Allahabad High Court
Jag Narayan And 11 Others vs State Of Up And 21 Others on 13 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ? Neutral Citation No. - 2024:AHC:85300 Reserved on 16.4.2024 Delivered on 13.5.2024 Court No. - 48 Case :- WRIT - B No. - 1429 of 2024 Petitioner :- Jag Narayan And 11 Others Respondent :- State Of Up And 21 Others Counsel for Petitioner :- Tripathi B.G. Bhai,Uma Nath Pandey Counsel for Respondent :- Adya Prasad Tewari,C.S.C.,Hanuman Deen Verma,Santosh Kumar Verma Hon'ble Chandra Kumar Rai,J.
1. Heard Mr. Tripathi B.G. Bhai, learned counsel for the petitioners, Mr. A.P. Tiwari as well as Mr. Hanuman Deen Verma, learned counsels for the contesting respondents and Mr. Tarun Gaur, learned Standing Counsel for the State respondents.
2. Brief facts of the case are that plot No. 128 area 3-12-3 belong to Vidya Niwas and Vidya Saran having one-half share each. Petitioner nos. 8 to 12 are the legal heirs of Vidya Saran who executed sale deed dated 16.5.2002 in favour of petitioner nos. 1 to 7. The sale deed dated 16.5.2002 was rectified by way of rectification deed dated 26.6.2003 executed by the petitioner nos. 8 to 12. Smt. Parmesara wife of Vidya Niwas who had also half share in the disputed property executed sale deed dated 26.10.1978 in favour of contesting respondents. Smt. Parmesara had also executed rectification deed dated 11.2.1992. Chak No. 95 was carved out in the name of petitioner nos. 8 to 12 whereas chak No. 64 was carved out in the name of contesting respondents. There was no partition between the parties in respect to the aforementioned plot. The aforementioned plot No. 128 was divided in five sub divisions. The particular of the same are as follows:-
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..
"S.N. Plot No. Area Khata Name of tenure holders
1. 128/1--
|--294 are 19 contesting respondents
2. 128/3--
3. 128/ 2 193 are 32 Parmesara
4. 128/4 133 are 32 Parmesara
5. 128/5 293 are 42 Petitioners"
In the statement of principle prepared by the authorities, plot No. 128/1 area 170 air and plot No. 128/3 area 68 air was kept out of consolidation and plot No. 128/1 area 20 air was valued @ 100 paisa and plot No. 128/3 area 36 air has been valued @ 90 paisa. At the stage of Consolidation Officer, petitioners were proposed two chaks, first chak on plot No. 225-Sa area 0.364 hectare and second chak on plot No. 127-128 Sa area 0.345 hectare (total area 0.709 hectare). Petitioner nos. 8 to 12 filed an appeal under Section 21 (2) of U.P. Consolidation of Holdings Act, 1953 hereinafter referred as U.P.C.H. Act before the Settlement Officer Consolidation stating that appellant as well as Parmesara was the co-sharer of one-half share each of the plot in question and Parmesara, had executed sale deed with regard to her one-half share in favour of Jugul Kishore, Narsingh, Buddhi Sagar sons of Ram Shanker accordingly both the parties remained in possession over one-half share of the plot No. 128. It is further pleaded in appeal that Jugul Kishore and others (vendees of Parmesara) colluded with the revenue authorities and succeeded in getting the plot Nos. 128/1 and 128/3 in their favour which is situated on the "lateral road" highway having commercial value and proceeding for keeping the plot No. 128 chak out is stated to be pending before the Consolidation Officer. The Settlement Officer Consolidation has allowed the appeal filed by petitioner nos. 8 to 12 after granting benefit of Section 5 of Limitation Act and the plot No. 128 was kept out of consolidation vide order dated 22.8.1994. Predecessor in interest of respondents filed revision under Section 48 of U.P.C.H. Act on 1.10.1994 against the order dated 22.8.1994 passed in appeal. Premawati, Sudhawati and Sumitra Devi have also filed revision under Section 48 of U.P.C.H. Act against the appellate order dated 22.8.1994. All the revisions were consolidated along with revision No. 1119 filed by contesting respondents and heard together. Deputy Director of Consolidation vide order dated 15.3.1995 partly allowed the revision No. 1119, revision No. 1100/1814, revision No. 1099/1813, revision No. 1149, revision No. 1061/1771 but dismissed the revision No. 1103/1817. Contesting respondents filed writ petition No. 16594 of 1995 as well as Writ Petition No. 16593 of 1995 before this Court against the revisional order dated 15.3.1995 which were heard together and vide order dated 23.5.2019, the writ petition has been allowed setting aside the orders dated 22.8.1994 and 15.3.1995 and matter has been remanded back before the Settlement Consolidation Officer to decide the appeal No. 77 within specified period. In pursuance of the remand order passed by this Court dated 23.5.2019, the application has been filed by petitioner nos. 1 to 7 that they may be impleaded as party in the proceeding as petitioner nos. 8 to 12 have already executed a sale deed in their favour. The aforesaid application was allowed in appeal vide order dated 27.6.2019. Settlement Officer Consolidation vide order dated 29.2.2020 dismissed the chak appeal filed by petitioner. Petitioners challenged the appellate order dated 29.2.2020 by way of chak revision under Section 48 of U.P.C.H. Act before Deputy Director of Consolidation which was heard and dismissed vide order dated 20.12.2023. Hence this writ petition on behalf of the petitioner challenging the impugned orders dated 20.12.2023 passed by respondent no.2, Deputy Director of Consolidation and order dated 29.2.2020 passed by respondent no.3, Settlement Officer Consolidation.
3. Counsel for the petitioners submitted that there was no order by any competent authority for division of the plot No. 128 in sub-division, as such, the impugned orders passed by consolidation authorities are wholly illegal. He further submitted that this Court has remanded the matter back before Settlement Officer Consolidation in order to examine as to whether there was any division of plot No. 128 and whether different number had been allotted to different parties of plot No. 128 but Settlement Officer Consolidation without examining that aspect of the case in proper manner has dismissed the revision filed by petitioners. He further submitted that revision filed by petitioners has also been dismissed without considering the case of the petitioners in accordance with law. He further submitted that Settlement Officer Consolidation has recorded the finding that plot No. 128/1 area 0.0294 hectare has been recorded in khata No. 19 in the name of Jugul Kishore and others and in khasra No. 1394 to 1397, the aforesaid plot No. 128/1 area 294 hectare is recorded in the name of Jugul Kishore as sole tenant although there is no order of any competent authority for the sub-division of the plot No. 128. He further submitted that appellate Court has also failed to consider the aforesaid entry of sub-division of plot No. 128 which was made due to fraud and collusion of the contesting respondents and the revenue authorities. He further submitted that petitioners as well as contesting respondents are co-sharer having one-half share each and there is no partition, as such, consolidation Lekhpal has no jurisdiction to divide the plot under Section 7 of U.P.C.H. Act. He further submitted that Deputy Director of Consolidation has held that there is no objection under Section 9A (2) of U.P.C.H. Act although the objection under Section 9 of U.P.C.H. Act was very much pending before consolidation authorities. He further submitted that Rule 24 (d) of U.P.C.H. Rules, 1954 has not been followed, as such, the impugned orders are wholly illegal. Counsel for the petitioner placed reliance upon the judgment reported in 2019 (143) RD 334 Bakhatawar Khan Vs. Add. Commissioner and Others in support of his argument.
4. On the other hand, Mr. A.P. Tiwari, learned counsel for the contesting respondents submitted that in compliance of the remand order passed by this Court, the finding of fact has been recorded by the Settlement Officer Consolidation for division of the plot in question, as such, the argument advanced by learned counsel for the petitioners that remand order passed by this Court has not been complied is totally misconceived. He further submitted that Settlement Officer Consolidation has made the spot inspection and has considered the entire evidence on record accordingly recorded the finding of fact that the plot No. 128 has been divided in sub-division in view of the provisions contained under Section 7 of U.P.C.H. Act as well as Rule 18 (a) (1) and 18 (b) of U.P.C.H. Rules, 1954. He further submitted that finding of fact has been recorded by Settlement Officer Consolidation that prayer which has been made in appeal for keeping the plot No. 128 out of consolidation cannot be accepted in view of the finding recorded by this Court while deciding the earlier writ petition. He further submitted that revisional Court has also examined the entire issue and has found that plot in question has been properly sub-divided as provided under Section 7 of U.P.C.H. Act, as such, no interference is required against the impugned judgment and writ petition is liable to be dismissed.
5. I have considered the arguments advanced by learned counsel for the parties and perused the records.
6. There is no dispute about the fact that chak appeal and chak revision filed by petitioners has been dismissed by Settlement Officer Consolidation and Deputy Director of Consolidation under the impugned order.
7. In order to appreciate the controversy involved in the matter, the perusal of Section 7 of U.P.C.H. Act and Rule 18 of U.P.C.H. Rules, 1954 will be relevant which are as under:-
" Section 7 of U.P.C.H. Act- Revision of village map With a view to facilitate the revision of records of each village or part thereof in the unit and subject to the provisions hereinafter contained, the District Deputy Director of Consolidation shall, before [the provisional Consolidation Scheme] for a unit is prepared, cause to be revised the village maps of such unit."
"Rule 18 of U.P.C.H. Rules - (a) The village map of the unit placed under consolidation operation shall be revised either -
(i) by the ordinary method of map correction in which each field as shown in the map is compared with its shape and size on the spot and, where necessary, the shape and size on the map are corrected after necessary measurements, or
(ii) by a complete professional survey (resurvey).The District Deputy Director of Consolidation, shall, therefore, if he has not already got the necessary information with him get enquiries made into the condition of the village maps of all the units placed under consolidation operations in his district and select villages for bringing the maps up-to-date by either of the two methods 7 indicated above. He shall then proceed to get the maps revised accordingly [* * *].
(b) In carrying out professional survey of villages instructions contained in Chapters VI and IX, and in revising the maps by the ordinary methods of map correction instructions contained in Chapters VII and IX of the Manual for the Revision of Maps and Records will, mutatis mutandis apply."
8. The perusal of finding of fact recorded by appellate Court in pursuance of remand order passed by this Court will be necessary which is as under:-
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???????? ??? ?????? ????????? ?? ?????? ?? ?? ??? ??????????? ?????????????? ??? ?? ??????? ??????? ?? ?????? ??? ?????? 437 ????-20 ??? ????????? ????? ???? ?? ?? ?????? ??? ????? ???? ??? ???? ?????? 15-2-93?? ??????? ??????? ???? ???????? ?? ??? ??, ?????? ????????????? ?????? ???? ?????? 128 ?? ?????? ???? ???? ?? ?? ?? ???????? ???? ???? ???? ???? ????? 128 ???????? ???? ?? ?? ???? ???? ?? ???? ???? ??? ??? ???????? ????????? ??????? ??????? ?? ???? ?????? 128 ?? ?? ???? ???? ?? ???? ?????? 22-8-94 ?? ????? ?? ???? ??, ????? ??????? ????????????? ?? ?????? ????? ?? ?? ??????? ?? ????????? ????? ?????? ?????? 15-3-95 ?? ??????? ???? ??? ????????? ?? ?? ???????? ?? ???? ??? ??? ???? ???? ?? ????? ?? ???? ????????????? ?????? ?????? ???? ???????? ???????? ??? ??? ?????? ???????? ???? ???, ??? ?????? ???? ???????? ???????? ?????? ??? ?????? ?????? 16954/1995, ?? ?????? 23-5-19 ?? ??????? ???? ????????? ??????? ??????? ??? ????????? ????? ?? ?????? ?? ?????? ???? ???? ?? ???? ??????? ???? ???? ???? ?? ???????? ??? ????????????? ?? ???? ??? ??? ?????? ???? ???????? ???????? ?????? ????? ???? ??? ???? ?????? 23-5-19 ??? ?????? ???????? ?????? ???? ??? ??????? ?? ???????????? ??? ?? ??????? ???? ?? ???????? ???? ???? ?????? ??? ?????? ???? ???????? ?????? ????? ???? ??? ???? ?????? 23-5-09 ??? ????? ??? ?????? ???????? ?????? ??????? ???? ??? ?? ?? ???? ?????? 128 ??? ?? ?????? ???? ???? ??? ??, ???? ??????? ??? ??????? ???? ???? ?? ???????? ????????? ??????? ??????? ??? ????????? ????? ?????? ???? ????? ???? ??? ?? ?? ??? ??? ?????? ???????? ?? ???? ?????? 23-5-19 ??? ?? ?? ????? ???? ?? ?? ??????? ???? ????-21(2) ??? ????? ?? ?? ???? ????????? ??????? ??????? ?? ??????? ???? ?? ?? ???? ???? ?? ?????? ??? ??? ?????? ???? ???????? ?????? ?? ??? ??????? ?? ???? ??? ???? ???????? ?? ??????? ???? ??? ???? ?? ?? ???????? ????? ???????? ?? ?????? ?? ?????? ?? ?? ??????? ???? ?????? 128 ??? ????? ??? ??????? ????????? ?? ?????? 26-10-78 ?? 1-3-3 ( ?? ???? ??? ?????? ??? ???) ?? ?????? ??????????? ????? ????? ??????? ??? ?? ???? ??? ?? ???? ??? ???????? ??? ???? ???? ??? ?????? ??? ???? ???? ?? ???? ?? ??? ????????? ?? ??????????? ??????? ????????????? ?????? ???? ????? ?????? ??? ??????? ?? ???? ??? ??? ???????? ?? ?? ?? ?????? ?? ?? ???? ?????? 128/1/0-294 ??? ???? ???? ????? ?? ???? ?????? 19 ??? ??????????? ????? ????? ??? ?? ??? ???? ???? ?? ?? ??? ?????? ???? ?? 1394 ????? 1397 ??? ?? ???? ?????? 128/1/0-294 ??? ????? ????? ??? ?? ??? ???? ???? ??? ????? ??? ??????? ????????? ???????? ???? ?? ????, ????? ???? ?? ????? ?? ?????? ????? ?? ??????? ??? ????? ???? ??? ??? ???? ???? ?? ????????? ????-7 ??? ???? 18 ?(1) ??? (??) ?? ???????? ??????? ?????? ?????? ???? ???? ??? ??????? ?????? ??? ??????? ?????? ?????? ???? ?????? 128 ??? ??? 5 ?????? ???? ???? ??? ??, ????? ?????? ???? ?????? 128/1/0-190 ??? 128/3/0-104 ???, ???? ??????????? ????? ????? ??? ?? ??, ???? ???? ?????? 128/2/0-193 ??? ?????? ??? ??? ??? ?????? ???? ?????? 128/4/0-375??? ??????? ????????? ??? ??? ???? ?????? 128/5/0-051 ??? ??? ??????????? ?????????????? ??? ?? ??? ?? ????? ???? ??? ??? ???? ?????? ?? ???? ????-2 ??? ????? ???? ??? ??? ???? ?? ????????? ?? ?? ??????? ?????? ?????? ??????? ??? ???? ??? ????? ??? ??????? ???? ?? ???? ???? ??? ??? ?? ??????? ????????????? ?????? ??? ?????? ???? ???? ??? ??, ????? ???? ????? ?? ??? ?? ?????? ?? ????? ??????? ??????? ?????? ????????? ?? ?? ?? ???????? ???? ???? ????? ??????? ??????? ?????? ???????? ???? ??? ?? ?? ??????? ?? ??? ????????????? ?????? ??? ?????? ??? ??? ???????? ???? ??? ??? ???? ?????? 128 ?? ??????? ??? ???? ???? ??? ?????? ??? ??????? ??? ???? ??? ????? ?????? ????? ??? ???? ?? ?????? ???? ??? ??, ?? ??? ??, ??? ???? ???? ?? ????????? ?? ???? ??? ?? ?? ?????????? ???? ??? ???? ??????? ??????? ?????? ????? ???? ?? ?????? ?? ????? ???? ??? ???? ??????15-2-93 ??? ???? ?????? ?? ????????? ???? ?? ???????? ???? ??? ??????????? ?????? ????? ??? ?? ???? ?????? 128 ?? ?? ???? ???? ???? ?? ???? ???? ?? ??? ??, ?? ???????? ???? ??? ?? ??????? ??? ?????? ???? ???????? ?????? ???? ???? ?????? 23-5-2019 ??? ?????? ??? ?? ???? ????? ???? ?? ???? ??? ???? ?? ?? ?????? ???? ???? ?????? ?????? ???? ?? ?? ??? ????????????? ?? ??????? ?? ?????? ???? ?? ????? ??????? ????????????? ?? ??????? ??? ?? ???? ??? ?????? 16-5-2002 ?? ?????? ??? ???? ??, ?????? ??? ???? ?????? 364 ?? ?????? ???? ??? ??, ???? ???? ???? ?? ??????? ??? ??????? ??? ?? ??????? ??? ?? ?? ??????? ???? ????? ???? ?? ???? ??? ?? ???? ????? ???? ??? ???????? ??? ?????? ???????? ?????? ?????? 16-5-2002 ??? ?? ??????? ??????? ??? ?? ?? ?? ?????? ?? ????? ???, ?????? ??? ????????? ??? ???? ??? ???????? ?????? ???? ????????? ?????? ??? ????????????? ???? ?????? ???? ?? ?? ??? ????????????? ?? ???? ?? ??? ???? ???? ?? ?? ? ?? ???? ????? ?? ?? ???? ??????? ????????????? (??? ????????????? ?? ????????) ?? ??????? ???? ?? ?????? ?? ??? ????? ??? ?????? ???? ?? ???? ??? ??????? ??????? ?? ???? ?? ???? ????? ???? ?? ???? ?????? ???? ????? ???
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9. The finding of fact recorded by Settlement Officer Consolidation while deciding the chak appeal filed by petitioners as quoted above demonstrate that plot has been sub-divided in accordance with the provisions of the U.P.C.H. Act and Rules framed thereunder. The entry of C.H. Form 2-A, CH. Form 23, 41 and 45 have been taken into consideration and the spot inspection was also made accordingly the chak appeal filed by petitioners has been dismissed in pursuance of the remand order passed by this Court which is proper exercise of appellate jurisdiction in respect to allotment of chak proceeding.
10. It is also material that petitioners have pleaded in his ground of appeal as ground No.5 that proceeding for keeping the plot No. 128 outside the consolidation is pending before the Consolidation Officer. The relevant ground No.5 taken in their ground of appeal is as under:-
"5. ?? ?? ???? ???? ????? ???????? ?? ??????? ???? ?? ???? ??? ???? ??? 128 ???? ?? ???? ???? ???? ??? ???????? ???? Ist ?? ???? ??? ????????? ???"
11. The Deputy Director of Consolidation while dismissing the chak revision filed by petitioners recorded finding of fact that no objection under Section 9A (2) of U.P.C.H. Act or under Section 20 of U.P.C.H. Act was filed by petitioners rather chak appeal under Section 21 (2) of the U.P.C.H. Act has been filed by petitioners which has been rightly decided by appellate Court holding that plot has been sub-divided in accordance with law, as such, there is no illegality in the revisional order also. However if any proceeding under Section 9A (2) of U.P.C.H. Act for keeping the plot No. 128 outside the consolidation is pending, the petitioners can pursue that proceeding rather allotment of chak proceeding which has been concluded under the impugned orders in accordance with law.
12. The case cited by learned counsel for the petitioners is not applicable in the instant matter which relates to allotment of chak so far as minjumla number and bata number are concern there is no dispute regarding the provisions contained under land record manual.
13. Considering the entire facts and circumstances, no interference is required in the matter. Writ petition is dismissed accordingly.
Order Date :- 13.5.2024 Vandana Y./PS*