S.N.Srivastava - (1.) THE real focus of challenge in the instant petition is on the order dated 10.6.1999 passed by Asstt. Consolidation Commissioner, Agra whereby order dated 28.10.1989 passed by Asstt. Consolidation Officer in case No. 5492 under Section 9 of the U.P.Z.A. and L.R. Act Dinesh Kumar v. State of U. P., was set aside.
(2.) BEFORE delving into the merit of the case, this Court feels called to delve into the aspect how the petitioner employed every device and tactic to ward off the final hearing and how the counsel permitted himself to be over-persuaded for the cause of his client. A brief summary of the course of this petition since its institution in the year 2000 may be recapitulated here. The petition having been instituted in the year 2000, after the order dated 6.7.2000, issuing notice to the opposite party No. 3, and granting interim order, the case was taken up on 14.5.2004 on which date it was adjourned for being put up on 25.5.2004 on the request of Sri U. K. Misra, learned counsel for the petitioner. The case was next listed on 17.7.2004 on which date, again on the request of learned counsel for the petitioner, two weeks time was granted to file rejoinder-affidavit. The case again came on board on 5.1.2005. On this date, rejoinder-affidavit stated to have been filed by the learned counsel for the petitioner, being not available on record, the case was directed to be listed in the next cause list. On 18.10.2005, the case was again passed over on the illness slip of Sri U. K. Misra, learned counsel for the petitioner. On 20.12.2005 the case again suffered adjournment by reason of illness slip of Sri U. K. Misra, learned counsel for the petitioner. On 27.2.2006, the case was again passed over on the illness slip of Sri U. K. Misra. On 28.3.2006, the case was directed to be put up next day. On 30.3.2006, the case was heard in part and it was directed to be put up/listed on 4.4.2006. On 4.4.2006, after hearing the case in part, the case was again postponed to 13.4.2006 for further arguments. On 13.4.2006, the case was directed to be listed in the next cause list. On 21.4.2006, the case was directed to be put up on 24.4.2000 attended with direction to the learned counsel for the opposite party to give written notice to the learned counsel for the petitioner. On 24.4.2006, the case was directed to be put up on 2.5.2006 on the request of Sri U. K. Misra. On 2.5.2006, the case was again directed to be listed in the next cause list. On 23.5.2006, the case was ordered to be passed over on the illness slip of Sri U. K. Misra. On 4.7.2006, stop order was passed and the case was directed to be listed on 18.7.2006. It would transpire from the record that on 17.7.2006, Sri Kamlesh Narain Pandey, filed power on behalf of the petitioner armed with a letter of Sri U. K. Misra and Sri A. K. Misra to the effect that they had no objection to his being engaged by the petitioner. However, there appears to be no application on behalf of Sri U. K. Misra or Sri A. K. Misra of the intention of reclusing themselves from the briefs. On 18.7.2006, the case was taken up. Since there was no appearance for any of the three counsels for the petitioner, learned counsel for the opposite parties was heard at prolix length. The crux that crystallizes from the above summary is that the case suffered adjournments for the causes attributable to reluctance of the petitioner for expeditious disposal of the petition. Coming to the facts of the case, it would transpire from a perusal of the record that one Subedar son of Karan Singh was recorded as bhumidhar of Khata No. 558. An application came to be made by the petitioner stating therein that the name of the petitioner recorded in Khata No. 558 as Subedar son of Karan Singh is incorrect and his correct name is Dinesh son of Ramesh Chandra and it was prayed that the name of Subedar son of Karan Singh be inked out and in his place, the name of the petitioner namely, Dinesh Kumar son of Ramesh Chand be entered in the revenue record against Gata No. 2184/1 admeasuring 1.87 acres. Pursuant to this application, Asstt. Consolidation Officer passed the order dated 28.10.1989 directing to substitute the name of Dinesh Kumar by annihilating the name of Subedar. It further transpires from the record that objection filed by petitioner on the dint of sale deed dated 19.4.1986 under Section-9A of the U.P.C.H. Act claiming to have been executed by Subedar had already been dismissed in default on 30.5.1990. It also transpires from the record that against the order dated 28.10.1989, the contesting opposite party No. 3 namely, Manoj preferred an appeal on 22.11.1995 founded on the ground that he was the adopted son of Subedar, that on the basis of the application made by Dinesh, the name of Subedar was illegally inked out without any valid basis. It would further appear from the record that Manoj came to know of the order belatedly and soon after coming to know of the order and its incorporation in C.H. Form No. 23 on 29.8.1995, he instituted an appeal on 22.11.1995 attended with application for condonation of delay. The said appeal, it would appear, culminated in being allowed. It is against this order that the petitioner preferred a revision before the Asstt. Director Consolidation which was dismissed vide order dated 10.7.1999 whereby order dated 28.10.1989 was set aside on the ground that the order in question was an illegal order obtained by the petitioner without any valid basis. If petitioner has filed any application for recall of the order dated 30.5.1990 and if the same is still pending, this order will not impinge upon petitioner's right to pursue the matter on objection under Section 9A of the U.P.C.H. Act.
(3.) HAVING bestowed my anxious consideration to the submissions advanced across the bar, what would crystallize is that the name of opposite party No. 3, he being the adopted son of Subedar, came to be mutated in place of Sri Subedar in Khata No. 684 which consisted of four plots including plot No. 2184 vide order dated 20.3.1995 as would be clear from C.H. Form No. 23 and hence appeal was rightly filed by the opposite party No. 3 after gaining knowledge of the order dated 28.10.1989 passed by Asstt. Consolidation Officer which was incorporated on 29.8.1995 in revenue record. From the materials on record, it is fully established that name of Subedar son of Karan Singh was duly recorded and there is no indicium on record to prop up the fact that the correct name of petitioner, i.e., Dinesh son of Ramesh Chandra is wrongly recorded as Subedar son of Karan Singh in the Khata aforesaid. By all reckoning, the order was a wholly illegal order and it was obtained by Dinesh Chand in his favour behind the back of Subedar or his heirs without any valid grouting and in this view of the matter, the Deputy Director Consolidation rightly set aside the said order dated 28.10.1989. Coming to the facts of the present petition, the stand taken by the petitioner in the instant petition is that Subedar had executed a registered sale deed in favour of petitioner on 19.4.1986. It seems to me to be a peculiar and contradictory stand by all appearances. From a close scrutiny of the order dated 28.10.1989, it also crystallises that the order came to be passed on the basis of application of Dinesh Kumar the text of which may be abstracted below : "Gram Dakhinara Ke Khata No. 558 Par Mera Nam Subedar putra Karan Singh Galat Darj Hai. Mera Sahi nam Dinesh Kumar son of Ramesh Chand. Ateh Nivedan Hai Ki Khata No. 558 Me Subedar Ke Isthan Par Sahi Nam Dinesh Kumar Putra Ramesh Chandra Gata No. 2184/1 Rakba 1.87 par Darj Kiya Jave. Ati Kripa Hogi." In my considered view the order passed by Asstt. Consolidation Officer is absolutely incorrect and the correctness of the approach of the authority is open to doubt. In case there was any genuine registered sale deed executed by Subedar in his favour, the appropriate course open to the petitioner was to move objection under Section 9 (A) of the U. P. Consolidation of Holdings Act. In fact objection of the petitioner under Section 9 (A) of the U.P.C.H. Act had come to be rejected on 30.5.1990. The text of application made by the petitioner amply gives the impression that the name of Subedar son of Karan Singh had been mistakenly recorded in place of name of Dinesh son of Ramesh Chandra. It rather appears to me that the petitioner took recourse to the device of moving application and illegally obtained order dated 28.10.1989 in ignorance of Subedar or his heirs as the case may be. The approach of the authority does not appear to be fair and reasonable which to all appearances was obtained on the basis of mis-statement and there is not a shred of evidence on record to prove that correct name of Subedar son of Karan Singh was Dinesh son of Ramesh Chandra. It would appear from the record that petitioner obtained the order by committing fraud upon Asstt. Consolidation Officer behind the back of Subedar. Further, it passes my comprehension, how, out of four plots, the correction of name has been sought only against plot No. 2184/1/1.87 acres to the exclusion of three other plots. Besides the above, it would also transpire from certified copy of the supplementary affidavit that objection under Section 9A of the U. P. Consolidation of Holdings Act made by the petitioner for incorporation of his name in the record on the basis of alleged sale deed had already met the fate of dismissal on 30.5.1994.;