Smt. Madhu and Another vs Deputy Director of Consolidation and Others

A.P. Sahi, J.—Heard Sri R.C. Singh, learned counsel for the petitioner, at length and Sri C.B. Yadav, learned Senior Counsel, alongwith Sri Pankaj Govil for Respondent Nos. 4 and 5. The challenge in this writ petition is to the orders passed by the consolidation authorities emanating from an order dated 8.12.1985 of the Consolidation Officer as affirmed in Appeal on 12.10.2009 and in the revision on 27.6.2011.

The factual matrix as disclosed in the writ petition is that the recorded tenure holder was one Mr. Aliya. His son is Sabir. After the death of Aliya, it is alleged that registered sale-deeds were executed by Sri Sabir on 6.6.1985 in favour of the contesting respondent. A compromise was entered before the Assistant Consolidation Officer which included the plots which were subject matter of the sale-deeds and another plot No. 819 which is alleged to have been claimed on the basis of adverse possession by the respondent Nos. 6 and 7. The order of compromise was questioned by Sabir himself by filing an Appeal after 17 years on 22.6.2002. Sri Sabir during the pending of the Appeal died on 23.8.2006, and the petitioners'' claim to be the subsequent purchasers from Sabir in relation to the same plots which were subject matter of the said compromise.

The Appeal filed by Sabir was dismissed as time barred on 12.10.2009, In between a writ petition was allegedly filed against the said order dated 12.10.2009 which was dismissed but the same was recalled and the writ petition was allowed directing the appellate authority to proceed to decide the matter afresh.

The Appeal was dismissed against which a revision was preferred by the petitioners which has now been dismissed by the impugned order hence this writ petition.

Sri R.C. Singh submits that the Deputy Director of Consolidation, who has gone into the merits of the matter instead of only upholding the appellate order on the ground of limitation, has failed to advert to the issues raised by Sabir and subsequently by the petitioners in the revision after the death of Sabir. He contends that the very basis of the compromise had been challenged in Appeal and that the entire order of the Consolidation Officer dated 5.12.1985 had been questioned. He submits that the Deputy Director of Consolidation, therefore, was under an obligation to have gone into the correctness or otherwise of the said order of compromise dated 5.12.1985 and instead he has read it as an evidence against the petitioners. He further contends that there was no permission from the Settlement Officer Consolidation for executing the sale-deed in favour of the respondent by Sabir which is a statutory violation, and even otherwise if the date of death of Sri Aliya is 15.12.1985 then there was no occasion for his son Sabir to have executed the sale-deed prior to his death.

He further submits that even if there is a slight defect in the pleadings and the prayer of the memo of appeal, the petitioners have clearly taken all available grounds in the memo of revision and, therefore, the petitioners could not have been tied up to their pleadings. The contention further raised is that the respondent No. 4 Dharam Pal Singh and Vir Singh have benefited out of the sale-deed, which was never executed by Sabir and the entire evidence being on record, the Deputy Director of Consolidation has failed to exercise his jurisdiction in accordance with the provisions of Section 48 as amended under The U.P. Consolidation of Holdings Act. He further submits that even assuming for the sake of arguments that only Plot No. 819 is subject matter of dispute, then too even the order of the Deputy Director of Consolidation is erroneous to that extent.

Sri C.B. Yadav, learned Senior Counsel for the contesting respondent, submits that so far as the date of death of Aliya is concerned, a clear finding has been recorded by the Deputy Director of Consolidation that the documents prepared by the petitioners for establishing the date of death of Aliya was forged and this is a concurrent finding. He further submits that there was compliance of Rule-25A of the U.P.C.H. Rules when the compromise was entered into on 5.12.1985. He contends that it is with this calculated motive that the forged death certificate of Aliya was prepared on 5.12.1985. He further submits that the permission of the Settlement Officer Consolidation was very much there and not only this, the memo of appeal as drafted and presented without any amendment during the pendency of the said appeal the petitioners, who claim themselves to have stepped into the shoes of Sabir, also did not carry out any amendment in the memo of Appeal and, therefore, the petitioners are equally bound by the pleadings therein. Hence the claim of the petitioners which was subsequently improved in the memo of revision has been rightly rejected, Sri C.B. Yadav contends that the entire litigation by the petitioners is a champertous litigation at the instance of Late Sabir with a view to extract money from the answering respondent and it is for this motivated and calculated move that the entire litigation has been pursued.

Having heard learned counsel for the parties, the issue relating to the death Certificate of Aliya has been established and the Courts below have recorded a concurrent finding that the death Certificate dated 15.12.1985 is forged. In such a situation, it is not open to this Court to enter into the correctness or otherwise of the same which has been believed by the Courts below, in exercise of powers under Article 226 of the Constitution of India without there being any adverse or contrary material placed before the Court.

The issue relating to the grant of permission has also been categorically dealt with by the Deputy Director of Consolidation u/s 5(c)(ii) of the U.P. Consolidation of Holdings Act and it has been found that the Settlement Officer Consolidation had granted permission to Sabir, the predecessor in interest of the petitioners for executing the sale-deed in favour of the respondent. Apart from this, what is more clinching is the claim of Sabir in his memo of appeal. The respondent No. 4 Dharam Pal Singh and Vir Singh are only concerned with the land of subject matter of the registered sale-deed. It would be appropriate to reproduce paras 3 and 4 of the memo of appeal, copy whereof is Annexure-7 to the writ petition:

The recital as extracted herein above, therefore, leads only to the conclusion that Sabir himself has abandoned his claim insofar as the land that was subject matter of sale-deed in favour of respondent Dharam Pal Singh, Vir Singh and Satyawati is concerned and was confined only to Plot No. 819. Once Sabir himself had abandoned his claim, it is not open to the subsequent purchasers to improve upon the case of Sabir.

Accordingly, I am of the firm opinion that the Deputy Director of Consolidation has not committed any error much less a legal error in recording conclusions against the petitioners. The writ petition lacks merits and is hereby dismissed.