K.N. Misra, J. - (1.) HEARD learned Counsel for the Petitioner and perused the impugned orders passed by opposite parties No. 1 to 3. Briefly stated the facts of the case are as follows: It appears that during consolidation operations Smt. Kanti Devi widow of Late Badri Prasad of village Mustafa, Pargana Kora, Tahsil Binkdi, district Fetehpur was declared as co -sharer along with Kamta Prasad son of Nandi Lal over the plots in question. This order was passed by the Deputy Director of Consolidation on 6.10.62. It was, however, omitted to be incorporated in the papers and in the meantime the village was denotified Under Section 52 of the U.P. Consolidation of Holdings Act. Since the name of Smt. Kanti Devi was not recorded as co -tenure holder along with the Petitioner Kamta Prasad in the revenue papers in pursuance of the aforesaid order passed by the Deputy Director of Consolidation, she had moved an application for correction of papers Under Section 33, 39 of Land Revenue Act. It was prayed that the revenue records be corrected and her name be recorded as co -tenure holder along with Kamta Prasad. This application for correction of papers was opposed by Kamta Prasad; firstly, on the ground that after lapse of ten years the order passed by the Deputy Director of Consolidation cannot be incorporated in the revenue records on her application for correction of revenue records moved Under Section 33, 39 of the Land Revenue Act. Secondly it was also asserted that on the basis of subsequent compromise between the parties, the applicant Smt. Kanti Devi cannot be recorded as co -sharer. It was alleged that the compromise was affected between the parties on 9.11.1963 before the Consolidation Officer after the aforesaid decision of the Deputy Director of Consolidation, and, as such, her name cannot be recorded. The learned Sub -Divisional Officer vide order dated 5.8.1972 allowed the application for correction of papers and directed the name of Smt. Kanti Devi to be recorded as co -tenure holder along with Kamta Prasad on the plots in question on the basis of aforesaid order dated 1.2.1963 passed by the Joint Director of Consolidation. The Appellant had filed before the Sub -Divisional Officer copy of the judgment and order dated 28.2.1962 passed by the Consolidation Officer and also the order dated 9.4.1962 passed by the Settlement Officer, Consolidation. The order dated 6.10.1962 passed by the Deputy Director of Consolidation confirming the orders of the subordinate consolidation authorities were also filed. The order passed by the Joint Director of Consolidation dt. 1.2.63 was also filed. In view of all these orders wherein claim of Smt. Kanti Devi was upheld, the learned Sub -Divisional Officer had directed correction of papers to be made for recording the name of Smt. Kanti Devi as co -tenure holder along with Kamta Prasad. The learned Additional Commissioner in his order dated 5.4.1975 has considered the argument advanced on behalf of the revisionist to the effect that the earlier order passed by the consolidation authorities could not be enforced because subsequently there was a compromise between the parties in which Smt. Kanti Devi had given up her claim. It has been observed by the Additional Commissioner that the alleged compromise appears to be fictitious and no reliance can be placed on this compromise. He has assigned good reasons for coming to that conclusion. The compromise was not personally signed by Smt. Kanti Devi. Learned Counsel had stated that it was signed by Mukhtar. Such a compromise in view of the facts and circumstances of the case, could not in my opinion be binding on the lady. The revision filed by the Petitioner against the orders passed by the Sub -Divisional Officer as well as by the Additional Commissioner was rejected by the Board of Revenue vide order dated 20.4.1985 confirming the findings recorded by the lower revisional court. These orders have been challenged by the Petitioner in this writ petition.
(2.) LEARNED Counsel for the Petitioner urged that the application for correction of papers Under Section 33/39 of the Land Revenue Act was not maintainable for incorporating the orders passed by the consolidation authorities some ten years back. Learned Counsel urged that since the aforesaid orders were: not incorporated in the revenue records before the village was denitrified, and, as such, the application Under Section 33/39 was not maintainable. In respect of his contention learned Counsel placed reliance upon a decision in Santosh Kumar v. Board of Revenue, 1981 (2) RD 55, wherein the Sub -Divisional Officer had directed issue of parvana amaldaramad Under Rule 109A of the Rules framed under the U.P. Consolidation of Holdings Act. In respect of this order it was held that the orders sought to the mutated must be one which is covered Under Section 52(2) of the U.P. Consolidation of Holdings Act. If any case or proceedings was pending under the U.P. Consolidation of Holdings Act on the date of issue of notification Under Sub -section (1) of Section 52 of the Act, then the orders passed therein shall be given effect by such authorities as might be prescribed and for that purpose the consolidation operations shall not be deemed to have been closed. In the said case it was not disputed by the opposite parties No. 2 and 3 that no case or proceedings were pending on the date of notification Under Section 52(1) of the Act in respect of the land in dispute. Consequently Section 52(2) of the Act could not have any application to the facts of the case. In this view of the matter it was held that Rule 109A could not be invoked in that case. There cannot be any dispute to the proposition of law laid down in the aforesaid decision. The provisions of Rule 109A of the U.P. Consolidation of Holdings Act would be attracted for incorporating order passed in a case which was pending on the date of detoxification Under Section 52(1) of the Act. In the present case final orders were passed by the Joint Director of Consolidation on 1.2.1963 and the claim of Smt. Kanti Devi was upheld and she was held to be co -tenure holder along with the Petitioner Kamta Prasad. This order should have been incorporated in the papers by the consolidation authorities as was required by Rule 29 which provides that where necessary as a result of orders passed Under Sections 11 and 48, supplementary C.H. Form No. 7 shall be prepared in the manner prescribed Under Rule 27A Sub -rules (1) and (2) and (3) to show alterations in the land revenue on the holdings since the preparation of the original C.H. Form No. 7 Under Rule 27A.
(3.) IT is well settled that no one should suffer on account of lapses of the court itself. The orders passed by the consolidation authorities in favour of Smt. Kanti Devi were to be incorporated by the consolidation authorities. Having not done so, the consolidation authorities would be taken to have not exercised powers vested in them properly. Unless the orders are duly incorporated as required under the provisions of U.P. Consolidation of Holdings Act and the Rules framed there under, the proceeding in respect thereof cannot be said to have been concluded before detoxification of the village. Since the said orders were not duly incorporated in the relevant revenue records by the consolidation authorities by the date of detoxification, and, as such, the proceedings for making incorporation of the order would necessarily be taken to be pending on the date of notification issued Under Section 52(1) of the Act. The Amaldaramad of the orders passed by consolidation authorities therefore, could be made even after detoxification of the village as the proceedings relating to it, which might and ought to have been carried out under the rules, would be taken to be pending and the said orders could be incorporated by the authorities referred in Rule 109A of the U.P. Consolidation of Holdings Rules in exercise of powers there under. However, since the impugned orders regarding amaldaramad of orders have not been passed in exercise of power under the Rule 109A and, as such, we are not required to discuss further the scope of said provision.;