# Mohd. Imran v. Dy. Director of Consolidation & Ors

- **Citation:** (2022) 10 ILRA 767
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-17
- **Case number:** Writ-B No. 1622 of 2022
- **Bench:** Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-imran-v-dy-director-of-consolidation-ors-47784
- **Pages:** 7

## Headnote

Civil Law - U.P. Consolidation of Holdings
Act,1953 - U.P. Consolidation of Holdings
Rules Rule 26 - Code of Civil Procedure,
1908 - O. 22 - Proceedings before the
consolidation authorities are treated as a
judicial proceeding but it does not mean
that the provisions of C.P.C. are made
applicable in the proceeding under the
U.P.C.H. Act - provisions as enunciated
under Order 22 of Code and the provisions
as enunciated under Article 120 and 121
of the Limitation Act are not applicable in
a proceeding under the U.P.C.H. Act,
though provisions of section 5 of the
Limitation Act, 1963 has been made
applicable, for the limited purposes in
proceedings under U.P.C.H. Act by virtue
of Section 53-B of the U.P.C.H. Act (Para
17)

Grievance
of
the
petitioner
is
that
the
Settlement Officer of Consolidation illegally
allowed the substitution application on the same
day of its filing, without giving opportunity of
hearing to the present petitioner - Held - mere
furnishing an information qua death of any
party, along with the details of his heir and legal
representatives, would be suffice for the
purpose of survival of the cause of action
involved in the matter - petitioner failed to
demonstrate as to how he is prejudiced due to
the order passed by the Settlement Officer of
Consolidation in allowing the substitution or
there is any likelihood of causing miscarriage of
justice to the present petitioner (Para 18)

Dismissed. (E-5)
768 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

## Text

10 All. Mohd. Imran Vs. Dy. Director of Consolidation & Ors.
767
partition and after hearing the parties
pass fresh final decree in partition suit."

12. In view of ratio of law laid down
in Paras Nath (Supra), Babu Ram
(Supra) as well as according to the
provisions contained under Rule 109 of the
U.P. Revenue Code Rules, 2016 for
preparation of the kurra, the authorities
have to observe certain principles, which
are mentioned in the said Rule 109 of U.P.
Revenue Code Rules, 2016, but the same
has not been followed and the objection
against the kurra filed by the petitioners has
been arbitrarily rejected by the trial court
and maintained by the first and second
appellate court, which is wholly illegal and
against the provisions contained under Rule
109 of U.P. Revenue Code Rules, 2016, as
such the impugned judgment and order
dated 21.02.2022 passed by respondent
No.1
i.e.
Board
of
Revenue,
U.P.
Allahabad, judgment and order dated
10.08.2021 passed by the respondent No.2
i.e.
Additional
Commissioner,
(Administration) Bareilly Mandal Bareilly,
judgment dated 22.03.2021 and decree
dated 31.03.2021 passed by Sub Divisional
Officer, Bilsi, Budaun are wholly illegal
and liable to be set aside, the same are
hereby set aside. The writ petition is
allowed and the matter is remanded back
before the trial court to decide the objection
of the petitioners dated 22.10.2018 afresh
in accordance with the provisions contained
under rules 109 of the U.P. Revenue Code
Rules, 2016 expeditiously preferably within
a period of four months from the date of
production of certified copy of this order.
----------
(2022) 10 ILRA 767
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.08.2022

BEFORE
THE HON'BLE DINESH PATHAK, J.

Writ-B No. 1622 of 2022

Mohd. Imran ...Petitioner
Versus
Dy. Director of Consolidation & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Ved Mani Sharma

Counsel for the Respondents:
C.S.C., Sri Shivajee Singh Sisodiya

Civil Law - U.P. Consolidation of Holdings
Act,1953 - U.P. Consolidation of Holdings
Rules Rule 26 - Code of Civil Procedure,
1908 - O. 22 - Proceedings before the
consolidation authorities are treated as a
judicial proceeding but it does not mean
that the provisions of C.P.C. are made
applicable in the proceeding under the
U.P.C.H. Act - provisions as enunciated
under Order 22 of Code and the provisions
as enunciated under Article 120 and 121
of the Limitation Act are not applicable in
a proceeding under the U.P.C.H. Act,
though provisions of section 5 of the
Limitation Act, 1963 has been made
applicable, for the limited purposes in
proceedings under U.P.C.H. Act by virtue
of Section 53-B of the U.P.C.H. Act (Para
17)

Grievance
of
the
petitioner
is
that
the
Settlement Officer of Consolidation illegally
allowed the substitution application on the same
day of its filing, without giving opportunity of
hearing to the present petitioner - Held - mere
furnishing an information qua death of any
party, along with the details of his heir and legal
representatives, would be suffice for the
purpose of survival of the cause of action
involved in the matter - petitioner failed to
demonstrate as to how he is prejudiced due to
the order passed by the Settlement Officer of
Consolidation in allowing the substitution or
there is any likelihood of causing miscarriage of
justice to the present petitioner (Para 18)

Dismissed. (E-5)
768 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

1. Jai Jai Ram Manohar Lal Vs National Building
Material Supply; AIR 1969 SC 1267

2. Ghanshyam Dass & ors. Vs Dominion of India
& ors., AIR (1984) 3 SCC 46.

3. Bhivchandra Shankar More Vs Balu Gangaram
More & ors. 2019(6) SCC 387

4. Bijai Narain Singh & ors. Vs St. of U.P. & ors.,
A.I.R. 1970 All 241 (FB) Anand

5. Narayan & ors. Vs Deputy Director of
Consolidation, Gorakhpur & ors.

(Delivered by Hon'ble Dinesh Pathak, J.)

1. Heard learned counsel for the
petitioner,
learned
counsel
for
the
contesting respondent no. 6 and learned
Standing Counsel representing respondent
nos. 1, 2, 3 and 10.

2. Grievance of the petitioner is that
the Settlement Officer of Consolidation has
illegally
allowed
the
substitution
application on the same day of its filing,
without giving opportunity of hearing to
the present petitioner.

3. Record reveals that, during
pendency of the appeal, a substitution
application dated 17.02.2021 along with
delay condonation application have been
filed by the heirs and legal representatives
of
appellant
Munir-ud-deen
with
an
averment that he has died six months
before, therefore, his name may be deleted
and in his place names of his sons namely
Mohd. Shafi, Mohd. Rahis, Mohd. Ishaq,
Mohd. Rafiq, Khushi, Mohammad and
Nafees Mohd. may be ordered to be
substituted.
Aforesaid
substitution
application along with delay condonation
application was entertained on the same
day
by
the
Settlement
Officer
of
Consolidation, who has jotted in the margin
of the application allowing the substitution
application and issued notices to the parties
fixing 03.03.2021. At subsequent stage,
present petitioner has filed objection dated
17.03.2021. The objection field by the
petitioner was rejected by the Settlement
Officer of Consolidation vide order dated
22.12.2021. Having being aggrieved with
the orders passed by the Settlement Officer
of Consolidation, present petitioner has
preferred a revision before the Deputy
Director of Consolidation which was
dismissed as well affirming the order
passed by the Settlement Officer of
Consolidation. Being aggrieved petitioner
has filed instant writ petition assailing
orders
of
Settlement
Officer
of
Consolidation (respondent no. 2) and
Deputy
Director
of
Consolidation
(respondent no. 1).

4. Counsel for the petitioner submits
that substitution application has been
allowed on the same day of filing of the
application without giving opportunity of
hearing. It is next submitted that delay in
filing the substitution has not been
condoned.
Deputy
Director
of
Consolidation has illegally dismissed the
revision on the ground of maintainability
being filed against the interlocutory order,
therefore, orders passed by respondent No.
1 and 2 are illegal, unwarranted under the
law and tained with irregularities which
deserves to be quashed.

5. Per contra, learned counsel for the
contesting respondent has contended that
substitution order dated 17.2.2021 was
passed in presence of opposite party (in
appeal) and he has not denied his presence
at any stage. In deciding the revision,
respondent No. 1 has discussed the merits
10 All. Mohd. Imran Vs. Dy. Director of Consolidation & Ors.
769
of the substitution as well. Petitioner
(opposite party in appeal) only wants to
linger the matter on the ground of
technicalities which is not sustainable in
the eye of law. It next contended that orders
passed by respondents No. 1 and 2 are legal
and suffers no infirmity, therefore, they are
liable to be affirmed and instant writ
petition is liable to be dismissed.

6. Having considered the submissions
advanced by the learned counsel for the
parties and perusal of record, I am of the
considered opinion that the purpose of
substitution is only for the survival of the
case. No right, title and interest confers
upon the substituted person with respect to
the property in question. If there is any
dispute qua right, title and interest of the
substituted
person/s,
same
would
be
adjudicated upon by the court competent in
a befitting proceeding as advised. There is
nothing on record to demonstrate that the
persons, who are proposed to be substituted
in place of deceased Munir-ud-deen, are
not the heirs and legal representatives of
the deceased. This aspect of the matter has
properly been considered by the Deputy
Director of Consolidation and has given
specific finding that revisionist has not
adduced any evidence to prove that there
are other heirs and legal representatives of
the deceased than the persons who have
been substituted. Respondent no. 1 has also
considered the death certificate and family
membership
certificate
(succession)
adduced by the sons of the deceased.
Findings of fact given by respondent no. 1,
in this respect as mentioned above, have
not been contradicted by the petitioner in
the instant writ petition.

7. Moreover, order dated 17.2.2021
evince presence of both the parties. For
ready reference, order dated 17.2.2021 is
quoted herein under:-

ÞmHk;i{kksa dks lquk x;k] U;k;fgr esa
izfrLFkkiu izkFkZuk i= Lohdkj fd;k tkrk gSA i{kksa dks
uksfVl tkjh gksdj i=koyh fnukad 03-03-2021 dks
is'k gksAß

8. Finding returned by Settlement
Officer of Consolidation, that substitution
application was allowed in presence of both
the parties, has not been challenged by the
petitioner at any stage even before this
Court.
In
objection
dated
17.3.2021
(annexure No. 5) petitioner has raised
objection qua sufficiency of grounds for
delay condonation in filing substitution
application. Apart form that paragraph 9 of
memo
of
revision
dated
11.1.2022
(annexure No. 7) it has been averred that
court subordinate has passed order without
giving opportunity of hearing and against
the provisions of law. Plea of not affording
opportunity of hearing has been taken as
well in paragraph 17 of the writ petition,
however, finding of fact returned by
Settlement Officer of Consolidation qua
"both
parties
heard"
has
not
been
challenged by the petitioner.

9. Prima facie, in particular facts and
circumstances of the instant case, it appears
that,
while
allowing
the
substitution
application,
Settlement
Officer
of
Consolidation was not oblivious of the
delay caused in filing the substitution
application, though specific order has not
been passed for the condonation of delay.
Substitution application was filed along
with the delay condonation application and
after considering both the application order
dated 17.2.2021 has been passed. In
paragraph 1 of the delay condonation
application, sufficient reason has been
assigned that expences and instructions
770 INDIAN LAW REPORTS ALLAHABAD SERIES
were provided to the previous counsel Shri
R.L.
Lal,
Advocate,
however,
after
engaging another counsel, this fact came to
knowledge that steps were not taken to
substitute the heirs of the deceased.
Therefore, there is no deliberate delay in
moving substitution application, which is
liable to be condoned. Cause shown for
the delay has neither been assailed in the
objection dated 17.3.2021 nor in the memo
of revision. For the first time, in paragraph
19 of the writ petition, it is averred that
"there is no documentary evidence filed
with the substitution application proving
that Shri RS Lal, Advocate was appellant's
counsel". In paragraph 19, petitioner has
referred the name of counsel as "Shri RS
Lal"
whereas
in
delay
condonation
application name of counsel is shown as
"Shri RL Lal". Petitioner, in paragraph 3
of the memo of revision, has admitted that
the
counsel
for
Munir-ud-deen
was
through out pursing the appeal but heirs of
Munir-ud-deen have not filed substitution
application.

10. In my opinion, contesting
respondents have sufficiently explained the
delay of six months (as averred in delay
condonation application) in filing the
substitution application owing to death of
appellant
namely
Munir-ud-deen
and,
therefore, it will have an effect of
obliterating the ramification of delay in
filing the substitution application.

11. Even otherwise it would not be
appropriate to shut the door of justice due
to little delay caused in filing the
substitution application. In catena of
judgments Hon'ble Supreme Court has
expressed the view that endeavour should
be made for extending the substantial
justice rather to shut the door of justice on
technical ground.

12. It is settled law that all Courts of
law are established for furtherance of
interest of substantial justice and not to
obstruct
the
same
on
technicalities.
Reference-- Jai Jai Ram Manohar Lal
Vs. National Building Material Supply;
AIR 1969 SC 1267, wherein it has been
held that the substantial justice and
technicalities, if pitted against each other,
the cause of substantial justice should not
be defeated on technicalities. No procedure
in a Court of law should be allowed to
defeat the cause of substantial justice on
some
technicalities.
Reference
-
Ghanshyam Dass & Ors. Vs. Dominion
of India & Ors., AIR (1984) 3 SCC 46.

13. Apart from that in recent
judgment of Bhivchandra Shankar More
vs. Balu Gangaram More & Ors (decided
by Hon'ble Supreme Court on 07.05.2019),
reported in 2019(6) SCC 387 it is
expounded that in condoning the delay
"sufficient cause" should be given liberal
construction so as to advance substantial
justice. The relevant paragraph nos. 15 and
16 of the aforesaid judgment are being
quoted herein below:-

"15. It is a fairly well settled law
that "sufficient cause" should be given
liberal construction so as to advance
sustainable justice when there is no
inaction, no negligence nor want of
bonafide could be imputable to the
appellant.
After
referring
to
various
judgments, in B. Madhuri, this Court held
as under:-

"6. The expression "sufficient
cause" used in Section 5 of the Limitation
Act, 1963 and other statutes is elastic
enough to enable the courts to apply the
law in a meaningful manner which serves
the ends of justice. No hard-and-fast rule
has been or can be laid down for deciding
10 All. Mohd. Imran Vs. Dy. Director of Consolidation & Ors.
771
the applications for condonation of delay
but over the years courts have repeatedly
observed that a liberal approach needs to be
adopted in such matters so that substantive
rights of the parties are not defeated only
on the ground of delay."

16. Observing that the rules of
limitation are not meant to destroy the
rights of the parties, in N. Balakrishnan v.
M. Krishnamurthy (1998) 7 SCC 123, this
Court held as under:-

"11. Rules of limitation are not
meant to destroy the rights of parties. They
are meant to see that parties do not resort
to dilatory tactics, but seek their remedy
promptly. The object of providing a legal
remedy is to repair the damage caused by
reason of legal injury. The law of limitation
fixes a lifespan for such legal remedy for
the redress of the legal injury so suffered.
Time is precious and wasted time would
never revisit. During the efflux of time,
newer causes would sprout up necessitating
newer persons to seek legal remedy by
approaching the courts.

So a lifespan must be fixed for
each
remedy.
Unending
period
for
launching the remedy may lead to unending
uncertainty and consequential anarchy.
The law of limitation is thus founded on
public policy. It is enshrined in the maxim
interest reipublicae up sit finis litium (it is
for the general welfare that a period be put
to litigation). Rules of limitation are not
meant to destroy the rights of the parties.
They are meant to see that parties do not
resort to dilatory tactics but seek their
remedy promptly. The idea is that every
legal remedy must be kept alive for a
legislatively fixed period of time." As
pointed out earlier, an appeal under
Section 96 CPC is a statutory right.
Generally, delays in preferring appeals are
required to be condoned, in the interest of
justice, where there is no gross negligence
or deliberate inaction or lack of bonafide is
imputable to the party seeking condonation
of delay."

14.

Moreover,
applicability
of
provisions as enunciated under Order 22 of
Code of Civil Procedure (in brevity
"Code") would also be a paramount
question to be considered by this Court in
the instant matter. Order 22 of Code deals
with the substitution of heirs and legal
representatives of the deceased, who
arrayed as a party in the cause title of
suit/appeal being plaintiff/appellant or
defendant/opposite
party.
U.P.
Consolidation of Holdings Act (in brevity
"U.P.C.H. Act") is an special enactment
and under the provisions as enunciated
under Section 4 of Code the provisions of
the Code shall not be deemed to limit or
otherwise affect the provisions of U.P.C.H.
Act. For the purposes of proceedings before
the consolidation courts, procedure has
been provided under Section 38 of
U.P.C.H. Act read with Rule 26 of U.P.
Consolidation of Holdings Rules (in brevity
"Rules"). In additional to these provisions,
Section 41 of U.P.C.H. Act enunciates that
unless otherwise specially provided by or
under U.P.C.H. Act, the provisions of
Chapter IX and X of U.P. Land Revenue
Act, 1901 shall apply to all proceedings
including appeal and application under
U.P.C.H. Act. No doubt that by virtue of
Section 40 of U.P.C.H. Act proceedings
before the consolidation authorities have
been treated as a judicial proceeding but it
does not mean that the provisions of Code
are made applicable in the proceeding
under the U.P.C.H. Act.

15. Considering the applicability of
Code in proceedings under the U.P. C.H.
Act, Full Bench of this Court in the case of
Bijai Narain Singh and others vs. State
772 INDIAN LAW REPORTS ALLAHABAD SERIES
of U.P. and others, reported in A.I.R. 1970
All 241 (FB) has expounded that provisions
of Code are not fully applicable in the
proceeding under U.P.C.H. Act. Relevant
paragraph no. 32 of the judgment is being
quoted herein under:-

"32. It may now be seen as to
whether the various authorities constituted
under the Act are governed by the Code of
Civil Procedure in the matter of procedure.
On
an
examination
of
the
various
provisions of the Act it would appear that
all the provisions of the Code of Civil
Procedure have not been made applicable
to the proceedings under the Act. Some
limited powers have been specifically given
under Section 38 and enlarged by Rule 26,
which have been again supplemented by S.
41, which says that the provisions of
Chapters IX and X of the U.P. Land
Revenue Act, 1901, shall apply to all
proceedings under the Act. On a perusal of
the provisions of Section 38 and Rule 26 it
would appear that they make a mention of
the application of only some provisions of
the Code of Civil Procedure. In the same
way the provisions in Chapter IX and X of
the Land Revenue Act show that all the
provisions of the Code of Civil Procedure
have not been made applicable to the
proceedings under that Act also. As such, it
could not be held that all the provisions of
the Code of Civil Procedure have been
made applicable to the proceedings under
the Act. Had the intention of the legislature
been to make all the provisions of the Code
of Civil Procedure applicable to the
proceedings under the Act, it could have
said so just in one sentence."

16. In the matter of Anand Narayan
and others vs. Deputy Director of
Consolidation, Gorakhpur and others,
reported in 2013(121) RD 45, question
relating to applicability of Order 22 of
Code was considered and answered by the
coordinate Bench of this Court that the
provisions as enunciated under Order 22 of
Code qua substitution of the heirs and legal
representatives of the deceased on the
record
is
not
applicable
in
the
cases/appeal/revision under the U.P.C.H.
Act. Relevant paragraph no. 12 of the
judgment in Anand Narayan (supra) is
being quoted herein under:-

"12. In such circumstances, the
provisions of Order 22 Rule 3(2) and Rule
4(3) CPC which provides for abatement of
the suit and proceeding for not filing the
substitution application within 90 days of
the
death
of
the
parties
will
not
automatically apply to the proceeding
before the consolidation authorities and in
view of Section 4 CPC, the special
provisions
regulating
the
proceedings
before the consolidation authorities will
have overriding effect and the provisions of
CPC will not be imported to the proceeding
in the consolidation. The case law relied by
counsel for the respondents in the cases of
Khedan Vs. Vishwanath, 1989 RD 364,
Dibhag Singh Vs. DDC and others, 1990
RD 151, Ishwari Vs. DDC and others, 1990
RD 175 and Ranvir Singh Vs. JDC and
others, 2007 (102) RD 42 as well as the
Full Bench judgment of this Court in Bijai
Narain Singh and Others v. State of U.P.
and Others AIR 1970 All 241 (FB) squarely
cover
the
controversy.
In
such
circumstances, the argument of counsel for
the petitioner is not liable to be accepted."

17. In this view of the matter, even
assuming that substitution application was
filed at a belated stage, there will be no
abatement in the matter inasmuch as
provisions as enunciated under Order 22 of
Code and the provisions as enunciated
10 All. Ram Murat Vs. D.D.C. Allahabad & Ors.
773
under Article 120 and 121 of the Limitation
Act are not applicable in a proceeding
under the U.P.C.H. Act, though provisions
of section 5 of the Limitation Act, 1963 has
been made applicable, for the limited
purposes in proceedings under U.P.C.H.
Act by virtue of Section 53-B of the
U.P.C.H. Act. Therefore, mere furnishing
an information qua death of any party,
along with the details of his heir and legal
representatives, arrayed in the cause title of
any proceeding under U.P.C.H. Act would
be suffice for the purpose of survival of the
cause of action involved in the matter.

18. Learned counsel for the petitioner
has failed to demonstrate as to how he is
prejudiced due to the order passed by the
Settlement Officer of Consolidation in
allowing the substitution or there is any
likelihood of causing miscarriage of justice to
the present petitioner. I do not find any
justifiable ground to interfere in the
impugned orders passed by the Settlement
Officer of Consolidation and the Deputy
Director of Consolidation.

19. Accordingly, the present writ
petition, being misconceived and devoid on
merits, is dismissed with no order as to the
costs.

20. However, before parting the matter,
counsel for both the parties have requested
for issuance of a direction for expeditious
disposal of the appeal pending before the
Settlement Officer of Consolidation.

21. Considering the old matter, the
Settlement Officer of Consolidation, before
whom the appeal is pending, is hereby
directed to decide the appeal expeditiously,
preferably within a period of three months
from the date of production of a certified
copy of this order.

22. It is expected that it should be
decided by reasoned and speaking order, in
accordance with law, after affording
opportunity of hearing to the parties
concerned without granting unnecessary
adjournments.
----------
(2022) 10 ILRA 773
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ-B No. 3449 of 2018

Ram Murat ...Petitioner
Versus
D.D.C. Allahabad & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sri Kamleshwar Singh, Sri Krishna Kant
Vishwakarma, Sri Rakesh Pande, Sri Rajesh
Kumar Singh

Counsel for the Respondents:
C.S.C., Sri Praveen Chandra Mishra, Sri Ram
Sajiwan Mishra

Hindu
Law
-
Hindu
Adoption
&
Maintenance Act, 1956 - Section 16 -
Proof of Adoption deed - Under the Hindu
Law, there cannot be a valid adoption
unless the adoptive boy is transferred
from one family to another and that can
be done only by the ceremony of giving
and taking- it is essential to have a formal
ceremony. - law requires that the natural
parent shall hand over the adoptive boy
and the adoptive parent shall receive him
- ceremony of giving and taking is
essential to validate adoption - Indian
Evidence Act, S. 90 - so far as admissibility
of the document being 20 year old under
Section 90 of Evidence Act, 1872 it has
nothing to do with the ceremonies of the
adoption which has to be proved either by
direct evidence or presumption has to be
raised according to the provisions of