RAM BABU Vs. DY. DIRECTOR OF CONSOLIDATION AGRA

JUDGEMENT

(1.) Heard the counsel for the parties.

(2.) The facts of the case are that Gokul Prasad, the common ancestor of the parties, had three sons, namely, Jagannath Prasad, Rameshwar Prasad and Bhagwan Das. The petitioners are the sons of Jagannath Prasad, respondent nos. 4 and 5 are the sons of Rameshwar Prasad and Bhagwan Das has been impleaded as respondent no. 6 in the writ petition. The total area of the disputed plots is 21 Bigha 13 Biwsa 8 Biswansi. According to the pedigree, the three sons of Gokul Prasad were entitled to 1/3 share in the disputed plots. However, during the consolidation proceedings in the village, an order dated 28.12.1983 was passed by the Assistant Consolidation Officer determining the share of the parties. The Assistant Consolidation Officer assigned the petitioners, i.e., the sons of Jagannath Prasad 5 Bigha 11 Bissa, the respondent nos. 4 and 5, i.e., the sons of Rameshwar Prasad, 15 Bigha 19 Biswa 7 Biswansi and the respondent no. 6 only 3 Biswa in the disputed plots. The respondent nos. 4 and 5 allege that the said order was passed on the basis of a compromise entered into between the parties before the Assistant Consolidation Officer which compromise itself was a consequence of a family settlement between the parties. The petitioners and the respondent no. 6 denied any such family settlement or compromise and it has been alleged by the petitioners that the compromise ostensibly filed before the Assistant Consolidation Officer was not signed by their fathers, i.e., Jagannath Prasad. The petitioners alleged that the alleged compromise filed before the Assistant Consolidation Officer was a forged document. On the aforesaid plea, the petitioners filed an appeal under Section 11 of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') against the order dated 28.12.1983 passed by the Assistant Consolidation Officer which was dismissed by the Settlement Officer of Consolidation vide his judgment and order dated 21.6.1988. The consequential revision filed by the petitioners was also dismissed by the Deputy Director of Consolidation vide his order dated 15.3.1993. Aggrieved by the orders passed by the consolidation authorities, the petitioners filed C.M. Writ Petition No. 8021 of 1993 which was allowed by this Court vide its judgment and order dated 18.4.2007 and the matter was remanded back to the Consolidation Officer to pass a fresh order after examining the validity of the alleged compromise arrived at between the parties. Subsequently, Case No. 170 of 2011-12 under Section 9-A(2) of the Act, 1953 was registered before the Consolidation Officer. It appears that in the meantime the records relating to the case had been weeded out. The Consolidation Officer vide his order dated 1.12.2011 determined the share of the parties on the basis of the pedigree and held that the three sons of Gokul Prasad had 1/3 share each in the disputed plots and, therefore, the petitioners and respondent nos. 4 and 5 each had 1/6 share in the disputed plots.

(3.) Admittedly, this Court vide its order dated 18.4.2007 passed in C.M. Writ Petition No. 8021 of 1993 had remanded back the matter to the Consolidation Officer and directed the Consolidation Officer to examine the validity of the compromise allegedly arrived at between the parties after giving adequate opportunity of hearing and evidence to the parties. In light of the order passed by this Court, the Consolidation Officer was bound to consider and record a finding regarding the validity of the compromise allegedly arrived at between the parties before the Assistant Consolidation Officer. In case, the parties had arrived at a compromise and the order dated 28.12.1983 passed by the Assistant Consolidation Officer was a result of the said compromise/family settlement and the compromise was not a forged document, the Consolidation Officer would not have the jurisdiction to pass fresh orders in the case on merits. Thus, the Consolidation Officer would not have the jurisdiction to pass fresh orders on merits without recording a finding that the compromise allegedly arrived at between the parties and filed before the Assistant Consolidation Officer was a forged document and was not signed either by respondent no. 6 or by Jagannath Prasad, i.e., the father of the petitioners. It is evident from the different records annexed with the writ petition especially the impugned orders passed by the Settlement Officer of Consolidation and the Deputy Director of Consolidation that the photo copy of the compromise had been filed by respondent nos. 4 and 5 in the proceedings before the Consolidation Officer after the matter was remanded back by this Court vide its order dated 18.4.2007. A party may file secondary evidence in the circumstances given in the Indian Evidence Act. Secondary evidence, if admissible has also to be proved by the party who files the secondary evidence. In view of the aforesaid, in case the respondent nos. 4 and 5 had filed the photo copy of the alleged compromise, the Consolidation Officer had to record a finding regarding the genuineness of the photo copy as well as the genuineness of the signatures of the parties on the said compromise after affording them an opportunity of hearing and after giving them an opportunity to produce their evidence to establish their respective cases. The Consolidation Officer had evidently erred in determining the share of the parties without recording any finding regarding the alleged compromise arrived at between the parties resulting in the order dated 28.12.1983 passed by the Assistant Consolidation Officer. For the aforesaid reasons, there is no illegality in the orders dated 29.8.2014 and 10.7.2015 passed by the Settlement Officer of Consolidation and the Deputy Director of Consolidation.