Allahabad High Court
Ram Chander vs Deputy Director Consolidation ... on 19 May, 2020
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved on:06.12.2019 Delivered on:19.05.2020 Case :- CONSOLIDATION No. - 47 of 2013 Petitioner :- Ram Chander Respondent :- Deputy Director Consolidation Faizabad And Others Counsel for Petitioner :- M.E.Khan Counsel for Respondent :- C.S.C.,Ajay Pandey,Balram Yadava,Rajendra Pratap Singh,Shiv Kumar Yadav; CONNECTED WITH: Case :- CONSOLIDATION No. - 49 of 2013 Petitioner :- Anil Kumar Respondent :- Deputy Director Consolidation Faizabad And Ors. Counsel for Petitioner :- Nitin Kumar Mishra,Abhishek Shukla,Kamlesh Kumar Singh,Rajeiv Kumar Tripathi Counsel for Respondent :- C.S.C.,Ajay Pandey,Balram Yadava,Rajendra Pratap Singh,Shiv Kumar Yadav Hon'ble Mrs. Sangeeta Chandra,J.
1. These two writ petitions have been taken up together, as they both seek to challenge the order dated 14.12.2012 passed by the Deputy Director of Consolidation, Faizabad in Revision No.505 (Parameshwar Deen vs. Pateshwar Kumar and others).
2. The dispute relates to Khata No.77 comprising of old Gata No.167 (new Gata No.457) in Village Hansapur, Tehsil Sadar, District Faizabad (now Ayodhya). Gata No.167 was originally recorded in the name of Orauni son of Rameshwar in the basic year Khatauni.
3. The petitioner Ram Chander in Writ Petition No.47 (Consolidation) of 2013, claims to have purchased half of the property in dispute from one of its co-tenure holders Nitya Kumar s/o Shankar, while Anil Kumar, the petitioner in Writ Petition No.49 (Consolidation) of 2013, claims to have inherited the property in question from his father Pateshwar Kumar.
4. It has been submitted by the learned counsel for the petitioner Ram Chander, Sri M.E. Khan that Shankar, the father of opposite party no.2 (Parmeshwar Deen) and opposite party no.4 (Nitya Kumar), and the grandfather of opposite party no.3 (Anil Kumar), out of his own funds, purchased 10 Biswa 10 Biswansi of land of Gata no.167 from Orauni in the name of his eldest son Parmeshwar, the opposite party no.2 through a registered sale deed dated 8.2.1982. During consolidation operations, a compromise was filed by the opposite parties nos.2 and 4 along with Pateshwar Kumar, the father of opposite party no.3, on the basis of which, by an order dated 19.12.1982 passed by the Assistant Consolidation Officer, he gave 1/3rd share of Gata no.167 to each of the three sons of Shankar, namely, Parameshwar Deen, Pateshwar Kumar and Nitya Kumar. There is an entry of the order dated 19.12.1982 in the Khatauni of 1383-1388 Fasli. Similarly, in CH Form no.23, all the three brothers/sons of Shankar have been shown to have 1/3rd share each of Gata no.167. Despite having knowledge of the entry in the revenue record on the basis of the order passed by the Assistant Consolidation Officer and also in CH Form No.23, Parameshwar Deen did not raise any dispute so long as Shankar, his father and the father of the opposite parties nos.2 to 4 was alive. Shankar died on 5.3.2001. Then after keeping quiet for almost nine years, Parameshwar all of a sudden filed an Appeal on 15.2.2010 before the Settlement Officer of Consolidation alleging that he being an employee of the Electricity Board had purchased Gata No.167 in 1982 out of his own earnings and had filed application for entry in the revenue records in his name. However, being a government servant, he could not pursue the application and entrusted the same to his brother Pateshwar Kumar, who in collusion with his father and the consolidation authorities, was able to get the name of all three brothers recorded in the revenue records as having 1/3rd share each of the land in dispute.
5. The Settlement Officer of Consolidation rejected the appeal on 20.8.2010 on the ground that the record was summoned from the office of the Assistant Consolidation Officer, which was found to have been weeded out in 1995 itself. Besides, the delay had not been explained properly by the appellant.
6. Being aggrieved against the order date 20.8.2010 of dismissal of the appeal on the grounds of unexplained delay, Parameshwar Deen, filed a Revision before the Deputy Director of Consolidation. The copy of the Revision shows that it was filed only against the order dated 20.8.2011, rejecting the appeal on grounds of unexplained delay. However, the Deputy Director of Consolidtion for extraneous considerations, has allowed the Revision by the order impugned dated 14.12.2012 and has set aside the order of the Settlement Officer of Consolidation dated 20.8.2010 as also the order dated 19.12.1982.
7. It has been submitted that during the pendency of the appeal filed by the petitioner, Nitya Kumar son of Shankar through a registered Sale Deed dated 17.7.2010 had Sold off his share in Gata No.167/457 to the petitioner. The petitioner on having come to know of filing of the Revision against the order date 20.8.2011 by Parameshwar Deen had filed an application for impleadment, however, he was not heard. On the other hand, the Deputy Director of Consolidation only considered the arguments raised by the two other brothers of the opposite party no.2, who were already in collusion with the opposite party no.2, and were not interested in defending the order dated 20.8.2011 as they had sold off their share to the petitioner. In the order impugned, the opposite party no.1 while deciding the question of validity of the order passed by the Settlement Officer of Consolidation, dismissing the Appeal on grounds of unexplained delay, also discussed the merits of the case and decided the matter on the basis of presumption, conjectures and surmises.
8. It has been submitted that while deciding the revision, the opposite party no.1 was only required to examine as to whether there was delay in filing the appeal, which ought to be condoned by the Settlement Officer of Consolidation as it had been sufficiently explained by the revisionist and he was having no jurisdiction to decide the case on merit.
9. Learned counsel for the petitioner has placed reliance upon two judgements of this Court rendered in Tirath vs. Joint Director of Consolidation and others, 1985 RD 276 and in Bashir Ahmad Khan vs. Deputy Director of Consolidation and others, 2005 (98) RD 378. In case the Deputy Director of Consolidation found that the matter should have been decided by the Settlement Officer of Consolidation on merits, he should have remanded the matter to the Appellate Court after condoning the delay by giving opportunity to all concerned to object to Section 5 application for deciding afresh.
10. It has been submitted that the vendor of the petitioner, Nitya Kumar was the real brother of Parameshwar Deen and had already sold off his share to the petitioner, and he was in connivance with the opposite party no.2, did not care to defend the order of the Settlement Officer of Consolidation.
11. On the other hand, Sri Balram Yadav, who appears for the opposite party no.2 Parameswar Deen has opposed the writ petition on the ground that petitioner Ram Chander had no locus to file the writ petition, challenging the order passed in Revision as he was not a party to the proceedings before the Consolidation Courts.
12. It has been submitted that Parameshwar Deen the opposite party no.2 being an employee of the Electricity Board had purchased the property out of his own resources and his two other brothers along with his father Shankar colluded with the consolidation authorities in getting the name of all three sons of Shankar recorded in CH-23 during consolation operations in the order dated 19.12.1982. When Parameshwar Deen came to know of the fraud committed by his other two brothers along with his father, he approached the Settlement Officer of Consolidation in Appeal, sufficiently explaining the delay in the memo of appeal itself. A separate application under Section 5 along with affidavit was also filed. An application for stay of order dated 19.12.1982 was also filed on 15.2.2010 which was taken up by the Settlement Officer of Consolidation on 8.3.2010, an interim order was passed directing that none of the parties may alienate the property in question. The property in dispute was, however, bought by the petitioner on 17.7.2010 after a specific restraint order having been passed by the appellate court and without the leave of the court. In such a case Section 52 of the Transfer of Property Act is applicable, which prohibits transfers lis pendens. The petitioner is bound by the order passed by the opposite party no.1 as much as the opposite parties nos.2 to 4 and he cannot seek to challenge such an order in writ jurisdiction, which is an extraordinary and equitable jurisdiction.
13. It has further been submitted that as is evident from a copy of the Sale Deed dated 17.7.2010 filed along with the writ petition, Nitya Kumar had fraudulently sold off half of Gata no.167/457 to the petitioner, whereas as per revenue records, only 1/3rd share of the land in dispute had been recorded in his name. It has been submitted that fraud and equity do not go hand in hand and reference has been made by the learned counsel for the respondents of the judgement rendered by the Supreme Court in A.V. Papayya Sastry and others vs. Government of Andhra Pradesh and others, (2007) 4 SCC 221 and the judgement of this Court rendered in Ram Dular Singh versus Deputy Director of Consolidation, Faizabad, reported in 2010 (109) RD 167.
14. It has been submitted by the learned counsel for the respondents that in matters of condonation of delay, a pragmatic view should be taken and has referred to a judgement of this court rendered in Shital Deen versus State of U.P. and others 2009 (108) RD 693. It has been submitted that even though the appeal was filed with delay of 28 years, the delay was sufficiently explained and an application was filed for grant of interim relief also. On the passing of the order dated 8.3.2010 by the Settlement Officer of Consolidation, it could be presumed that the appeal had been entertained. He has referred to a judgement rendered in Gagandeep Pratishthan Private Limited and others versus M/s. Mechano and another reported in 2002 (93) RD 167, where the Supreme Court refused to entertain a special leave petition and interfere in the interim order passed by the High Court even after taking note of the fact that the High Court had still not decided the application for condonation of delay. The Supreme Court had observed that urgency had been invoked by the petitioners before the High Court and this fact had also be noted in the order impugned.
15. Sri Balram Yadav has referred to the counter affidavit filed by Parameshwar Deen in Writ Petition No.47 (Consolidation) of 2013, alleging that notice of the Appeal as well as the Revision was served upon the petitioners and yet they refused to appear. As such the petitioners who had been afforded full opportunity of hearing, and despite such opportunity, had failed to appear, could not later on be heard, saying that there was a denial of opportunity of hearing. Learned counsel for the respondents has placed reliance upon a judgement of this Court in Insaf Ali and others versus State of U.P. and others, 2015 (126) RD 160.
16. Learned counsel for the respondents has also placed reliance upon judgement rendered by this Court in Ram Pyare Verma versus Third Additional District Judge, Faizabad, 2015 (128) RD 273, to say that impleadmeant of the purchaser who had bought the property during the pendency of the suit is not necessary. The purchaser during the pendency of the lis steps into the shoes of the original defendant/judgement debtor.
17. Reference has also been made to the judgement rendered by the Supreme Court in Sanjay Verma versus Manik Roy and others 2007 (25) LCD 313, saying that if the defendant in the suit is prohibited by an order of the court from transferring the property during the pendency of the suit, except with the prior permission of the court, the alienation would obviously be hit by the doctrine of lis pendens by operation of Section 52 of the Transfer of Property Act. The principle underlying Section 52 is that a litigating party is exempted from taking notice of title acquired during the pendency of the litigation. Reference has also been made by the learned counsel for the respondents to a judgement of the Supreme Court in Bibi Zubaida Khatoon versus Nabi Hassan Saheb, 2004 (1) SCC 191, where the Supreme Court has held that a transferee during pendency of the litigation should ordinarily be joined as a party to enable him to protect his interest, but there is no absolute Rule that the transferee pendente lite without the leave of the court should in all cases be allowed to join and contest the pending suit. Similarly, in Usha Sinha versus Dina Ram and others, 2007 (7) SCC 144, the Supreme Court held that a person purchasing property from the judgement debtor during the pendency of the suit has no independent right to the property to resist, obstruct or object to the execution of a Decree. Such a person having no independent right is not entitled to get his claim adjudicated.
18. The learned counsel for the respondents has also referred to the judgement rendered by the Supreme Court in Ghanshyam Sarda versus Sashikant Jha, Director, M/s. J.K. Jute Mills Company Limited, (2017) 1 SCC 599 and Paragraph-25 thereof, to say that since there was an interim order passed by the Settlement Officer of Consolidation in Appeal restraining the parties to the dispute to alienate the property in question, any such sale entered into between the opposite party no.4 and the petitioner was in breach of the order passed by the Settlement Officer of Consolidation and the legal consequences thereof would be that the action can be undone and the parties could be put back to the same position as they stood immediately prior to such order of stay or injunction.
19. In reply to the submissions made by the learned counsel for the respondents, Sri M.E. Khan has submitted that since the Appeal preferred by the opposite party no.2 was delayed by 28 years and the application for condonation of delay along with affidavit had not been disposed off, there was no Appeal pending in the eyes of law on the date of execution of the Sale Deed on 17.7.2010 by the opposite party no.3 in favour of the petitioner. It has further been submitted that the vendor of the petitioner, Nitya Kumar was in collusion with his brother Parameshwar Deen, neither contested the Appeal nor the Revision. The petitioner is entitled to protect his interest by filing the writ petition in as much as any order passed against his vendor in respect of the land in dispute shall be executed against him. Learned counsel for the petitioner has placed reliance upon the judgements rendered by the Supreme Court in Raj Kumar versus Sardari Lal and others, 2004 AIR SCW 470, A Nawab John and others versus V.N. Subramaniyam, 2012 AIR SCW 4248, Thomson Press (India) Limited versus Nanak Builders and Investors Private Limited and others 2013 (5) SCC 397, to buttress his arguments.
20. In Writ Petition No.49 (Consolidation) of 2013, the petitioner Anil Kumar has also approached this Court against the order dated 14.12.2012 passed by the opposite party no.1 in Revision No.505 (Parameshwar Deen versus Pateshwar Kumar and others). It has been submitted that the opposite party no.2 is the uncle of the petitioner. The petitioner and opposite party no.2 Parameshwar Deen along with his brothers Pateshwar Kumar and Nitya Kumar, all three sons of Shankar had been living jointly in one house, sharing joint property in land. Parameshwar being the eldest son of Shankar was the Karta of the family and had purchased the land in question by way of two sale deeds, one of which is dated 8.2.1982 from one Orauni son of Rameshwar. The land being purchased from joint family income was, however, shown wrongly to have been bought by Parameshwar in his individual capacity from Orauni. Thereafter, a mutation case was filed bearing no.4252 in which on the basis of compromise, the land being paid for by Shankar, between the three brothers, Nitya Kumar being represented by his father Shankar as his natural Guardian, the Assistant Consolidation Officer recorded 1/3rd share of each of the brothers by his order dated 19.12.1982. Parmeshwar Deen had no objections regarding the mutation of land in the name of each of the three brothers and kept quiet for almost 29 years. All of a sudden, Parameshwar Deen preferred an Appeal against the order dated 19.12.1982 under Section 11 of the Consolidation of Holdings Act before the Settlement Officer of Consolidation bearing No.1928/1174. The appeal was dismissed on the ground that it was highly belated and the record had been summoned from the lower court, but was reported to have been weeded out on 26.6.1995. However, a Revision was filed by the uncle of the petitioner Parameshwar Deen, against the said order dated 20.8.2010. The father of the petitioner having died, the petitioner was substituted as son of Pateshwar on 11.11.2011. It has been submitted that the opposite party no.1 by his order impugned has allowed the Revision and changed the long-standing entry of 1982 without there being any proof/record of any of the documents showing fraud and misrepresentation by the two brothers of the revisionist and his father.
21. During the course of argument Sri Abhishek Shukla appearing for Anil Kumar, submitted that Sri M.E. Khan, learned counsel for the petitioner in the leading case Writ Petition No.47 (Consolidation) of 2013, had already argued the matter at length and he did not wish to say anything more.
22. Having heard the learned counsel for the petitioners and the counsel for the respondent Parameshwar Deen, this Court has carefully perused the record of both the petitions. A copy of the alleged sale deed executed by Orauni in favour of Parameshwar Deen is not on record. A copy of the Sale Deed dated 17.7.2010 between Ram Chander and Nitya Kumar is on record, which shows that Nitya Kumar has executed the Sale Deed in respect of half of Gata no.457. Even if the entry dated 19.12.1982 is allowed to stand, giving 1/3rd share to each of the brothers, only 1/3rd of the land in question could have been sold off by Nitya Kumar.
23. It is also apparent from a perusal of the Sale Deed dated 17.7.2010 that at the time of its execution, there was no clear demarcation/partition of the shares of the three brothers. As a result, it can be safely presumed that Nitya Kumar sold off his undivided share of joint holding to Ram Chander. The Sale having been executed by Nitya Kumar, a party to the Appeal, knowing fully well that an interim stay was granted by the Settlement Officer of Consolidation in the Appeal on 8.3.2010, who while issuing notice to the parties had stayed any kind of alienation/transfer of the disputed land during pendency of the matter before him.
24. This Court has also perused the order dated 19.12.1982 passed by the Assistant Consolidation Officer in Case No.4252 filed under Section 9A2 of the Act registered as Parameshwar Dean versus Orauni. It is a short order, which can be loosely translated as follows:-
"the paper book is presented for orders. The compromise is on record. Registered Sale Deed Dated 8.2.1982, permission dated 2.2.1982 is on record. An affidavit is also on record. Therefore, it is being ordered that on Gata No.167, 10 Biswa 10 Dhur, the name of the tenure holder be scratched and the name of Parameshwar Deen son of Shankar be recorded as Bhumidhar with transferable rights. Pateshwar Kumar, major, and Nitya Kumar, minor aged about 10 years through guardian Shankar, may also be entered as co-tenure holders.....".
25. After this order was passed on 19.12.1982, the Parmeshwar Deen kept quiet for a long time and all of a sudden, he filed an appeal on 15.2.2010 alleging fraud on the part of his father and brothers in collusion with officers of the consolidation department. A certified copy of the Application for condoning the delay under Section 5 of the Limitation Act was placed before this Court by the learned counsel for the respondents during the course of argument.
26. This application/affidavit under Section 5 of the Limitation Act is a handwritten document running in two pages. It records the fact that the appellant is an employee of the Electricity Board. He had bought 10 Biswa 10 Dhur land of Gata no.167 from its recorded tenure holder Orauni through a registered Sale Deed on 8.2.1982. An application under Section 9A2 of the Act was filed before the Assistant Consolidation Officer, but being busy in his official duties as a Class-IV employee Parameshwar Deen had entrusted the pursuit of the application to his real brother Pateshwar, who played fraud with the collusion of the consolidation officials by getting the property in dispute recorded as having 1/3rd share of each of the three brothers. Parameshwar Deen further stated that from the date of execution of Sale Deed till the date of filing of the appeal dated 15.2.2010, he had remained in possession of the property in question and he came to know of the fraud committed by his brothers only recently when a copy of the Khatauni was applied and secured by him on 8.1.2010 as he needed the same to stand as surety in Bail. It was then that he came to know of the fraud played by his father and brothers and therefore, approached his lawyer, who advised filing of an appeal. The Appeal was being filed after a certified copy of the order dated 19.12.1982 had been applied for and obtained. The Appeal having been filed as soon as knowledge of the order dated 19.12.1982 was derived, the delay was liable to be condoned, as it was bonafide and unintentional. A prayer was thereafter made to condone the delay and admit the Appeal and set aside the order impugned, giving benefit of Section 5 of the Limitation Act to the appellant.
27. In the memo of the appeal filed along with record of these petitions, it is apparent that the ground taken for challenge to the order dated 19.12.1982 is that of fraud and misrepresentation by the respondents in obtaining the order impugned in the appeal with the collusion of officials belonging to the consolidation department.
28. The order of the opposite party no.1 has also been filed as Annexure-1 to the writ petition, which shows that the respondent no.1 had heard the Revisionist as well as the respondents. It is not clear who were these respondents as Anil Kumar admits that his father Pateshwar Kumar had died and he had not appeared before respondent no.1 despite being substituted. The respondent no.1 no doubt had perused the record of the Appellate court and the written arguments submitted on behalf of the respondents. The respondent no.1 thereafter records the reasons mentioned in the Revision for approaching the Appellate court with delay and the fact that the Appellate court had ignored the application under Section 5 of the Limitation Act filed along with affidavit by Parameshwar Deen. Reference has also been made to the Sale deed entered into between Orauni and Parameshwar Deen, which was registered on 19.12.1982 and the fact that Parameshwar Deen was still in possession of the property in question from the date of such registration of Sale Deed and his pump set and boring was situated on the property in dispute. The argument regarding fraud being played by the brother of the Revisionist, is thereafter recorded. 29. The respondents counsel's argument was that all the parties belong to the same family and that the property in dispute was bought from funds of the joint family but the Sale Deed was got executed fraudulently by the Revisionist in his name alone. It was submitted that on the basis of a compromise, the Assistant Consolidation Officer had passed the order dated 19.12.1982 recording the land in question in the name of all the three brothers. The file having been weeded out and the Appeal having been filed with a huge delay, the Settlement Officer of Consolidation had rightly refused to grant benefit of Section 5 of the Limitation Act and rejected the Appeal. It was also argued that Nitya Kumar, the respondent had sold off his share to Ram Chander, whose mutation application was pending and there was also the defect of nonjoinder of necessary party in the Revision.
The Revisionist had referred to certain case laws, the citations of which, have been given thereafter with the argument that the entry in CH-23 having been made because of fraud and misrepresentation, it was liable to be set aside after giving benefit of Section 5 of the Limitation Act to the Revisionist.
The respondent no.1 thereafter goes on to mention that record of the lower court was summoned, which showed that the file relating to the order passed by the Assistant Consolidation Officer had already been weeded out. Nevertheless, documentary evidence on record showed that in basic year Khatauni, Orauni was recorded as Bhumidhar and one Sale Deed was executed by him in favour of the Revisionist on 3.2.1982. It was not disputed by the parties that the Sale Deed was in the name of the revisionist alone. On the basis of such execution of Sale Deed, an application was filed for recording of his name by Parameshwar Deen, which was registered in the court of Assistant Consolidation Officer as Case No.4252 (Parameshwar Dean versus Orauni) in which an order was passed on 19.12.1982, recording the name of Parameshwar Deen as well as his two brothers Pateshwar Kumar and Nitya Kumar sons of Shankar as co-shareholders of the property in dispute.
30. The respondent no.1 goes on to say that it was alleged that no such compromise had ever taken place. The respondents, on the other hand, had alleged that such a compromise had indeed taken place. However, no such compromise was produced by the respondents at the time of arguments and no evidence with regard to possession of the respondents over the property in dispute was also produced. The order dated 19.12.1982 passed by the Assistant Consolidation Officer recorded the the case having been registered as Case No.4252 and the names of the parties being Parameshwar Dean versus Orauni. It was observed by the respondent no.1 that had there been any other parties to the application under Section 9A2 before the Assistant Consolidation Officer like the respondents, the cause title of the case would have mentioned Parmeshwar Deen and others versus Orauni. Also if any objections would have been filed by either the father of the revisionist or his brothers, then the cause title would have mentioned the numbers of at least two or more of such cases having been clubbed as they related to the same Gata number.
31. The respondent no.1 further observed that it is evident from the order of the Assistant Consolidation Officer that only one case was registered with Parameshwar Deen and Orauni as parties. From the observations so made with regard to registered Sale Deed and the registration of Case No.4252 before the Assistant Consolidation Officer, and the absence of any evidence of any compromise or family settlement being produced by the respondents or evidence to show that they were in possession of the property in dispute, the logical conclusion that could be derived was that the Sale Deed was executed by Orauni only in favour of Parameshwar Deen. The Sale Deed having been executed only in favour of Parameshwar Deen and there being no evidence filed before the respondent no.1 regarding a compromise or a family settlement it could only be logically assumed that the order directing entry of names of the two brothers of Parameshwar Deen as co-sharers on the property in question had been the result of fraud and misrepresentation. The registered Sale Deed could not be ignored as it mentioned the name of only one purchaser i.e. Parameshwar Deen.
32. The respondent no.1 further observed that the registered Sale Deed had also not been declared void by any competent court and, therefore, could not be ignored. In the absence of there being any documentary or other evidence being produced by the respondents, there was no reason to believe their assertion that there was a compromise. The language of the Sale Deed was to be given priority. In the application under Section 5 of Limitation Act filed along with the Appeal, reasons had been mentioned in the affidavit for approaching the Settlement Officer of Consolidation with delay. The reasons related to fraud therefore, in such a case, the Settlement Officer of Consolidation should have adopted a more liberal approach. Thereafter, the orders passed by the Assistant Consolidation Officer and that of the Settlement Officer of Consolidation were set aside by the respondent no.1 and on the basis of the registered Sale Deed, the name of Parameshwar Deen son of Shankar alone was directed to be recorded as Bhumidhar with transferable rights.
33. It has been submitted by the learned counsel for the petitioners that Parameshwar Deen was born in 1959 and he became a Class-IV employee in the Electricity Department in 1979 and his earnings as a Class-IV employee in three years thereafter, i.e. by 1982, could not be said to be such as would permit him to buy 10 Biswa 10 Dhur of the land of Gata no.167 on his own. The more reasonable presumption would be that the property was bought out of joint family funds, and that this fund is given by Shankar, the father of Parameshwar Deen, Pateshwar Kumar and Nitya Kumar, but Parameshwar Deen being educated and being an employee of the Electricity Department was instrumental in getting the Sale Deed executed and registered in his name alone. When objections were filed under Section 9A2 of the Act before the Assistant Consolidation Officer, his ownership of the land in dispute was determined on the basis of compromise entered into between Parameshwar Deen and his family members. It was this compromise which was produced before the Assistant Consolidation Officer, mention of which has been made in the order dated 19.12.1982.
34. It has been further submitted that if Parameshwar Deen indeed was in possession of the property in question since the very date of the Sale Deed dated 8.2.1982, then it is quite improbable that he remained completely ignorant of the entries in the revenue records/CH Form-23. Such ignorance, moreover, lasted for more than 28 years. It is highly improbable that no attempt was made by Parameshwar Deen to even procure a copy of CH-23. It is, therefore, highly unlikely that the reason mentioned in the order impugned for application under Section 5 deserves to be believed but should not have been discarded the figment of imagination of the respondent.
35. It has further been submitted that before the respondent no.1, only the order dated 20.8.2010 passed by Settlement Officer of Consolidation was under challenge as is evident from a copy of the Appeal filed along with the writ petition. Therefore, it may be presumed that the arguments relating to the facts as mentioned in the application for condonation of delay supported by affidavit alone were advanced before the respondent no.1. There was no argument on the merits of the case set up by the Revisionist regarding the order of the Assistant Consolidation Officer and his name alone deserving to be recorded in the revenue records, the order dated 19.12.1982 not being under challenge, could not have been set aside by the respondent no.1.
36. In the case of Tirath (supra), a Division Bench of this Court was answering a Reference by the learned Single Judge with regard to the question "whether the Revisional Authority under Section 48 of the U.P. Consolidation of Holdings Act can allow a Revision petition without indicating whether the appeal filed by the applicant in revision, having been dismissed on ground of limitation was illegally incorrectly and improperly decided or the appellant had sufficient cause for condonation of delay in preferring the appeal?"
37. Before the Division Bench, it was argued that the Settlement Officer Consolidation by the order impugned had dismissed the appeal only on the ground of having been filed belatedly, there being no explanation for delay nor any ground having been made out for condoning the delay. In the revision filed against such order, the order passed by the Consolidation Officer was not challenged. No reasons were also given to show that the Consolidation Officer's order was illegal. The revision was allowed setting aside the order of the Consolidation Officer as well as that of the Settlement Officer of Consolidation.
38. The Division Bench distinguished the judgement rendered by the Full Bench in Rama Kant versus Deputy Director of Consolidation, AIR 1975 Alld 126, and observed that the judgement in the case of Rama Kant (supra) did not indicate that the revisional powers can be exercised to set aside the order passed by the trial court even when the matter is not decided on merits by the Appellate Authority and where the appeal has been dismissed on the ground of being barred by time. The observations of the Full Bench would not apply in cases where the appeal has not been decided on merits, but the Appellate court has rejected the application for condonation of delay. In such a Revision, the Division Bench held that the Deputy Director of Consolidation could summon the records of the appellate court and examine the same only in so far as its reasons for rejection of application for the condonation of delay were condoned. The authorities' jurisdiction in such matters was limited to examine whether any application had been made for condonation of delay and whether sufficient reason had been given for the same, and whether the order rejecting such an application/dismissing the appeal as barred by time, was justified in the circumstances of the case. It was observed that the revisional authority has to confine itself to the decision in the appeal and the grounds given for the decision in that order. It was not open for the revisional authority to go into the question of merits while exercising powers under Section 48(1) of the Act in such circumstances.
39. In Bashir Ahmad Khan (supra), a coordinate Bench of this Court placed reliance upon the Division Bench judgement in the case of Tirath (supra) and came to the conclusion that the Deputy Director of Consolidation had wrongly and illegally decided the Revision on merits without giving any opportunity of hearing to the parties to lead evidence on merits, when the scope of the Revision which was filed before him was confined to the question whether delay in filing the Appeal was liable to be condoned. In normal course, if the Deputy Director of Consolidation was of the opinion that the order passed by the Settlement Officer of Consolidation, rejecting the application for condonation of delay was arbitrary, he could have quashed the order and remanded the matter for reconsideration of the application/appeal.
40. In the case of Raj Kumar (supra), the doctrine of lis pendens as expressed in Section 52 of the Transfer of Property Act was considered by the Supreme Court. The transfer took place during the pendency of the suit, but the Decree passed ex-parte in the suit was sought to be set aside, not by the defendant on record, but by a person, who did not come or was not brought on record promptly, and hence, apparently appeared to be a third party. The Supreme Court observed that such a person in accordance with the principles incorporated in Section 52 of the Transfer of Property Act would be a representative-in-interest of the defendant-judgement debtor. Under Section 52 of the Transfer of Property Act, a decree passed against the defendant transferor would also be executed against the lis pendens transferee of the defendant, even though he was not a party to the suit. Such a person can prefer an appeal being a person aggrieved. The person who is liable to be proceeded against in execution of the decree can file an appeal against the decree. Such a person can also file an application for recall under Rule 13 of Order IX of the CPC, as such, a person stepped into the shoes of the defendant and the decree was sought to be executed against him. It was held by the Supreme Court that a lis pendens transferee, though not brought on record under Order XXII Rule 10 of CPC, is entitled to move an application under Order IX Rule 13 of CPC to set aside a decree passed against his transferor, the defendant in the suit.
41. In the case of A Nawab John (supra), the Supreme Court was considering a case where a specific performance of a registered agreement and delivery of possession was sought by the plaintiff in a suit before the trial court. During the pendency of the suit, the sole respondent V.N. Subramaniam filed an application, praying that he may be impleaded as a party-defendant to the said suit on the ground that he had purchased the suit property. His application for impleadment was allowed and the plaint came to be amended mentioning the details of subsequent events. The Supreme Court examined the background of insertion of the doctrine of lis pendens in Section 52 of the Transfer of Property Act. It referred to a judgement rendered by it earlier, reported in (1972) 2 SCC 200, which in turn relied upon "Commentaries on the Laws of Scotland", by Bell where it was observed that "during pendence of an action of which the object is to vest the property or obtain the possession of the real estate, a purchaser shall be held to take that estate as it stands in the person of the seller, and to be bound by the claims which shall ultimately be pronounced".
42. The Court referred to the language of Section 52 of the Transfer of Property Act and observed in Paragraph-17 that it is settled legal position that the effect of Section 52 is not to render transfers effected during to pendency of a suit by a party to the suit void, but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually, determined in the suit. In other words, the transfer remains valid subject, of course, to the result of the suit. The pendente lite purchaser would be entitled to, or suffer the same legal rights and obligations of his vendor as may be eventually determined by the court. The mere pendency of the suit does not prevent one of the parties to the suit from dealing with the subject matter of the suit. The Section only postulates a condition that the lis pendens alienation will in no manner affect the rights of the other party under any decree, which may be passed in the suit unless the property alienated with the permission of the Court. In Paras 18 and 19 of the said judgment, the Supreme Court observed thus:-
"18. Such being the scope of Section 52, two questions arise: whether a pendente lite purchaser: (1) is entitled to be impleaded as a party to the suit?; (2) once impleaded what are the grounds on which he is entitled to contest the suit.
19. This Court on more than one occasion held that when a pendente lite purchaser seeks to implead himself as a party-defendant to the suit, such application should be liberally considered. This Court also held in Saila Bala Dassi v. Nirmala Sundari Dassi [AIR 1958 SC 394] that, "justice requires", a pendente lite purchaser "should be given an opportunity to protect his rights". It was a case, where the property in dispute had been mortgaged by one of the respondents to another respondent. The mortgagee filed a suit, obtained a decree and "commenced proceedings for sale of the mortgaged property". The appellant Saila Bala, who purchased the property from the judgment-debtor subsequent to the decree sought to implead herself in the execution proceedings and resist the execution. That application was opposed on various counts. This Court opined that Saila Bala was entitled (under Section 146 CPC) to be brought on record to defend her interest because, as a purchaser pendente lite, she would be bound by the decree against her vendor. There is some divergence of opinion regarding the question, whether a pendente lite purchaser is entitled, as a matter of right, to get impleaded in the suit, this Court in Amit Kumar Shaw v. Farida Khatoon [(2005) 11 SCC 403]: (AIR 2005 SC 2209: 2005 AIR SCW 2078), held that:
"Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22 Rule 10 an alienee pendente lite may be joined as party. As already noticed, the court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case." (emphasis supplied) The preponderance of opinion of this Court is that a pendente lite purchaser's application for impleadment should normally be allowed or "considered liberally."
(emphasis supplied)
43. In the case of Thomson Press (India) Limited (supra), the Supreme Court was considering an appeal arising out of a suit for specific performance of prior agreement to sell filed by the buyer against the original owner/transferor/seller pendente lite. In Paragraph 26 to 29 of the said judgment, the Supreme Court after referring to Section 52 of the Transfer of Property Act, observed that transfer during pendency of suit does not automatically render such transfer void. The provisions of the Section only render such transfers subservient to the rights of the parties to a litigation. The transferees acquiring any immovable property during litigation over it, are held to be bound, by application of the doctrine of lis pendens and by the decree passed in the suit even though they may not have been impleaded in it. "The whole object of the doctrine of lis pendens is to subject parties to the litigation, as well as others who seek to acquire rights in immovable property, which are the subject matter of litigation, to the power and jurisdiction of the Court so as to prevent the object of a pending action from being defeated." The Supreme Court further observed in Paragraphs 55 and 56 that a transferee pendente lite can be added as a party to the suit lest the transferee suffered prejudice on account of the transferor losing interest in the litigation post such transfer. Sometimes a transferor pendente lite may not even defend the title properly as he has no interest in the same or may collude with the plaintiff in which case the interest of the purchaser pendente lite will be ignored. To avoid such situations, transferee pendente lite can be added as a party defendant to the suit provided his interest is substantial and not just peripheral. This is particularly so where the transferee pendente lite acquires the interest in the entire estate that forms the subject matter of the dispute.
44. In regard to the judgment cited by the learned counsel for the respondents, which highlighted the effect of fraud in litigation, it has been submitted by the learned counsel for the petitioner that fraud has yet to be established since there was no evidence produced. Pateshwar Kumar, Anil Kumar and Nitya Kumar being close relatives of Parameshwar Deen chose not to appear before the Deputy Director Consolidation, as they had lost interest in the property in question either because of collusion or having sold it off during pendency of Appeal, and the petitioner's application for impleadment was not allowed, the Deputy Director of Consolidation could not have decided the matter on merits, but could have, finding sufficient reason for delay being condoned, referred the matter to the Settlement Officer of Consolidation to take evidence in this regard.
45. Having heard the learned counsel for the parties, this Court finds that the Deputy Director of Consolidation has in his judgment referred to the failure of the respondents to produce evidence that the property in question was bought out of joint family funds and that they were in continuous occupation of the property in question as co-tenure holders since the date of the order passed by the Assistant Consolidation Officer. Such evidence could obviously not have been produced by Ram Chander, the subsequent purchaser. In the writ petition filed by Anil Kumar, there is an admission that after his substitution in place of his dead father Pateshwar Kumar, notice was shown to have been sent to him at his residential address and refused to be accepted by some family member. Later on, such notice was affixed on the wall of the residential house and service of notice deemed sufficient by the Deputy Director of Consolidation. It can safely be presumed that all the sons of Shankar colluded with each other to defraud the petitioner who was a Transferee pendente lite and defeat his claim to the property in question.
46. With regard to the judgements rendered by the Supreme Court and by this Court observing that the Court should be liberal in granting condonation of delay as cited by the learned counsel for the respondents, this Court has carefully perused the judgements cited and finds that none of them related to such huge delay as of 28 years in filing an appeal to the extent that the original record of the office of the Assistant Consolidation Officer had been weeded out in the meantime. In the absence of original records from the office of the Assistant Consolidation Officer being produced, and the compromise said to have been filed in his Court also not being on record, it could not have been determined by the Court that such compromise had not been countersigned by the members of the Consolidation Committee as is required under the Rules of 1954.
47. In the judgement rendered by this Court in Ram Pyare Verma (supra) relied upon by the learned counsel for the respondents to say that transferee pendente lite may not necessarily be impleaded as a party and is bound by the decree in the suit even though he is not impleaded, this Court has observed in Paragraph-8 that the transferee can certainly be considered as a proper party to the suit when he comes up with a plea that the plaintiff and the defendant had colluded to harm his interest. Moreover, failure to implead him would lead to multiplicity of litigation.
48. The judgement rendered in Sanjay Verma (supra) relied upon that by the respondents only holds that the transferee pendente lite without leave of the Court, cannot as of right, maintain a separate suit particularly so when the suit was pending for a long time. However, it observed in Paragraph-10 that though the alienation would be hit by the doctrine of lis pendens by operation of Section 52, such alienation cannot be said to have been annulled automatically, only that the alienation will have no effect on the rights of the other party under any decree which may be passed in the suit.
49. To similar effect are the observations of the Supreme Court in the judgement in the case of Usha Sinha (supra), which has considered the judgement rendered in Sanjay Verma (supra). In Usha Sinha (supra) also, the facts were that the Title suit had been decreed by the trial court. The transferee pendente lite had filed a separate suit asserting in the plaint that he had purchased the property and was the absolute owner thereof. It was prayed that the decree passed in the earlier Title suit be declared as null and void. An execution case was filed for executing the decree passed by the trial court in the earlier Title suit. An application was filed by the appellant before the executing court, saying that she had purchased the property by registered Sale Deed during pendency of the suit and she had also filed a separate Title suit for setting aside the ex-parte decree in the earlier suit, which was pending and during pendency of such substantive suit filed by her, if the ex-parte decree is executed, it will cause irreparable loss and injury to her. The executing Court allowed such application. The respondent/Decree holder approached the High Court, which set aside the order passed by the executing Court. The subsequent purchaser thereafter approached the Supreme Court. The Supreme Court observed that under Order XXI Rule 102 of CPC, it is enough for the decree holder to show that the person resisting the possession or offering obstruction is claiming his title to the suit property having arisen after the institution of the suit in which, the decree was passed and sought to be executed against the judgment debtor. The Supreme Court observed that under Section 52 of the Transfer of Property Act, a person purchasing property from the judgment debtor during the pendency of the suit has no independent right to property to resist, obstruct or object to the execution of such a decree. The transferee pendente lite having derived his title from the original transferor, his right is subservient and subject to decision in the suit which was pending. The transferee from a judgment debtor is presumed to be aware of the proceedings before a Court of law. Rule 102 of Order XXI of the CPC takes into account the ground reality and refuses to extend helping hand to the purchaser of the property in respect of which, litigation is pending. In other words, the Supreme Court observed that the transferee pendente lite has no independent right of his own to challenge the decree passed against his transferor by the trial court during Execution proceedings.
50. This Court has also perused the judgment rendered in the case of Ghanshyam Sarda (supra). The judgment is distinguishable on facts and is not applicable in the case.
51. With regard to the question of remanding the matter by the Deputy Director of Consolidation instead of deciding the same when there was ample evidence on record to prove the facts as stated by the parties, reference can be made to a decision of the Supreme Court in R.V.E. Venkatachala Gounder vs Arulmigu Viswesvaraswami V.P. Temple, 2003 (8) SCC 752, where the Supreme Court observed that the High Court's judgement deserved to be set aside and the case remitted back to the High Court for decision afresh in accordance with law after re-framing substantial questions of law, if any, as do arise in the appeal. But since the suit was filed in the year 1978 and the parties have been litigating for the last 25 years, they are refraining from remitting the case back to the High Court for a decision on merits. 39. The Supreme Court in Ashwini Kumar K Patel vs. Upendra J. Patel, AIR 1999 SC 1125 held that the High Court should not ordinarily remand a case to the lower court only because it considered that the reasoning of the lower court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or the other. It could have easily considered the documents and affidavits and decided about the, prima facie case on the materials available.
52. In Pritam Singh (Dead) by Lrs. and others vs. Assistant Director of Consolidation and others, 1996 (2) SCC 270, again the Supreme Court observed that the Deputy Director of Consolidation could have decided the matter on merits covering the entire controversy instead of remanding the same.
53. It has been submitted on the basis of judgments cited by the respondents that when ample evidence was available with the Deputy Director of Consolidation, he could have analyzed the evidence and could have decided the case as the question regarding title to the property in dispute was pending since 1991, when objections were filed before the Assistant Consolidation Officer.
54. This Court, however, finds from the arguments of the counsel for the parties and from the orders passed by the Consolidation Courts and the judgment of the Division Bench of this Court in Tirath (supra) that it was not open to the Deputy Director of Consolidation to have set aside the order of the Assistant Consolidation Officer dated 19.12.1982 when the same was not challenged before it. The Deputy Director of Consolidation could have only considered the reasons given in the order of Settlement Officer of Consolidation, rejecting the Appeal on grounds of limitation and passed appropriate orders thereon if he was convinced that the reasons given in the Application for condonation of delay were sufficient but were arbitrarily ignored. Also, this order could have been passed only after affording opportunity of hearing to all concerned.
55. Hence, the order impugned dated 14.12.2012 impugned in both the writ petition, is set aside. The matter is remanded to the Deputy Director of Consolidation to decide it afresh within a period of three months. The petitioners who have an interest in the property in dispute may appear before the Deputy Director of Consolidation and place their case through appropriate applications/affidavits and will not seek any unnecessary adjournments on being given opportunity of being heard.
56. The writ petitions stand allowed to this extent.
Dated: May 19, 2020 Sachin