# Jageshwar & Anr v. D.D.C. Lko. & Ors

- **Citation:** (2024) 4 ILRA 1320
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-08
- **Case number:** Writ-B No. 694 of 2012
- **Bench:** Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jageshwar-anr-v-d-d-c-lko-ors-51802
- **Pages:** 9

## Headnote

A. Civil Law - Constitution of India,1950Article 226-U.P. Consolidation of Holdings
Act,1953-Section
48-The
petitioners
claimed property rights over Plot No.194
recorded
in
the
name
of
their
grandmother
under
successionRespondent no. 4 claimed rights as
Maika's brother in law, asserting she was
issueless-Respondent 5 to 10 claimed
4 All. Jageshwar & Anr. Vs. D.D.C. Lko. & Ors.
1321
right through an unproven will-Held, -
Procedural lapses occurred as no issue
were framed regarding the petitioner's
claims-The
appellate
and
revisional
authorities failed to ensure adherence to
statutory
requirements,
depriving
the
petitioners of a fair hearing-The court set
aside the orders and remanded the matter
to the Consolidation Officer-the officer
was directed to frame issues, allow
evidence and decide afresh within one
year.(Para 1 to 37)

The writ petition is allowed. (E-6)

List of Cases cited:

## Text

1320 INDIAN LAW REPORTS ALLAHABAD SERIES
of the sub-division, the Tahsildar, the NaibTahsildar, the Supervisor kanungo, and the
Lekhpal of the area to which the case
relates shall, respectively, perform the
functions and discharge the duties of the
Settlement
Officer,
Consolidation,
Consolidation
Officer,
the
Assistant
Consolidation Officer, the Consolidator
and the Consolidation Lekhpal respectively
for the purpose of giving effect to the
orders aforesaid.'

9. From the conjoint reading of the
section and the rule as quoted above, the
position as far as the rights of the
petitioners, which is very clear that even
after the publication under Section 52 for
closing the consolidation operations in the
village will not be affected as Sub-Section
2 of Section 52 of the Act, 1953 provides
that in cases or proceedings pending under
this Act on the date of issuance of the
notification under Sub-Section 1 shall be
given effect to by such authorities as may
be
prescribed
and
the
consolidation
operation shall, for the purposes be deemed
to have not been closed and Rule 109A(1)
provides the authorities who shall give
effect to the orders passed by the
Consolidation authorities.

10. The rights of the petitioners are
protected under the statute itself and mere
pendency
of
the
objections
of
the
petitioners under Section 9A(2) of the Act,
1953 will not come in the way of issuing a
notification under Section 52(1) of the Act,
1953 regarding closing of the consolidation
operations in the village or the villages and
by notification under Section 52 of the Act,
1953 or publication under Sections 10, 20,
23 will not prejudice any of the rights of
the petitioner as already mentioned above.
The apprehension of the petitioners that
publication under Section 10, Section 20,
Section 23 and Section 52 of the U.P.
Consolidation of Holdings Act, 1953 would
adversely affect the rights, has no basis as
sufficient protection in regard to the
pending cases under Section 52(2) of the
Act, 1953 read with Rule 109A(1) of the
Rules, 1954.

11. In view of the facts,
circumstances
and
discussion
made
hereinabove, the present writ petition being
devoid of merit is dismissed.
----------
(2024) 4 ILRA 1320
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.04.2024

BEFORE

THE HON'BLE MANISH KUMAR, J.

Writ-B No. 694 of 2012

Jageshwar & Anr. ...Petitioners
Versus
D.D.C. Lko. & Ors. ...Respondents

Counsel for the Petitioners:
Piyush Chandra Agarwal, Abdul Shadab Khan,
Abhinav Trivedi, Durgesh Kumar Rajput, Jay
Prakash Singh, Paresh Mishra, Parijat Mishra
Belavra, Pradeep Kumar Singh, Rajendra Pratap
Singh, Ravi Prakash Mishra, Sameer Kumar,
Satyendra Kumar Tiwari

Counsel for the Respondents:
C.S.C., Amit Tripathi, Anand Mani Tripathi,
Mohd. H.U. Ansari, Shashendra Pratap Singh,
Sher Bahadur Yadav

A. Civil Law - Constitution of India,1950Article 226-U.P. Consolidation of Holdings
Act,1953-Section
48-The
petitioners
claimed property rights over Plot No.194
recorded
in
the
name
of
their
grandmother
under
successionRespondent no. 4 claimed rights as
Maika's brother in law, asserting she was
issueless-Respondent 5 to 10 claimed
4 All. Jageshwar & Anr. Vs. D.D.C. Lko. & Ors.
1321
right through an unproven will-Held, -
Procedural lapses occurred as no issue
were framed regarding the petitioner's
claims-The
appellate
and
revisional
authorities failed to ensure adherence to
statutory
requirements,
depriving
the
petitioners of a fair hearing-The court set
aside the orders and remanded the matter
to the Consolidation Officer-the officer
was directed to frame issues, allow
evidence and decide afresh within one
year.(Para 1 to 37)

The writ petition is allowed. (E-6)

List of Cases cited:

1. Ram Dular Vs DDC, Jaunpur & ors. Suppl. (2)
SCC 198

2. Smt. Baijnath & anr.. Vs DDC Varanasi & ors.
(1997) RD 433

3. Ram Prasad & ors. Vs DDC Pratapgarh & ors.
(Consolidation No. 2205 of 1980)

(Delivered by Hon'ble Manish Kumar, J.)

1. Heard Shri Abhinav Trivedi,
learned counsel for the petitioners, Shri
Hemant Kumar Pandey, learned Standing
Counsel and Shri Anand Mani Tripathi,
learned counsel for the respondent no. 4
assisted by Shri P. Venkatesh, Advocate.
However, as far as respondent nos. 5 to 10
are concerned, it is mentioned in the
service report dated 23.10.2013 that notices
were issued to them by speed post but
neither any undelivered cover received
back as yet and none appear for their
behalf. It has also been apprised to this
Court that Shri Sher Bahadur Yadav had
filed vakalatnama on 17.05.2023 on behalf
of respondent no. 4 but due to some
inadvertence,
respondent
no.
6
was
mentioned in place of respondent no. 4.

2. Present petition has been
preferred for quashing of the judgment and
order of the revisional Court dated
20.09.2012 passed by the Deputy Director
Consolidation i.e. respondent no. 1 under
Section 48 of the Consolidation and
Holdings Act, 1953 (hereinafter referred to
as, the Act, 1953) and the impugned
judgment and orders dated 02.07.2010 and
dated 31.10.2005 passed by the Settlement
Officer (Consolidation). Quashing of the
impugned judgment and order dated
28.07.2005 passed by the respondent no. 3Consolidation Officer as well as the
impugned order dated 04.07.2005 i.e. the
order
of
remand
passed
by
the
Consolidation Officer have also been
challenged.

3. At this stage, learned counsel for
the petitioners has submitted that the
petitioners may be permitted not to press
the prayer made in the present petition as
far as it is related to the quashing of the
impugned orders dated 28.07.2005 and
04.07.2005.

4. As prayed, the petition is
dismissed as not pressed as far as it is
related to prayers whereby quashing of the
impugned orders dated 02.07.2005 and
04.07.2005 has been challenged.

5. Learned counsel for the
petitioners has submitted that Village
Sarawan, Pargana, Tehsil and District
Lucknow had undergone in consolidation
proceedings vide notification issued under
Section 4(2)of the Act, 1953 on 31.01.1970
and the notification under Section 52 of the
Act, 1953 was issued on 11.02.2006.

6. The dispute in the present
petition is with regard to the plot No. 194,
which was recorded in the name of late
Maika-wife of i.e. the grand mother of the
petitioners.
1322 INDIAN LAW REPORTS ALLAHABAD SERIES
7. It is further submitted that the
petitioners being the grand son of late
Maika moved an application under Section
12
of
the
Act,
1953
before
the
Consolidation Officer for taking decision
on matters relating to changes and
transactions affecting the rights or interest
recorded in the revised records. The said
application preferred by the petitioners
were allowed by order dated 17.07.2004.

8. Against the order dated
17.07.2004, an appeal was preferred by late
Ram Khelawan before the Settlement
Officer (Consolidation) under Section 11 of
the Act, 1953 stating therein that his
objection under Section 12 was pending
and without deciding the same, the
application of the petitioners were allowed
by order dated 17.07.2004. The appeal
preferred by late Ram Khelawan was
allowed and remanded the matter to the
Consolidation Officer.

9. It is further submitted that the
Consolidation Officer had allowed the
application
of
respondent
no.
4Bhuinyadeen and rejected the application
filed on behalf of late Ram Khelawan-the
predecessor of respondent nos. 5 to 10,
without deciding the application of the
petitioners under Section 12 of the Act,
1953. Even the issues were not framed for
determining the rights of the petitioners. It
was treated that the order passed in favaour
of the petitioners dated 17.07.2004 had
already been set aside by the Settlement
Officer (Consolidation) while deciding the
appeal by its judgment and order dated
04.07.2005.

10. It is further submitted that
aggrieved by the order of the Consolidation
Officer, the petitioners had preferred an
appeal which was dismissed by the
Settlement Officer (Consolidation) by its
judgment and order dated 31.10.2005
without discussing the issues raised by the
petitioners in appeal and determined the
rights of the respondent no. 4 and
predecessor of respondent nos. 5 to 10.

11. It is further submitted that
feeling aggrieved by the appellate order, the
petitioners had preferred a revision under
Section 48 of the Act, 1953 which was also
dismissed by the impugned order dated
20.09.2012 by giving contradictory finding
that at one place in the earlier part of the
judgment admitting the petitioners as
grandsons of late Nanhe-husband of late
Maika by giving a finding that there is no
dispute about the same and on the other
hand a contradictory finding has also been
given that the revisionist has failed to
establish that the father of petitioners late
Dhani was son of late Nanhe, who was the
husband of late Maika whereas in the
earlier part of the judgment discussed all
the evidences led by the petitioners.

12. The Revisional Court has
rejected the claim of predecessors of
respondent nos. 5 to 10-late Ram Khelawan
as the will in his favour was not proved and
found to be suspicious and for the
respondent no. 4, the revisional Court had
not considered the fact that late Maika had
been wrongly shown as issue-less in the
pedigree of the family given by the
respondent no. 4 in his application under
Section 12 and thus, being a brother-in-law,
he is entiled for the property in the name of
late Maika.

13. On the other hand, Shri Amar
Mani Tripathi, learned counsel for the
respondent no. 4 has submitted that the
claim of the petitioners had already been
rejected by the appellate Court hence, there
4 All. Jageshwar & Anr. Vs. D.D.C. Lko. & Ors.
1323
is no occasion to consider their case when
the
matter
was
remanded
to
the
Consolidation Officer by the Settlement
Officer (Consolidation) by its order dated
04.07.2005.

14. It is further submitted that
there was no need to frame any issue for
determining the rights of the petitioners
after the remand.

15. It is further submitted that the
respondent no. 4 being a brother-in-law of
late Maika is entitled for the property in the
name of late Maika.

16. It is further submitted that the
petitioners were failed to establish the
pedigree as they have claimed in their
application under Section 12 hence, there is
no illegality in the findings given by the
revisional authority in its judgment and
order dated 20.09.2012.

17. On the other hand, learned
Standing Counsel has very fairly submitted
that after the remand, the Consolidation
Officer had to frame the issues for
determining the rights of the petitioners and
by not doing the same, they deprived the
petitioners from their alleged lawful claim
over the property of their grand mother late
Maika.

18. After hearing learned counsel
for the parties and going through the record
of the case, the position which emerges out
in the present case is that it is an admitted
fact between the petitioners and the
respondents that plot no. 194 was in the
name of late Maika. The petitioners are
claiming
their
rights
on
the
above
mentioned property on the basis of
succession. Late Maika was the grand
mother of petitioners. The respondent no. 4
was claiming his right on the property
entered in the name of late Maika being a
brother-in-law and shown late Maika as
issu-less in his application preferred under
Section 12 of the Act, 1953 before the
Consolidation Officer while respondent
nos. 5 to 10 had claimed their rights on the
basis of Will which they had failed to prove
and there is a finding in the orders that the
Will appears to be suspicious.

19. The respondent nos. 5 to 10
had contested the case up to the stage of
revision and after the passing of the
impugned
revisional
order
dated
20.09.2012, they had not challenged the
same by filing the writ petition before this
Court.

20. The appellate order dated
04.07.2005 passed under Section 11 of the
Act, 1953 clearly shows that the order
passed on 17.07.2004 in Case No. 275 i.e.
objections preferred by the petitioners
under Section 12 was set aside and the
matter was remanded to the Consolidation
Officer to decide the same on merits after
hearing the parties. The relevant extract of
the said judgment is quoted hereinbelow:-

"अपीि स्िीकार की जाती िैk आदेि
िाद संख्या 275/17-7-04 धनरस्त हकया जाता िै k
पर्त्राििी च0v0 सदर को इस आिय के
प्रत्यािधतजत की जाती िै की िे साक्ष्य ि सुनिाई
का अिसर देकर पक्षों को गुणदोष के आिार
पर िाद का धनस्तारण करेk पक्ष च0 v0 सदर
के न्यायािय में 21-7-05 को उपम्स्र्थत िोk
पर्त्राििी िाद अनुपािन दफ्तर िो k"

21. The Consolidation Officer
while deciding the matter after the remand
by its judgment and order dated 28.07.2005
1324 INDIAN LAW REPORTS ALLAHABAD SERIES
had framed three issues and the family
tree/pedigree given by the respondent no. 4
in his objections under Section 12 had been
relied and neither even a single issue as far
as it is related to the present petitioners had
been framed nor the pedigree mentioned by
the petitioners in their application under
Section 12 had been considered and
decided the matter between the respondent
no.
4
and
late
Ram
Khelawan-the
predecessor of the respondent nos. 5 to 10..
Meaning thereby, the Consolidation Officer
while deciding the matter after the remand
had not considered the case of the
petitioners under the presumption that the
remand is only for determining the rights
between the respondent nos. 4 and 5
treating that the rights of the petitioners had
already decided in the appeal by order
dated 04.07.2005 by which the order was
remanded.

22.
Against
the
order
dated
31.10.2005, the petitioners had preferred a
revision which was also dismissed by the
revisional authority by its judgment and
order dated 20.09.2012. While deciding the
revision,
the
revisional
Court
had
mentioned the case of the petitioners
alongwith
their
family
pedigree
but
thereafter
started
determining
and
discussing
the
rights
between
the
predecessor of the respondent nos. 5 to 10
and respondent no. 4. In the end relied
upon the documents filed by the petitioners
i.e. Voter I.D. Card, Medical Praman Patra
and Kishan Bahi to establish their rights in
the property of late Maika, where the
petitioners were entered as son of Dhani.
Dhani was the son of late Nanhe and late
Nanhe was the husband of late Maika. It is
accepted by the revisional Court by giving
a finding that there is no dispute but at the
same time a contrary finding was given by
the revisional Court that the property is of
late Maika and the petitioners have failed to
establish that they are the son of late Dhani,
who was the son of late Nanhe, who was
the husband of late Maika by not filing the
parivar register. The revisional Court also
erred in drawing inference that perhaps late
Maika had no issue, merely because a will
was there relied upon by Ramkhelavan,
which has also been held to suspicious and
not proved as held by the Courts below.
The relevant portion of the impugned
revisional order dated 20.09.2012 is quoted
hereinbelow:-

"धनगरानीकताजगण अपने को वििाहदत
आराजी जो स्ि0 मैका के नाम अंहकत र्थी पर
अपना नाम बतौर िाररस अंहकत हकये जाने िेतु
आकार पर्त्र 11 खाता 241 ि आकार पर्त्र 23
भाग-1 चक संख्या 80 की िाया प्रधत धनगरानी
के सार्थ दाम्खि हकया िै म्जसमें उि खाता
िानी पुर्त्र नन्िे के नाम अंहकत िै। इस िम में
अपने को िाना का पुर्त्र सावबत करने के धिए
मतदाता पिचान पर्त्र हदनांक 22-3-09 ि
मेहडकि प्रमाण पर्त्र मेहडनकि आहफसर हदनांक
2-7-08 बाबत् राजाराम पुर्त्र िानी ि हकसान
ििी हदनांक 3-9-02 बाित जागेश्वर पुर्त्र िानी
दाम्खि हकया िै और यि दिाजने का प्रयास
हकया िै हक िि नन्िे मृतक की बेिा स्ि0 मैका
के पुर्त्र िानी के पुर्त्र िोने के कारण वििाहदत
आराजी के िकदार िै। जिॉ यि उलिेख
आिश्यक िै जो भी िानी पुर्त्र नन्िे के नाम
अंहकत िै उस पर जागेश्वर आहद का जो नाम
आया िै, उस पर वििाद निीं िै। वििाद स्ि0
मैका के नाम अंहकत समपवत्त का िै।
धनगरानीकताजगण यि सावबत करने में असफि
रिे कै हक िि स्ि0 मैका के पधत नन्िे के पुर्त्र
िानी के पुर्त्र िै क्योंहक इस िम में कोई
4 All. Jageshwar & Anr. Vs. D.D.C. Lko. & Ors.
1325
पररिार रम्जस्र्र की नकि आहद दाम्खि निीं
िै। कधर्थत िसीयत का प्रकास में आना भी इस
बात का संकेत िै हक स्ि0 मैका के िायद
औिाद निीं र्थी। इस प्रकार स्ि0 मैका के नाम
अंहकत भूधम पर अपने को िकदार धसद्ध करने
में धनगरानीकताजगण सफि निीं रिे िै। मेरे
विचार से चकबंदी अधिकारी ि बन्दोबस्त
अधिकारी चकबंदी ने जो आदेि हदनांक 28-705 ि 31-10-05 पाररत हकया िै िि उधचत िै।
इस आिोक में आदेि हदनांक 2-7-10 में भी
िस्तक्षेप की आिश्यकता निीं िै।
जिॉ तक राम खेिािन की धनगरानी
का प्रश्न िै, अिर न्यायाियों ने विस्तार से
वििेचना करते िुये उनके पक्ष में स्ि0 मैका
द्वारा की गयी पंजीकृत िसीयत को प्रमाम्णत
िोना निीं पाया िै। इसका मुख्य कारण गिािों
के बयानों में विरोिाभास बताया िै। पर्त्राििी के
अििोकन से अिर न्यायाियों द्वारा हदये गये
अधभमत से मैं सिमत िूाँ।
उपयुजि तथ्यों के प्रकाि में तीनों
धनगराधनयां धनरस्त िोने योग्य िैं।
आदेि
उपयुजि वििेचना के आिार पर तीनों
धनगराधनयां धनरस्त की जाती िै।
पर्त्रािधियां िाद अमिदरामद दाम्खि
दफ्तर िो।"

23. As per the law settled that the
revisional Court is not supposed to decide
the matter by appreciating the evidence and
by substituting the finding by its own
findings as the Hon'ble Supreme Court in
the case of Ram Dular Vs. Deputy
Director of Consolidation, Jaunpur and
Ors. reported in Suppl. (2) SCC 198 has
held that Deputy Director Consolidation
cannot assume to itself the jurisdiction of
the original authority. It had to consider
whether the legally admissible evidence
had not been considered by the authorities
in recording a finding of fact or law or the
conclusion reached by it is bases on no
evidence,
any
patent
illegality
or
impropriety had been committed or these
was any procedural irregularity, which goes
to the root of the matter, had been
committed in recording the finding.

24. The proposition of law laid
down by Hon'ble Supreme Court in the
case of Ram Dular (supra) has been
followed by this Court in the cases of Smt.
Baijnath and Anr. Vs. Deputy Director of
Consolidation, Varanasi and Ors. reported
in 1997 RD 433 and Ram Prasad and
others
Vs.
Deputy
Director
of
Consolidation, Pratapgarh and others
(Consolidation
No.
2205
of
1980)
judgment and order dated 15.03.2019
wherein it has been held that he Deputy
Director Consolidation in exercise of
powers under Section 48 of the U.P.
Consolidation of Holdings Act, 1953 can
interfere with the findings of fact recorded
by the authorities below and can set-aside
the said findings if they are found to be
erroneous, perverse not based on any
evidence or illegal, but he can not
substitute his own findings after reappraisal
of the evidence on the records. The Deputy
Director of Consolidation could at the best
remand the case to the Settlement Officer,
Consolidation or the Consolidation Officer,
as the case may be, for decision afresh.

25. The relevant extracts of the
judgment authored by Hon'ble Apex Court
in the case of Ram Dular (supra) is
reproduced hereinbelow:-

" ........It is clear that the Director
had power to satisfy himself as to the
1326 INDIAN LAW REPORTS ALLAHABAD SERIES
legality of the proceedings or as to the
correctness
of
the
proceedings
or
correctness, legality or propriety of any
order other than interlocutory order passed
by the authorities under the Act. But in
considering the correctness, legality or
propriety of the order or correctness of the
proceedings or regularity thereof it cannot
assume to itself the jurisdiction of the
original
authority
as
a
fact-finding
authority by appreciating for itself of those
facts de novo. It has to consider whether
the legally admissible evidence had not
been considered by the authorities in
recording a finding of fact or law or the
conclusion reached by it is based on no
evidence,
any
patent
illegality
or
impropriety had been committed or there
was any procedural irregularity, which
goes to the rest (sic root) of the matter, had
been committed in recording the order or
finding. ....."

26. The revisional authority was
supposed to examine whether Rule 26(2) of
the U.P. Consolidation of Holdings Rules,
1954 (hereinafter referred to as, the Rules,
1954) has been complied with by the
subordinate Courts or not.

27. For convenience, Rules 26
(2)of
the
Rules,
1954
is
quoted
hereinbelow"

" 2) On the date fixed under subrule (2) of Rule 25-A, or any subsequent
date
fixed
for
the
purpose,
the
Consolidation Officer shall hear the
parties, frame issues on the points in
dispute, take evidence, both oral and
documentary, and decide the objections"

28. The sub-Rule 1 and 2 of Rule
25 A of the Rules, 1954 is quoted
hereinbelow:-
"25-A(1)
The
Assistant
Consolidation Officer shall, as far as
possible, deal with all the objections filed
by a tenure-holder with regard to matters
referred to in clause (i) of sub-section (1) of
Section 9-A and sub-Section (1) of Section
9-B in village itself. In deciding disputes on
the basis of conciliation in terms of subSection (1) of Section 9-A, he shall record
the terms of conciliation in the presence of
at least two members of the Consolidation
Committee of the village. These terms shall
then be read over to the parties concerned
and their signatures or thumb impressions
obtained.
The
members
of
the
Consolidation Committee present shall also
sign the terms of conciliation. The assistant
Consolidation Officer shall then pass
orders deciding the dispute in terms of
conciliation specifying the precise entries
to be made in the records. Details of the
operative part of the orders passed by the
Assistant Consolidation Officer shall be
noted in the Misilband Register. No ex
parte order or orders in default shall be
passed by the Assistant Consolidation
Officer."
(2) In all cases in which the
Assistant Consolidation Officer sends a
report, under the provisions of Sub section2 of Section 9-A, or sub-section (1) of
Section 9-B to the Consolidation Officer fo
disposal, he may fix a date and place for
the
disposal
of
the
cases
by
the
Consolidation Officer and communicate the
same to the parties present before him and
issue notices in C.H. Form 6-A to the
parties not so present. The report of the
Assistant Consolidation Officer in such
cases clearly brings out the points in
dispute between the parties and the efforts
made by him to reconcile them."

29. Rule 30 (b) of the Rules, 1954
provides for applicability of the same
4 All. Jageshwar & Anr. Vs. D.D.C. Lko. & Ors.
1327
procedure for deciding the matter raised
before the Assistant Consolidation Officer
under Section 12. For convenience, the Rule
30 (b) of the Rules, 1954 is quoted
hereinbelow:-

" (b) The procedure laid down in
Rules 25-A to 27 and 29 shall, mutatis
mutandis be followed in deciding matters
raised before the Assistant Consolidation
Officer under Section 12.

30. From conjoint reading of Rule
26(2) to Rule 25 A(2) and Rule 30 (b), it is
clear that for determination of rights/disputes
between the parties, the Consolidation Officer
is supposed to fix a date and place for
disposal of cases, frame the issues on the
points in dispute, take evidence both oral and
documentary and decide the objection.

31. Since the very beginning all the
authorities whether it is Consolidation
Officer, Settlement Officer or the Deputy
Director of Consolidation / Revisional
Authority had failed to comply with the
statutory provisions as at no stage any issue
was framed regarding the claim of the
petitioners for the property in dispute,
opportunity was given to adduce any
evidence
either
oral
or
documentary
regarding the claim of the petitioners and
decided the matter against the procedure
prescribed under the law and deprived the
petitioners from their lawful claim to get the
property of their grandmother-late Maika.
The revisional authority had failed to
consider that the respondent no. 4 as alleged
by the petitioners had given a wrong family
tree/pedigree by showing late Maika as issueless just to grab the property of late Maika
being her brother-in-law.

32. All these questions are
disputed questions of fact and as per the
statutory provisions mentioned above, the
issues are to be framed, evidences are to be
led both oral and documentary and only
thereafter, the objection could be decided
which had not been followed in the present
case. The rights of the petitioners had not
been
decided
by
any
authority
as
mentioned above by treating that the initial
order under Section 12 dated 17.07.2004
passed in favour of the petitioners had
already been set aside by the Settlement
Officer in its appellate order dated
04.07.2005 and that is why no issues were
framed for determining the claim of the
petitioners.

33. In view of the facts,
circumstances
and
discussion
made
hereinabove, it is held that Rule 30 of the
Rules, 1954 provides for procedure laid
down in Rules 25-A to 27 and 29 shall
mutatis mutandis be followed in deciding
matters
raised
before
the
Assistant
Consolidation
Officer/Consolidation
Officer under Section 12, which is the
procedure
provided
for
deciding
the
application under Section 9 A but the same
has not been followed in the present case
while deciding the case of the petitioners as
discussed hereinabove, thus, impugned
orders dated 20.09.2012 passed by Deputy
Director Consolidation and the judgment
and orders dated 02.07.2010 as well as
31.10.2005 passed by respondent no. 2Settlement Officer Consolidation, Lucknow
are hereby set aside.

34. It is true that Settlement
Officer, Consolidation has set-aside the
order passed by the Consolidation Officer
in favour of the petitioners under Section
12 but the authorities failed to consider and
appreciate that by the same order, the
matter
was
remanded
again
for
consideration to the Consolidation Officer,
1328 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, the Consolidation Officer should
have given the proper opportunity of
hearing, according to provisions of law to
the petitioners also. The authorities erred in
considering the case of the petitioners shut
and close by order dated 31.10.2005 passed
by the Settlement Officer, Consolidation by
which the matter was remanded, as
discussed above.

35. The matter is remanded to the
Consolidation Officer to take a decision on
the applications preferred by the petitioners
and respondent 4, as the respondent nos. 5
to 10 have not challenged the revisional
order as it became final against them.

36. The Consolidation Officerrespondent no. 3 is directed to decide the
matter expeditiously by following the
procedure as provided under the statute and
by framing issues regarding the claim of
petitioners as well and provide opportunity
to adduce oral and written evidence to the
petitioners and respondent no. 4/1- Becha
Lal (legal heirs of late Bhuinyadeenrespondent no. 4), who was substituted
after the demise of respondent no. 4, being
an old case of the year 1985, as far as
possible within a period of one year from
the date of production of certified copy of
this order without giving any unnecessary
adjournment to any of the parties.

37. Writ petition is allowed.
----------
(2024) 4 ILRA 1328
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.04.2024

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ-B No. 8021 of 1990
Nanki Bai ...Petitioner
Versus
D.D.C. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sunil Ambwani, Sri Awadhesh Prasad Pandey,
Sri Himanshu Pandey, Sri J.P. Rai

Counsel for the Respondents:
S.C., Sri Chandra Shekhar Agnihotri, Sri Harish
Chandra Mishra, Sri Narendra Mohan

A. Civil Law - Constitution of India,1950Article
226-U.P.
Consolidation
of
Holdings
Act,1953-Section
9-A(2)-U.P.
Zamindari Abolition and Land Reforms
Act,1950-Sections 20, 240-A-Petitioner
no.1 filed an objection, seeking to be
declared the bhumidhar of the plots-She
claimed the plots were leased to her
father by the local zamindar-She asserted
her long possession of over 50 years
entitled to bhumidhar rights u/s 20,240A of the Act,1950-Held, the deputy
director of consolidation acted correctly
in dismissing the appellate decision as
the petitioner failed to prove adverse
possession or valid lease agreements-the
petitioner
acted
improperly
by
transferring the property during the
pendency of the case-Filing appeals and
revisions after the village's denotification
constituted
a
misuse
of
legal
process.(Para 1 to 14)

The writ petition is dismissed. (E-6)

List of Cases cited:

1. Nanhoo Mal Vs, Mulloo(1963) LawSuit (All)
92=1964 AIR (ALL) 213

2. Ram Dular Singh & ors. Vs Babu Sukhu & ors.
(1963) Lawsuit (All) 101=1963 RD 221

3. Sharda Prasad Tiwari Vs St.of U.P. & ors.
(2015)127 RD 702

4. Siddh Narayan Vs DDC & ors.(2007)103 RD
627

(Delivered by Hon'ble Chandra Kumar Rai, J.)