# Diwakar Rai v. The Dy. Director of Consolidation and others

- **Citation:** (2006) 1 ILRA 159
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-12-22
- **Case number:** Civil Misc. Writ Petition No.67402 of 2005
- **Bench:** S.N. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/diwakar-rai-v-the-dy-director-of-consolidation-and-others-40818
- **Pages:** 6

## Headnote

U.P. Consolidation of Holdings Act-1956Section-9, 12 and 27-Partition of chakonce the possession given based upon
records of rights-chak attains the status
of Holdings-as such partition of holdingpossible if the cause of action arises
before the date of notification under
section 52 of the Act.

Held: Para 11 & 12
160 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
In view of the above, this court does
n9eot agree with the arguments of the
learned counsel for the petitioner that
right of partition is available to a tenure
holder of the holdings and not of chak
holdings. Once the possession is given
on the basis of new record of right, chak
attains the status of a holding and same
rights which had accrued to a tenure
holder on the basis of final record
prepared under section 10 will accrue to
the same tenure holder in so far as chak
which is called as holding after handing
over possession on the chak allotted to a
tenure
holder
in
the
consolidation
scheme.

In the galaxy of the above provisions
and regard being had to scheme of U.P.
Consolidation of Holdings Act, it leaves
no manner of doubt that the provision of
partition of a joint holding is applicable
on all fours to the partition of a chak if
cause of action or changes arise at all
stages i.e. on publication of record under
section 9, after preparation of revised
record
under
section
12
or
after
possession
is
handed
over
after
carvation of chak and preparation of new
record of rights under section 27 of the
U.P.C.H. Act. The right of parties will
apply till a notification under section 52
of the U.P. Consolidation of Holdings Act
is made.

## Text

1 All] Diwakar Rai V. The Dy. Director of Consolidation and others
159

The Court after referring to Parbhu
v. Emperor AIR 44 P.C. 73 and
Lumbhardar Zutshi v. R. AIR 1950 P.C.
26 held that if cognizance is in fact taken
on a police report initiated by the breach
of a mandatory provision relating to
investigation, there can be no doubt that
the result of the trial, which follows it
cannot be set aside unless the illegality in
the investigation can be shown to have
brought about a miscarriage of justice
and that an illegality committed in the
course of investigation does not affect the
competence and the jurisdiction of the
court for trial. This being the legal
position, even assuming for the sake of
argument that CBI committed an error or
irregularity in submitting the chargesheet without the approval of CVC, the
cognizance taken by the learned Special
Judge on the basis of such a charge-sheet
could not be set aside nor could further
proceedings in pursuance thereof be
quashed. The High Court has clearly
erred in setting aside the order of the
learned Special Judge taking cognizance
of the offence and in quashing further
proceedings of the case."

8. I also find that the alleged
irregularity of the police officer in not
being empowered to investigate the case
is not one of the irregularities mentioned
in section 461 Cr.P.C. which vitiates
proceedings and moreover in section
460(b) it is even provided that if any
Magistrate not empowered by law orders,
under
section
155,
the
police
to
investigate
an
offence,
then
the
irregularity
does
not
vitiate
the
proceedings. Moreover, it is not claimed
that there was any miscarriage of justice
or that the applicants had been prejudiced
in any manner by the police investigating
the offence without obtaining permission
of the Magistrate.

9. In this view of the matter, I find
no error in the order taking cognizance on
the basis of the charge-sheet submitted
against the applicant. According, there is
no force in this application and it is
rejected.

However, in the circumstances of the
case if the applicants have not already
been released on bail, if they appear
before the courts below and apply for bail
within a month, the same shall be
disposed of expeditiously.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2005

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No.67402 of 2005

Diwakar Rai

 ...Petitioner
Versus
The Deputy Director of Consolidation,
Azamgarh and others
 ...Respondents

Counsel for the Petitioner:
Sri Rajendra Rai

Counsel for the Respondents:
S.C.

U.P. Consolidation of Holdings Act-1956Section-9, 12 and 27-Partition of chakonce the possession given based upon
records of rights-chak attains the status
of Holdings-as such partition of holdingpossible if the cause of action arises
before the date of notification under
section 52 of the Act.

Held: Para 11 & 12
160 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
In view of the above, this court does
n9eot agree with the arguments of the
learned counsel for the petitioner that
right of partition is available to a tenure
holder of the holdings and not of chak
holdings. Once the possession is given
on the basis of new record of right, chak
attains the status of a holding and same
rights which had accrued to a tenure
holder on the basis of final record
prepared under section 10 will accrue to
the same tenure holder in so far as chak
which is called as holding after handing
over possession on the chak allotted to a
tenure
holder
in
the
consolidation
scheme.

In the galaxy of the above provisions
and regard being had to scheme of U.P.
Consolidation of Holdings Act, it leaves
no manner of doubt that the provision of
partition of a joint holding is applicable
on all fours to the partition of a chak if
cause of action or changes arise at all
stages i.e. on publication of record under
section 9, after preparation of revised
record
under
section
12
or
after
possession
is
handed
over
after
carvation of chak and preparation of new
record of rights under section 27 of the
U.P.C.H. Act. The right of parties will
apply till a notification under section 52
of the U.P. Consolidation of Holdings Act
is made.

(Delivered by Hon'ble S.N. Srivastava, J.)

1. Impugned herein is the order
dated
28.7.2005
passed
by
Deputy
Director Consolidation whereby revision
preferred by petitioner was dismissed and
orders dated 12.3.2003 and 19.10.2004
passed by Consolidation Officer and
Settlement
Officer
Consolidation
respectively were lent affirmance.

2. It would appear from the record
that the dispute revolves round Chak no.
65
situated
in
village
Muzaffarpur
Pargana Nizamabad Tahsil Sadar District
Azamgarh of which Gorakh Rai, father of
the parties was the recorded tenure holder.
The disputants are three brothers namely,
petitioner Diwakar Rai and respondents
Vijay Bahadur Rai and Sudhakar Rai. The
Asstt. Consolidation Officer by means of
order dated 8.7.1991 passed order by
which all the three sons were pronounced
successors of Gorakh Rai of the chak no.
65, and the said chak was partitioned to
the extent 1/3 share each. There is no
dispute in so far as shares of the
contesting parties are concerned.

3. The learned counsel for the
petitioner argued that there is no provision
for partition of Chak in the entire scheme
of the U.P. Consolidation of Holding Act
and that the only provision in the Act is
contained in section 9-C of the Act which
contemplates partition of holding. He
further argues that in case the partition
has not been effected on publication of
record under section 9 of the U.P.
Consolidation of Holdings Act and chak
was
carved
out
in
the
allotment
proceeding, in that event, the chak cannot
be partitioned. It is lastly argued that the
impugned orders by which chak was
partitioned
by
the
consolidation
authorities are vitiated by reason of being
without jurisdiction.

4. I have considered the arguments
advanced across the bar and have gone
through the materials on record with the
assistance of the learned counsel.

5. From a perusal of scheme of
Consolidation
of
Holdings
Act,
it
crystallizes
that
annual
register
is
subjected to revision and record are
prepared under section 10 of the U.P.
Consolidation of Holding Act. Section 10
1 All] Diwakar Rai V. The Dy. Director of Consolidation and others
161
of the Act being germane is quoted is
below:-

"10. Preparation and maintenance of
revised annual registers- (1) The annual
register shall be revised on the basis of the
orders passed under sub-section (1) and
sub-section (2) of Section 9-A. It shall
thereafter be prepared in the form
prescribed and published in the unit.
(2) Where any entry in the annual
register, published under sub-section (1),
is modified in pursuance of an order
passed under this Act or under any other
law; a reference to the order alongwith an
extract of its operative portion shall be
noted against the said entry."

6. It is further explicit from a perusal
of the scheme that in case cause of action
arises thereafter, the same shall be dealt
with according to provision embodied in
section 12 of the Act being relevant is
quoted below:-

"12. Decision of matters relating to
changes and transactions affecting rights
or interests recorded in revised record:-
(1) All matters relating to changes and
transfers affecting any of the rights or
interests recorded in the revised records
published under sub-section (1) of Section
10 for which a cause of action had not
arisen when proceedings under section 7
to 9 were started or were in progress, may
be
raised
before
the
Assistant
Consolidation Officer as and when they
arise, but not later than the date of
notification under Section 52, or under
sub-section (1) of Section 6.
(2) The provisions of Sections 7 to 11
shall mutatis mutandis, apply to the
hearing and decision of any matter raised
under sub-section (1) as if it were a matter
raised under the aforesaid sections."

Section 12 as quoted above, envisages
that all matters relating to changes and
transactions affecting rights or interests
recorded in the revised records published
under section 10 (1) for which a cause of
action had not arisen and proceedings
under section 7 to 9 were started or where
in progress, may be raised before Asstt.
Consolidation Officer as and when they
arise but not later than the date of
notification under section 52 or under
sub-section (1) of Section 6 after
allotment of chaks, proceedings came to a
close and possession was handed over.

7. In the present, it brooks no
dispute that Gorakh Rai, father of the
petitioners and contesting Opp. Parties
was recorded in the final revised record
and cause of action arose after his death
and all the three sons of Gorakh Rai
succeeded their respective 1/3rd shares in
the chak, any by this reckoning, the cause
of action for partition arises after
preparation of final record under section
10 of the Act and hence the dispute could
be raised under section 12 of the Act. It is
further obvious from perusal of section 12
(2), that the provisions of sections 7 to 11
shall mutates mutandis apply to the
decision on any matter raised under subsection (1) of section 12 if it were a
matter raised under the aforesaid section.
In this perspective, considering that
section 7 to 11 have been made applicable
to the provisions of section 12 of the Act,
a dispute shall be deemed to have arisen
within the province of section 12 of the
Act. The matter of partition of holding is
contemplated under section 9-C of the
U.P.C.H. Act which runs as under:

"Partition of Joint Holdings.- (1) The
Assistant Consolidation Officer, or the
Consolidation Officer, may partition joint
162 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
holdings under Section 9-Add the Quick
Launcher
on
Panel,
notwithstanding
anything to the contrary contained in
Section
178
of
the
Uttar
Pradesh
Zamindari Abolition and Land Reforms
Act, 1950, or any other law, and may also
partition the same suo motu.
(2) The partition of joint holdings shall
be effected on the basis of shares,
provided that where the tenure holders
concerned agree, it may be effected on the
basis of specific plots."

8. The provisions for partition
applicable to the holding of a tenure
holder under sections 9 and 12 of the U.P.
Consolidation of Holdings Act will also
be applicable to a chak of which a tenure
holder
was
given
possession
after
preparation of new record of right under
section 27 in case a cause of action arose
thereafter and before notification under
section 52 of the U.P. Consolidation of
Holdings Act.

9. At this stage, new revenue records
are prepared under section 27 of the U.P.
Consolidation of Holdings Act. And right,
title and interest of tenure holder cease to
exist in the erstwhile plots and same
rights are created under section 30 of the
U.P. Consolidation of Holdings Act. In
this regard, section 30 (a), (b) and (e) of
the U.P. Consolidation of Holdings Act
may be referred and the same being
relevant are excerpted below:-

"30. Consequences which shall
ensue on exchange of possession.-With
effect from the date on which a tenure
holder enters, or is deemed to have
entered into possession of the chak
allotted to him, in accordance with the
provisions of this Act, the following
consequences shall ensue-
(a) the rights, title, interest and liabilities-
(i) of the tenure-holder entering, or
deemed
to
have
entered
into
possession, and
(ii) of the former tenure-holder of the
plots comprising the chak, in their
respective original holdings shall
cease; and
(b) the tenure holder entering into
possession, or deemed to have entered
into possession, shall have in his chak the
same rights, title, interests and liabilities
as he had in the original holding together
with such other benefits of irrigation from
a private source, till such comprising the
chak had in regard to them;
X
X
X
X
X
(e) the encumbrances, if any, upon the
original holding of the tenure-holder
entering, or deemed to have entered, into
possession, whether by way of lease,
mortgage or otherwise, shall, in respect of
that holdings, cease, and be created on the
holdings, or on such part thereof, as may
be specified in the final Consolidation
Scheme.

10. Under section 30 (b) of the U.P.
Consolidation of Holdings Act, it is
clearly provided that a tenure holding
entering possession or deemed to have
entered into possession shall have in his
chak the same right, title, interest and
liabilities as he had in the original holding
together with such other benefits of
irrigation from a private source till such
source exists as the former tenure holder
of the plots comprising the chak had in
regard to them. Section 30 (e) of the Act
also makes it clear that encumbrances if
any upon the original holding of the
tenure holder entering or deemed to have
entered into possession, whether by way
of lease, mortgage or otherwise shall in
respect of the holding cease and be
created on the holdings or on such part
1 All] Diwakar Rai V. The Dy. Director of Consolidation and others
163
thereof as may be specified in the final
consolidation scheme. It is clear from the
U.P.C.H. Act that a tenure holder in
whose favour the final records were
published under section 10 of the
U.P.C.H. Act and new records of rights
are prepared under section 27 he will have
the same rights, in so far as new holding
after allotment of chak is concerned.

11. In view of the above, this court
does not agree with the arguments of the
learned counsel for the petitioner that
right of partition is available to a tenure
holder of the holdings and not of chak
holdings. Once the possession is given on
the basis of new record of right, chak
attains the status of a holding and same
rights which had accrued to a tenure
holder on the basis of final record
prepared under section 10 will accrue to
the same tenure holder in so far as chak
which is called as holding after handing
over possession on the chak allotted to a
tenure holder in the consolidation scheme.

12. In the galaxy of the above
provisions and regard being had to
scheme of U.P. Consolidation of Holdings
Act, it leaves no manner of doubt that the
provision of partition of a joint holding is
applicable on all fours to the partition of a
chak if cause of action or changes arise at
all stages i.e. on publication of record
under section 9, after preparation of
revised record under section 12 or after
possession is handed over after carvation
of chak and preparation of new record of
rights under section 27 of the U.P.C.H.
Act. The right of parties will apply till a
notification under section 52 of the U.P.
Consolidation of Holdings Act is made. In
the present case Gorakh Rai father of the
petitioner and contesting opp. parties was
the tenure holder in whose name chak was
allotted and who had taken possession of
the new chak in accordance with law. The
aforesaid
Gorakh
Rai
died
before
notification under section 52 of the U.P.
Consolidation of Holdings Act and chak
which became holding of Gorakh Rai
after taking possession was inherited by
petitioner and contesting opp. parties. The
cause of action arose thereafter as all the
brothers were not ready to keep the
holding joint and hence application was
move and chak was partition. This Court
does not agree with the argument of the
learned counsel for the petitioner that
chak cannot be partitioned.

13. On merits also, it is borne out
from the record as also from a perusal of
order
dated
26.7.1996
passed
by
Collector/District
Deputy
Director
Consolidation that compromise relied
upon by the petitioner was not acceptable
to all the parties. The order passed by
District Deputy Director Consolidation
refusing to act on the compromise
between the parties has attained finality
and cannot be dug out for being acted
upon. It would appear that by the
impugned order, the partition was effected
in such manner that all the three brothers
got their land after partition in main road
and canal and as such the impugned
orders do not suffer from any blemish of
error of law apparent on the face of
record. However, as is clear from the
materials on record that one of the brother
had already constructed a house. While
taking
into
reckoning
the
house
constructed on apart of land in dispute, in
case partition is effected that portion of
the land on which house was constructed
may be allocated to the share of that
brother. This will not impinge upon the
partition already made in accordance with
law. In case the brother concerned who
164 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
had constructed house on a particular
land, was not allotted the house over the
land allotted by the impugned order, he
may move application before Deputy
Director consolidation for redressal of his
grievance to that extent only.

14. In view of above discussion, it is
held that the chak could also be
partitioned
before
notification
under
section 52 of the U.P. Consolidation of
Holdings Act in case cause of action for
partition arises.

15. As a result of foregoing
discussion, the writ petition being devoid
of merit is dismissed accordingly subject
to the above observations. There will be
no order as to costs. Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2006

BEFORE
THE HON'BLE BHARTI SAPRU, J.

Civil Misc. Writ Petition No.23854 of 1989

Dhyan Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.C. Gupta

Counsel for the Respondents:
Sri M.M. Chaturvedi
S.C.

U.P. Imposition of Ceiling on Land
Holding Act, 1960, Section 5 (6)-Gift
deed in favour of grand son (daughter's
son)-being irrevocable instrument-can
not be termed as "Benami Transaction"-
Order declaring surplus land-can not
sustained.

Held: Para 10 and 13

The proviso (b) aforesaid as it stands
says that private transaction is not a
benami transaction if it's not made for
the immediate or deferred benefit of the
tenure-holder or other members of his
family. The gift deed in the present case
is irrevocable instrument and because it
was registered, it was not benami
transaction nor it had been to the
members of the family of the donee.
Because it cannot be said that the
daughters son is the member of the
family of the donee, the daughter's son
was not included as member of the
family of donee at the relevant time.
Such being the case, the submission
made by the learned counsel for the
petitioner have force in it.

Taking into consideration the entire facts
and circumstances, I am of the opinion
that the submissions made by the
learned counsel for the petitioner have
substance and are liable to be accepted
and the impugned order of the appellate
authority suffers from manifest error law
which is liable to be set aside.

(Delivered by Hon'ble Bharti Sapur, J.)

1. This petition has been filed
against an order dated passed by the
appellate authority under section 13 of the
U.P. Imposition of Ceiling on Land
Holdings Act, 1960, by which the
appellate authority has rejected the claim
of Dhyan Singh that the gift deed made in
his favour on 16.2.1972 could not get the
benefit of proviso (b) of section 5 (6) of
the Act aforesaid.

2. The facts of the case are that one
Ramdhar was tenure holder in Village
Nagnedhi,
Pargana
Naraini,
District
Banda. Ramdhar made two transactions
on 16.2.1972 i.e. to say after coming into
force of U.P. Imposition of Ceiling on