- (1.) S. P. Srivastava, J. Feeling aggrieved by the order passed by the Deputy Director of Consolidation where under the revision filed under Section 48 of the U. P Consolida tion of Holdings Act by Abdul Jabbar and others by the present respondents, was al lowed and setting aside the orders passed by the Consolidation Officer and affirmed by the Assistant Settlement Officer (Con solidation) in appeal, the land in dispute was brought within the consolidation scheme, the petitioner has approached this Court seeking redress praying for the quashing of the revisional order.
(2.) I have heard learned counsel for the parties and have carefully perused the record. The facts shorn of details and neces sary for the disposal of this case lie in a narrow compass. The village where the plots in dispute are situate, was brought within the purview of the U. P Consolidation of Holdings Act with the notification under Section 4 thereof in the year 1980. Much before the start of consolidation proceed ings a dispute in regard to the constructions raised in the plots in question as well as the possessor right in respect thereof was raised in a suit by the Mahboob and others claiming a decree of injunction in the court of Munsif City Azamgarh against Ramzan and others. The aforesaid suit was decided finally in terms of a compromise arrived at between the parties and was decreed in terms of the compromise. The respondents No. 3 to 8 were parties to the aforesaid compromise. The compromise was entered into on 26-3-79 and the suit was decreed in terms of the compromise vide the Judgment and decree dated 26-3-79. On the publica tion of the village record in the proceedings under the U. P Consolidation of Holdings Act an objection was filed by the petitioner under Section 9-A (2) of the aforesaid Act in respect of plot No. 28 having an area of 6. 9 Kari and plot No. 26/3 having an area of 0. 4 Kari praying for keeping the aforesaid land out side the consolidation scheme asserting that the aforesaid land had never been put under cultivation and therein existed the residential house of the objector, his Mar-hai and 31 trees of mangoes, two trees of guava, one tree of lemon, one tree of leechi and one Shah toot which were of more than 12 years of age. At the place where the trees had been dried up fresh trees had been planted. It was also asserted that the entire area was enclosed by a boundary wall. Another objection under Section 9 of the U. P Consolidation of Holdings Act was filed by Ezaz Ahmad, the respondent No. 4 asserting that the plot No. 28 was an agricultural plot and in some part thereof vegetable etc. , was grown and in some part paddy had been sown which crop had been harvested recently. It was also asserted that a wall had been constructed on some area of the plot. No. 28 and a temporary structure had been raised in an unauthorised manner. It was indicated in the objections that the entire plot No. 28 had been kept within the consolidation scheme but the valuation of the constructions raised therein had not been determined. It was also pointed out that certain saplings of mango trees had also been put in the land in dispute recently. Ezaz Ahmad prayed that the value of the constructions etc. , which were existing in the portion of the plot No. 28 be deter mined. The aforesaid objection related to the entire plot No. 28. After filing the aforesaid objection, the respondents No. 3 to 8 filed written reply to the objection filed by the petitioner. In their reply the respon dents asserted that the entire plot No. 28 was an agricultural holding the northern portion whereof was utilised for growing vegetable etc. , and after harvesting the crop the entire plot was ploughed. It was also asserted that towards the north-east and west side of the plot a wall had been con structed recently and a temporary structure was raised covering an area of 8 to 10 karies. The valuation of the constructions had not been determined. It was prayed that the aforesaid valuation be determined. This reply was submitted on 20- 11-81. Thereafter it appears that the petitioner moved an ap plication before the Deputy Director of Consolidation asserting that the land which was sought to be excluded from the con solidation operations was long back con verted into Abadi and the rights and title in respect thereof in between the parties had been finally determined on the basis of the compromise which formed part of the decree passed by the civil court of com petent jurisdiction. The petitioner who claimed to be aged about 85 years requested the Deputy Direc tor of Consolidation to inspect the spot and directed for the exclusion of the land in dispute from the consolidation scheme and prohibit the Consolidation Officer from al lotting the same in any chak.
(3.) IT appears that the land in dispute was inspected by the Consolidation Officer on 1-1-82 pursuant to the direction issued by the Deputy Director of Consolidation. In his report it was noticed by him that on the three sides of the land in dispute a boundary wall up to the height of 3 1/2 to 4' which was a permanent structure had already been built up but on the southern side it had not been joined permanently and there was a temporary wall of baked bricks. There was also a shed with a door and the foundation for a residential house had already been laid. IT was also found that a small room which was a permanently structure had also been raised. The Consolidation Officer found that there existed 31 trees of mango, two trees of guava, one tree of leechi, one tree of lemon, one tree of Shah toot which were of a height of about 3 1/2'. On visual observation the Consolidation Officer as sessed the age of the trees to be three years although they were claimed to be of five years. He, however, observed that since the matter regarding the exclusion of the land in dispute from the provisional consolidation scheme was under consideration, it was not proper to express any opinion. On the receipt of the aforesaid report the Assistant Settlement Officer (Consolidation) re quested the Deputy Director of Consolidation to dispose of the objection under Sec tion 9-A (2) of the Act filed by the petitioner as early as possible. The Deputy Director of Consolidation thereafter called for a fresh report calling for an explanation as to why the improvement made on the land in dis pute had not been noted in the C. H. Form 2-A at the time of consolidation Partal. In the meanwhile, the Consolidation Officer disposed of the objections filed by the petitioner vide Judgment and order dated 30-10-83, he came to the conclusion that taking into consideration the existing con structions on the land in dispute and the trees standing; thereon the said land was not fit for consolidation and the assertions made in the objection filed by the respon dents were not correct the land in dispute was, therefore, ordered to be kept out side consolidation scheme allowing the objec tions filed by the petitioner. Abdul Jabbar and others felt ag grieved by the aforesaid order and chal lenged the same in appeal. The appellate authority took consideration the decree passed by the Civil Court and the terms of the compromise the map which formed part of the compromise and the statement of Abdul Munnid recorded in the aforesaid suit which had been decreed on 2-5-79. He also noticed that the bricks which had been used in the southern boundary wall indi cated that they were of the year 1977. He also noticed that there was a pucca room having a verandah in front of it, the founda tion whereof was complete. There was a hand pump as well as tin shed also and there several fruit bearing trees. Considering the evidence on the record the Assistant Settle ment Officer (Consolidation) came to the conclusion that the boundary wall and the room were pre 1979 constructions. He also came to the conclusion that the possession of the petitioner over the land in dispute as claimed was admitted by the contesting respondents to be of a period of more than 12 years and they had also admitted that they had no concern with the land in dispute. The appellate authority also came to the conclusion that the land in dispute was not fit for cultivation at all. The claim of the appellant that the trees had been planted during the consolidation operation was specifically disbelieved holding that the publication of the notification under Sec tion 4 (2) of the Act was done on 27-6-80 and the trees were there in existence from much before one year from the dale of the notification. So far as the omission to note the existance of the trees in CH From 2-A, the appellate authority observed that it was an error on the part of the consolidator who appeared to be in collusion with the appel lant. The Assistant Settlement Officer (Consolidation) also came to the con clusion that the land in dispute being a grove and having been enclosed from the pucca boundary wall did not deserve to be brought within the consolidation scheme. The appeal was accordingly, dismissed.;