitioner's share stood reduced to 1/6th. The petitioner preferred an appeal under Section 11 of the U.P. Consolidation of Holdings Act which was allowed by the Settlement Officer Consolidation on 19th July 2010 remanding the matter to the Consolidation Officer for decision afresh on the ground that the order of the Consolidation Officer was ex-parte.
Consequently the matter was to proceed before the Consolidation Officer but the respondent nos. 1 and 2 preferred a revision against the order dated 19th July, 2010 which has been allowed by the impugned order and the order of the Settlement Officer Consolidation remanding the matter to the Consolidation Officer has been set aside. The Deputy Director of Consolidation has also proceeded on merits to uphold the share as claimed by the respondent nos. 1 and 2 after having accepted on record the evidence of a preliminary decree that was stated to have been prepared in proceedings relating to a partition suit under Section 176 of U.P. Consolidation of Holdings Act, 1953.
Sri Udit Chandra submits that the said preliminary decree is a collusive decree and was never made final about which the petitioner had no knowledge at any stage and therefore a restoration application has been filed for setting aside the same. Copy of the application has been filed along with the amendment application. He therefore contends that the said preliminary decree was not binding and even otherwise if such a preliminary decree was sought to be entertained as an additional evidence then applying the principles of Order 41 Rule 27 of the Civil Procedure Code, the Deputy Director of Consolidation ought to have given an opportunity for rebuttal of the same.The said procedure having not been adopted, the impugned order is vitiated.
He further submits that whether the said decree is collusive or not should have been gone into as the petitioner is entitled to take a plea available to him in law under Section 44 of the Indian Evidence Act, 1872. He further submits that this procedure at the instance of the respondent nos. 1 and 2 amounts to a serious prejudice to the petitioner and any undue advantage having been taken by the respondent nos. 1 and 2 amounts to a wrong, being committed on the petitioner, hence the impugned order deserves to be set aside. He has relied on certain decisions to substantiate his submissions.
Replying to the aforesaid submissions Sri Rajesh Yadav submits that he does not propose to file any counter affidavit on behalf of the respondent nos. 1 and 2 and as a matter of fact there would be no difference of shares on the admitted pedigree between the parties. He therefore contends that the exercise to be undertaken on remand by the Consolidation Officer would be a futile exercise and on merits the order of the Deputy Director of Consolidation is unassailable. He therefore submits that the petitioner does not stand to gain any increase in his share as against the shares determined by the Deputy Director of Consolidation. He therefore contends that the order may not require any interference but in the event the same requires a reconsideration, the Consolidation Officer should be directed to decide the matter expeditiously without any unnecessary delay.
Having heard learned counsel for the parties, the contention raised on behalf of the petitioner has to be accepted, inasmuch as, the Deputy Director of Consolidation has proceeded to act in violation of the principles of Order 41 Rule 27 by receiving additional evidence. Apart from this, the Deputy Director of Consolidation has completely lost sight of the provisions of Section 44 of the Indian Evidence Act which entitles a party to set up a claim against a fraudulent or collusive decree which has to be adjudicated on merits and cannot be presumed to be final as indicated by the Deputy Director of Consolidation.
In such a situation the order of the Deputy Director of Consolidation is unsustainable. The order dated 17.2.2011 is quashed and the order of the Settlement Officer Consolidation is upheld. The matter stands remitted to the Consolidation Officer.
Learned counsel for the parties agree that the matter be disposed of by the Consolidation Officer as expeditiously as possible and therefore it is hereby directed that the Consolidation Officer may proceed to decide the matter as expeditiously as possible but not later than six months from the date of presentation of a certified copy of this order before him after giving full opportunity of hearing to the parties.
The writ petition is allowed.
Order Date :- 11.3.2011 Sahu