RAM CHANDER Vs. DEPUTY DIRECTOR OF CONSOLIDATION PRATAPGARH

JUDGEMENT

(1.) PETITIONER and opposite party no. 4 had filed objection u/Sec. 9-A (2) of U. P. Consolidation of Holdings Act, against basic year entry in favour of opposite party no. 5 It was claimed that land in dispute was acquired in representative capacity by opposite party in state of jointness with joint family fund therefore each were entitled to be recorded as co-tenant of 1/3rd. Their objection was dismissed by consolidation officer but it was allowed in appeal and the finding was affirmed by Deputy Director of Consolidation. As opposite party did not challenge this finding it has become final. But the Deputy Director while affirming finding on merits modified the appellate order and directed opposite party nos. 4, 5 to be recorded as co-tenant of 1/7th only. He was of opinion that as petitioner had not filed any appeal either separately or jointly the appellate authority had no jurisdiction to pass an order in his favour. It is against this part of the order that petitioner has filed this petition.

(2.) FROM a copy of the grounds of appeal (Annexure B) filed by opposite party nos. 4, 5 before Settlement Officer Consolidation it is clear that the appeal was filed for benefit of petitioner as well. In ground no. 9 it was mentioned that petitioner was in service at Ghaziabad. He was not present at time of filing of appeal, therefore he was being impleaded as proforma respondent and appeal was for his benefit as well. Not only this in the prayer clause it was stated that the appeal be allowed the order of Consolidation Officer may be set aside and appellant (opposite party no. 4) and respondent no. 2 (petitioner) may be declared as co-tenant with respondent no. I (opposite party nos. 4, 5). The question is whether in these circumstances the appellate authority committed any error of jurisdiction of law in allowing the appeal of opposite party and directing both him and petitioner to be recorded as co-tenant with opposite party no. 5.

(3.) APART from it Order 41 Rule 4 of Civil Procedure Code reads as under :- "One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all-where there are more plaintiffs or more defendants than one in suit, and the decree appealed from proceeds on any ground common to all the plaintiff or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the appellate court may reverse or vary the decree in favour of all the plaintiffs or defendants as the case may be." It is true that Civil Procedure Code does not apply to Consolidation of Holdings Act. Nor can it be held to apply even by implication as argued by learned counsel for opposite party in view of Vidya Ram v. State of U. P., 1968 AWR 325. But it is a general principle in order to do justice between parties. There is no reason why on analogy derived from this rule the appeal filed by one co-tenant for benefit of other co-tenant, who for some reason is not available at time of filing of appeal, should not be held competent. But only this Chapter IX and X of U. P. Land Revenue Act have been applied to Consolidation Act by Section 41. In order to carry out the provisions of Chapter IX and X paragraphs 162 to 178 have been framed under Revenue Court Manual in exercise of rule making power u/Sec. 234 of L. R. Act. By paragraph 176 provisions of Order 41 Rule 4 of Civil Procedure Code have been applied to appeal under L. R. Act. Therefore in either view of the matter the order passed by Deputy Director of Consolidation cannot be maintained.