# Smt. Rama Devi & Anr v. D.D.C., Hardoi & Ors

- **Citation:** (2024) 1 ILRA 706
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-22
- **Case number:** Writ-B No. 390 of 2023
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rama-devi-anr-v-d-d-c-hardoi-ors-50950
- **Pages:** 20

## Headnote

Post-Section 10 and 20 Proceedings - The
petitioners
challenged
orders
of
the
Consolidation Officer, Settlement Officer of
Consolidation (S.O.C.), and Deputy Director of
Consolidation (C.) for recording names and
partitioning land purchased post-consolidation
proceedings
-
Held,
after
conclusion
of
proceedings under Sections 10 and 20 of the
U.P. Consolidation of Holdings Act, 1953, the
Consolidation Officer retains jurisdiction under
Section 12 to record names and partition land
based on transactions post-dating the revised
records, as per Diwakar Rai Vs Dy. Director of
Consolidation. (Paras 6, 11, 15)

Section 11-A Bar - Inapplicability - The
petitioners argued that orders under Section
9-A(2)
were
barred
post-Section
20
notification - Held, Section 11-A does not
apply to claims arising after Section 10 and
20 proceedings, such as the sale deed dated
09.03.2022; Section 12 governs such claims,
and citing a wrong provision (Section 9-A
instead of Section 12) does not vitiate the
proceedings if the authority has jurisdiction,
following Ram Sunder Ram Vs Union of
Indi(Paras 5, 6, 15)

Partition of Joint Holdings - Consolidation
Officer's Power
- The petitioners and
respondent no. 5 jointly purchased land, and the
Consolidation Officer partitioned it - Held, under
Sections 9-C, 12, and 44-A of the Act, the
Consolidation Officer is empowered to partition
joint holdings, even post-Section 20, when a
cause of action arises after revised records are
published, as supported by Harihar Prasad
Pandey Vs Dy. Director of Consolidation. (Paras
11, 14, 15)

Chak Allotment - Consideration of Boring
and Evidence - The petitioners challenged the
allotment of a chak adjacent to Kharanja (road)
to respondent no. 5 - Held, the allotment was
justified based on documentary evidence,
including electricity bills and sale deeds,
confirming respondent no. 5's boring on the
northern side of Gata No. 519, while petitioners'
sale deeds indicated no boring; both parties
received chaks adjacent to Kharanja (road),
satisfying equitable distribution under Section

## Text

_Characters 0–39,808 of 71,311. This is a partial read: ask again with offset=39808 for what follows._

706 INDIAN LAW REPORTS ALLAHABAD SERIES
related in this aspect and the facts that the
explanation given in the application for
condonation of delay has not been refuted
in specific terms by giving details of the
case, the basis of objection, and the law
on the issue of condonation of delay
including the law regarding interference
by the higher court in the order
condoning the delay, this Court feels that
the matter is liable to be decided on
merits
and
Consolidation
Officer,
Bahraich has rightly exercised its power
and
condoned
the
delay
and
the
observations made in the impugned
orders are just and proper and being so no
interference is required in the impugned
order
dated
12.07.2023
passed
by
Consolidation Officer, Bahraich and order
dated 27.10.2023 passed by Deputy
Director of Consolidation, Bahraich.

32. For the reasons aforesaid, the
present petition is liable to be dismissed.
It is dismissed accordingly. Cost made
easy.
----------
(2024) 1 ILRA 706
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.12.2023

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Writ-B No. 390 of 2023

Smt. Rama Devi & Anr. ...Petitioners
Versus
D.D.C., Hardoi & Ors. ...Respondents

Counsel for the Petitioners:
Anurag Shukla

Counsel for the Respondents:
C.S.C., Anurag Narain Srivastava, Dilip
Kumar Pandey, Rahul Srivastava, Sudhanshu
Tripathi
Jurisdiction of Consolidation Authorities -
Post-Section 10 and 20 Proceedings - The
petitioners
challenged
orders
of
the
Consolidation Officer, Settlement Officer of
Consolidation (S.O.C.), and Deputy Director of
Consolidation (C.) for recording names and
partitioning land purchased post-consolidation
proceedings
-
Held,
after
conclusion
of
proceedings under Sections 10 and 20 of the
U.P. Consolidation of Holdings Act, 1953, the
Consolidation Officer retains jurisdiction under
Section 12 to record names and partition land
based on transactions post-dating the revised
records, as per Diwakar Rai Vs Dy. Director of
Consolidation. (Paras 6, 11, 15)

Section 11-A Bar - Inapplicability - The
petitioners argued that orders under Section
9-A(2)
were
barred
post-Section
20
notification - Held, Section 11-A does not
apply to claims arising after Section 10 and
20 proceedings, such as the sale deed dated
09.03.2022; Section 12 governs such claims,
and citing a wrong provision (Section 9-A
instead of Section 12) does not vitiate the
proceedings if the authority has jurisdiction,
following Ram Sunder Ram Vs Union of
Indi(Paras 5, 6, 15)

Partition of Joint Holdings - Consolidation
Officer's Power
- The petitioners and
respondent no. 5 jointly purchased land, and the
Consolidation Officer partitioned it - Held, under
Sections 9-C, 12, and 44-A of the Act, the
Consolidation Officer is empowered to partition
joint holdings, even post-Section 20, when a
cause of action arises after revised records are
published, as supported by Harihar Prasad
Pandey Vs Dy. Director of Consolidation. (Paras
11, 14, 15)

Chak Allotment - Consideration of Boring
and Evidence - The petitioners challenged the
allotment of a chak adjacent to Kharanja (road)
to respondent no. 5 - Held, the allotment was
justified based on documentary evidence,
including electricity bills and sale deeds,
confirming respondent no. 5's boring on the
northern side of Gata No. 519, while petitioners'
sale deeds indicated no boring; both parties
received chaks adjacent to Kharanja (road),
satisfying equitable distribution under Section
19. (Paras 4, 19, 20, 21, 15)
1 All. Smt. Rama Devi & Anr. Vs. D.D.C., Hardoi & Ors.
707
Waiver of Jurisdictional Objection - The
petitioners did not raise the plea of jurisdiction
under Section 11-A before the S.O.or - Held,
failure to object to the Consolidation Officer's
jurisdiction at the initial stage constitutes waiver,
and the orders merged with appellate decisions,
rendering
the
jurisdictional
challenge
unsustainable, as per St. of U.P. Vs Phool Singh
and
Tungal
Singh
Vs
Dy.
Director
of
Consolidation. (Paras 14, 15)

Petition Dismissed.

List of Cases cited:

1. Gafoora Vs Dy. Director of Consolidation,
(1975) 2 SCC 568

2. Baburam Vs Dy. Director of Consolidation,
Writ B No. 331 of 2023 (All HC, 25.04.2023)

3. Diwakar Rai Vs Dy. Director of Consolidation,
2005 SCC OnLine All 1378

4. Sudhir Kumar Goswami Vs Dy. Director of
Consolidation, 2011 SCC OnLine All 1320

5. Ram Milan Vs Additional Commissioner
(Admin) Devi Patan, 2019 SCC OnLine All 5478

6. Harihar Prasad Pandey Vs Dy. Director of
Consolidation, 1979 SCC OnLine All 867

7. Ram Sunder Ram Vs Union of India, (2007)
13 SCC 255

8. N. Mani Vs Sangeetha Theatre, (2004) 12
SCC 278

9. St. of U.P. Vs Phool Singh, 1974 Unreported
Revenue Cases 502

10.
Tungal
Singh
Vs
Dy.
Director
of
Consolidation, 1969 Rev Dec 54 (All)

(Delivered by Hon'ble Saurabh Lavania, J.)

1.

Heard
Sri Anurag
Shukla,
Advocate, counsel for petitioner, Sri
Anurag Narayan Srivastava, Advocate,
counsel for the Respondent No. 5 and Sri
Hemant Kumar Pandey, Learned standing
counsel.

2. In view of the order proposed to be
passed by this Court, notice to other
private-respondents is dispensed with.

3. The present petition has been filed
for the following main reliefs:-

"(i) to issue a writ, order or direction
in the nature of Certiorari quashing the
impugned order of Dy. Director of
Consolidation dated 06-04-23, impugned
order
of
Settlement
Officer
of
Consolidation order dt. 27-09-2022 as well
as without jurisdiction orders passed by the
consolidation officer dt. 22-07-22 and 1008-22, contained as Annexure no. 1, 2, 3
and 4 to this Writ Petition, with all
consequential effects.

(ii) to issue a writ, order or direction in
the nature of Mandamus commanding the
Respondents not to interfere in the peaceful
possession,
use
and
occupation
of
purchased share of Khata no. 422"

4. The brief facts of the case, as
appears from record, are as under:-

(i) The Gata No. 519 area 0.5110
Hectare Gata No. 517 area 0.0381 Hectare,
Gata No. 257 area 0.0220 Hectare and Gata
No. 519 area 0.0800 Hectare were
purchased by petitioner no.1/ Smt. Rama
Devi and respondent no. 5/ Smt. Sarita
Devi through registered sale deed dated
09.03.2022. Boundaries indicated in this
sale deed are as under:-

East-
Land Sushil

West-
Kharanja (road)

North- Kharanja (road)

South- Land Ahibaran and Others
708 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) The sale deed dated 09.03.2022
was
executed
after
conclusion
of
proceedings under Section 10 and 20,
respectively, of U.P. Consolidation of
Holdings Act, 1953 (in short 'Act of 1953'),

(iii) Undisputedly the proceedings
under Section 10 and 20. of the Act of
1953, were concluded on 31.08.2020 and
05.03.2021, respectively.

(iv) After becoming the owner of the
land in dispute i.e. Gata No. 519, an
application was moved under Section
9A(2) of the Act of 1953, which was
registered as Case No. 402/21-22 (Sarita
Devi Versus Rama Devi and Others).

(v) Vide order dated 22.07.2022 the
respondent no. 3/Consolidation Officer
Bilgram, District Hardoi in short (C.O.),
after considering the fact that the name of
Laxmi Devi wife of Munna Lal (vendor of
sale deed dated 09.03.2023) was recorded
in the revenue records in regard to Gata No.
517/0.0381 Hectare, Gata No. 519/0.5100
Hectare, Gata No. 257/0.0220 Hectare
(total area 0.611 Hectare) and that of sale
deed dated 09.03.2022 , as also the report
dated
02.06.2022
of
Assistant
Consolidation Officer, directed to indicate
the name of Respondent No. 1/Smt. Sarita
Devi and Petitioner No. 1/Smt. Rama Devi
in Form 23 of Chak No. 422 according to
their share indicated in the sale deed dated
09.03.2022.

(vi)
Through
sale
deed
dated
09.03.2022, the petitioner no.1/Smt. Rama
Devi and respondent no. 5/Smt. Sarita Devi
became the owner of (vkB vkuk) 1/2 share
each of the total area of land purchased.

(vii) It appears that after the order
dated 22.07.2022, the petitioner no. 1/Smt.
Rama Devi and respondent no.5/Smt. Sarita
Devi preferred application(s) under Section
21(1) of the Act of 1953, which were
registered as Case No. 224 (Sarita Devi
Versus Gaon Sabha and Others) and Case
No. 228 (Smt. Rama Devi Versus State).

(viii) The respondent no. 5/Smt. Sarita
Devi in her application stated that Chak be
provided adjacent to Kharanja (road) after
taking boring into account.

(ix) The petitioner No.1/Smt. Rama
Devi in her application also claimed that
Chak be provided adjacent to Kharanja
(road).

(x) The respondent no.3/C.O. vide
order dated 10.08.2022 decided both the
cases i.e. Case No. 224 (Sarita Devi Versus
Gaon Sabha and Others) and Case No. 228
(Smt. Rama Devi Versus State).

(xi) Vide order dated 10.08.2022, the
Chak was provided to respondent no.5/Smt.
Sarita Devi adjacent to Kharanja (road)
situated at Northern side of the land
purchased
through
sale
deed
dated
09.03.2022. This Chak was provided after
taking note of the fact that the boring of
respondent no.5/Smt. Sarita Devi is situated
at Gata No. 519.

(xii) A chak adjacent to Kharanja
(road) situated at Southern side was also
provided to the petitioner no.1/Smt. Rama
Devi.

(xiii) The order dated 10.08.2022 on
reproduction reads as under:-

"eSaus i=koyh pd Hkwfp= ,oa vfHkys[kksa dk
voyksdu fd;k rFkk mifLFkr i{kksa dks lqukA

i=koyh ,ao vfHkys[kksa ls Li"V gS fd tks0 p0
v0 23 Hkkx ds pd la[;k 422 y{ehnsoh iRuh Lo0
eqUuwyky fu0 xzke gSoriqj ds uke vafdr gSA l0 p0
v0 okn la[;k 18@29&04&22 /kkjk 12 esa vkns'k gqvk
gS fd pd la[;k 422 dh xkVk la[;k 519@jdck
0@381 gs0] 519@0-511 dqy 2 fd0 jdck 0-5491 gs0
o xkVk la[;k 257@0-220 gs0 o xkVk la[;k 519 fe0
jdck 0-0800 gs0 ls fodzsrk y{eh nsoh iRuh ewUuwyky
ds LFkku ij dszrh Jherh lfjrk nsoh iRuh fuHkZ;
dqekj fu0 gSoriqj o Jherh jkensoh iRuh Lo0
jkefd'kksj fu0 xzke dk uke ntZ fd;k x;k gS p0 v0
okn la[;k 209@30&06&22 }kjk xkVk la[;k 519
fe0@0-0800 gs0 dh ekfy;r 90 iSlk fu/kkZfjr dh xbZ
1 All. Smt. Rama Devi & Anr. Vs. D.D.C., Hardoi & Ors.
709
rFkk p0 v0 okn la[;k 402@22&07&22 /kkjk 9 d
1⁄421⁄2 }kjk pd la[;k 422 dk foHkktu vpd Hkwfe
NksM+dj lfjrk nsoh] jkensoh izR;sd 1⁄2 Hkkx ntZ gS tks0
p0 v0 23 Hkkx 1 ds pd la[;k 422 ewy xkVk la[;k
519 fe0 vkfn ij ewY;kadu 49-42 dk pd izfn"V
fd;k x;k gS vkifRr djrh lfjrk nsoh us o jkensoh
us Hkwfe cSukek ls dz; fd;k gS rFkk cSukek ds vk/kkj
ij lfjrk nsoh dks pd mRrj rjQ jkLrk ls feykdj
cksfjax ysrs gq;s rFkk jkensoh dks nf{k.k rjQ jkLrs ls
yxk gqvk pd dh ekax mfpr gS vkifRr;ka Lohdkj
fd;s tkus ;ksX; gS vr% vkns'k gqvk fd %&

vkns'k

xzke gSoriqj ijxuk o rglhy fcyxzke ftyk
gjnksbZ ds pdnkj la[;k 422 Jherh lfjrk nsoh o
Jherh jkensoh dh pd vkifRr;ksa dks Lohdkj fd;k
tkrk gS layXu la'kks/ku rkfydk ftl ij esjs
lfnukad gLrk{kj gS vkns'k dk vax gksxh bl
la'kks/ku ls pd la[;k 422] 422v] 422o] ukyh
rFkk cp la'kksf/kr gksrs gSa la'kksf/kr m)j.k tkjh gks
LFky ij lhekadu gksA ;gh vkns'k jkensoh cuke
ljdkj ij ykxw gksxkA

i=koyh ckn veynjken nkf[ky n¶rkj gksA"

(xiv) The order dated 10.08.2022
was challenged by petitioner no.1/Smt.
Rama
Devi
before
the
respondent
no.2/S.O.C., by means of an appeal
bearing
Appeal
No.
431
of
2022
Computerized Case No. 20225410330000
1406 (Rama Devi Versus Gaon Sabha)
under Section 21 (2) of the Act of 1953.
The respondent no.2/S.O.C., decided the
appeal vide order dated 27.09.2022. The
relevant
portion
of
order
dated
27.09.2022 reads as under:-

"xzke ds vfHkys[k o pd&Hkwfp= dk voyksdu
,oa ijh{k.k fd;k x;kA vfHkys[kksa ds voyksdu ls
Li"V gS fd pdcUnh vf/kdkjh okn la[;k
402@22&07&2022 vUrxZr

/kkjk&9 d 1⁄421⁄2 esa pd la[;k 422 dk foHkktu
lfjrk nsoh 1@2 o jkensoh 1@2 Hkkx ntZ fd;s
tkus dk vkns'k ikfjr fd;k x;kA vihyk.V
pdnkj la[;k 422c Jherh jkensoh iRuh Lo0
jkefd'kksj ds uke ewy xk0la0 519 esa 1@2 va'k
ew0 29-34 iSlk vafdr gSA ckn dVkSrh vihyk.V dks
voj U;k;ky; }kjk ewy xk0la0 519 fe0 vkfn dks
ysdj ew0 28-17 iSlk dk flaxy pd izLrkfor fd;k
x;k gSA xk0la0 519 ds lEcU/k esa pdcUnhdrkZ dk
LikV eseks i=koyh esa layXu gS] ftlesa mYys[k fd;k
gS fd xk0la0 519@0-6110 gs0 gjnksbZ ls fcyxzke
tkus okyh lM+d ekxZ ls xzke ds vUnj if'pe dh
vksj tkus okys ifjdzek ekxZ ij nf{k.k vksj fLFkr gSA
xkVk la[;k 519@0-6110 gs0 lery] nks Qlyk]
vPNh iSnkokj o flafpr gSA xk0la0 519 esa ,d le
cksfjax e; fo|qr dusD'ku ds gSa] tks tksr pdcUnh
vkdkj i=&2d esa [kkrsnkj ds uke vafdr gSA
LikV&eseks esa xk0la0 519 esa mRrj iwjc dksus ds ikl
,d lej lsfcy e; fo|qr dusD'ku gksus dk mYys[k
fd;k x;k gSA vihydrhZ dh eq[; ekax mldk pd
Hkw[k.M la[;k 517] 519] 257 ewy dks ysdj rjQ
if'pe nksuks [kM.ts ij cuk;s tkus dh gSA mDr
Hkw[k.M gjnksbZ&fcyxzke gkbos ij rjQ if'pe fyad
jksM [kM.tk ij iM+rk gSA mDr [kM.tk iwjc&if'pe
yEckbZ dh fn'kk esa gSA vfHkys[kksa ds voyksdu ls
Li"V gS fd xk0la0 257 pdcUnh i`Fkd xkVk gS o
xk0la0 519 gkbos ij u gksdj gkbos ls if'pe vksj
dks tkus okys ifjdzek ekxZ ij nf{k.k dh vksj fLFkr
gSA mDr xkVk gkbos ls yxHkx 65 ehVj nwjh ij
fLFkr gSA vihydrkZ dk pd xk0la0 513 pdekxZ
1⁄4[kM.tk1⁄2 ls yxk gqvk izfn"V gSA xk0la0 519 esa
mRrj iwjc dksus ds ikl ,d lej lsfcy fLFkr gSA
i=koyh esa miyC/k lk{;ksa ls Li"V gS fd orZeku esa
lej lsfcy dk fo|qr dusD'ku Jherh lfjrk ds uke
gS ,oa muds }kjk fo|qr fcy dk Hkqxrku Hkh fd;k tk
jgk gSA voj U;k;ky; }kjk lej lsfcy ysrs gq,
lfjrk dks pd izfn"V fd;k x;k gSA ;g Hkh Li"V gS
fd pdcUnh vf/kdkjh }kjk pd la[;k 422 dk
foHkktu lfjrk nsoh 1@2 o jkensoh 1@2 Hkkx ntZ
fd;s tkus dk vns'k okn la[;k 402 varxZr
/kkjk&9d1⁄421⁄2 rk0QS0 fnukad 22-07-2022 dks ikfjr
fd;k x;k blds i'pkr~ Jherh jkensoh fuoklh xzke
cysUnk us vius 1@2 Hkkx esa ls 1@2 Hkkx ;kuh dqy
dk 1@4 Hkkx dk cSukek fnukad 30-07-2022 dks iou
iq= jkeLo:i fuoklh gScriqj dks dj fn;k Fkk] ftlesa
mUgksus Lo;a fy[kk gS fd dksbZ isM+] daqvk] cksfjax ugha
gSA ,slh fLFkfr esa vihydrhZ dh ekax ds vuqlkj
la'kks/ku fd;k tkuk mfpr ugha izrhr gksrk gSA
rn~uqlkj izLrqr vihy fujLr fd;s tkus ;ksX; gSA"

(xv) Being aggrieved, the petitioner
no.1/Smt. Rama Devi preferred a revision
under Section 48(1) of the Act of 1953,
which was registered as Case No. 1512 of
2022,
Computerized
Case
No.
202254103300001512 (Rama Devi Versus
Sarita Devi and Others). The revisional
authority
i.e
respondent
no.1/D.D.C.
dismissed the revision vide order dated
710 INDIAN LAW REPORTS ALLAHABAD SERIES
06.04.2023. The relevant portion of order
dated 06.04.2023 reads as under:-

"eSaus mHk;&i{kksa ds fo}ku vf/koDrk }kjk fn;s
x;s rdksZa dks lqukA fuxjkuhdrkZ us rdZ fn;k gS fd
eqUuw ds LFkku ij y{ehnsoh iRuh eqUuwyky ds uke ls
ntZ gqbZ rFkk fnukad 09-03-2022 dks y{eh nsoh us
izLrkfor pd dks lfjrk nsoh iRuh fueZy o Jherh
jkensoh iRuh jkefd'kksj dks fodz; dj fn;k] ftldk
nkf[kyk [kkfjt Hkh gks pqdk gS ,oa pdcUnh vf/kdkjh
us /kkjk&9 d1⁄421⁄2 ds vUrxZr izR;sd dk foHkktu 1@2
va'k dj fn;kA Hkwfe dk fodz; izLrkfor va'k ls fd;k
x;k Fkk rFkk jkensoh iRuh jkefd'kksj ls 1@4 va'k dk
dz; iou dqekj iq= jkeLo:i us fd;k] ftldk Hkh
nkf[ky [kkfjt gks x;k gSA jkensoh us iqu% th'kku
vgen dks 1@4 va'k csp fn;kA xk0la0 519 esa lej
cksfjax gS] ftlesa iSlk jkensoh o lfjrk nksuks us
feydj yxk;k gS] fdUrq iou o jkensoh dk pd ihNs
cuk fn;k x;k gS] pd dks lM+d ls tksM+k tk;sA
mRrjoknh us rdZ fn;k gS fd jkensoh us izFke cSukek
fnukad 30-07-2022 dks fd;k Fkk] ftlesa isM+ o cksfjax
dk mYys[k ugha gS] mlds ckn jkensoh us iqu% cSukek
th'kku vgen dks dj fn;k vkSj bl cSukesa esa [ksr dh
pkSgn~nh esa iwjc [ksr vfgcju] if'pe lEidZ ekxZ]
mRrj [ksr lfjrk nsoh vkSj nf{k.k [ksr vuq:) vafdr
gSA bl izdkj Li"V gS fd jkensoh dh Hkwfe lM+d
[kM.tk ij ugha Fkh] tks cSukek fd;k gS cSukesankjksa ogha
dkfct gSaA dusD'ku lfjrk nsoh ds uke gSA bl izdkj
pdcUnh vf/kdkjh@cUnkscLr vf/kdkjh pdcUnh ds
vkns'k lfgr gSA

eSaus xzke ds vfHkys[k o pdHkwfp= dk voyksdu
fd;k x;kA jkensoh us viuh Hkwfe dk fodz; th'kku
vgen ds gd esa dj fn;k gSA fuxjkuhdrkZ jkensoh us
vius fodz; esa tks fodzhr xkVs dh pkSgn~nh n'kkZ;h gS]
mlls Li"V gS fd jkensoh ds pd ds mRrj vksj
lfjrk nsoh vkfn dk [ksr vkSj if'pe vksj [kM.tk]
iwjc vksj [ksr vfgcju o nf{k.k vksj [ksr vuq:)
flag dk gS] ogha ij pd cuk;k x;k gSA jkensoh us
Hkwfe dk fodz; dj fn;k gSA budh ekax ds vuqlkj
;fn pd cuk;k tk;sxk rks lfjrk nsoh dk pd nf{k.k
vksj ukyh vkdkj dk gks tk;sxkA ,slh n'kk esa
izLrkfor pd esa dksbZ Hkh la'kks/ku fd;k tkuk mfpr
ugha gSA fuxjkuh Lohdkj fd;s tkus ;ksX; ugha gSA
mijksDr foospuk ds vk/kkj ij vkns'k gqvk fd %&

vkns'k

fuxjkuh la[;k& 606@2023 jkensoh vkfn cuke
Jherh lfjrk nsoh vkfn gScriqj] ijxuk&fcyxzke]
rglhy&&fcyxzke] ftyk&gjnksbZ fujLr dh tkrh gSA

i=koyh ckn veynjken nkf[ky&n¶rj gksA "

(xvi) It would be relevant to refer here
that after the order dated 22.07.2022
whereby the respondent no.3/C.O. directed
the concerned official to indicate the name
of petitioner no.1/Smt. Rama Devi and
respondent no. 5/Smt. Sarita Devi in Form23, the petitioner no.1/Smt. Rama Devi
sold half of her share to one Pawan Kumar
(petitioner no.2 in the present petition)
through
registered
sale
deed
dated
30.07.2022 specifically mentioning therein
that no tree, well or boring is situated over
land under the sale deed.

(xvii) The petitioner no.1/Smt. Rama
Devi further executed a sale deed on
23.12.2022 in favour of one Jishan Ahmad
son of Akeel Ahmad and this sale deed also
indicates that no tree, well or boring is
situated over land sold. The boundaries
indicated in the sale deed are as under:-

East - Land of Ahibaran] West -
Kharanja (road), North - Land of Sarita
Devi (respondent no.5) and South - Land of
Anirudh Singh.

(xviii) The sale-deed dated 23.12.2022 was
executed after the order dated 27.09.2022
passed in appeal by respondent no.2/S.O.C.
In this sale-deed, the boundaries have been
indicated in terms of the order dated
10.08.2022 passed by the respondent no. 3
affirmed vide order dated 27.09.2022
passed by the respondent no. 2.

(xix) It would be relevant to note that
the respondent no. 2/S.O.C. asked for a
report for the purposes of disposal of
appeal and in response, the report dated
26.09.2022 was submitted before the
respondent
no.
2/S.O.C.
This
report
specifically indicates that the boring of
respondent no. 5/Smt. Sarita Devi is
situated over Gata No. 519 and this boring
is on northern side of land, which is
1 All. Smt. Rama Devi & Anr. Vs. D.D.C., Hardoi & Ors.
711
adjacent to Kharanja (road) connecting
Hardoi-Bilgram Road.

(xx) The sale-deed(s) executed by the
petitioner No. 1/ Smt. Rama Devi also proves
the fact that no boring was there over the
share of the petitioner No. 1/Smt. Rama Devi.

(xxi) It transpires from the order dated
27.09.2022 passed by the respondent no.
2/S.O.C. and order dated 06.04.2023
passed by the respondent no. 1/D.D.C. that
after considering the boring and area
purchased the chak was allotted to opposite
party No. 5/Smt. Sarita Devi adjacent to
Kharanja
(road)
connecting
HardoiBilgram Road, which is on northern side of
Chak No. 422. Accordingly, the petitioner
No. 1/Smt. Rama Devi was provided chak
adjacent to Kharanja (road) on western side
of Chak No. 422.

(xxi) It further transpires from the order
dated 06.04.2023 passed by the respondent
no. 1/D.D.C. that while dismissing the
revision preferred by the petitioner No.
1/Smt.
Rama
Devi,
the
Revisional
Authority/D.D.C.
also
considered
the
boundaries
indicated
in
the
sale-deed
executed by the petitioner No. 1/Smt. Rama
Devi in favour of Jeeshan Ahmad on
23.12.2022, according to which the land of
respondent no. 5/Sarita Devi is situated, on
northern side, and Kharanja (road) is situated
on western side of the land.
(xxii) It is also to be indicated that the plea
of jurisdiction based upon section 11-A was
not taken by the petitioner no.1/Rama Devi
either before S.O.C. or D.D.C.

5. In the aforesaid background, the
present petition, as indicated by the counsel
for the petitioner, has been filed on the
following grounds:-

(a) After publication of notification
under Section 20 of U.P. Consolidation of
Holdings Act, 1953 (in short "Act of
1953"), the Consolidation Officer was
having no power to pass an order under
Section 9-A of the Act of 1953, which
includes the orders dated 22.07.2022 and
10.07.2022.

(b) The application/objection preferred
by the opposite party no. 5/Smt. Sarita Devi
on account of bar provided under Section
11-A of the Act of 1953, which was decided
vide order dated 22.07.2022.

(c) The claim, if any, could be
entertained in respect of change/transfer
only.

(d) The order dated 10.08.2022 is
nullity in view of bar indicated under
Section 11-A of the Act of 1953.

(d) The order passed under Section 21
of the Act of 1953 is unsustainable, as the
objection itself was not maintainable after
confirmation of Provisional Consolidation
Scheme under Section 23 of the Act of
1953.

(e) In nutshell, as appears from
aforesaid, the orders impugned have been
challenged on the ground that the same
have been passed without there being any
authority under the law.

(f) The allotment of plot over the
property
jointly
purchased
through
registered sale deed dated 09.03.2022 is
completely erroneous rather illegal in view
of section 19 of the Act of 1953 according
to which the co-sharers should be provided
the share adjacent to road (Kharanja) and
not providing the Chak to the petitioner
no.1/Smt. Rama Devi adjacent to Kharanja
situate at northern side is in violation of
principle settled by this Court as also by
Hon'ble Apex Court.

6. Opposing the present petition, Sri
Anurag Narain Srivastava, learned counsel
appearing for respondent No.5/Smt. Sarita
Devi, (contesting respondent) and Sri
712 INDIAN LAW REPORTS ALLAHABAD SERIES
Hemant Kumar Pandey, learned standing
counsel of state of U.P., submitted as
under:-

(a) The property was purchased jointly
by petitioner no.1/Smt. Rama Devi and
respondent
no.
5/Sarita
Devi
after
conclusion of proceedings under Section 20
of the Act of 1953. through registered sale
deed dated 09.03.2022.

(b) If it is presumed that Section 9A(2) of the Act of 1953 would not be
attracted even in that eventuality, Section
12 of the Act of 1953 would apply.
Proceedings under Sections 9-A(2) and 12
of the Act of 1953 can be instituted before
the respondent No. 3/C.O. and mere
indicating a wrong provision would not
vitiate the entire proceedings, as the
respondent No. 3/C.O. is competent enough
to deal with Sections 9-A(2) and 12 of the
Act of 1953.

(c) The purchaser, who has purchased
the
property
after
conclusion
of
proceedings under Sections 10 or 20 of the
Act
of
1953
can
approach
the
Consolidation Officer under Section 12 of
the Act of 1953 to get the property
partitioned or the name recorded.

(d) In view of Section 44-A of the Act of
1953, higher Authority under the Act of 1953
can exercise the power and jurisdiction
vested in subordinate Authorities to it and
being so the bar under Section 11-A of the
Act of 1953 would not be attracted.

7. Learned Counsel for the petitioner
in supports of his contention placed
reliance on the following judgments:

(a) Gafoora and Another v. Dy.
Director of Consolidation; (1975) 2 SCC
568

(b) Judgment dated 25.04.2023 passed
by this Court in Writ B No. 331 of 2023
Baburam and other v. Dy. Director of
Consolidation, Hardoi)

8. In the Case of Gafoora (Supra),
the Hon'ble Apex Court observed as under;

3.The short question that arises
for consideration is whether the High Court
is correct in not interfering with the order
of the Deputy Director (Consolidation)
under Article 226 of the Constitution. The
jurisdiction under Article 226 is well
settled. The High Court will interfere only
if some order is passed by an authority in
excess of jurisdiction or there is a manifest
error of law apparent on the face of the
records. The principal question that was
canvassed before the Deputy Director
(Consolidation) was whether failure to
prefer objection within the time-limit
prescribed under Section 9(2) of the Act
would entitle an aggrieved party to agitate
the matter beyond the prescribed period
without explaining the cause of delay in
preferring the objection and obtaining a
proper order of condonation of delay from
the appropriate authority. It is clear from
the records that no objection was preferred
within the prescribed time. The Deputy
Director (Consolidation) refused, if we may
say so, rightly to accept that the appellants
had earlier lodged any objection on
November 21, 1966. That being the
position, there was no material whatsoever
before
the
Settlement
Officer
(Consolidation)
for
exercising
his
jurisdiction to condone the delay for
lodging objection under Section 9(2) of the
Act. Section 11-A bars all objections in
respect of claim to land, partition of joint
holdings and valuation of plots, etc.
relating to the consolidation area which
have been raised under Section 9 or which
might or ought to have been raised under
that section but have not been so raised.
1 All. Smt. Rama Devi & Anr. Vs. D.D.C., Hardoi & Ors.
713
These questions under Section 11-A cannot
be raised or heard at any subsequent stage
of the consolidation proceedings. That
being the position there is no error of law in
the
order
of
Deputy
Director
(Consolidation) nor is there any excess of
jurisdiction committed by him in disposing
of the matter as he did in exercise of his
revisional power under Section 48.

9. In the Case of Baburam (Supra),
the Court observed that all the co-tenure
holders/co-sharers should be provided a
chak adjacent to road.

10. The side opposite placed reliance
on the following judgments:

(a) Diwakar Rai v. Dy. Director of
Consolidation; 2005 SCC OnLine All
1378.

(b) Sudhir Kumar Goswami v. District
Director of Consolidation ; 2011 SCC
OnLine All 1320.

(c) Ram Milan and Others vs.
Additional Commissioner (Admin) Devi
Patan and Others; 2019 SCC OnLine All
5478.

(d) Harihar Prasad Pandey v. Deputy
Director of Consolidation; 1979 SCC
OnLine All 867.

11. In the Case of Diwakar rai
(Supra), the Court observed as under:

"4. From a perusal of scheme of
Consolidation
of
Holdings
Act,
it
crystallizes that annual register is subjected
to revision and record are prepared under
section 10 of the U.P. Consolidation of
Holdings Act. Section 10 of the Act being
germane is quoted below.

"10. Preparation and maintenance of
revised annual registers. - (1) The annual
register shall be revised on the basis of the
orders passed under sub-section (1) and
subsection (2) of Section 9-A. It shall
thereafter
be
prepared
in
the
form
prescribed and published in the unit.

(2) Where any entry in the annual
register, published under sub-section (1), is
modified in pursuance of an order passed
under this Act or under any other law; a
reference to the order alongwith an extract
of its operative portion shall be noted
against the said entry."

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

"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
interest 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
subsection (1) as if it were a matter raised
under the aforesaid sections."

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

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

"Partition of Joint Holdings. - (1)
The Assistant Consolidation Officer, or
the Consolidation Officer, may partition
joint
holdings
under
Section
9-A,
notwithstanding anything to the contrary
contained in Section 178 of the Uttar
Pradesh Zamindari Abolition and Land
Reforms Act, 1950, or any other law, and
may also partition the same suo motu.

(2) The partition of joint holdings shall
be effected on the basis of shares, provided
that where the tenure holders concerned
agree, it may be effected on the basis of
specific plots."

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

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

"30 Consequences which shall ensue
on exchange of possession. - With effect
from the date on which a tenure holder
enters, or is deemed to have entered into
possession of the chak allotted to him, in
accordance with the provisions of this Act,
the following consequences shall ensue-

(a) the rights, title, interest and liabilities-

(i) of the tenure-holder entering, or
deemed to have entered into possession,
and

(ii) of the former tenure-holder of the
plots comprising the chak, in their
respective original holdings shall cease;
and

(b) the tenure holder entering into pos
session, or deemed to have entered into pos
1 All. Smt. Rama Devi & Anr. Vs. D.D.C., Hardoi & Ors.
715
session, shall have in his chak the same
rights, title, interests and liabilities as he
had in the original holding together with
such other benefits of irrigation from a
private source, till such source exists, as
the former tenure holder of the plots
comprising the chak had in regard to
them;

(c) & (d) xxx xxx

(e) the encumbrances, if any, upon the
original holding of the tenure-holder
entering, or deemed to have entered, into
possession, whether by way of lease,
mortgage or otherwise, shall, in respect of
that holdings, cease, and be created on the
holdings, or on such part thereof, as may be
specified
in
the
final
Consolidation
Scheme.

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

8. In view of the above, this Court
does not agree with the arguments of the
learned counsel for the petitioner that right
of parti tion is available to a tenure holder
of the hold ings and not of chak holdings.
Once the pos session is given on the basis
of new record of right, chak attains the
status of a holding and same rights which
had accrued to a tenure holder on the basis
of final record prepared under section 10
will accrue to the same ten ure holder in so
far as chak which is called as holding after
handing over possession on the chak
allotted to a tenure holder in the con
solidation scheme.

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

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

12. In the Case of Subhir Kumar
Goswami (Supra), the Court observed as
under:

Having heard learned counsel for the
petitioner Sri Singh and Sri Sharma for the
respondents, it is true that if a matter
relating to a title is contested after the
revision of records through the proceedings
under Section 12, then they would proceed
in the same manner as if it was an objection
under Section 9-A(2) by virtue of subsection (2) of Section 12. To that extent, Sri
Sinha is right.

In the instant case, the cause of action
as disclosed by the petitioner is that he is
contesting the title of his own father over
the land in dispute. The contention of the
petitioner is that the name of his father was
entered in revenue records only as a 'Karta'
of the family and therefore, taking undue
advantage of this status, he had no
authority to dispose of the entire holding in
favour of a third person, even beyond his
share. The holding was being described in
the impleadment application as a holding in
representative capacity in the name of the
petitioner's father.

According to the respondents counsel
if this is the plea of the petitioner, then he is
contesting the bumidhari rights of his father
on the ground that the petitioner has an
independent right. This cause of action,
therefore, was available to the petitioner, as
soon as Section 9 proceedings were
initiated, and the proceedings under the
Consolidation of Holdings Act for decision
of rights had commenced. At that stage, the
petitioner had full opportunity to file his
objection under Section 9-A(2) claiming
his independent right. If the petitioner
wanted a declaration against his own father
then the remedy to the petitioner was to file
an objection under Section 9-A(2). It is this
opinion, which has been expressed in the
judgment dated 4th July, 2011.

The judgments on scrutiny namely the
decision in the case of Raj Bahadurv.Board
1 All. Smt. Rama Devi & Anr. Vs. D.D.C., Hardoi & Ors.
717
of Revenue, 1979 RD 50 at Page 53 recites
as under:-

"It does not, however, seem to follow
from these provisions that the Legislature
intended that even where members of a
Hindu Joint Family were peacefully in joint
possession and did not desire any partition,
or where co-sharers were under a family
arrangement
peacefully
in
separate
possession over their respective areas and
did not desire any change in the recorded
entry, the consolidation authorities were
required to record their respective shares or
necessarily to effect partition even if not
required for ensuring proper consolidation,
or that if the non-recorded co-parceners did
not seek to get their names or shares
specified,
their
title
should
get
extinguished. The case of co-sharers who
are in undisturbed cultivatory possession of
different areas according to their shares can
not be equated with one of trespassers or
persons claiming adverse possession."