DURBAL Vs. D.D.C.

JUDGEMENT

(1.) Heard Sri Amish Kumar Srivastava, the counsel for the petitioner and Sri V. Singh, the counsel for respondent nos. 2 to 6.

(2.) The plots in dispute in the present writ petition are Plot Nos. 193, 248 and 253. The petitioner and the respondent are the descendants of Bhuidhar. Bhuidhar had four sons, namely, Saamu, Sarju, Barsati and Nandan. Saamu and Barsati died issueless. The petitioner is the son of Sarju. Nandan had two sons, namely, Chandrabali and Shivbali (respondent no. 2). The respondent nos. 3 to 6 are the sons of Shivbali. The rights of Chandrabali are not in issue in the present writ petition as the records indicate that he has been missing since long and the dispute relates to the share of Sarju and Nandan and devolution of share in the dispute plots on the petitioner and the respondents would be according to the shares of Sarju and Nandan.

(3.) In the Khautani of 1354 Fasli, Sarju was recorded as the sole tenant of Plot No. 248 (area 0.150 hectare), Bhuidhar was recorded as the sole tenant of Plot No. 193 which was in two parts, the area of one part was 0.010 hectare and the area of the other part was 0.070 hectare. In the revenue records of 1354 Fasli, Bhuidhar was also recorded as the sole tenant of Plot No. 253 (area 0.114 hectare). In the revenue records of 1359 Fasli, Sarju was again recorded as the sole tenant of Plot No. 248 and was also recorded as the tenant of Plot Nos. 193 and 253. The dispute between the parties in the consolidation proceedings related to many plots of which the petitioner was recorded as the tenant in the basic year records. Nandan filed objections under Sec. 9-A(2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 claiming co-tenancy along with the petitioner in the plots mentioned in the objections which included Plot Nos. 193, 253 and 248. The said objections were rejected by the Consolidation Officer vide his order dtd. 5/3/1981. Before the Consolidation Officer, it was pleaded by Nandan that the name of Sarju in the revenue records of 1354 Fasli relating to Plot No. 248 was a result of a Patta executed by the then Zamindar jointly in favour of Nandan and Sarju but Sarju being the elder son of Bhuidhar got his name entered in the revenue records. The Consolidation Officer in his order dtd. 5/3/1981 recorded that there had been a partition between the parties and they were living separately and relying on the entries in 1359 Fasli, the Consolidation Officer held Sarju to be the sole tenant of the disputed plots. The order dtd. 5/3/1981 was affirmed by the Settlement Officer of Consolidation vide his order dtd. 28/4/1998. In his order dtd. 28/4/1998, the Settlement Officer of Consolidation, apart from affirming the reasons given by the Consolidation Officer, also held that the plea of Patta raised by Nandan cannot be accepted as the Patta had not been proved by the attesting witnesses of the deed. A revision was filed against the orders passed by the Consolidation Officer and the Settlement Officer of Consolidation and the Additional Collector, Mau acting as the Deputy Director of Consolidation vide his order dtd. 12/4/2002 allowed the revision and remanded back the matter to the Settlement Officer of Consolidation to pass fresh orders regarding the Patta pleaded by Nandan after considering the other evidence available on record as the attesting witness of the deed and the Zamindar who had allegedly executed the deed had already died. Subsequently, the Settlement Officer of Consolidation vide his order dtd. 10/2/2006 again dismissed the appeal filed by Nandan on the ground that the parties were living separately in 1359 Fasli as would be evident from the fact that many other plots were recorded exclusively in the name of Sarju and Nandan in the relevant revenue records and further, the Patta was not proved. It appears that in the meantime, Nandan had died and, therefore, the respondent nos. 2 to 6, being the heirs and legal representatives of Nandan, filed revision before the Deputy Director of Consolidation which was also dismissed by the Deputy Director of Consolidation vide his order dtd. 2/5/2006 on the ground that the Patta had not been proved in accordance with Sec. 68 of the Indian Evidence Act. Aggrieved, the respondent nos. 2 to 6 filed Civil Misc. Writ Petition No. 26986 of 2006 before this Court which was allowed by order dtd. 23/4/2007 and the matter was remanded back to the Deputy Director of Consolidation to pass fresh orders so far as the disputed plots were concerned. The operative portion of the order dtd. 23/4/2007 sets aside the order dtd. 12/4/2002 passed by the Deputy Director of Consolidation. The aforesaid appears to be a typographical error which was not corrected as the order passed by this Court makes reference to the order dtd. 2/5/2006 passed by the Deputy Director of Consolidation and the tenor of the order passed by this Court indicates that the cause of action for filing the writ petition was the order dtd. 2/5/2006. In any case, there was no requirement to quash the order dtd. 12/4/2002 as the said order was in favour of the respondents as by order dtd. 12/4/2002, the Deputy Director of Consolidation had remanded back the matter to the Settlement Officer of Consolidation. The aforesaid clearly indicates that the reference to the order dtd. 12/4/2002 in the operative portion of the order dtd. 23/4/2007 passed by this Court is a typographical error. Be that as it may, the Deputy Director of Consolidation subsequently by his order dtd. 31/5/2013 allowed the revision filed by respondent nos. 2 to 6 and held them to be the co-tenants of the disputed plots along with the petitioner. The order dtd. 31/5/2013 has been challenged in the present writ petition.