Ashok Bhushan - (1.) -Heard Sri V.K.S. Chaudhary, senior advocate, for the petitioners and Sri Dharmpal Singh appearing for the contesting respondents.
(2.) BY this writ petition the petitioners have prayed for quashing the order of the Additional Collector and Deputy Director of Consolidation, Jalaun, dated 28th January, 1975, passed in Revision No. 807 of 1972-73, Sukhdeo Behari v. Smt. Pankunwar and others. This writ petition arises out of the proceedings under Section 9A of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred as 'the Act'). The dispute arose between the parties regarding the plots of khata No. 58 of village Prithvipura, pargana and district Jalaun. Khata No. 58 consisted of plot Nos. 59 area 1.40 acres and 60 area 1.20 acres. Village Prithvipura was notified for consolidation operation vide notification dated 27.1.1971 issued under Section 4 of the Act. In basic year records petitioner Smt. Pankunwar was recorded over the land in dispute. Notices under Section 9 of the Act were issued to the tenure-holders and records were published under Section 9 (a) of the Act on 30th December, 1997. Sukheo Behari respondent No. 8 (who died during the pendency of the writ petition) filed objection under Section 9A (2) of the Act claiming that name of Smt. Pankunwar is wrongly entered in the revenue records and he (Sukhdeo Behari) is tenureholder of the land alongwith Awadh Behari and Sri Krishan (respondent Nos. 6 and 7). The claim of the objector was contested by the petitioners. It was claimed by the petitioner that she is the sole sirdar of the land in dispute. Respondent Nos. 7 and 8 also filed written statement that they have no interest in the land and the petitioner Smt. Pankunwar is the sole sirdar of the land. Parties led oral and documentary evidence before the Consolidation Officer. Petitioner herself alongwith two witnesses Nathu Ram and Ram Nath appeared in the witness box. Documentary evidence including the order passed by Sub-Divisional Officer dated 16.3.1960 in the case No. 40 was filed by which the name of the petitioner was directed to be recorded over the land in dispute by the Sub-Divisional Officer. The Consolidation Officer vide his order dated 13.11.1972 rejected the objection of the respondent No. 8 of co-tenancy right and directed that the name of the petitioner be alone recorded in the revenue records over khata No. 58. An appeal was filed by the Sukhdeo Behari respondent No. 8 against the order of the Consolidation Officer. The Settlement Officer of Consolidation after hearing the appeal rejected the said appeal vide order dated 18.6.1973 affirming the order of the Consolidation Officer. A revision under Section 48 of the Act was filed by the Sukhdeo Behari respondent No. 8 before the Deputy Director of Consolidation which was registered as Revision No. 807 of 1972-73. The said revision was decided by the order dated 28.1.1975 by the Deputy Director of Consolidation. The Deputy Director of Consolidation set aside the order of the Consolidation Officer dated 13.12.1972 and the order of the Settlement Officer of Consolidation dated 18.6.1973 and remanded the matter to the Consolidation Officer to decide the matter again after giving opportunity to Badri Prasad and others to file objection. This writ petition has been filed against the said order dated 28.1.1975. It was necessary to note certain more relevant facts which emerge from the pleadings of parties for appreciating the controversy between the parties. Prior to start of the consolidation operation a Civil Suit No. 400 of 1958 was filed by Sri Har Charan and Shyam Behari for partition of their 2/3rd share in the land situate in village Prithvipura. Respondent No. 2 is the son of said Har Charan and respondent Nos. 3 to 5 are the sons of Shyam Behari. In Suit No. 400 of 1958 the defendant No. 1 was Awadh Behari, defendant No. 2 was Sri Krishan, defendant No. 3 was Sukhdeo Behari, defendant No. 4 was Smt. Pankunwar and defendant No. 5 was Gaon Sabha of Mauza Prithvipura. plot Nos. 59 and 60 were also amongst the plots mentioned in the plaint. Plaintiff's case in the aforesaid suit was that the plaintiff have 2/3rd share ; plaintiff No. 1 had 1/3rd share, plaintiff No. 2 had 1/3rd share and defendant No. 1 and 2 had 1/6th share. In the plaint if was also pleaded that name of Smt. Pankunwar was recorded in possession over the plot Nos. 50A and 60A but she is not in possession. A Joint written statement by defendants No. 1 and 4 was filed. It was stated in the written statement that in partition plot Nos. 50A and 60A were given to Smt. Pankunwar on which she is in possession. The aforesaid suit was dismissed by the learned Munsif vide its judgment dated 8.2.1960. An appeal was filed against the said judgment which appeal was allowed on 8.1.1961 by the Additional Civil Judge. The appellate court decreed the suit. Against the decree of the appellate court Awadh Behari filed a second appeal in this Court being the Second Appeal No. 2162 of 1961 along with the connected Second Appeal Nos. 2163 and 2164. These Second Appeals were dismissed by this Court vide its order dated 16.8.1967. After preliminary decree proceedings for preparation of final decree was initiated but before the final decree could be passed the notification under Section 4 was issued regarding the village Prithvipura under the U.P. Consolidation of Holdings Act, 1953. Proceedings for preparation of final decree were consequently abated by the order of the civil court in view of the consolidation operation in the village. Various objections were filed under Section 9A with regard to other khatas of village Prithvipura by respondents Awadh Behari, Badri Prasad, Shyam Bihari, Sukhdeo Behari and by other respondents. On basis of objections regarding the other khatas of the village Prithvipura different cases were registered before the Consolidation Officer in which the respondent Nos. 2 to 8 were parties including the petitioner. By order of the same date dated 13.11.1972 the Consolidation Officer decided the share in different khatas. As noted above, with regard to khata No. 58 only objection which was filed within time was objection of Sukhdeo Behari under Section 9 on which case No. 486/1417 was registered. A belated objection was filed by Badri Prasad respondent No. 2 and Shyam Behari father of respondent Nos. 3 to 5 under Section 9 of the Act with regard to plot Nos. 59 and 60 of Khata No. 58. The said objection was filed on 3.8.1973 alongwith an application under Section 5 of the Limitation Act. The Consolidation Officer rejected the said application refusing to give benefit of Section 5 of the Limitation Act vide his order dated 19.2.1974. Against the said order revision No. 564 was filed by Badri Prasad and Shyam Behari before the Deputy Director of Consolidation. The Deputy Director of Consolidation vide its order dated 23.9.1974 set aside the order of the Consolidation Officer and allowed the application under Section 5 of the Limitation Act filed by Badri Prasad and Shyam Behari and remanded the case to the Consolidation Officer for deciding the objection on merits. After the remand by the Deputy Director of Consolidation vide order dated 23.8.1974 an application was given before the Consolidation Officer on 16.4.1974 by respondent Nos. 2 to 5 praying that they are not interested in prosecuting their objection and their objection be rejected. The Consolidation Officer passed an order on 9.12.1974 on the basis of the said application rejecting the objection of Badri Prasad and others with regard to plot Nos. 59 and 60 of Khata No. 58. A copy of the said order dated 9.12.1974 has been filed as Annexure-7 to the writ petition. One more fact relevant to note is that on a report submitted by the Naib Tahsildar dated 24.2.1960 an order was passed by the Sub-Divisional Officer on 16.3.1960 in case No. 14 directing the name of the petitioner Smt. Pankunwar be recorded on plot Nos. 59 and 60 as sirdar. A copy of the said order dated 16.3.1960 was filed by the petitioner before the Consolidation Officer.
(3.) SRI V.K.S. Chaudhary, learned senior advocate, appearing for the petitioners in support of the writ petition raised following submissions : 1. The order of the Deputy Director of Consolidation dated 28.1.1975 remanding the case before the Consolidation Officer for giving opportunity to Badri Prasad and others is erroneous. Badri Prasad had not filed any objection under Section 9A with regard to plots of Khata No. 58 and the revision No. 807 in which the impugned order was passed was filed by Sukhdeo Behari in which there was no occasion for grant of relief in favour of Badri Prasad and Shyam Behari who had no objections. The order of the Deputy Director of Consolidation setting aside the order of the Settlement Officer of Consolidation and the Consolidation Officer is erroneous. The objection under Section 9 was filed only by Sukhdeo Behari, which was contested by the petitioner, the Consolidation Officer and the Settlement Officer of Consolidation both decided the case on merits in favour of the petitioner. The Deputy Director of Consolidation could not have set aside the said order on the reasons given in the said order. Badri Prasad and Shyam Behari had already filed belated objections under Section 9 in which proceedings the Deputy Director of Consolidation has already passed the order on 23.8.1974, for deciding the objections of Badri Prasad on merits which objection was subsequently got dismissed by Badri Prasad and Shyam Behari. 2. The name of the petitioner was recorded on plot Nos. 59 and 60 by the Sub-Divisional Officer in proceedings which were undertaken in pursuance of the U.P. Land Reforms (Supplementary Act), 1952 and entries made in pursuance of the order of the Sub-Divisional Officer dated 16.3.1960, were to be presumed as correct in accordance with the statutory presumption as contemplated under Section 5 of the aforesaid Act. 3. The judgment and decree of the civil court in partition suit being Suit No. 400 of 1958 had no effect on the rights of the petitioner and the said decree would not operate as res judicata between the petitioner and Sukhdeo Behari who alone filed objection under Section 9 of the U.P. Consolidation of Holdings Act. Both petitioner and Sukhdeo Behari were co-defendants in the partition suit and it was not necessary to decide the inter se dispute between the co-defendants to give relief to the plaintiff of that suit hence the said judgment will not operate as res judicata. Further, the first appellate court which decreed the suit did not advert to the claim of the petitioner nor any findings were recorded with regard to the claim of the petitioner regarding Khata No. 58. Sri Dharmpal Singh, learned counsel appearing for the contesting respondents refuting the submissions of the counsel for the petitioners contended that the remand was made by the Deputy Director of Consolidation on valid grounds. It was submitted by the learned counsel that the Deputy Director of Consolidation had remanded the matter to the Consolidation Officer to consider the effect of judgment and decree in the partition suit which will operate as res judicata. Learned counsel for the respondents lastly contended that in case this Court takes the view that the remand by the Deputy Director of Consolidation was not justified the said order be set aside and the case be remanded to the Deputy Director of Consolidation for deciding the claim on merits.;