# Kunvar Bahadur & Ors v. Deputy Director of Consolidation, Kanpur Campt, Fatehpur & Ors

- **Citation:** (2022) 9 ILRA 244
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-04
- **Case number:** Writ B No. 4895 of 1982
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kunvar-bahadur-ors-v-deputy-director-of-consolidation-kanpur-campt-fatehpur-ors-48997
- **Pages:** 6

## Headnote

S.C., Sri Madhusudan Dixit, Sri P.N.
Kushwaha, Sri S.K. Pandey, Sri L.P. Singh,
Sri L.K. Singh
9 All. Kunvar Bahadur & Ors. Vs. Deputy Director of Consolidation, Kanpur Campt, Fatehpur &
 Ors.
245
Civil Law - U.P. Consolidation of Holdings
Act (5 of 1954) - Section 9A(2), 11A & 12 -
Only where any fresh cause of action has
arisen, to a party, after publication of the
revised record u/s 10 (1) of the Act, which
was not available when the proceedings
under Sections 7 to 9 were started or
where in progress, filing of objection
under Section 12 of the act could be
permitted - one cannot file objection u/s
12 of U.P.C.H. Act first and get it decide as
uncontested by Assistant Consolidation
Officer without filing regular objection
under Section 9-A of U.P.C.H. Act - regular
objection u/s 9A(2) of U.P.C.H. Act cannot
be held to be bar by res judicata due to
decision/order passed u/s 12 of U.P.C.H.
Act. (Para 8, 9)

Facts : Petitioners filed objection u/s 12 of
the U.P.C.H. Act to have their names recorded
on the basis of the sale deed - A.C.O. allowed
the objection & ordered their names to be
recorded -Respondent filed an objection u/s
9A(2) of the U.P.C.H. Act - C.O. held that he
could not sit in appeal over the earlier order
of the A.C.O. & rejected the objection filed by
respondent - Respondent filed an appeal
which was allowed, and the matter was
remanded for a fresh decision - petitioners
filed a revision which was dismissed- Held -
No objection u/s 9A(2) of U.P.C.H. Act was
filed by petitioners laying claim on the basis
of
sale-deed,
dated
18.02.1975
and
03.02.1975, which was before the notification
under Section-9A of U.P.C.H. Act - rather
petitioners wrongly initiated proceedings u/s
12 and got an order passed, which was
without jurisdiction - regular objection under
Section 9A(2) of U.P.C.H. Act at the instance
of the respondents cannot be held to be bar
by res judicata due to decision/order alleged
to be passed under Section 12 of U.P.C.H. Act
- ends of justice requires that objection u/s
9A(2)of U.P.C.H. Act in respect to disputed
plot be adjudicated on merit, in which both
parties will have opportunity to contest their
claim on merit (Para 7,8,10)

Dismissed. (E-5)

List of Cases cited:

## Text

244 INDIAN LAW REPORTS ALLAHABAD SERIES
grant of promotion pay scale shall be
implemented by the respondents.

47. So far as the question of payment
of the difference in salary and the
subsistence allowance for the period of
suspension is concerned, the same shall
also abide by the outcome of the decision
that the criminal Court renders. In case, the
petitioner is acquitted in the criminal case
honourably, he will be entitled to payment
of the difference between the salary and the
subsistence allowance for the period
01.04.2009
to
31.05.2010,
without
reservation and promptly so.

48. In the above conspectus of facts,
this petition succeeds and is allowed in
part.
The
impugned
order
dated
12.12.2014 passed by the District Inspector
of Schools, Bareilly is hereby quashed. A
mandamus is issued to the respondents to
grant the petitioner's two increments
withheld i.e. for the period July, 2009 to
November, 2010. The petitioner's salary, by
adding those increments, shall be revised
and the arrears paid within two months of
the date of receipt of a copy of this order
together with simple interest @ 6% per
annum from the date it fell due until
payment. The petitioner shall be entitled to
consideration for the grant of promotion
pay scale without reference to the adverse
entries made in his ACRs for the years
2000-01, 2001-02, 2002-03 and 2003-04,
the result whereof shall be kept in a sealed
cover, or otherwise in abeyance as the rules
or the practice may permit until delivery of
judgment by the Criminal Court in Case
Crime No.209 of 2009, under Section 3/10
of the Act of 1998, Police Station
Hafijganj, District Bareilly. Depending on
the outcome of the criminal case, the result
of the consideration for the grant of
promotion pay scale shall be implemented,
within six weeks of the delivery of the
Criminal Court's judgment. Likewise, the
petitioner's
entitlement
to
subsistence
allowance shall depend on the outcome of
the judgment in Case Crime No.209 of
2009, under Section 3/10 of the Act of
1998, Police Station Hafijganj, District
Bareilly, which too shall be decided by the
respondent
Management
and
the
Authorities within six weeks of the delivery
of that judgment. It is made clear that the
respondent
Management
and
the
respondent Authorities shall carry out all
directions in this judgment, strictly in point
of time and in the terms made, without
delay. Considering the circumstances of the
case, there shall be no order as to costs.

49. Let the petitioner's service-book
be returned to the Registrar General for its
onward and secure transmission to the
District Inspector of Schools, Bareilly.
----------
(2022) 9 ILRA 244
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ B No. 4895 of 1982

Kunvar Bahadur & Ors. ...Petitioners
Versus
Deputy Director of Consolidation, Kanpur
Campt, Fatehpur & Ors. ...Respondents

Counsel for the Petitioners:
Sri Hausihla Prasad Mishra, Sri Rahul
Mishra, Sri S.R. Singh

Counsel for the Respondents:
S.C., Sri Madhusudan Dixit, Sri P.N.
Kushwaha, Sri S.K. Pandey, Sri L.P. Singh,
Sri L.K. Singh
9 All. Kunvar Bahadur & Ors. Vs. Deputy Director of Consolidation, Kanpur Campt, Fatehpur &
 Ors.
245
Civil Law - U.P. Consolidation of Holdings
Act (5 of 1954) - Section 9A(2), 11A & 12 -
Only where any fresh cause of action has
arisen, to a party, after publication of the
revised record u/s 10 (1) of the Act, which
was not available when the proceedings
under Sections 7 to 9 were started or
where in progress, filing of objection
under Section 12 of the act could be
permitted - one cannot file objection u/s
12 of U.P.C.H. Act first and get it decide as
uncontested by Assistant Consolidation
Officer without filing regular objection
under Section 9-A of U.P.C.H. Act - regular
objection u/s 9A(2) of U.P.C.H. Act cannot
be held to be bar by res judicata due to
decision/order passed u/s 12 of U.P.C.H.
Act. (Para 8, 9)

Facts : Petitioners filed objection u/s 12 of
the U.P.C.H. Act to have their names recorded
on the basis of the sale deed - A.C.O. allowed
the objection & ordered their names to be
recorded -Respondent filed an objection u/s
9A(2) of the U.P.C.H. Act - C.O. held that he
could not sit in appeal over the earlier order
of the A.C.O. & rejected the objection filed by
respondent - Respondent filed an appeal
which was allowed, and the matter was
remanded for a fresh decision - petitioners
filed a revision which was dismissed- Held -
No objection u/s 9A(2) of U.P.C.H. Act was
filed by petitioners laying claim on the basis
of
sale-deed,
dated
18.02.1975
and
03.02.1975, which was before the notification
under Section-9A of U.P.C.H. Act - rather
petitioners wrongly initiated proceedings u/s
12 and got an order passed, which was
without jurisdiction - regular objection under
Section 9A(2) of U.P.C.H. Act at the instance
of the respondents cannot be held to be bar
by res judicata due to decision/order alleged
to be passed under Section 12 of U.P.C.H. Act
- ends of justice requires that objection u/s
9A(2)of U.P.C.H. Act in respect to disputed
plot be adjudicated on merit, in which both
parties will have opportunity to contest their
claim on merit (Para 7,8,10)

Dismissed. (E-5)

List of Cases cited:
1. Aparbal Yadav & anr. Vs. Deputy Director of
Consolidation, Gorakhpur & ors. 2003 (95)
R.D.44

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

1. Heard Mr. H. P. Mishra, learned
counsel for the petitioners and Mr.
Madhusudan Dixit, learned counsel for
contesting respondent Nos.5 and 6.

2. Brief facts of the case are that in
the Basic year of the Consolidation
operation, Chandra Shekhar and Laxmi
Shanker sons of Ram Dularey were
recorded over plot of Khata Nos.5 and 13
situated
in
village-Shivpur,
ParganaHathgaon, District-Fatehpur while Ram
Kishore son of Ram Dularey and Vidya
Sagar sons of Brij Kishore were recorded
over Khata No.13. On 18.02.1975 Ram
Kishore and Vidya Sagar transferred their
interest in the land of Khata No.13 to
petitioners by means of a registered sale
deed. Chandra Shekhar and Laxmi Shanker
also transferred their interest in favour of
the petitioners by means of the registered
sale deed dated 03.02.1975. An objection
under Section 12 of U.P.C.H. Act was filed
by petitioners to record their names on the
basis
of
sale
deed,
the
Assistant
Consolidation Officer by his order dated
22.04.1975 ordered to record the names of
petitioners on the basis of sale deed.
Respondent No.4 Vidya Sagar filed an
objection under Section 9A(2) of U.P.C.H,
Act claiming right in the disputed plot but
Consolidation Officer by his order dated
25.01.1979
held
that
order
dated
22.04.1975
passed
by
Assistant
Consolidation Officer is binding on the
parties and he could not sit in appeal over
the order of Assistant Consolidation Officer
passed under Section 12 of U.P.C.H. Act
246 INDIAN LAW REPORTS ALLAHABAD SERIES
accordingly, objection filed by respondent
No.4 under Section 9A(2) of U.P.C.H,. Act
was rejected. An appeal under Section 11 of
U.P.C.H. Act was filed by respondent Nos.5
and 6 before Settlement Officer of
Consolidation, the appeal was allowed vide
order dated 05.12.1979 and matter was
remanded before Consolidation Officer for
fresh decision of objection on merit.
Although,
no
appeal
was
filed
by
respondent No.4 against the order of
Consolidation Officer dated 25.01.1979.
Against
the
appellate
order
dated
05.12.1979 revision under Section 48 of
U.P.C.H,. Act was filed by petitioners,
Deputy Director of Consolidation by order
dated 18.03.1982 dismissed the revision
filed by petitioners as well as exercising the
power under Section 48 of U.P.C.H. Act
order dated 22.04.1975 passed under
Section 12 of U.P.C.H.Act was set aside
being without jurisdiction. Hence this writ
petition.

3. Counsel for the petitioners
submitted that one order under Section 12
of U.P.C.H,. Act has been passed in favour
of petitioners and the order has attained
finality then objection under Section 9A(2)
of U.P.C.H. Act filed by respondent No.4
cannot be entertained as order passed under
Section 12 of U.P.C.H. Act between the
parties will operate as res judicata in the
proceedings under Section 9A (2) of
U.P.C.H. Act. He further submitted that
order dated 22.04.1975 passed in the
proceedings under Section 12 of U.P.C.H,.
was not challenged in Appeal or revision as
such the same cannot be set aside in the
present proceedings under Section 9A (2)
of U.P.C.H,. Act exercising suo motu power
under
Section
48
of
U.P.C.H. Act
accordingly counsel for the petitioners
submitted that impugned revisional order
dated 18.03.1982 passed by revisional
Court and order dated 5.12.1979 passed by
appellate Court be set aside.

4. On the other hand, counsel for the
respondent Nos.5 and 6 has submitted that
order passed in the proceeding under
Section 12 will not operate as res judicata
in the title proceedings under Section 9
A(2)
of
U.P.C.H,.
Act.
He
placed
provisions of Sections 9A, 11-A and 12 of
U.P.C.H. Act which are as follows:

" [9A. Disposal of Cases relating
to claims to land and partition of joint
holdings. -

(1) The Assistant Consolidation
Officer shall -

(i) where objections in respect of
claims to land or partition of joint holdings
are
filed,
after
hearing
the
parties
concerned, and

(ii) where no objections are filed
after making such enquiry as he may deem
necessary, settle the disputes, correct the
mistakes and effect partition as far as may
be by conciliation between the parties
appearing before him and pass orders on
the basis of such conciliation :

[Provided
that
where
the
Assistant
Consolidation
Officer,
after
making such enquiry as he may deem
necessary, is satisfied that a case of
succession is undisputed, he shall dispose
of the case on the basis of such enquiry.]

(2) All cases which are not
disposed of by the Assistant Consolidation
Officer under sub-section (1), all cases
relating to valuation of plots and all cases
relating to valuation of trees, wells or other
improvements,
for
calculating
compensation
therefor,
and
its
apportionment amongst co-owners, if there
be more owners than one, shall be
forwarded by the Assistant Consolidation
Officer to the Consolidation Officer, who
9 All. Kunvar Bahadur & Ors. Vs. Deputy Director of Consolidation, Kanpur Campt, Fatehpur &
 Ors.
247
shall dispose of the same in the manner
prescribed.

(3) The Assistant Consolidation
Officer, while acting under sub-section (1)
and the Consolidation Officer, while acting
under sub-section (2), shall be deemed to
be a Court of competent jurisdiction,
anything to the contrary contained in any
other law for the time being in force
notwithstanding.]

[11A. Bar on objection. - No
question in respect of -

(i) claims to land,

(ii) partition of joint holdings,
and

(iii) valuation of plots, trees,
wells and other improvements, where the
question is sought to be raised by a
tenure-holder of the plot or the owner of
the tree, well or other improvements
recorded in the annual register under
Section 10,

relating to the consolidation
area,] [which has been raised under
Section 9 or which might or ought to have
been raised under that section], but has
not been so raised, shall be raised or
heard at any subsequent stage of the
consolidation proceedings.]

[12.
Decision
of
matters
relating to changes and transactions
affecting rights or interests recorded in
revised records. -

(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
Sections 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.]"

5. On the basis of the provisions
contained in Section 9A, 11A and 12 of
U.P.C.H. Act counsel for the respondents
submitted that order passed under Section
9A(2) of U.P.C.H. Act will operate as resjudicata in the subsequent proceedings but
alleged order passed under section 12 of
U.P.C.H. Act cannot operate as res-judicata
in the proceedings under Section 9A(2) of
U.P.C.H. Act. He further submitted that
appellate Court has rightly allowed the
appeal of respondents and remitted the
matter back to the court of Consolidation
Officer for decision of proceedings under
Section 9A(2) of U.P.C.H. Act on merit. He
next submitted that Deputy Director of
Consolidation rightly set aside the order
dated 22.04.1975 passed under Section-12
of U.P.C.H. Act exercising power under
Section 48 of U.P.C.H. Act on the ground
that
order
was
without
jurisdiction
according to the provisions contained under
Sections 9A, 11-A and 12 of U.P.C.H. Act.
He lastly submitted that interest of both
parties will be examined under Section
9A(2)of U.P.C.H. Act in pursuance of the
impugned appellate order and revisional
order as such writ petition filed by
petitioners is liable to be dismissed.

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

7. There is no dispute about the fact
that no objection under Section 9A(2) of
U.P.C.H. Act was filed by petitioners under
Section 9A(2)of U.P.C.H. Act rather alleged
proceeding under Section-12 of U.P.C.H.
248 INDIAN LAW REPORTS ALLAHABAD SERIES
Act was initiated at the instance of
petitioners and order dated 22.04.1975 was
passed under Section-12 of U.P.C.H. Act on
the basis of alleged sale deed dated
18.02.1975 and 03.02.1975, which was
before the notification under Section-9A of
U.P.C.H. Act. Proceeding under Section
9A(2) of U.P.C.H. Act was initiated at the
instance of respondents, according to the
provisions of Section 9-A of U.P.C.H. Act,
which has been ordered to be adjudicated on
merit by Consolidation Officer under
impugned orders.

8. On the basis of provisions contained
under Section 9A, 11A and 12 of U.P.C.H.
Act as quoted above, there appears to be no
scope to file objection under Section 12 of
U.P.C.H. Act first and get it decide as
uncontested by Assistant Consolidation
Officer without filing objection under
Section 9-A of U.P.C.H. Act. In the case in
hand cause of action for filing objection and
laying claim on the basis of sale-deed had
already arisen for which steps were not
taken by petitioners under Section 9A(2) of
U.P.C.H. Act rather initiated proceedings
under Section 12 of U.P.C.H. Act and got the
order passed by Assistant Consolidation
Officer, which appears to be without
jurisdiction as Section 11-A of U.P.C.H. Act
will come in picture. The regular objection
under Section 9A(2) of U.P.C.H. Act at the
instance of the respondents cannot be held to
be bar by res judicata due to decision/order
alleged to be passed under Section 12 of
U.P.C.H. Act.

9. This Court in a case reported in
2003 (95) R.D.44 Aparbal Yadav and
another
vs.
Deputy
Director
of
Consolidation, Gorakhpur and others has
considered the scope of Section 9A and 12,
the relevant paragraph No.7 of the judgment
is as follows:

....7. In view of the aforesaid it is
clear that in the event a question had
already arisen when proceedings under
Sections 7 to 9 were started or were in
progress and an objection under Section 9A(2) of the U.P.C.H. Act claiming right in
the land on the basis of the sale deed dated
27.06.67
was
already
filed
by
the
predecessor
of
the
petitioners,
there
appears to be no scope of filing fresh
objection under Section 12 of the U.P.C.H.
Act. Section 11-A of the Act clearly bars
raising of any question in respect to claim
of the land, which has been raised under
Section 9 or which might or ought to have
been raised under that Section. It is clearly
mentioned in sub-section (2) of Section 12
that provisions of Sections 7 to 11 shall
mutatis mutandis apply to the hearing and
decision of any matter raised under SubSection (1) of the Act. In view of this it is
clear that the objection and claim in
respect to the land in dispute on the basis
of the sale-deed. In question was not only
decided on merits but also concurred by all
three Consolidations Courts which was
never
challenged
before
this
court.
Whatever law as existed to that time the
judgment of the Consolidation Courts
attained finality. it is in the case where any
fresh cause of action has arisen to a party
after publication of the revised record
under Section 10 (1) of the Act which was
not available when the proceedings under
Sections 7 to 9 were started or where in
progress filing of objection under Section
12 of the act could be permitted. Hence in
the case in hand, as the cause of action for
filing objection and laying claim on the
basis of the sale-deed dated 27.06.67 had
already arisen for which steps were also
taken in the proceedings under Sections 9A(2) of the Act the finality which has
attained cannot be permitted to be reopened in the garb of filing of objection
9 All. Sukhdev Kumar Chaubey Vs. Commissioner Varanasi Mandal, Varanasi & Ors.
249
under Section 12 of the Act which was filed
in the year 1976 after the final judgment of
the Deputy Director Consolidation which was
passed in the year 1970. Three Consolidation
Courts have rightly not permitted the
petitioner to get fresh inning opened for
adjudication of their claim on the merits in
the garb of the proceedings under Section 12
of the Act. It could only be entertained when
the matter relating to change and transfer
affecting any of the right or interest recorded
in the revised records published under SubSection (1) of Section 10 for which a cause of
action had not arisen when proceedings
under Sections 7 to 9 were started or were in
progress. This being not the situation, so far
the case in hand is concerned rather cause of
action having already arisen, to which
petitioner's predecessor having reacted had
filed objection under Section 9-A (2) of the
Act has failed and thus filing of the fresh
objection under Section 12 of the Act by the
petitioners is clearly barred under Section 11A of the Act read with Section 12 (2) of the
Act. It is not to be repeated that by change of
law or if earlier judgment has been over
ruled, that do not give any cause of action for
re-adjudicating the claim on the merits and to
get earlier order reviewed as has been clearly
opined by the Apex Court in the decision
given in case of Shanti Devi (Supra). Thus
arguments of the learned counsel for the
petitioner that as vendor has got Bhumidhari
rights in view of the subsequent declaration
of law petitioner's claim is to be accepted, on
the facts of present case of no help to them.
Other decisions also as cited by the learned
counsel for the petitioners on the fact and
reasoning given above have no application to
the case in hand."

10. Considering the provisions of
Section 9A, 11A and 12 of U.P.C.H. Act,
ratio of law laid down by which Court in
Aparbal Yadav (supra) as well as facts and
circumstances of the case ends of justice
requires that objection under Section
9A(2)of U.P.C.H. Act in respect to disputed
plot initiated at the instance of respondents
be adjudicated on merit, in which both
parties will have opportunity to contest
their claim on merit under the impugned
order, the same things has been done as
such no interference is required against the
impugned orders. Writ petition filed by
petitioners fails and is dismissed. No order
as to costs.

11. Since the matter is very old, it is
directed
that
Consolidation
Officer
Fatehpur, shall decide the objection under
Section 9A(2) of U.P.C.H. Act after notice
and opportunity of hearing to both parties
on merit expeditiously preferably within six
months from the date of production of
certified copy of this Judgment.
----------
(2022) 9 ILRA 249
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.07.2022

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ C No. 1441 of 2022

Sukhdev Kumar Chaubey ...Petitioner
Versus
Commissioner Varanasi Mandal, Varanasi,
& Ors. ...Respondents

Counsel for the Petitioner:
Sri Udai Chandani, Sri Anjani Kumar

Counsel for the Respondents:
C.S.C.

A. Civil Law - UP Revenue Code, 2006 -
Sections 33, 34 & 35 - Mutation - Claim
on the basis of decree passed in a suit u/s
229-B - No appeal against decree filed -