Ashok Bhushan - (1.) -Heard Sri Ved Singh Chaudhary, learned counsel for the petitioners and Sri Vishnu Kumar Singh appearing for the contesting respondents.
(2.) BY this writ petition, the petitioners have prayed for quashing the order dated 4th January, 2007 passed by Deputy Director of Consolidation deciding six revisions by a common order filed by the contesting respondents under Section 48 (1) of U. P. Consolidation of Holdings Act, 1953. Brief facts of the case necessary to be noted for deciding the writ petition are ; proceedings under the U. P. Consolidation of Holdings Act, 1953 started in the village. In the basic year records on the land in dispute the names of the tenure holders were recorded including one Smt. Nirmala Devi, respondent No. 8. With regard to Khata No. 524 the Assistant Consolidation Officer passed an order on the basis of the compromise partitioning the Khata amongst the tenure holders. By order dated 10th July, 1985 Sri Sukhbir Singh was allocated 1/2 share. Sri Dharampal, Smt. Indrawati and Smt. Nirmala 1/6 share each. After the order of Assistant Consolidation Officer the chak was carved out in favour of Smt. Nirmala Devi being Chak No. 472. A sale deed was executed by Smt. Nirmala Devi in favour of Yogendra Pal and others on 22.1.1998. The vendees applied under Section 12 of U. P. Consolidation of Holdings Act, 1953 for mutating their names in place of Smt. Nirmala Devi. An objection was filed both by Kunwar Pal and Sukhbir Singh separately. In the objection filed by Sukhbir Singh it was mentioned that Smt. Nirmala. who was wife of Mangal, has remarried with Kunwar Pal, petitioner No. 1. On this ground it was stated that Nirmala had no share and the application under Section 12 of U. P. Consolidation of Holdings Act, 1953 be rejected. After filing the said objection it appears objectors were advised to file appeal and they filed appeal being Appeal No. 301 of 1998 against the order of Assistant Consolidation Officer dated 10th July, 1985 on 11th March, 1998. On the same day, i.e., 11th March, 1998 objection under Section 9A was also filed by Sukhbir Singh on the ground that Mangal having died about 25 years ago and after one year of death Smt. Nirmala remarried with Kunwar Pal, hence she has no right on the land in dispute. It was stated that sale deed executed by her was invalid. The Consolidation Officer by an order dated 18.11.1998 rejected the application under Section 5 of the Limitation Act filed alongwith the objection under Section 9A dated 11.3.1998. An appeal was filed by Sukhbir Singh against the order of Consolidation Officer dated 18.11.1998. The Consolidation Officer in proceedings under Section 12 of U. P. Consolidation of Holdings Act, 1953 decided an issue with regard to objections of Kunwar Pal and Sukhbir Singh against them by an order dated 5th June, 1998. Against the order dated 5th June, 1998 Sukhbir Singh filed a revision, which revision was dismissed on 14.7.1998. Thereafter against the order dated 14.7.1998 a writ petition being Writ Petition No. 24774 of 1998 was filed by Sukhbir Singh in which an order was passed on 3rd August, 1998 by this Court observing that the Settlement Officer of Consolidation shall decide the appeal filed by the petitioners on 11.3.1998 and the application under Section 5 of Indian Limitation Act against the order passed by Assistant Consolidation Officer on the basis of compromise within one month from the date of production of a certified copy of the order. After the said order of this Court the Consolidation Officer allowed the application under Section 12 of U. P. Consolidation of Holdings Act, 1953 by order dated 20th July, 1998. An appeal being Appeal No. 519 of 1998 was filed by Sukhbir Singh challenging the order dated 20th July, 1998. The Settlement Officer of Consolidation consolidated all the appeals, i.e., Appeal Nos. 519 of 1998, 301 of 1998 and 1845 of 1998 and decided all the appeals by common judgment dated 5.12.1998. The Settlement Officer of Consolidation allowed the appeals. The order of Consolidation Officer was set aside and the Settlement Officer of Consolidation remanded before the Consolidation Officer the objections under Section 9A (2) for deciding the question regarding remarriage of Smt. Nirmala Devi after taking evidence. The order of Consolidation Officer dated 10th July, 1985 was also set aside. The order passed by Consolidation Officer dated 20th July, 1998 under Section 12 of U. P. Consolidation of Holdings Act, 1953 was also set aside and the said case was remanded to the Consolidation Officer for deciding it after impleading Sukhbir Singh as one of the parties. However, the said proceedings were stayed till the decision of the pending writ petition or till the decision of the objection under Section 9A (2), whichever is earlier. Learned counsel for the petitioners has fairly conceded that Writ Petition No. 24774 of 1998, which was filed against the order of Deputy Director of Consolidation has now become infructuous since the Settlement Officer of Consolidation has decided the appeals on merits. Against the order of Settlement Officer of Consolidation dated 5.12.1998 six revisions were filed before the Deputy Director of Consolidation which have been decided by Deputy Director of Consolidation vide order dated 4.1.2007. The order of Settlement Officer of Consolidation dated 5.12.1998 has been set aside and the order of Assistant Consolidation Officer dated 10th July, 1985 has been restored. The order of Consolidation Officer dated 18.11.1998 passed under Section 9A (2) was also maintained whereas the order of Consolidation Officer dated 20th July, 1998 deciding Section 12 of U. P. Consolidation of Holdings Act, 1953 application was set aside and the matter was remanded to the Consolidation Officer for deciding the application under Section 12 after examining the validity of the sale deed executed by Smt. Nirmla Devi on merits. Learned counsel for the respondents has submitted that the order of Consolidation Officer is dated 18.11.1998 by which delay condonation application in objection under Section 9A (2) was rejected. Be that as it may. The order of the Deputy Director of Consolidation dated 4.1.2007 has been challenged in this writ petition.
(3.) SRI Ved Singh Chaudhary, learned counsel for the petitioners, challenging the order of Deputy Director of Consolidation, contended that proceedings under Section 12 of U. P. Consolidation of Holdings Act, 1953 are proceedings of title and all issues pertaining to title and merits of the case can be decided in said proceeding. He has placed reliance on a judgment of this Court in Om Prakash v. Janki widow and others, 1965 RD 273. He further contended that Deputy Director of Consolidation has committed error in refusing to condone the delay on the objection filed under Section 9A (2). He submits that there was no delay in filing the objection and as soon as the petitioners have been given legal advice after remarriage of Smt. Nirmala Devi they filed objection on 11th March, 1998. He further contends that Smt. Nirmala Devi had no right to execute the sale deed since she has lost her right after remarriage. The Deputy Director of Consolidation also noted one of the submissions of the petitioners that since the property came from deceased husband of Smt. Nirmala Devi, namely, Mangal, she has only limited right and she could not have executed the sale deed in favour of the vendee. Reliance has also been placed on the judgment of the Supreme Court in Shanti Prasad Gupta v. Deputy Director of Consolidation, 1981 (Supp) SCC 73 and Collector, Land Acquisition and another v. Mst. Katiji and others, AIR 1987 SC 1353 : 1987 (1) AWC 675 (SC) and on the judgment of this Court in Ramji Dass and others v. Mohan Singh, 1978 ARC 496. I have considered the submissions and perused the record.;