High Court · 2025

1. Heard Mr. K.M. Tripathi, learned counsel for the petitioners, learned Standing Counsel for the State respondents and Mr. R.P. Singh, learned counsel for private respondents.

2. The instant applications have been filed in respect to deceased petitioner no.2 and respondent no.4 along with the prayer for condonation of delay.

3. Mr. R.P. Singh, learned counsel appearing for the proposed respondent nos. 4/1 to 4/5 have no objection to the instant application.

4. The explanation given for delay is satisfactory.

5. Delay in filing the substitution application is condoned.

6. Let the word deceased be mentioned against the name of petitioner no.2 and respondent no.4 and the names of their legal heirs as mentioned in the prayer clause be substituted as petitioner nos. 2/1, 2/2 and 2/3 as well as respondent nos. 4/1 to 4/5 respectively.

7. The applications are accordingly allowed. Order on Writ Petition

1. Heard Mr. K.M. Tripathi, learned counsel for the petitioners, learned Standing Counsel for the State respondents and Mr. R.P. Singh, learned counsel for private respondents.

2. Brief facts of the case are that in the proceeding under Section 9A (2) of the U.P. Consolidation of Holdings Act, 1953 hereinafter referred to as U.P.C.H. Act, the final order was passed on 18.4.1994 by Assistant Consolidation Officer on the basis of compromise entered into between the parties. Against the order of Assistant Consolidation Officer deciding the dispute on the basis of compromise dated 18.4.1994, time barred appeal under Section 11 (1) of the U.P.C.H. Act was filed on behalf of petitioners before Settlement Officer Consolidation praying that the khata in dispute should be partitioned according to the entry of C.H. Form 5. The aforementioned appeal was dismissed by Settlement Officer Consolidation vide order dated 17.8.2001 holding that petitioners are not entitled to benefit of Section 5 of Limitation Act. The revision filed by petitioners under Section 48 of the U.P.C.H. Act has been dismissed by Deputy Director of Consolidation vide order dated 3.2.2018. Hence this writ petition filed on behalf of the petitioners for the following reliefs:- “(i) Certiorari- quashing the impugned orders dated 17.8.2001 passed by respondent no.2/ Settlement Officer Consolidation, Varanasi in appeal No. 2291/3330 u/s 11 (1) of U.P.C.H. Act (Jagdish and others Vs. Munnan and others) and order dated 3.2.2018 passed by respondent no.1/ Deputy Direction of Consolidation, Varanasi in revision No. 171 (Ravindra and others Vs. Tej Bahadur and others) u/s 48(1) of U.P.C.H. Act. (ii) Mandamus- commanding the respondents to give proper share to the petitioners in all the properties after exlcuding the chakout properties and taking into account the land sold by late Munnan (now succeded by contesting respondents).”

3. This Court entertained the matter on 2.4.2018 and granted interim protection in the matter to the effect that no third party interest shall be created without leave of the Court.

4. In pursuance of the order of this Court, the parties have exchanged their pleadings.

5. Counsel for the petitioners submitted that Consolidation Officer has not decided the share of the parties in proper manner. He further submitted that fact regarding transfer of the property already made by the recorded owner has not been taken into consideration by consolidation authorities. He further submitted that against the order of Consolidation Officer, appeal was filed along with the prayer for condonation of delay to decide the share according to the entry of C.H. Form 5 in respect to the plot in question but the appeal has been dismissed on technical grounds. He further submitted that revision filed by petitioners have also been dismissed in arbitrary manner without considering the case as set up in revision.

6. On the other hand, Mr. R.P. Singh, learned counsel appearing for private respondents submitted that matter should be remanded back before Settlement Officer Consolidation to decide the appeal afresh on merit. Two counter affidavit has been filed on behalf of respondent 2 nos. 8 and 9 that matter should be remanded back before Appellate Court to decide the appeal afresh on merit.

7. I have considered the arguments advanced by learned counsel for the parties and perused the records.

8. There is no dispute about the fact that both parties are co-sharer of the plot in question. There is also no dispute about the fact that Assistant Consolidation Officer has decided the share and the order has been maintained in appeal and revision.

9. In order to appreciate the controversy involved in the matter, the perusal of family pedigree will be relevant which is as under:- भीखा / हरखू / ……………………………………………………………………………… / गोकु ल / / अयोध्या / / बु्ቍसागर / मु्ቐन …………………… ………………………………. / / / / / रामकिकशोर सीताराम मेखुरी चेखुरी कि(cid:29)्ቫनाथ / / ……………...…………………… ……………………….. / / / / / र(cid:29)ीन््ቖ जगदीश संजय हौशला गुलाब (petitioner no.1) (petitioner no.2) (petitioner no.3) (respondent no.10) ………………………………………………………………………..…… / / / / / / तेजबहादुर लाल बहादुर रामजी कमला शंकर आशाराम प्यारेलाल [ Respondent no. 4 to Respondent no.9] 3

10. Before the Assistant Consolidation Officer, the parties were alleged to entered into compromise and the Assistant Consolidation Officer has decided the share on the basis of alleged compromise but the fact regarding transfer made regarding certain plots by branch of family has not been properly taken into consideration as well as petitioners are denying the compromise alleged to take place before Assistant Consolidation Officer accordingly the appeal was filed along with prayer for condonation of delay on behalf of petitioners but the Appellate Court has not properly exercised the jurisdiction in the matter. The Appellate Court should consider the delay condonation matter first in proper manner in the light of the judgement of this Court reported in 2022 (155) R.D.309, Ram Prakash Vs. Deputy Director of Consolidation and Others.

11. The Deputy Director of Consolidation has also not exercised his revisional jurisdiction in accordance with law as delay in filing the appeal was not inordinate as well as according to the pedigree, the share of the parties should be decided considering transfer already made by the respective parties.

12. Considering the entire facts and circumstances of the case, the impugned orders dated 17.8.2001 passed by respondent no.2, Settlement Officer Consolidation, Varanasi and 3.2.2018 passed by respondent no.1, Deputy Director of Consolidation Varanasi are liable to be set aside and the same are hereby set aside. Writ petition stands allowed and the matter is sent back before the respondent no.2, Settlement Officer Consolidation, Varanasi to register the appeal No. 2291 / 3330 under Section 11 (1) of the U.P.C.H. Act on its original number and pass necessary order for condonation of delay taking liberal view on delay condonation matter. After passing the order on delay condonation matter, the appeal shall be decided on merit in proper manner after affording opportunity of hearing to both parties expeditiously preferably within period of three months from the date of production of certified copy of this order. It is further directed that consolidation authorities shall consider that fact of the transfer already made by the co-sharer of the family while deciding the share of the parties in respect to the plot in question. Order Date :- 3.4.2025 Vandana Y. VANDANA YADAV High Court of Judicature at Allahabad 4

1. Heard Mr. K.M. Tripathi, learned counsel for the petitioners, learned Standing Counsel for the State respondents and Mr. R.P. Singh, learned counsel for private respondents.

2. The instant applications have been filed in respect to deceased petitioner no.2 and respondent no.4 along with the prayer for condonation of delay.

3. Mr. R.P. Singh, learned counsel appearing for the proposed respondent nos. 4/1 to 4/5 have no objection to the instant application.

4. The explanation given for delay is satisfactory.

5. Delay in filing the substitution application is condoned.

6. Let the word deceased be mentioned against the name of petitioner no.2 and respondent no.4 and the names of their legal heirs as mentioned in the prayer clause be substituted as petitioner nos. 2/1, 2/2 and 2/3 as well as respondent nos. 4/1 to 4/5 respectively.

7. The applications are accordingly allowed. Order on Writ Petition

1. Heard Mr. K.M. Tripathi, learned counsel for the petitioners, learned Standing Counsel for the State respondents and Mr. R.P. Singh, learned counsel for private respondents.

2. Brief facts of the case are that in the proceeding under Section 9A (2) of the U.P. Consolidation of Holdings Act, 1953 hereinafter referred to as U.P.C.H. Act, the final order was passed on 18.4.1994 by Assistant Consolidation Officer on the basis of compromise entered into between the parties. Against the order of Assistant Consolidation Officer deciding the dispute on the basis of compromise dated 18.4.1994, time barred appeal under Section 11 (1) of the U.P.C.H. Act was filed on behalf of petitioners before Settlement Officer Consolidation praying that the khata in dispute should be partitioned according to the entry of C.H. Form 5. The aforementioned appeal was dismissed by Settlement Officer Consolidation vide order dated 17.8.2001 holding that petitioners are not entitled to benefit of Section 5 of Limitation Act. The revision filed by petitioners under Section 48 of the U.P.C.H. Act has been dismissed by Deputy Director of Consolidation vide order dated 3.2.2018. Hence this writ petition filed on behalf of the petitioners for the following reliefs:- “(i) Certiorari- quashing the impugned orders dated 17.8.2001 passed by respondent no.2/ Settlement Officer Consolidation, Varanasi in appeal No. 2291/3330 u/s 11 (1) of U.P.C.H. Act (Jagdish and others Vs. Munnan and others) and order dated 3.2.2018 passed by respondent no.1/ Deputy Direction of Consolidation, Varanasi in revision No. 171 (Ravindra and others Vs. Tej Bahadur and others) u/s 48(1) of U.P.C.H. Act. (ii) Mandamus- commanding the respondents to give proper share to the petitioners in all the properties after exlcuding the chakout properties and taking into account the land sold by late Munnan (now succeded by contesting respondents).”

3. This Court entertained the matter on 2.4.2018 and granted interim protection in the matter to the effect that no third party interest shall be created without leave of the Court.

4. In pursuance of the order of this Court, the parties have exchanged their pleadings.

5. Counsel for the petitioners submitted that Consolidation Officer has not decided the share of the parties in proper manner. He further submitted that fact regarding transfer of the property already made by the recorded owner has not been taken into consideration by consolidation authorities. He further submitted that against the order of Consolidation Officer, appeal was filed along with the prayer for condonation of delay to decide the share according to the entry of C.H. Form 5 in respect to the plot in question but the appeal has been dismissed on technical grounds. He further submitted that revision filed by petitioners have also been dismissed in arbitrary manner without considering the case as set up in revision.

6. On the other hand, Mr. R.P. Singh, learned counsel appearing for private respondents submitted that matter should be remanded back before Settlement Officer Consolidation to decide the appeal afresh on merit. Two counter affidavit has been filed on behalf of respondent 2 nos. 8 and 9 that matter should be remanded back before Appellate Court to decide the appeal afresh on merit.

7. I have considered the arguments advanced by learned counsel for the parties and perused the records.

8. There is no dispute about the fact that both parties are co-sharer of the plot in question. There is also no dispute about the fact that Assistant Consolidation Officer has decided the share and the order has been maintained in appeal and revision.

9. In order to appreciate the controversy involved in the matter, the perusal of family pedigree will be relevant which is as under:- भीखा / हरखू / ……………………………………………………………………………… / गोकु ल / / अयोध्या / / बु्ቍसागर / मु्ቐन …………………… ………………………………. / / / / / रामकिकशोर सीताराम मेखुरी चेखुरी कि(cid:29)्ቫनाथ / / ……………...…………………… ……………………….. / / / / / र(cid:29)ीन््ቖ जगदीश संजय हौशला गुलाब (petitioner no.1) (petitioner no.2) (petitioner no.3) (respondent no.10) ………………………………………………………………………..…… / / / / / / तेजबहादुर लाल बहादुर रामजी कमला शंकर आशाराम प्यारेलाल [ Respondent no. 4 to Respondent no.9] 3

10. Before the Assistant Consolidation Officer, the parties were alleged to entered into compromise and the Assistant Consolidation Officer has decided the share on the basis of alleged compromise but the fact regarding transfer made regarding certain plots by branch of family has not been properly taken into consideration as well as petitioners are denying the compromise alleged to take place before Assistant Consolidation Officer accordingly the appeal was filed along with prayer for condonation of delay on behalf of petitioners but the Appellate Court has not properly exercised the jurisdiction in the matter. The Appellate Court should consider the delay condonation matter first in proper manner in the light of the judgement of this Court reported in 2022 (155) R.D.309, Ram Prakash Vs. Deputy Director of Consolidation and Others.

11. The Deputy Director of Consolidation has also not exercised his revisional jurisdiction in accordance with law as delay in filing the appeal was not inordinate as well as according to the pedigree, the share of the parties should be decided considering transfer already made by the respective parties.

12. Considering the entire facts and circumstances of the case, the impugned orders dated 17.8.2001 passed by respondent no.2, Settlement Officer Consolidation, Varanasi and 3.2.2018 passed by respondent no.1, Deputy Director of Consolidation Varanasi are liable to be set aside and the same are hereby set aside. Writ petition stands allowed and the matter is sent back before the respondent no.2, Settlement Officer Consolidation, Varanasi to register the appeal No. 2291 / 3330 under Section 11 (1) of the U.P.C.H. Act on its original number and pass necessary order for condonation of delay taking liberal view on delay condonation matter. After passing the order on delay condonation matter, the appeal shall be decided on merit in proper manner after affording opportunity of hearing to both parties expeditiously preferably within period of three months from the date of production of certified copy of this order. It is further directed that consolidation authorities shall consider that fact of the transfer already made by the co-sharer of the family while deciding the share of the parties in respect to the plot in question. Order Date :- 3.4.2025 Vandana Y. VANDANA YADAV High Court of Judicature at Allahabad 4