# Ram Roop and another v. The Deputy Director of Consolidation, Varanasi and others

- **Citation:** (2002) 1 ILRA 179
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-01-03
- **Case number:** Civil Misc. Writ Petition No. 481 of 1977
- **Bench:** R.H. Zaidi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-roop-and-another-v-the-deputy-director-of-consolidation-varanasi-and-others-39787
- **Pages:** 4

## Headnote

Sri Ram Niwas Singh
S.C.

U.P.
Consolidation
of
Holdings
Act
Section 48 - Power of Revisional Court -
application for Amendment - based on
absolutely
new
case-Allowed
by
Consolidation Officer by erypic order -
set a side by D.D.C. held-proper-new
case
based
on
such
facts
already
available can not
be permitted by
amendment.
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
180
Held-Para 6

The Consolidation Officer allowed the
amendment application by passing a
cryptic
order
and
permitted
the
petitioners to set up a new case, which is
not permissible under the law. The
Deputy Director of Consolidation on a
revision
filed
by
the
contesting
respondents rectified the mistake an
rightly
allowed
the
revision
and
dismissed the amendment application. It
is well settled in law that a new case
based
upon
the
facts
which
were
available to the plaintiff at the time of
filing of original plaint but were not
pleaded in the original plaint, cannot be
permitted to be set up by way of
amendment. A reference in this regard
may be made to the decisions in Basanti
devi Vs. Vijaya Krushna Patnaik and
others, reported in AIR 1976 Orissa 218,
fakir Charan Monhanty Vs. Krutibas Kar,
reported in AIR 1984 NOC 284 and Full
Bench decision of Madhya Pradesh High
Court in Lazarus Chhindwara Vs. Smt.
Lavina
Lazarus,
Indore
and
others,
repoted in AIR 1979 MP 70 (FB) and also
a decision of this Court in Gayatri Devi
Vs. Om Prakash Gautam and others,
reported in AIR 1985 Alld 356.

## Text

1All] Ram Roop and another V. The Dy. Director of Consolidation, Varanasi and others
179
petitioner has again preferred an appeal
before the Commissioner, which is
pending.

4. The land has been acquired by
issuing notifications under sections 4(1)
and 6 read with Section 17 of the Land
Acquisition Act. Since the urgency
provisions under Section 17 have been
invoked the state has to pay eighty
percent of the estimated amount of
compensation to the person interested in
view Section 17(3-A) of the Land
Acquisition
Act.
A
supplementary
affidavit has been filed wherein it is
averred that the amount regarding which
the dispute has arisen is being paid under
Section 17(3-A) of the Land Acquisition
Act. The present writ petition has been
filed praying that a direction may be
issued to the Additional Collector (Land
Acquisition) to make payment of the
aforesaid amount of compensation to the
petitioner, in view of the compromise
which had been entered into between the
petitioner and respondent no. 3 on
12.10.1999.

5. The facts mentioned above would
show that there is a serious dispute of title
between the petitioner and respondent No.
3. The petitioner claims that his name had
been recorded prior to the issuance of
notification under Section 4(1) of the
Land Acquisition Act. Sub-Clause (b) of
Section 17(3-A) of the Act provides that
the Collector shall make payment of
amount of compensation unless he is
prevented by someone or more of the
contingencies mentioned in Section 31(2),
section 31(2) lays down that if there be
any dispute as to the title to receive the
compensation or as to the apportionment
of it, the Collector shall deposit the
amount of compensation in the Court, to
which a reference under Section 18 would
be submitted. In view of this clear
provision in the Act, the compensation
should not be paid to any of the parties till
the reference is decided by the Court.

6. We, therefore, direct that the
compensation amount shall not be paid to
any party. The Collector may deposit the
amount in Court in accordance with subclause (2) of Section 31 of the Land
Acquisition Act.

The writ petition is allowed in the
manner indicated above.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD: JANUARY 3, 2002.

BEFORE
THE HON'BLE R.H. ZAIDI, J.

Civil Misc. Writ Petition No. 481 of 1977

Ram Roop and another
...Petitioner
Versus
The Deputy Director of Consolidation,
Varanasi and others
 ...Respondents

Counsel for the Petitioner:
Sri R.N. Singh
Sri S.N. Singh
Sri A.K. Rai

Counsel for the Respondents:
Sri Ram Niwas Singh
S.C.

U.P.
Consolidation
of
Holdings
Act
Section 48 - Power of Revisional Court -
application for Amendment - based on
absolutely
new
case-Allowed
by
Consolidation Officer by erypic order -
set a side by D.D.C. held-proper-new
case
based
on
such
facts
already
available can not
be permitted by
amendment.
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
180
Held-Para 6

The Consolidation Officer allowed the
amendment application by passing a
cryptic
order
and
permitted
the
petitioners to set up a new case, which is
not permissible under the law. The
Deputy Director of Consolidation on a
revision
filed
by
the
contesting
respondents rectified the mistake an
rightly
allowed
the
revision
and
dismissed the amendment application. It
is well settled in law that a new case
based
upon
the
facts
which
were
available to the plaintiff at the time of
filing of original plaint but were not
pleaded in the original plaint, cannot be
permitted to be set up by way of
amendment. A reference in this regard
may be made to the decisions in Basanti
devi Vs. Vijaya Krushna Patnaik and
others, reported in AIR 1976 Orissa 218,
fakir Charan Monhanty Vs. Krutibas Kar,
reported in AIR 1984 NOC 284 and Full
Bench decision of Madhya Pradesh High
Court in Lazarus Chhindwara Vs. Smt.
Lavina
Lazarus,
Indore
and
others,
repoted in AIR 1979 MP 70 (FB) and also
a decision of this Court in Gayatri Devi
Vs. Om Prakash Gautam and others,
reported in AIR 1985 Alld 356.

(Delivered by Hon'ble R.H. Zaidi, J)

1. Heard learned counsel for the
parties.

2. By means of this petition filed
under Article 226 of the Constitution of
India, petitioner prays for issuance of a
writ, order or dierection in the nature of
certiorari
quashing
the
order
dated
10.1.1977 passed by the Deputy Director
of Consolidation.

3. The relevant facts of the case
giving rise to the present petition, in brief
are that the dispute relates to Khata No.
169 of village Bhatpurwa Khurd, dictrict
Varansai for shot the land in dispute. In
the basic year both parties, i.e. the
petitioners and Smt. Daulati, wdom of
Bechan were recorded over the land in
dispute. On the receipt of Form No. 5,
issued by the consolidation authorities,
the petitioners filed their objections
claiming that the land in dispute belonged
to them exclusively and that the name of
Smt. Daulati was liable to be expunged
from revenue papers. It was pleaded that
the land in dispute was originally owned
by Smt. Mangari, widow of Chauthi that
Smt. Mangari had two sons, Jokhan and
Bechan who died during the life time of
Smt. Mangari, that the name of Smt.
Daulati, wife of Bechan who was alive,
was wrongly recorded in the revenue
papers and that the petitioners were in
adverse possession of the land in dispute.
It was also pleaded that Smt. Daulati
entered into an agreement to sell the land
in dispute in favour of the petitioners after
acquiring bhumidhari rights. She also
received
from
them
sufficient
sale
consideration; but subsequently acting
illegally
executed
baksheeshnama
in
favour of Smt. Maharani and Smt. Sona
but the petitioner continued in possession
of the land in dispute. Therefore, it was
prayed that the names of contesting
respondents
be
expunged
from
the
revenue papers. The objection filed by the
petitioner
was
contested
by
the
respondents who have denied the case set
up by the petitioners and claimed that
they were entitled to 1⁄2 share in the land
in dispute. The petitioners thereafter also
filed an application for amendment of
their objections, mainly pleading that
Smt. Daulati illegally surrendered some
land in favour of the Zamindar and also
executed a document to that effect. The
petitioners thereafter got executed a sale
deed from the Zamindar and became
1All] Ram Roop and another V. The Dy. Director of Consolidation, Varanasi and others
181
exclusive owners of the land in dispute.
Other consequential amendments in the
objections
were
also
sought.
The
amendment application was objected to
and opposed by Smt. Daulati. However,
the
same
was
allowed
by
the
Consolidation Officer by Judgement and
order dated 30.6.1976. Challenging the
validity of the order passed by the
Consolidation Officer, the contesting
respondents
filed
a
revision
before
Deputy Director of Consolidation. The
Deputy Director of Consolidation has
reversed the findings recorded by the
Consolidation Officer and allowed the
revision by his judgment and order dated
10.1.1977. Hence the present petition.

4.

Learned
counsel
for
the
petitioners vehemently urged that the
judgment and order passed by the Deputy
Director of Consolidation is wholly illegal
and without jurisdiction. It was urged that
the Deputy Director of Consolidation had
no jurisdiction to reverse the findings
recorded by Consolidation Officer and to
allow the revision, therefore, the order
passed by the Deputy Director of
Consolidation was liable to be quashed.
On the other hand, learned counsel for the
respondent supported the validity of the
order passed by the Deputy Director of
Consolidation. It was urged that by means
of the amendment the petitioner wanted to
set up a wholly new case for which there
was absolutely no basis either in the
pleadings or otherwise and the same was
not
necessary
for
resolving
the
controversy
involved
in
the
case,
therefore,
the
Deputy
Director
of
Consolidation was right in allowing the
revision and in dismissing the applicant
for
amendment.
The
writ
petition,
according to him has got no force and is
liable to be dismissed with costs.
5. I have considered the submissions
made by the learned counsel for the
parties and also perused the record.

6. It is not disputed that the land in
dispute was owned by the common
ancestor of the parties i.e. Smt. Mangari,
who had two sons Jokhan and Bechan. It
is also not disputed that Smt. Daulati is
the widow of Bechan. Thus, legally she
was entitled to 1⁄2 share in the land in
dispute. Originally the petitioners have
taken pleas of adverse possession and
execution of an agreement of sale in their
favour by Smt. Daulati but subsequently
they wanted to change their case and to
plead that Smt. Daulati has surrendered
the land in dispute in favour of Zamindar
and from the Zamindar the petitioners got
executed some document in their favour
on the basis of which they claimed that
they
were
sole/exclusive
owners/bhumidhars of the land in dispute.
Through the pleas taken by them by
amendment they wanted to set up a new
case. The Consolidation Officer allowed
the amendment application by passing a
cryptic order and permitted the petitioners
to set up a new case, which is not
permissible under the law. The Deputy
Director of Consolidation on a revision
filed by the contesting respondents
rectified the mistake and rightly allowed
the revision and dismissed the amendment
application. It is well settled in law that a
new case based upon the facts which were
available to the plaintiff at the time of
filing of original plaint but were not
pleaded in the original plaint, cannot be
permitted to be set up by way of
amendment. A reference in this regard
may be made to the decisions in Basanti
Dei Vs. Vijaya Krushna Patnaik and
others, reported in AIR 1976 Orissa 218,
Fakir Charan Monhanty Vs. Krutibas Kar,
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
182
reported in AIR 1984 NOC 284 and Full
Bench decision of Madhya Pradesh High
Court in Lazarus Chhindwara Vs. Smt.
Lavina Lazarus, Indore and others,
reported in AIR 1979 MP 70 (FB) and
also a decision of this Court in Gayatri
Devi Vs. Om Prakash Gautam and others,
reported in AIR 1985 Alld 356.

7. It is not pleaded by the petitioners
that the facts which were to be pleaded by
means of amendment were not in their
knowledge at the time when the original
objection was filled by them. The Deputy
Director of Consolidation after taking into
consideration the entire material on the
record rightly held as under:-

"orZeku eqdnesa esa foi{khx.k dh vksj foyEc
dk dksbZ dkj.k ugha crk;k x;k vkSj u gh izLrkfor
rjehe dk dksbZ vkSfpR; crk;k x;k A rudhg cukus
ds ckn vkSj fo'ks"kdj tc ,di{k dh 'kgknr Hkh
lekIr gks pqdh gS rks la'kks/ku Lohdkj djus dk dksbZ
vkSfpR; ugha gS A bl rjehe ls foi{khx.k us
fcYdqy u;k okn vk/kkj fy;k gS A ,djkjukek dh
ckr lekIr dj nh x;h gS vkSj nLrojnkjh ,oa
cUnkscLr dk vfHkopu fy;k x;k gS ftldh vuqefr
ugha nh tk ldrh A pdcUnh vf/kdkjh us tks vkns'k
ikfjr fd;k og +=qfViw.kZ gS eSa muds }kjk O;Dr fd,
x, er ls lger ugha gwWa fuxjkuh esa cy gS A
QyLo:i fuxjkuh Lohdkj dh tkrh gSA pdcUnh
vf/kdkjh dk vkns'k fnukaWd 30-6-76 fujLr fd;k
tkrk gS foi{khx.k dk rjehe izkFkZuk i= vLohdkj
fd;k tkrk gSA lEcfU/kr p0v0 ds le{k i{kx.k
17-1-1977 dks mifLFkr gksaA"

8. I fully agree with the view taken
by the Deputy Director of Consolidation.
The parties cannot be permitted to change
their cases by amending their pleadings
and set up new cases unless, of course, the
amendment is necessary for resolving the
controversy involved in the case. The
amendment sought by the petitioners in
the present case was not necessary for
resolving the controversy involved in the
case. The finding recorded by the Deputy
Director of Consolidation are based on
relevant evidence on the record and do
not suffer from any illegality or infirmity.
The writ petition, therefore, has got no
merits, the same fails and is hereby
dismissed. The interim order, if any,
granted
by
this
Court
is
hereby
discharged.

Since the matter has become very old
because of the interim order granted by
this Court, the Consolidation Officer, if
the work of consolidation is going on in
the district otherwise the competent
authority, is directed to decide the case
expeditiously preferably within a period
of two months from the date a certified
copy of this judgement is communicated
to him.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD JANUARY 4, 2002.

BEFORE
THE HON'BLE R.R. YADAV, J.

Civil Misc. Writ Petition No. 43947 of 2001

Anuradhika

...Petitioner
Versus
Additional District Judge, Azamgarh and
another

 ...Respondents

Counsel for the Petitioner:
Sri A. Khare
Sri J.P. Singh

Counsel for the Respondents:
Sri R.K. Yadav
S.C.

Constitution of India-Article 226 - to do
full justice between the parties, order for