SUKHAN Vs. DEPUTY DIRECTOR CONSOLIDATION

JUDGEMENT

(1.) Present petition has been instituted seeking quashment of the impugned order dated 25.2.2003, passed by the Deputy Director of Consolidation by which the revision preferred by the opposite parties was allowed and direction was issued to rectify the revenue records in pursuance of the preliminary decree passed in Suit No. 56 of 1963.

(2.) The dispute in the instant petition pertains to plot No. 220 comprising in khata No. 108 situated in village Wazidpur Pargana Athgaon district Varanasi. The facts which are beyond the pale of dispute are that the entire holding comprising in Khasra Nos. 220, 252/4, 252/7, 219/6 and 219/7 originally belonged to one Harbalak. The aforesaid property descended to Parhu and Prabhu as co-parceners both sons of Harbalak. it is alleged that Parhu being karta of the joint family, contrived to secure mutation of his name in the revenue records as the sole tenure holder. Respondent No. 2 descendant of Prabhu instituted partition Suit No. 56 of 1963 under Section 229B/176 of the U.P.Z.A. and L.R. Act before the Sub-Divisional Officer/Assistant Collector for declaration and partition of his rights to the extent of 1/2 share in the holding aforestated. The aforesaid suit escalated into passing of preliminary decree vide order 25.5.1976 and name of Parhu was mutated in khatauni 1385-96 on 13.3.1979. An interim order was passed by Board of Revenue, which was recorded on 12.4.1979. However, consequent upon final order, the interim order aforestated was vacated. It is alleged that during the subsistence of aforesaid suit for partition, Parhu executed sale deed in favour of petitioner Sahdei in relation to plot No. 220 admeasuring 1.40 acre out of five disputed plots who in turn sold off the said plot in favour of Smt. Maharaji by means of sale deed dated 24.2.1967. After the preliminary decree, the matter escalated upto the stage of Board of Revenue and it is claimed that decisions at all stages leaned in favour of respondents. It is further alleged that in the meanwhile village came under Consolidation Operation under Section 4 of the U. P. Consolidation of Holdings Act on 15.6.1991 and as a necessary consequence thereof, the suit for preparation of final decree stood abated vide order dated 5.9.1992. It would further transpire that while consolidation was in operation in village, respondent No. 2 filed objection under Section 9 of the U. P. Consolidation of Holdings Act before the Assistant Consolidation Officer for settlement of his rights and it is claimed that notwithstanding the fact that the objection aforestated still remain undecided the respondent No. 2 moved some Misc. application on 15.4.1996 before the Collector, Varanasi for mutation of his name claiming genesis of his claim in the preliminary decree passed in the partition suit. This Misc. proceeding culminated in the order dated 2.7.1996 thereby it was directed to correct the revenue records by recording the name of respondent No. 2 in the basic year khatauni. It is alleged that on gaining awareness of the ex parte order, the petitioner moved application for setting aside the ex parte order. It is further alleged that the Deputy Director of Consolidation issued some direction to the Settlement Officer, Consolidation to scrutinize the matter and acting upon the direction, the Settlement Officer Consolidation took cognizance of the matter by registering three Misc. Cases Bearing Nos. 451, 452 and 453 under Section 42A of the U. P. Consolidation of Holdings Act. The proceeding in the Misc. case aforestated reached its climax vide order dated 2.7.1996 by which amaldaramad was held invalid and the order of Consolidation Officer was set aside. This order grieved the respondent No. 2 who preferred revision before the Deputy Director of Consolidation. The Deputy Director of Consolidation, in the ultimate analysis, passed order dated 25.7.2003 holding action ordered by the Consolidation Officer on the basis of preliminary decree dated 25.6.1976 to be validly taken and directed consequential action for correction of revenue entries. The precise grievance in the instant petition is that notwithstanding the fact that objection under Section 9A of the U.P.C.H. Act was sub-judice before the Assistant Consolidation Officer, the respondent No. 2 took recourse to filing of a Misc. application purported to be under Section 42A of the Act and secured order for correction of entries in the revenue records on the basis of preliminary decree passed in partition suit in the year 1976.

(3.) The learned counsel for the petitioner has assailed the order that in the basic year khatauni the name of respondent No. 2 did not figure ; that objection under Section 9A was filed before the Assistant Consolidation Officer for correction of revenue entries and for declaration of rights to the extent of one half share and that while the said proceedings were still sub-judice, the respondents initially obtained orders from the Consolidation Officer and thereafter from the Deputy Director of Consolidation for correction of revenue entries which could not be done in Misc. proceeding when Consolidation Officer was still seized of the objection under Section 9A of the Act. It is further canvassed that cognizance of Misc. proceeding purported to be under Section 42A of the Act by the Consolidation Officer was wholly supererogatory and the authorities could not have overleaped the bounds of jurisdiction by entertaining misc. application in purported exercise of Section 42A of the Act. It is further canvassed that albeit the fact that the preliminary decree passed in the year 1976 had attained finality, still execution was not resorted to for mutation of name of the basic year record. In opposition, Sri Triveni Shanker learned counsel for the opposite parties tried to vindicate the impugned orders on the premises that the preliminary decree passed in original suit under Section 229/176 of the U.P.Z.A. and L.R. Act had attained finality and as a sequel thereto, the revenue entries came to be corrected and the names of the respondents came to be recorded in the revenue record. It was further contended that the names recorded in the revenue records were wrongly expunged subsequently owing to unsustainable orders passed by the superior authority and further submitted that the Deputy Director of Consolidation has merely vindicated the earlier position and given effect to the order of the Consolidation Officer regard being had to the fact that there was in existence a preliminary decree in favour of the respondents. It has lastly been canvassed that the action pursuant to the orders of the Deputy Director of Consolidation is not fraught with any consequence detrimental to the interest of the petitioners. It has also been canvassed that the equity does not lean in favour of the petitioners and that the petitioners have instituted the present petition on hypertechnical grounds and the court of Justice being a court of equities also, the petition is not sustainable nor commends itself for being entertained for the reliefs claimed therein.