Court No. - 40 Case :- WRIT - B No. - 65719 of 2005 Petitioner :- Rais Ahmad & Others Respondent :- D.D.C. & Another Petitioner Counsel :- M.A. Qadeer Respondent Counsel :- C.S.C.,A.N. Verma,Dr.Madhu Tandon,G.N. Verma,Girish Kr. Yadav Hon'ble Bala Krishna Narayana,J.
Heard Sri M.A. Qadeer learned Senior Advocate, assisted by Sri
Mustaqeem Ahmad for the petitioners and Sri O.P.Singh learned
Senior Advocate assisted by Sri S.K.Rao.
The dispute involved in the present writ petition is confined to
1/3rd share of Husain Bux and 1/6th shares each of Jameel and
Ismail in Khata No.151 (new Nos.23 and 24 which comprised of
plot No.249 area 1.75 acres and plot No.368 area 2.03 acres total
area 3.78 acres ( hereinafter referred to as disputed Khatas and
disputed plots) The disputed khatas were recorded in the names of
Jameel and Ismail sons of Ahmad Hussain, Yaseen, Yameen and
Salim sons of Kallu and Husain Bux son of Ali Husain. It is
undisputed that Husain Bux had 1/3 share and Jameel and Ismail
had 1/6th share each in the disputed Khatas. Husain Bux
transferred 0.68 acre of his share in the disputed khtatas in favour
of Abdul Majeed father of petitioner no.4 to 6 and Mohammad
Jareef petitioner No.3 for a sum of Rs.3000/ by a registered sale
deed dated 23.2.1973 . By means of the same sale deed the
aforesaid Husain Bux transferred his remaining share in disputed
khatas measuring 0.58 acre in favour of his wife Smt. Mustafai
Begum for a sum of Rs.3000/.
Ismail who had 1/6th share in the disputed khatas transferred 0.3
acre of his share in the disputed kahatas in favour of Rais Ahmad
petitioner no.1 and Mohammad Anis petitioner no.2 for a sum of
Rs.2000/ by a registered sale deed dated 8.4.1973. By means of
another sale deed he transferred his remaining share in the
disputed khatas measuring .9 acre in favour of his own sons Azhar
Hussain , Subrati and Akhtar Hussain and Muzaffar. Smt. Mustafai
Begum executed a sale deed on 27.3.1991 in favour of Mobin
Husain respondent No.2 for a sum of Rs.1600/ in respect of 0.58
acre land of the disputed Khatas which she had purchased from her
husband Husain Bux. Azhar Husain, Subrati, Akhtar Husain and
Muzaffar sons of Ismail also transferred their share in the disputed
khatas which they had purchased from their father vide sale deed
dated 8.4.1973 in favour of Mobin Husain by a sale deed dated
27.3.1991whereupon respondent no.2 Mobin Husain acquired 1/2
share in the disputed Khatas.
It is admitted to the parties that all the above noted sale deeds were
in respect of specific areas which connoted the shares of the
vendors in the disputed Khatas and no plot numbers were
mentioned in any of the sale deeds.
In the basic year record of the consolidation authorities Abdul
Majeed father of petitioner nos 4 to 6, Mohammad Jareef
petitioner no.3 and Mobin Husain respondent No.2 were recorded
as co tenure holders of disputed Khatas no.23 having 1/3 share
each. Similarly, Sayeed Ahmad father of petitioner nos.1 and 2,
Abdul Majeed father of petitioner Nos.4 to 6 and Mobin Husain
respondent No. 2 were recorded as co tenure holders to the extent
of having 1/3 share each in the disputed Khata No.24 in the basic
year.
Since on the basis of the sale deeds dated 27.3.1991 executed by
Smt. Mustafai Begum and the sons of Ismail in respect of their
shares in the disputed Khatas in favour of Mobin Husain he was
entitled to 1/2 share in each of the disputed khatas instead of 1/3
share as recorded in the basic year , the respondent no.2 filed an
objection under Section 9A(2) of U.P.Consolidation of
HoldingsAct (hereinafter referred to as the ‘Act’) before the
Consolidation Officer Sirsi, Moradabad which was registered as
Case No.982, claiming half share in each of the disputed khatas.
The petitioners contested the claim of the respondent no.2 by filing
their written statement before the Consolidation Officer. The
petitioners did not dispute the correctness of the shares of co
tenure holders in the disputed khatas as recorded in the basic year
and filed a family arrangement / partition dated 12.10 .1973 signed
by Husain Bux and Ismail the vendors of parties and made a
prayer that the disputed khatas be partitioned amongst the co
tenure holders on the basis of the specific plots as mentioned in the
family partition/ arrangement dated 12.10.1973.
The aforesaid prayer of the petitioners was opposed by the
respondent no.2 on the ground that the family arrangement/
partition dated 12.10.1973 had no sanctity of law and the
respondent no.2 was not bound by it for the reason that he had not
signed the said family partition and that the persons who had
agreed to partition the disputed khatas on the basis of specific plots
namely Ismail and Husain Bux had no right, title or interest left in
the disputed Khatas on the date when the family
partition/arrangement was made as on the said date they had
already transferred their shares in the disputed khatas to the
respondent no.2 and the petitioners. The Consolidation Officer
Sirsi, Moradabad, however, by his order dated 10.7.2000 copy
whereof has been filed as Annexure 12 to the writ petition,
partitioned the disputed khatas between the petitioners and the
respondent no.2 on the basis of specific plots in accordance with
the terms and conditions stipulated in the family partition
/arrangement dated 23.2.1973 and also held that the shares of the
parties in the disputed khatas recorded in the basic year were
correct. By the order of the Consolidation Officer the petitioner
was allotted plot No.249 whereas the petitioners were given plot
no.568 of the disputed khatas.
Aggrieved by the order of the Consoldiation Officer the
respondent no.2 preferred an appeal before the Settlement Officer
Consolidation Moradabad which was numbered as Appeal
No.895 . The said appeal was heard by the Settlement Officer
Consolidation alongwith two other appeals namely Appeal
Nos.902 and 900 and all the three appeals were decided by him by
a common order dated 12.9.2000, copy whereof has been filed as
Annexure 14 to the writ petition. By the said order the Settlement
Officer Consolidation dismissed the appeal of the respondent no.2.
Challenging the above noted orders of the Consolidation Officer
and the Settlement Officer Consolidation respondent no.2 filed a
revision under Section 48 (1) of the U.P.Consolidation of Holdings
Act before the respondent no.1which was numberd as Revision
No.17/16/48/119/128/239 and allowed by him by his order dated
14.9.2005 copy whereof has been filed as Annexure 14 to the writ
petition whereby orders passed by the Consolidation Officer and
the Settlement Officer Consolidation were set aside and the matter
was remitted back to the Consolidation Officer with a direction to
partition the disputed khatas on the basis of the shares of the
parties as determined byhim in the impugned order.
The instant writ petition has been filed by the petitioners for
quashing the order dated 14.9.2005 passed by the respondent
no.1(Annexure 15 to the writ petition).
Sri M.A.Qadeer learned counsel for the petitioners vehemently
submitted that the orders passed by the Consolidation Officer and
the Settlement Officer Consolidation did not suffer from any
illegality or infirmity warranting any interference by respondent
no.1. The Consolidation Officer and the Settlement Officer
Consolidation had rightly partitioned the joint holdings on the
basis of specific plots by relying upon thefamily agreement dated
12.10.1973 and the respondent no.1 clearly exceeded his
jurisdiction in setting aside the orders which were challenged by
the respondent no.3 in revision and in remanding the matter back
to the Consolidation Officer.
Sri M.A.Qadeer also submitted that the respondent no.1 had also
manifestly erred in law in coming to the conclusion that the
respondent no.2 had 1/2 share in each of the disputed khatas and
not 1/3 share as recorded in the basic year.
Sri OP Singh learned Senior Advocate appearing for the
respondent no.2 submitted that the impugned order is a just and
legal order and being an order of remand is not liable to be
interfered with by this Courtin the exercise of its extra- ordinary
jurisdiction.
Sri O.P.Singh further submitted that the Consolidation Officer
committed a manifest error or law in par;titioning the disputed
Khatas on the basis of the specific plots in contravention of
Section 9C of the Act as the respondent no.2 had never given his
consent to the partition of the disputed Khatas on the basis of
specific plots and the Settlement Officer Consolidation fell into the
same error in affirming the order of the Settlement Officer
Consolidation in appeal.
Sri O.P.Singh lastly submitted that the respondent no.1 rightly held
that the petitioners had 1/2 share in both the disputed khatas and
the reason given by him in the impugned order for reaching the
aforesaid conclusion can not be faulted with.
I have examined the submissions made by learned counsel for the
partiesand have also perused the record of the writ petition.
In the basic year the recorded tenure holders were shown as having
1/3 share in each of the disputed Khatas. The respondent No.2
filed an objection under Section 9A(2) of the Act before the
Consolidation Officer claiming 1/2 share in both the khatas on the
basis of the two sale deeds executed in his favour by Mustafai
Begum and Azhar Husain and others sons of Ismail on 27.3.1991
The petitioners had set up a family partition before the
Consolidation Officer and on the basis of the said family partition
they claimed that plot No.368 be allotted to them and plot No.249
be given to the respondent no.2. Although the said family
partition/arrangement was neither signed by the respondent no.2
nor he had agreed for partitioning the disputed Khatas on the basis
of the specific plots yet the Consolidation Officer by his order
dated 10.7.2000 partitioned the disputed plots on the basis of
specific plots in accordance with the family arrangement dated
12.10.1973 Although the legality of the order of the Consolidation
Officer was challenged by the respondent no.2 in appeal on the
ground that the said order was passed by the Consolidation Officer
in violation of Section 9C(2) of the Act, yet the Settlement Officer
Consolidation dismissed the petitioners’ appeal. However, the
respondent no.1 by the impugned order allowed the revision
preferred by the respondent no.2 against the orders of the
Consolidation Officer and the Settlement Officer Consolidation
and after setting aside their orders remitted the matter back to the
Consolidation Officer for a fresh decision.
A perusal of the order passed by the respondent no.1 copy whereof
has been filed as Annexure 15 to the writ petition shows that the
respondent no.1 set aside the orders impugned before him on the
following grounds:
(i) The respondent no.2 having never agreed to the partition of the
disputed khatas on the basis of specific plots and neither he nor his
vendors being signatories to the family arrangement dated
12.10.1973 , the partition of the disputed khatas effected by the
Consolidation Officer on the basis of the specific plots as affirmed
by the Settlement Officer Consolidation was in violation of
Section 9C(2) of the Act.
(ii) The Consolidation Officer and the Settlement Officer
Consolidation while holding that respondent no.2 had 1/3 share in
both the khatas and not 1/2 share as claimed by him illegally
ignored the sale deed dated 27.3.1991 executed in favour of the
respondent no.2 by Azahar Husain , Subrati, Akhtar Husain and
Muzaffar sons of Ismail in respect of their shares in disputed
khatas in favour of respondent no.2 and upon said sale deeds being
taken into consideration there was no iota of any doubt that the
respondent no.2 had 1/2 share of both the disputed khatas.
The question which arises for determination in this case is as to
whether the respondent no.1 was legally justified in setting aside
the orders passed by the Consolidation officer and the Settlement
Officer Consolidation on the grounds mentioned in the impugned
orders.
In order to appreciate whether the first ground on which the orders
impugned before the respondent no.1 were set aside by him , it is
necessary to extract Section 9C of the Act which reads as
hereunder.
“9-C Partition of joint holdings: (1) The Assistant Consolidation
Officer , or the Consolidation Officer, may partition joint holdings
underSection 9-A, notwithstanding anything to the contrary
contained inSection 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.”
After having carefully gone through the averments made in the
writ petition as well as the counter and rejoinder affidavits and the
order impugned in this writ petition and examined the rival
contentions advanced by learned counsel for the parties and the
provisions ofSection 9C of the Act this Court is of the opinion that
the view taken by the respondent no.1 that the partition of the
disputed khatas effected by the Consolidation Officer and affirmed
by the Settlement Officer Consolidation was in contravention of
Section 9C(2) of the Act, is absolutely correct.
A bare reading of Section 9C(2) of the Act makes it clear that
partition of joint holding shall be effected on the basis of shares
provided that where tenure holders concerned agree , it may be
effected on the basis of the plots. Since admittedly in the present
case the respondent no.2 never agreed to the partition of the
disputed khatas on the basis of specific plots , the partition of the
disputed khatas effected on the basis of specific plots by the
Consolidation Officer and affirmed by the Settlement Officer
Consolidation can not be sustained on account of being in
violation of Section 9C(2) of the Act.
Upon examining the second ground on which the orders of the
Consolidation Officer and the Settlement Officer Consolidation
were set aside by the respondent no.1, this Court has no hesitation
in holding that the respondent No.1 rightfully held that the
respondent no.2 had 1/2 share in both the disputed khatas and not
1/3 share as recorded in the basic year. Learned counsel for the
petitioner has failed to demonstrate that the aforesaid finding
which is based upon evidence suffers from any error.
In view of the aforesaid reasons, I find that there is no force in the
submissions advanced on behalf of the petitioners.
The impugned order passed by the respondent no.1 is based upon
relevant considerations and supported by cogent reasons.
Learned counsel for petitioners has failed to demonstrate that the
impugned order suffers from any illegality ,infirmity or perversity
warranting any interference by this Court.
The writ petition has no merit and is accordingly dismissed.
It will be open to the parties to raise all the pleas legally available
to them before the Consolidation Officer.
Order Date :- 25.1.2010
cps