High Court
Case Details
Court No. - 50 Case :- WRIT - B No. - 19682 of 2009 Neutral Citation No. - 2025:AHC:69447 Petitioner :- Vanshidhar Tiwari And Others Respondent :- State Of U.P. Thru Secy F And R And Others Counsel for Petitioner :- Arun Kumar Tiwari Counsel for Respondent :- C.S.C.,Deepak Dubey,Sushil Kumar Dwivedi Hon'ble Chandra Kumar Rai,J. Re: Civil Misc. Delay Condonation / Substitution Application Nos.13 & 14, both of 2018.
Legal Reasoning
1. Heard learned counsel for the parties. 2. The instant applications have been filed to substitute the legal heirs of deceased respondent nos.5 & 7 along with an application under Section 5 of the Limitation Act but in view of order dated 10.1.2020 passed by this Court, this application shall be treated in respect to deceased- respondent no.5 only. 3. Notices were issued to the proposed heirs of deceased respondent no.5 and as per office report, service is sufficient upon the proposed heirs. 4. The reason for condonation of delay mentioned in the affidavit is satisfactory. Delay in filing the substitution application is condoned. 5. Let the word 'deceased' be mentioned against the name of respondent nos.5 and the names of their legal heirs as mentioned in the prayer clause of the application be substituted as respondent nos.5/1 to 5/3.
Decision
5. The applications are, accordingly, disposed of. Re: Civil Misc. Delay Condonation / Substitution Application Nos.18 & 19, both of 2020. 1. Heard learned counsel for the parties. 2. The instant applications have been filed to substitute the legal heirs of deceased respondent no.7 along with prayer for condonation of delay. 3. The explanation given for condonation of delay is satisfactory. Delay in filing the substitution application is condoned. 4. Let the word 'deceased' be mentioned against the name of respondent no.7 and names of his legal heirs as mentioned in the prayer clause be substituted as respondent nos. 7/1 to 7/3. 5. The applications are accordingly allowed. Re: Civil Misc. Substitution Application No.17/2020. 1. Heard learned counsel for the parties. 2. The instant application has been filed to substitute the legal heir of deceased respondent no.6. 3. Application is within limitation. 4. Let the word 'deceased' be mentioned against the name of respondent no.6 and the name of his legal heir as mentioned in the prayer clause of the application be substituted as respondent no.6/1 in the array of the parties. 5. The substitution application is, accordingly, disposed of. Order on Writ Petition 1. Heard Sri Arun Kumar Tiwari, learned counsel for the petitioners and Sri Om Anand, learned standing counsel for the state-respondents. 2. Brief facts of the case are that petitioners' father Ram Akshaywar was chak holder no.592. Original holding of the petitioners' father is mentioned in C.H. form No.23 Part-1 as plot nos. 1797 and 2051/2, having 1/2 share. The father of respondent nos. 5 to 8 Nanku was chak holder no.306. The Assistant Consolidation Officer has proposed single chak to petitioners' father on plot no.2051M, area .221 hect. Private respondents are also the co-sharer of the petitioners. The Consolidation Officer in chak objection, disturbed the petitioners' chak on 1.12.2006, taking out the entire area of plot no.2051 and allotting them on plot no.1796 & 1797. Petitioners' father filed chak appeal before the Settlement Officer of Consolidation under Section 21(2) of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the "U.P. C.H. Act") which was registered as Appeal No.249. The Assistant Settlement Officer of Consolidation vide order dated 29.9.2007 allowed the petitioners' appeal in part and adjusted both the petitioners and private respondents over plot nos.2051/2, 1796 & 1797 according to their share in the aforementioned plots. Against the appellate order dated 29.9.2007, both the parties filed revision under Section 48 of the U.P. C.H. Act. The revision filed by the petitioners' father was registered as Revision No.3258/2008 and the revision filed by the private respondents was registered as Revision No.1707/2008. The Deputy Director of Consolidation vide order dated 18.2.2009 dismissed the revision filed by the petitioners and allowed the revision in part filed by the private respondents. Hence, the instant writ petition for the following reliefs:- "(i) Issue a suitable writ, order or direction in the nature of certiorari to quash the order dated 18.2.2009, passed by the Deputy Director of Consolidation, Jaunpur. (ii) Issue a suitable writ, order or direction in the nature of mandamus, commanding the respondents to provide chaks in pursuance of the order dated 29.9.2007 passed by the Settlement Officer of Consolidation, Jaunpur." 3. This Court entertained the matter on 15.4.2009 and directed the parties to maintain status quo with respect to nature and possession of the plot in dispute. 4. At the time of admission of the writ petition, respondent no.5 was represented through counsel Sri Sushil Kumar Dwivedi but no counter affidavit has been filed in the instant petition even after expiry of more than 16 years. Steps were taken by the petitioners to serve the private respondents even by way of publication but no counter affidavit has been filed in the petition. 5. Sri Deepak Dubey, Advocate has made statement before the Court that he has no instruction in the matter and his name is wrongly printed in the cause list as counsel for the respondents. 6. Counsel for the petitioners submitted that petitioners and private respondents are co-sharer and Settlement Officer of Consolidation has rightly adjusted both the parties according to their share in both the original plots, as such, there was proper exercise of the appellate jurisdiction by the Assistant Settlement Officer of Consolidation while deciding the chak appeal. He submitted that the petitioners as well as private respondents have challenged the appellate order but the Deputy Director of Consolidation has allowed the revision filed by the private respondents, taking out the area of plot no.2051 which was allotted to petitioners according to their share in the plot by the Assistant Settlement Officer of Consolidation. He submitted that the petitioners have prayed in revision that the stage of Assistant Settlement Officer of Consolidation should be maintained but that prayer was refused in revision. He submitted that the impugned revisional order should be set aside and the stage of Assistant Settlement Officer of Consolidation should be maintained. 7. On the other hand, learned standing counsel submitted that no interference is required against the order passed by the Deputy Director of Consolidation in the allotment of chak proceeding as both the parties have been allotted chak on their original plots. 8. I have considered the arguments advanced by learned counsel for the parties and perused the records. 9. There is no dispute about the fact that the petitioners and private respondents are co-tenure holder of the plot in question. 10. In order to appreciate the controversy involved in the matter, perusal of the finding of fact recorded by the Assistant Settlement Officer of Consolidation while deciding the chak appeal will be relevant which is as under:- "न्ययाययालय स० बन्ददोबस्त अधधिकयाररी चकबन्दरी, जजौनपपुर। अपरील सस0-249 धियारया-21(2) जदो०च० अधधि० बसशरीधिर आदद बनयाम मयातया ्ቚसयाद आदद। गयाम डमरुआ परगनया क०र०ददो० तहसरील- सदर धजलया- जजौनपपुर। दनररय 29.9.07 ्ቚस्तपुत अपरील च०अ० कके वयाद सस० 524 व 527 तयाररीख फफै सलया-1-12-06 कके दवरु्ቍ दवलम्ब सके ्ቚस्तपुत करकके मयााሯग दकयया हफै दक गयाटया सस० 2051 रकबया-74 दड०ममूल नम्बर हफै। स०च०अ० स्तर पर 2051 पर 21-12 ममूल्ययासकन कया चक ददयया गयया थया। च०अ०स्तर पर गयाटया सस O 1797 व 1796 पर 20-57 कया चक ्ቚदद्ቖ दकयया गयया हफै , जदो घर सके कयाफफी दमूर व खरयाब भमूदम हफै । अततः अपरील स्वरीकयार करकके स०च०अ० स्तर कया चक ्ቚदद्ቖ दकयया जयाय । उभयपकኘ कके तकरस कदो सपुनया। अदभलकेखኘ व भमू दच्ቔ कया अवलदोकन कयया। अपरील कयालवयाधधित हफै शपथ प्ቔ कके सयाथ दफया 05 कया लयाभ चयाहया गयया हफै। कदोई ्ቚदतशपथ प्ቔ नहीሻ हफै अस्तपु दमययाद कया लयाभ ददयया जयातया हफै। अदभलकेखኘ कके अवलदोकन सके पयायया गयया दक अपरीलयान्ट कया ममूल गयाटया 1797 व 2051 हफै । धजसमम इसकया 1/2 असश हफै। अपरीलयान्ट कदो स०च०अ० स्तर पर ममूल गयाटया- 205। पर 21-12 ममूल्ययासकन कया चक ्ቚदद्ቖ दकयया गयया थया। च०अ० स्तर पर ददो चक ्ቅमशतः ममूलगयाटया 1797 आदद पर 20-57 ममूल्ययासकन व दቛኌतरीय चक ममूलगयाटया-2051 पर 0-55 पफैसया कया ्ቚदद्ቖ दकयया गयया हफै जब दक ्ቚदतपकरी चकदयार-306 कदो ददो चक ्ቅमशतः ममूल गयाटया-2003 पर 28-20 ममूल्ययासकन कया व दमूसरया चक ममूल गयाट -1797 T आदद पर 20-57 ममूल्ययासकन कदो ्ቚदद्ቖ दकयया गयया थया। च०अ०स्तर परगयाटया 1797 आदद पर ्ቚदद्ቖ चक समया् करकके गयाट -205 T । पर चक्ቚदद्ቖ दकयया गयया हफै। अपरीलयान्ट कफी ममॉग स०च०अ०स्तर पर चक ्ቚदद्ቖ दकयके जयानके कफी हफै जदो उदचत नहीሻ हफै क्यኘ दक गयाटया-205। अपकेकयाकक त आबयादरी कके पयास हफै धजस पर ददोनኘ चकदयारኘ कदो चक ददयया जयानया उदचत हफै। इसरी ्ቚकयार गयाटया-1797 पर भरी ददोनኘ चकदयारኘ कदो चक ददयया जयानया उदचत हफै। स्थल दनररीकर सके पयायया गयया दक गयाटया सस 0 205। कके पशशचम ददशया मके ्ቚदतपकरी ቛኌयारया दरीवयाल बनयाई गई हफै। ऐसरी दशया मम गयाटया -205। मम पमूरब सके कपु छ ममूल्ययासकन कयाटकर अपरीलयान्ट कदो ददयया जयानया उदचत हफै । इस ्ቚकयार अपरील आस दशक स्वरीकयार दकयके जयानके यदोग्य हफै। आदकेश उपरदोकयानपुसयार अपरील आस दशक स्वरीकयार कफी जयातरी हफै। ससल्ሿ ससशदोधिन तयाधलकया धजस पर मकेरके सददनयााሯक हस्तयाकर हफै, आदकेश कया असग हदोगरी इस ससशदोधिन सके चक सस0-592 व 306 ्ቚभयादवत हदोतके हह। ससशदोधधित उ्ቍरर जयाररी हदो। बयाद अमलदरयामद प्ቔयावलरी दयाधखल दफ्तर हदो। रयाजकेश कपु मयार पयान्डकेय स०बन्ददोबस्त अधधिकयाररी चकबन्दरी, जजौनपपुर।" 11. The perusal of the finding of fact recorded by the Assistant Settlement Officer of Consolidation demonstrates that there was proper exercise of the appellate jurisdiction by the Assistant Settlement Officer of Consolidation, allotting chak to both the parties according to their share in both the original plots. 12. The exercise of the appellate jurisdiction was according to the provisions contained under Section 19 of the U.P. C.H. Act. The revisional court has illegally set aside the order of the appellate court and disturbed the petitioners' chak, taking out the entire area of plot no.1051/2 from the chak of the petitioners and allotting them on plot nos. 1796 and 1797 which is not proper exercise of revisional jurisdiction. 13. It is also material to mention that no counter affidavit has been filed by the private respondents for the last 16 years, as such, there is no other option but to decide the instant matter finally, on the basis of the averment made in the writ petition. 14. The perusal of C.H. Form No.23, order of the Consolidation Officer, Assistant Settlement Officer of Consolidation, Deputy Director of Consolidation fully demonstrates that the stage of Assistant Settlement Officer of Consolidation should be maintained between the petitioners and the private respondents. 15. Considering the facts and circumstances of the case, the impugned revisional order dated 18.2.2009, passed by the Deputy Director of Consolidation, Jaunpur/respondent no.2 is liable to be set aside and the same is hereby set aside. 16. The writ petition stands allowed and the stage of the Assistant Settlement Officer of Consolidation is hereby maintained. 17. No order as to costs. Order Date :- 1.5.2025 C.Prakash Digitally signed by :- CHANDRA PRAKASH High Court of Judicature at Allahabad