ACHCHEY LAL Vs. ASSTT DIRECTOR OF CONSOLIDATION GORAKHPUR

JUDGEMENT

(1.) BINOD Kumar Roy, J. The petitioners pray to wash the Appellate Order dated 31-3-1980 passed by the Assistant Settlement Officer (Consolidation), Gorakhpur (Respondent No. 2) in Appeal No. 193 and the Revisional Order dated 1-11-1980 passed by the Assistant Director of Consolidation, Gorakhpur in Revision No. 1112/2328. THE FACTS :

(2.) THE relevant facts are in a narrow compass. THE basic year consolidation entry made under the U. P. Consolidations of Holdings Act (hereinafter referred to as the Act) of plot No. 441 (area 4 decimals) appertaining to Khaia No. 103 village Kutubhar, district Gorakhpur was in the name of Daya Shanker, son of Mithai. THE petitioners claim that their father purchased the aforementioned land from Daya Shanker and got his name mutuated and the name of the vendor Daya Shanker was expunged. Respondent No. 3 Nachchhed filed an objection under Section 9-A (2) of the Act claiming that the land in question to be bhumidhari of his father and uncle after whose death he came in possession; that even though only 5 decimals of land was transferred by the Daya Shanker, who had no concern or interest inasmuch as neither his father nor had his uncle transferred any land out of the plot to Daya Shanker and if Daya Shanker had executed any deed in favour of the petitioners on the basis of farzi entry, the same is not binding on him, who illegally got their name mutated in regard to 9 decimals of lands of the disputed plot, which measures. 17 decimals. Respondent No. 3 also filed an application under Section 5 of the Limitation Act to condone the delay occurred in preference of his objection. By order dated 8. 6. 1976, the Consolidation Officer condoned the delay. THE order condoning the delay was challenged by filing a revision which was dismissed on 2. 11. 1976. THE defence of the petitioners was to the effect that since the land in question stands recorded as abadi in Form No. 2-A, the objection is not maintainable. THEy also asserted the validity of the right title, and interest of the transferer and the genuineness of the sale- deed. THE Consolidation Officer formulated 4 issues:- (i) whether Nakchhed is the bhumidhar of the lands in question and in possession thereof ? (ii) whether Daya Shanker had any right to sell the land in question? (iii) whether the name of Achchey Lal was entered fan. 11 and (iv) whether the objection of Nakchhed is maintainable? THE parties adduced evidence to support their respective cases. However, the Consolidation Officer decided Issue No. 4 alone as he thought that if the said issue is decided in favour of 'the objector then only it would be necessary to decide the other three issues; and that since the land is abadi it does not come under definition of the word "land" defined under the Act and, thus, the other issues cannot be adjudicated by the consolidation courts and did not decide them on merits. Respondent No. 3 went up in Appeal. His Appeal bearing No. 193, was allowed by the order dated 31-3-1980 passed by the Asstt. Settlement Officer (Consolidation), Gorakhpur and the case was remanded the Consolidation Officer on the following grounds : (i) title of 4 decimals of the land in plot No. 441 was required to be adjudicated; (ii) whether the said land was bhumidhari of the Appellant or of ,the Respondents was also required to be adjudicated (iii) the finding of the Consolidation Officer that the dispute is beyond his jurisdiction is not correct and ; (iv) the Consolidation Officer ought to have given his judgment in regard to all issues framed by him, and since he was not adjudicated the other issues, it is necessary to remand the case. THE petitioners went up in Revision No. 1112/2328, which was dismissed by order dated 1. 11. 1980 of the Assistant Director of Consolidation, Gorakhpur on the ground that the case was correctly remanded and no interference is required. THE SUBMISSIONS :

(3.) LEARNED counsel for the petitioners, in reply, submitted that the dispute between parties was not in regard to the entire land measuring 17 decimals, but only 4 decimals in regard to which respondent No. 3 had filed his objections and that it is true that the petitioners in their defence has also stated that they were bhumidhars of the land in question but since the land in question was held to be abadi, the Consolidation Officer has correctly held to have no jurisdiction to adjudicate the issues cropped up between the parties and the only form left for Respondent No. 3 was/is to approach the Civil Court. The decision relied upon by the learned counsel for Respondent No. 3 is not applicable in view of the patent fact that in that case the entire lands of the plot was involved whereas in the instant case only 4 decimals out of the 17 decimals of the land were subject-matter of the dispute. In Trilokinath v. Ram Gopal, 1974 RD 5, a Division Bench of this Court had held that if the land in dispute is not covered by the Act then it cannot be subject-matter of dispute before the Consolidation Courts and the said courts shall have no jurisdiction to decide the question of title of the parties. In Anis Ahmad (supra), this court was considering the claim of the petitioners of being sirdar of 58 decimals of land on a portion of which stood house and mosque and, thus, the ratio laid down there is not applicable to the facts and circumstances of the instant case in which as already stated only 4 decimals of abadi land was subject- matter of the dispute which finding was recorded on the basis of entries made in C. H. Form No. 2. MY FINDINGS :