SUMAN KUMAR PANDEY Vs. STATE OF U. P.

JUDGEMENT

(1.) Heard Sri Shashi Ranjan Srivastava, learned counsel for the petitioners and Sri Ayush Mittal, learned counsel for the respondent nos. 8 and 17.

(2.) The brief facts of the case are that one Smt. Pyari Devi had executed a registered agreement on 10/6/1960 in favour of Bechan Pandey in respect of the plot no. 180,181 and 182 situated in Village Sarvanpur Pargana Kaswar Sarkari, Tehsil and District Varanasi (new plot no. 320/182,322/180 and 323/181). The aforementioned agreement had been entered on 28/10/1960 and Smt. Pyari Devi had died in the year 1964. Respondents no. 4, 5 and 6 have filed a case and challenged the entry of Ram Nath before the Sub-Divisional Magistrate but the case had been dismissed on 23/6/1971 by the Sub-Divisional Magistrate. Consolidation operation intervened in the village in question in the year 1977-78 by way of notification under Sec. 4 of U.P.C.H. Act. In the basic year of the consolidation operation respondents no. 4,5 and 6 were recorded in respect to the plot in question. Against the basic year entry objection under Sec. 9(A)(2) of the U.P.C.H. Act had been filed by Bechan, Sahu, Sanktha and Vindhyawasini. Consolidation Officer allowed the objection vide order dtd. 3/3/1992. On the basis of order of Consolidation Officer dtd. 3/3/1992 petitioner's ancestors had been recorded in the revenue records and they have established the educational institution in the year 1992 namely Atal Bihari Bajpayee Inter College which is functioning till date. Respondents no. 4,5 and 6 had filed an appeal before the Settlement Officer Consolidation after more than 7 years under Sec. 11 of the U.P.C.H Act. Settlement Officer Consolidation vide order dtd. 25/6/2002 allowed the appeal and set aside the order of Consolidation Officer dtd. 3/3/1992 and maintained the basic year entry of the plot in dispute. Husband of respondent no. 7 namely Chhavi Nath and husband of respondent no. 17 namely Lallu have purchased aforesaid disputed plot no. 180, 181 and 182 (new plot no. 320/182, 322/180 and 323/181) from respondent nos. 4, 5 and 6 in the year 2013 in fraudulent manner. Raj Kapoor, husband of Shashi and others alongwith petitioner have filed a suit for cancellation of sale deed before the Civil Court. Raj Kapoor, husband of Shashi and others alongwith petitioner have also filed a revision under Sec. 48 of the U.P.C.H. Act on 29/11/2013 against the order of Settlement Officer Consolidation dtd. 25/6/2002. During pendency of the revision before the revisional court Raj Kapoor and Shashi have entered into compromise, accordingly, they withdraw the case on 3/2/2017. Deputy Director Consolidation on 25/1/2018 allowed the revision, set aside the appellate order dtd. 25/6/2002 and remanded the matter before the Settlement Officer Consolidation with the direction that appeal be decided afresh after impleading Gaon Sabha and affording the opportunity of hearing to all the parties as well as to lead evidence. On 1/2/2018/16/2/2018 a substitution application was filed by Parvati , Sudama and Shashi with the prayer that they may be treated as appellant in appeal in place of Vipin Bihari and others on the basis of sale deed executed in favour of Sudama and others. After filing of the aforementioned substitution application a collusive compromise has been filed in the aforementioned proceedings. On 24/7/2018 petitioners have filed objection against the substitution application dtd. 16/2/2018 filed on behalf of Parvati, Sudama and Shashi in the appeal. On 3/5/2018 Settlement Officer Consolidation has rejected the substitution application of Parvati, Sudama and Shashi. On 6/6/2019, Parvati, Sudama and Shashi have filed another application with the prayer that in the earlier substitution application in place of word substitution word party to the proceeding be amended. On 6/11/2019 Settlement Officer Consolidation, Varanasi allowed the application dtd. 6/6/2019 and ordered that Parvati, Sudama and Shashi be substituted/impleaded as appellant. Against the order dtd. 6/11/2019 passed by Settlement Officer Consolidation petitioners have filed revision under Sec. 48 of the U.P.C.H. Act which was registered as revision no. 912/2019 before Deputy Director Consolidation. Deputy Director Consolidation vide order dtd. 10/1/2023 dismissed the petitioners revision. Hence, this writ petition.

(3.) Counsel for the petitioners submitted that the Deputy Director Consolidation, Varanasi has allowed the revision filed under Sec. 48 of U.P.C.H. Act setting aside the order of Settlement Officer Consolidation dtd. 25/6/2002 and remanded the matter before Settlement Officer Consolidation to decide the appeal afresh, as such there was no question of substitution of the appellant on the basis of sale deed alleged to be executed by the appellants in favour of person who are seeking substitution/impleadment. He further submitted that on 1/2/2018/16/2/2018 substitution application filed on behalf of Parvati, Sudama and Shashi for their substitution in place of appellant on the basis of sale deed executed by appellant in favour of Parvati, Sudama and Shashi, was rejected by the Settlement Officer Consolidation. He further submitted that Parvati, Sudama and Shashi have filed another application on 6/6/2019 to amend the earlier application dtd. 16/2/2019 to the effect that in place of substitution word impleadment to the proceeding be mentioned and the Settlement Officer Consolidation without applying the mind has allowed the application, as such the order allowing the second application dtd. 6/6/2019 is liable to be set aside. He further submitted that appellant of the appeal have not died during pendency of the proceeding as such there was no question of any substitution or impleadment during pendency of the proceeding specially when the matter has been remanded by the higher court to decide the appeal afresh after impleadment of Gaon Sabha. Learned counsel for the petitioner has placed reliance upon the judgment of this Court reported in 2007 (25) LCD 112, Bhoodev Singh and Others VS. U.P. State Electricity Board and Others in order to demonstrate that when the matter has been remanded by the higher court to the subordinate court for fresh decision of the matter in accordance with law then only the parties who had been before the higher court can be heard and none else.