Allahabad High Court
Mate And Another vs Deputy Director Of Consolidation ... on 20 July, 2021
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 21 Case :- WRIT - B No. - 496 of 2021 Petitioner :- Mate And Another Respondent :- Deputy Director Of Consolidation Officer Jhansi And 4 Others Counsel for Petitioner :- Shiv Kumar Singh Rajawat Counsel for Respondent :- C.S.C. Hon'ble Dinesh Pathak,J.
Heard Sri Shiv Kumar Singh Rajawat, learned counsel for the petitioners, learned Standing Counsel for the State and perused the record.
In view of the peculiar facts and circumstances of the case and the order proposed to be passed hereunder, this Court is proceeding to finally decide this matter at the admission stage, without putting notice to respondents.
Petitioners have invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India challenging the order dated 30.09.2020 (Annexure No.12) passed by respondent No.1, Deputy Director of Consolidation(in breavity "D.D.C.") affirming the order dated 30.11.2018(Annexure No.10) passed by Consolidation Officer(in brevity "C.O.") in restoration application moved by the private respondent No.3 against the earlier order dated 24.12.2016(Annexure No.4) passed by the C.O. Facts give rise to the present writ petition are that Basare (predecessor in the interest of respondent Nos. 4 & 5) was recorded tenure holder of the plot in question, who has allegedly executed a registered sale deed dated 20.08.1974 in favour of the present petitioners. On the basis of aforesaid registered sale deed, present petitioners have moved an application under Section 9A(2) of U.P. Consolidation of Holdings Act, 1953 (in brevity "UPCH Act") before the Consolidation Officer, Jhansi for mutating their names in the revenue record. Aforesaid application was dismissed by the C.O. for want of prosecution vide order dated 24.11.1978. At subsequent stage, after lapse of 35 years a restoration application dated 14.09.2016 was preferred on behalf of the present petitioners against the order dated 24.11.1978, which was allowed vide order dated 24.12.2016 passed by the C.O. . In the meantime, respondent Nos. 4 & 5, who were the descendents of recorded tenure holder Basare, have executed a registered sale deed dated 19.10.2015 with respect to the same property in question which was the subject matter of earlier sale deed dated 20.08.1974.
Feeling aggrieved, subsequent vendee namely Bala Prasad (respondent No.3) has moved an application dated 26.04.2017 (Annexure No.9) against the order dated 24.12.2016, on the basis of sale deed dated 19.10.2015 which was executed in his favour by heirs/legal representatives of Basari. Aforesaid restoration application moved by respondent No.3 was allowed by C.O., vide order dated 30.11.2018 (Annexure No.10). Feeling aggrieved, petitioners have preferred revision under Section 48 of U.P.C.H. Act, which was dismissed by D.D.C. affirming the order dated 30.11.2018 passed by the C.O. vide its impugned order dated 30.09.2020, which is under challenge before this Court.
It is submitted by learned counsel for the petitioners that D.D.C. has illegally dismissed the revision on the ground of maintainability. It is further submitted that restoration application moved by respondent no.3 against the order dated 24.12.2016 was time barred, C.O. has allowed the same without considering delay in filing the same and DDC has committed the same error in dismissing the revision.
Perusal of the record reveals that present petitioners are claiming their right and title over the property in question on the basis of registered sale deed dated 20.08.1974, which was executed by original tenure holder namely Basare (predecessor in the interest of respondent nos. 4 & 5) and before mutation order was passed in favour of the present petitioners, respondent nos. 4 & 5 have executed registered sale deed dated 19.10.2015 in favour of the respondent no.3. It is further transpires from the record that name of the respondent nos. 4 & 5 were recorded in the revenue record under succession in place of Basare. In view of this matter, subsequent purchaser, respondent no.3 Bala Prasad is bonafide purchaser of the property in question and accordingly, he has claimed his right and title over the property in question on the basis of subsequent sale deed dated 19.10.2015.
There is nothing on the record to show that earlier sale deed dated 20.08.1974 was ever came to the knowledge of the heirs and legal representatives of the original tenure holder Basare who, being recorded tenure holder under succession, have executed sale deed dated 19.10.2015 in favour of respondent no.3. In the basic consolidation record, name of the respondent nos. 4 & 5 was recorded as a tenure holder over the property in question which was challenged by the present petitioners in the proceeding under Section 9A(2) of U.P.C.H. Act, but unfortunately the said application moved by the present petitioners was dismissed in default on 24.11.1978. After passing of the order dated 24.11.1978, present petitioners have kept mum for the last 35 years and it appears that at belated state, they have deliberately moved the restoration application dated 24.09.2016 against the order dated 24.11.1978 when they came to know about the registered sale deed dated 19.10.2015, which was executed by the recorded tenure holder in favour of the respondent no.3.
Conduct of the present petitioners itself is doubtful who had slept for years qua their right and title over the property in question. In the revenue record entries were made in favour of respondent nos. 4 & 5. Presumption under the law would lie in favour of the recorded tenure holder qua their possession over the property in question.
In the light of the aforesaid fact that there are two claimants and both are claiming their right and title over the property in question on the basis of their respective registered sale deeds, out of which earlier sale deed was executed by the recorded tenure holder and the subsequent sale deed was executed by the descendents of the original tenure holder. It is worth considerable that at the time of execution of registered sale deed, bonafide presumption would lie in favour of those persons whose names are recorded in the revenue record. Therefore, C.O. vide order dated 20.11.2018, has rightly allowed the restoration application dated 26.04.2017 moved by the respondent no.3, who has rightly claimed his right and title over the property in question on the basis of registered sale deed dated 19.10.2015 executed by descendents of the original tenure holder. Opportunity is still open to both the parties to ventilate their grievances and get their right and title, over the property in question, adjudicated upon in the Court of the Consolidation Officer, which is the Competent Court to examine the same.
D.D.C. has rightly declined to interfere in the matter arising out of the restoration application, which was allowed by the C.O. in positive exercise of his jurisdiction. No illegality, perversity or error have been shown by the petitioners in the impugned orders passed by C.O. and D.D.C. At this stage, nothing has been decided finally with respect to right and title of parties. It is settled that technicality is pitted against the substantial justice and for want of technicalities, no person can be deprived of his rights without due process of law.
In this conspectus as discussed above, I find that this writ petition is devoid of merits and there is no illegality, perversity or error in the impugned orders passed by C.O. as well as D.D.C., who have rightly exercised their powers in a positive manner by leaving open an opportunity to the parties to get their right and title decided/adjudicated upon with respect to property in question. No ground made out to warrant the indulgence of this Writ Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India.
With the aforesaid observations, the present petition is dismissed.
Order Date :- 20.7.2021 Sachin