Bibbjn through Munshi vs Asstt. Director of Consolidation & Ors.

S.K. Singh, J.—By means of this writ petition, challenge is to the order of Assistant Director of Consolidation dated 23121992 and that of the Assistant Consolidation Officer dated 2531985 (Annexures6 and 1) respectively.

There appears to be no dispute about certain basic facts and therefore, on their brief narration, writ petition can be conveniently disposed of.

In the basic year record, name of petitioner was recorded. Objection was filed by contesting respondent under Section 12 of UPCH Act claiming mutation of his name on the basis of saledeed dated 2321985 which is said to have been executed by petitioner in his favour. Admittedly, the objection of respondent, No. 3 was not allowed on merit after trial but on the basis of a compromise that objection came to be allowed and the name of petitioner was directed to be expunged and name of respondent No. 3 was permitted to be mutated/recorded over the land in dispute. Against the order of Assistant Consolidation Officer dated 2531985, revision was filed by petitioner in the year 1992 challenging the genuineness and validity of compromise and the order passed thereon. During pendency of revision, an application is said to have been led for dismissing the revision as not pressed. Be as it may, petitioner opposed that move and thereupon, revision was taken up for hearing. The revision was dismissed by the order dated 23121992 on the ground that it is highly belated and no satisfactory reason has been assigned and thus against the order of Assistant Director of Consolidation dismissing the revision on the ground of limitation dated 23121992 and order passed by the Assistant Consolidation Officer dated 2531995, the writ petition has been filed by writ petitioner.

Argument of Sri R.C. Singh, learned Counsel who appeared in support of this writ petition is that execution of saledeed by petitioner who happens to be lady has been seriously disputed/denied and in fact, petitioner could not get opportunity to prove the fact that execution of saledeed is by some imposter and the opposite party got an order in his favour again from the Court of Assistant Consolidation Officer on the basis of compromise, that was a fraud again played by opposite party not only on petitioner but also un the Court as well. Submission is that as no delivery of possession took place after the judgment of Assistant Consolidation Officer and that the order was not implemented as and when petitioner''s right was interfered, she filed revision and thus delay in filing the revision was cogently explained but the Revisional Court in a most cursory and sketchy manner without considering the grounds so taken, dismissed the petitioner''s revision on technical ground Submission is that it is a case where fraud has been practiced on the lady while getting alleged saledeed executed arid again order was obtained on the basis of compromise and this Court has to interfere exercising its equity jurisdiction.

In response to the aforesaid, Sri Shah, learned Counsel submits that as the revision was filed after about seven years, the Revisional Court examined the grounds so given for condonation of delay and a finding has been recorded that no satisfactory explanation has been given for filing revision after such a long delay. Submission is that no fraud was played and she had put her thumb impression on the saledeed and thereafter in the Court of Assistant Consolidation Officer, while entering into compromise and therefore, on the basis of saledeed, name of respondent has been directed to be mutated, no exception can be taken to it. He submits that there is neither any illegality or perversity and therefore, writ petition needs dismissal.

In view of aforesaid, this Court has examined the matter. There is no dispute about the fact that there is a registered saledeed in favour of respondent. There is also no dispute about the fact that before Assistant Consolidation Officer, claim of respondent was not decided on the basis of any trial. Admittedly, neither there was any objection from the side of petitioner nor any issues were framed nor parties were allowed to lead evidence nor there was any judgment on merits, rather in the belated objection, a compromise was filed and on that basis decision of Assistant Consolidation Officer came by which name of petitioner was directed to be expunged and the name of respondent was directed to be mutated. The claim of petitioner is that as the order of Assistant Consolidation Officer was never given effect, there was no occasion for her to come to know about the order of Assistant Consolidation Officer as in fact, no proceedings took place before the Assistant Consolidation Officer so as to enable petitioner to file his objection, to lead evidence and to get an opportunity of hearing on the ground that saledeed was never executed by her and the saledeed is a result of impersonation. Needless to say that if the saledeed bears thumbimpression of petitioner and it is found to be voidable documents on the allegations, then Assistant Consolidation Officer may not be competent to ignore the effect of saledeed and to accept its validity. But at the same time, if it is found that the saledeed do not bear signature/thumb impression and it is a result of impersonation, as stated by petitioner, then the Assistant Consolidation Officer may have jurisdiction to get the matter decided on merit in respect to rival claim. Law is settled that in respect to voidable document, Consolidation Court have no jurisdiction to ignore the same but in respect to void document, that can be ignored and therefore, question which was before the Courts below and before this Court is that whether the saledeed on the basis of which respondent claimed right was void or voidable document. To examine the aforesaid, certainly evidence from both sides can be said to be required and only then a finding can come but here is the case where mere was no stage of any evidence as the Assistant Consolidation Officer decided the objection of respondent on the basis of compromise. It is not to be emphasized that after close of consolidation, the claim of parties is to be barred for fresh adjudication in any other Court in view of provision of Section 49 of the Act and therefore, it has been repeatedly said by the Courts that as far as possible, decision in respect to rights/claim of parties is to take rest on merits, that is to say after giving opportunity of evidence and hearing. The petitioner happens to be a lady. The claim is that the order of Assistant Consolidation Officer was not implemented and given effect and there is no finding against this fact by the Court of Assistant Director of Consolidation and therefore, it appears that in respect to ground so taken by petitioner, she was entitled to get an opportunity to prove the allegation of fraud which is said to have been played while getting saledeed executed and while getting the order from Assistant Consolidation Officer. The Revisional Court appears to have rejected petitioner''s revision mainly having been impressed by the fact that revision has been filed after seven years without going into the correctness into the allegation that whether petitioner can be said to be aware about the order of Assistant Consolidation Officer and if so what are the circumstances and evidence in support of it. Two other aspects were stated by petitioner before this Court, that in the Revisional Court also, move was to get revision dismissed as not pressed and even before this Court to get the writ petition dismissed as not pressed, which has been vehemently opposed by Sri Shah, although cannot be taken to be a conclusive circumstance in favour of petitioner but on the facts of present case, slight assistance for taking view in favour of petitioner can be taken. On the facts and totality of the circumstances, this Court is satisfied that irrespective of merit in the compromise, this Court is n to express any opinion as on today, moving objection of petitioner that she did not enter into compromise and she did not execute any saledeed was liable to be noticed, discussed and finding either way was liable to be recorded, but as that has not been done and the revision of petitioner has been dismissed on the ground of limitation this Court exercising its extraordinary jurisdiction under Article 226 of the Constitution proposes to quash the order of Assistant Director of Consolidation and at the same time permits parties to join their hands in the Court of Consolidation Officer on the question of validity and genuineness of compromise on the basis of which, the order dated 2531985 is said to have been passed. Now, it will be for the petitioner to apply before the Consolidation Officer alongwith certified copy of this order, by filing objection/application to recall/verify compromise order on the ground so available to her, upon which the respondent''s side will be given ample opportunity of hearing and Consolidation Officer will decide the same in accordance with law by passing speaking order. On facts, this Court further proposes to direct the Consolidation Officer to examine merits in the saledeed itself in respect to dispute that whether that was a genuine document that is to say that the saledeed was executed by petitioner or not, by permit ting parties to lead evidence in the respect A composite order dealing with merits of saledeed and that of the com promise will be passed by the Consolidation Officer upon which, it will be for either of the parties to take recourse permissible under law.

For the reasons recorded above, this writ petition succeeds and is allowed. The impugned order of Revisional Court dated 23 121992 is hereby quashed and that of the Assistant Consolidation Officer dated 2531985 is hereby kept in abeyance subject to passing of fresh order in terms and direction as contained in this order which will hold field in due course subject to its further variance/modification as and when is made.