GIRISH KUMAR Vs. DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) Heard Sri Satish Chandra Dubey, the counsel for the petitioner and Sri Anupam Kulshrestha, the counsel for respondent nos. 3, 4 and 5.

(2.) The dispute in the present writ petition as well as in the consolidation proceedings from which the present writ petition arises relates to Khata No. 55. The total area of the plots included in Khata No. 55 was 13 bigha 4 biswa. One Sukhlal, Narain Das (predecessor of respondent nos. 3 and 4) and Govind Ram, i.e., respondent no. 5 were the co- tenure holders of Khata No. 55. Sukh Lal had 1/3 share in the disputed plots. During the consolidation operations in the village, Sukhlal filed an application under Section 5(1) (C)(ii) before the Settlement Officer of Consolidation for permission to sell his share in the disputed plots and on the said application of Sukhlal, the Settlement Officer of Consolidation vide his order dated 24.7.1988 granted permission to Sukhlal to transfer his share in the disputed plots. Subsequently, Sukhlal executed a registered sale deed dated 29.2.1988 in favour of the petitioner transferring his share in the disputed plots to the petitioner. After the sale deed dated 29.2.1988, the petitioner filed an application under Section 12 of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') praying for mutation of his name in the revenue records in place of Sukh Lal. On the application of the petitioner, Case No. 145 under Section 12 of the Act, 1953 was registered in the court of Consolidation Officer. Respondent no. 5 and the predecessor of respondent nos. 3 and 4 contested the application filed by the petitioner and filed their objections alleging that the whereabouts of Sukhlal were not known for the last 25 years and also denied the execution of the sale deed dated 29.2.1988. During the proceedings in Case No. 145 before the Consolidation Officer, Sukhlal filed his affidavit and also appeared as a witness admitting the execution of the sale deed dated 29.2.1988. Relying on the testimony of Sukhlal, the Consolidation Officer vide his order dated 1.6.1989 allowed the application filed by the petitioner and directed that the petitioner be recorded in the revenue records in place of Sukhlal. The order dated 1.6.1989 passed by the Consolidation Officer in Case No. 145 was challenged by respondent nos. 3, 4 and 5 through Appeal No. 1051 filed under Section 11(1) of the Act, 1953 before the Settlement Officer of Consolidation. The Settlement Officer of Consolidation vide his order dated 22.9.1992 allowed Appeal No. 1051 and set-aside the order dated 1.6.1989 passed by the Consolidation Officer and remanded back the matter to the Consolidation Officer for a fresh decision. The order dated 22.9.1992 was passed by the Settlement Officer of Consolidation after recording a finding that the execution of the sale deed dated 29.2.1988 had not been proved because the sale deed had not been filed by the petitioner before the Consolidation Officer. The order dated 22.9.1992 passed by the Settlement Officer of Consolidation was challenged by the petitioner through Revision No. 5452 filed under Section 48 of the Act, 1953 before the Deputy Director of Consolidation, i.e., respondent no. 1. The respondent no. 1 vide his order dated 26.5.1993 dismissed Revision No. 5452 filed by the petitioner. It is pertinent to note that the sale deed dated 29.2.1988 was filed by the petitioner before the Deputy Director of Consolidation in Revision No. 5452. The orders dated 26.5.1993 and 22.9.1992 passed by the Deputy Director of Consolidation and the Settlement Officer of Consolidation respectively have been challenged in the present writ petition.

(3.) The notable aspect in the present case is that Sukhlal, i.e., the alleged vendor of the petitioner had appeared as a witness in proceedings before the Consolidation Officer, i.e., in Case No. 145 and had admitted the execution of the sale deed dated 29.2.1988. The sale deed was also proved by the attesting witnesses of the sale deed. In view of the aforesaid, the execution of the sale deed dated 29.2.1988 was proved and the failure of the petitioner to file the said sale deed before the Consolidation Officer cannot be held to be fatal to his case. In any case, the sale deed was filed by the petitioner before the Deputy Director of Consolidation in Revision No. 5452. Further, it is not the case of respondent nos. 3, 4 and 5 that Sukhlal did not appear as a witness before the Consolidation Officer and somebody else impersonating as Sukhlal was produced as a witness before the Consolidation Officer. The testimony of Sukhlal has been annexed as Annexure No. 4 to the writ petition. A perusal of the testimony of Sukhlal shows that in his cross-examination conducted by respondent nos. 3, 4 and 5, the witness was not given any suggestion that he was not Sukhlal but some other persons impersonating as Sukhlal. In view of the aforesaid, even if the sale deed dated 29.2.1988 was not proved and no rights accrued in favour of the petitioner on the basis of the said sale deed, respondent nos. 3, 4 and 5 did not have any right to challenge the order dated 1.6.1989 passed by the Consolidation Officer and only Sukhlal was entitled to challenge the order passed by the Consolidation Officer either in appeal or revision. It is not the case of respondent nos. 3, 4 and 5 that Sukhlal had died after the order dated 1.6.1989 passed by the Consolidation Officer. In view of the aforesaid, Appeal No. 1051 filed by respondent nos. 3, 4 and 5 or their predecessors against the order of Consolidation Officer was not maintainable. In his order dated 26.5.1993, the Deputy Director of Consolidation has committed the same error as the Settlement Officer of Consolidation in holding that the execution of the sale deed dated 29.2.1988 was suspicious and had not been proved by the petitioner. The validity or invalidity of the sale deed could not be challenged by respondent nos. 3, 4 and 5 but could have been challenged only by Sukhlal. Thus, the orders dated 22.9.1992 and 26.5.1993 passed by the Settlement Officer of Consolidation in Appeal No. 1051 and the Deputy Director of Consolidation in Revision No. 5452 cannot be legally sustained and are liable to be set-aside.