# Bechan Ali v. Dy. Director of Consolidation/ A.D.M., Siddharth Nagar and others

- **Citation:** (2001) 2 ILRA 242
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bechan-ali-v-dy-director-of-consolidation-a-d-m-siddharth-nagar-and-others-39872
- **Pages:** 5

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001
242
KDA, the KDA is legally entitled to retain
possession of the plot and not to deliver
the same to the petitioner. We are
supported in our view by a decision of
Madras High Court in Chinnathambi
Gounder Vs. Royal Gounder, AIR 1979
Madras 285, where it was held as follows:

"Where a party to an agreement for
exchange of property lost possession of
the property received in exchange due to
defect in title of the other party, the
former would be entitled to retain
possession of the property he gave in
exchange if he happened to be in
possession thereof.....

The right to get the return of the
thing transferred under Section 119 will
certainly take into its fold the right to
retain the same if such property were to
continue in the possession of a person
who was deprived of his possession due
to defect in the title of the order party to
the exchange. The right to claim the thing
transferred is a larger right which will
certainly embrace the right to continue to
be in possession."
10. In Seetaraswamy Vs. Narsingha
Panda, AIR 1975 Orissa 73, a Division
Bench held that there is no reason why the
principle should not apply to a case where
instead of a subsequent deprivation of the
property transferred, there is no transfer at
all and it impliedly followed from the
section that when a party to an exchange
has failed to obtain possession of the
property which he was entitled to receive
in exchange, then also he is entitled at his
option for the return of the property
transferred by him.

11. No direction can, therefore be
issued to the KDA to deliver possession
of plot no. 32, block 0, to the petitioner
merely on the ground that a surrendercum-fresh-free-hold
deed
has
been
executed in his favour for the said plot as
the petitioner has been found to have no
title over plot no. 47-B, block J, which he
purportedly surrendered in favour of the
KDA by way of exchange for the said
plot.

12. For the reasons mentioned
above, we find no merit in this writ
petition which is dismissed with costs of
Rs. Two thousand.

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2All] Bechan Ali V. Dy. Director of Consolidation/ A.D.M., Siddharth Nagar and others 243
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1998 RD 204

By the Court

1. The petitioner seeks to quash the
order dated 31.1.2001 passed by the
Deputy
Director
of
Consolidation,
respondent no. 1 whereby the revisions
have been allowed and the delay in filing
the objections has been condoned.

2. Briefly, stated the facts, are that
the village Sonari, District Siddharth
Nagar was notified under section 4 of
U.P. Consolidation of Holdings Act, 1953
(in short the Act). In the basic year
khatauni, the names of Gopal Krishna
Bansikar,
respondent
no.
3,
Anant
Bansikar sons of Ram Narain and
Sukhdeo Prasad son of Ram Dayal,
respondent no. 2 over the disputed plots
were recorded.

3. The version of the petitioner is
that he was in possession over the
disputed plots. He filed objection under
section 9A of the Act. The Consolidation
Officer, vide order dated 28.01.1971
allowed the objection and passed an order
to delete the names of the contesting
respondents. This order, however, was not
given effect to. The petitioners is alleged
to have filed an application under Rule
109 of the U.P. Consolidation of Holdings
Rules to give effect to the order passed by
the Consolidation Officer on 28.01.1971.
The Consolidation Officer allowed the
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
244
application vide order dated 15.09.1994
directing
to
make
the
entries
in
accordance with the order passed by the
then
Consolidation
Officer
dated
28.01.1971.

4. Respondent Nos. 2 to 4 filed
Appeal
No.
1870
of
1998-99
on
25.11.1998 against the order of the
Consolidation Officer dated 28.12.1971
along with an application to condone the
delay in filing the appeal before the
Settlement
Officer
of
Consolidation.
Another Appeal No. 1869 of 1998-99 was
filed against the order dated 15.09.1994
before
the
Settlement
Officer
of
Consolidation. Both these appeals were
dismissed by the Settlement Officer of
Consolidation on 31.12.1999. Respondent
Nos. 2 to 4 filed two separate revisions
against
the
orders
passed
by
the
Settlement Officer of Consolidation. The
petitioner
filed
an
application
on
27.12.2000 to decide the question of
limitation first. Respondent No. 1 by the
impugned order dated 31.01.2001 rejected
the application of the petitioner and
directed that the revisions be heard on
merits. This order has been challenged in
the present writ petition.

I have heard Sri H.P. Mishra,
Learned counsel for the petitioner and Sri
R.K. Chitra Gupta, learned counsel for the
contesting respondents.

5. Learned counsel for the petitioner
contended that the appeals and the
revisions
filed
by
the
contesting
respondents were not maintainable. It is
urged that the village was de-notified
under section 52 of the Act vide
Notification dated 3.3.1997 and after the
said date neither any appeal nor any
revision against any order passed by the
consolidation
authorities
was
maintainable. Admittedly Section 5 of the
Limitation Act will be applicable to any
appeal or revision filed before the
consolidation authorities. Section 53-B of
the Act provides that section 5 of the
Indian Limitation Act, 1963 shall apply to
the applications, appeals or revisions
under the proceedings under the Act or
the Rules made there under. The question
as to whether even after de-notification
the applications, appeals or revisions can
be filed alongwith an application to
condone the delay under section 5 of the
Limitation Act.

6. In Bhagwati Vs. Deputy Director
of Consolidation and others, 1983 ALJ
1250 it was held that an appeal or revision
can be filed even after de-notification
against an order which was passed prior
to the date of the de-notification although
the limitation for filing the appeal or
revision has already expired. In Mathani
Singh
Vs.
Asstt.
Director
of
Consolidation, Ghazipur, 1990 RD, 258 it
was held that a restoration application can
be filed to set aside the ex parte order
even after de-notification of the village
under Section 52 of the Act. In Radhey
Shyam and another Vs. The Deputy
Director of Consolidation, Bhadohi and
others, 1996 RD 231 an order passed by
the Deputy Director of Consolidation was
sought to be recalled on the ground that it
was ex parte even after the de-notification
of the village. The Court held that even
after denotification, the Deputy Director
of Consolidation had jurisdiction to recall
the order if the order was passed without
giving opportunity to the other side.
Various decisions were considered by me
in Ram Rati Vs. Deputy Director of
Consolidation, Banda and others 1998 RD
204 wherein the view taken by earlier
2All] Bechan Ali V. Dy. Director of Consolidation/ A.D.M., Siddharth Nagar and others 245
decisions was followed holding that even
after de-notification an appeal or revision
is maintainable if the delay is explained
by the applicant.

7. Learned counsel for the petitioner
has placed reliance upon the decision in
Writ Petition No. 5809 of 1985 (Ram
Briksh
Vs.
Deputy
Director
of
Consolidation, Gorakhpur and others)
wherein it was held that an objection
purporting to be under Section 9A(2) can
be filed only after the notification under
section 4 of the Act has been issued and
before issuance of a notification under
section 52(1) of the Act. It was a case
where the objection itself was to be filed
before the de-notification under section
52 of the Act. The Court itself made the
observation that in case the objections
were filed before de-notification under
section 52 of the Act, the position would
be different. It was not a case where an
appeal or revision was filed after denotification, along with an application to
condone the delay in filing such appeal or
revision. In Raja Ram and others Vs.
Deputy Director of Consolidation, U.P.,
Lucknow and others 1982 RD 387 it was
held that a person cannot approach the
consolidation authorities to give effect of
an order under Rule 109A read with
Section 52 of the Act. In Nanhki Vs.
Deputy
Director
of
Consolidation,
Pratapgarh and others 1995 RD 264 it was
held that if the village has been denotified by issuance of notification under
section 52(1) of the Act, an application to
make the correction is not applicable.
These cases have no application to the
facts of the present case.

8. In the present case admittedly in
the basic year khatauni, the names of the
contesting respondents were recorded.
The petitioner is alleged to have filed
application for expunging their names and
to record his name as the sole tenure
holder on the basis of adverse possession.
The contention of the petitioner is that in
fact no proceedings were taken by the
petitioner under section 9A of the Act and
the Consolidation Officer had not passed
any order on 28.01.1971. The entire
proceeding are fraudulent and secondly he
was not given any notice of such
proceedings. Thirdly, it may be noted that
the Consolidation Officer is alleged to
have passed the order on 28.01.1971
expunging the names of the contesting
respondents from the revenue record and
directing the names of the petitioner to be
recorded as sole tenure holder. This entry
was not given effect to and the petitioner
is alleged to have filed an application on
20.09.1992 to give effect to the order
passed on 28.01.1971 and in pursuance to
that application, the entries are alleged to
have been made in favour of the petitioner
on 15.09.1994. The Deputy Director of
Consolidation having found that there was
justification to condone the delay and to
hear the revisions on merits. I do not find
that it is a fit case for interference under
Article 226 of the Constitution. The
matter will be decided on merits by the
Deputy Director of Consolidation.

The writ petition is, accordingly
dismissed.
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
246
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By the Court

1. An order was passed on
29.02.2000 (annexure no. 9 of the stay
application)
by
the
District
Judge,
Varanasi in Case No. 155 of 2000
appointing the applicant Vinay Kumar
Chowdhary as Managing Trustee of the
Trush
Lachchi
Ram
Dharamshala,
Varanasi in accordance to the scheme,
dated 13.08.1938 prepared in O.S. No.
7/27. The opposite party on 29.05.2000
moved an application under order 9 Rule
13 C.P.C. to recall the order with an
application for condonation of delay in
filing the application. The application was
opposed on the ground that the opposite
party was not party in the proceedings and
therefore he has no right to apply for the
recall of the order under order 9 Rule 13
C.P.C. The application for condonation of
delay was also opposed. However, by
order, dated 21.08.2000, the learned
District Judge, Varanasi has allowed the
application for condonation of delay and
also the application for recall of the order,