1 RESERVED Court No. - 10 Case :- CONSOLIDATION No. - 6531 of 1985 Petitioner :- Shahzade And Others. Respondent :- D.D.C.& Others Petitioner Counsel :- Haidar Abbas,R.K. Sharma Respondent Counsel :- C.S.C.,Akhilesh Kalra,Shyam Mohan Hon'ble Yogendra Kumar Sangal,J.
Heard learned counsel for the petitioners, learned Standing Counsel
for the respondent nos. 1 & 2 and counsel for the rest respondents. Shri
Shyam Mohan, Advocate, stated that he is holding brief of Shri Akhilesh
Kalra and said that he represents all the private respondents.
This writ petition has been filed with the prayer to issue a writ in the
nature of certiorari quashing the impugned order contained in Annexure
Nos. 4 & 6 to the writ petition, passed by the respondent no. 1, Deputy
Director of Consolidation, Sitapur (D.D.C.) and Settlement Officer
Consolidation, Sitapur (S.O.C.).
An order was passed by the Assistant Consolidation Officer (A.C.O.)
dated 24.07.1977 in Case No. 2032 under Section 9-Ka (1) of the U.P.
Consolidation of Holdings Act (C.H.Act), on the basis of compromise
entered between the parties. The order was set aside by the S.O.C. for the
land of plot no. 76 only on Appeal filed on behalf of the respondent nos. 1,
4 & 6 saying that no dispute was there between the parties in case No.
2032 regarding the land of Plot No. 76 and objections under Section 9 were
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only raised on behalf of the petitioner for the land of Plot No. 75, as such,
no compromise was between the patsies to the case of 2032 could be
entertained by the A.C.O. for the land of Plot No. 76 but while deciding
the case, the S.O.C. has not disturbed the order passed by the A.C.O. for
the land of Plot No. 75. Revision filed by the petitioners before the D.D.C.
challenging the order of S.O.C. was also dismissed, almost on the same
ground, hence the instant writ petition has been filed by the
Revisionists/petitioners.
Record shows that the private respondents have also stated before
the S.O.C. in Appeal that they have not signed or put their thumb
impressions on the Compromise deed. Their Thumb impressions were
obtained on a blank sheet and later on the Compromise Deed was drafted
on the same and the same was taken on record under the conspiracy. Later
on they came to know about this Compromise. Immediately, they filed an
appeal. Although the copy of the Compromise is not on record but it is
clear from the record that on the basis of the Compromise, A.C.O. has
passed the order on 24.07.1977 in respect of the land of Plot Nos. 75 and
76 both. Names of some tenure holders were stuck off and some were
added on the land of both these plots under the Compromise, but the
S.O.C. and the D.D.C. have not disturbed the order of the A.C.O. for the
land of plot no. 75 and the same was disturbed only for the land of Plot No.
76 and the part of the order was set aside.
Learned counsel for the petitioners argued that approach of both
the courts below (S.O.C. & the D.D.C) are not correct because when there
was specific plea of the respondents that they have not signed/put the
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thumb impressions on the Compromise deed and they have not entered into
the compromise and they said that the Compromise deed was later on
prepared on the blank sheet in their absence and was filed then it was the
primary duty of both the courts below to see whether the contention of the
respondents was correct or not but without verifying the correctness of this
contention, hot and cold were blown in the same order by the courts below.
The compromise filed was got verified by the A.C.O. and after his
satisfaction only he had given effect to it. There was no evidence before the
appellate court of fraud misrepresentation and forgery. It was further
argued that in the facts and circumstances, court below should not have
accepted the compromise in part for the land in Plot No. 75 only and
seeing the contention of the respondents the matter should have been
remitted to the courts below for disposal of the objections raised on behalf
of the petitioners for the land of Plot No. 75.
It was further argued by the learned counsel for the petitioners that
some of the parties of the case were belonging to one family and to resolve
their dispute, they all entered into Compromise and the same was filed
before the different courts where the cases were pending between them. It
was further urged that in other three cases between the parties, 2712, 2713
and 2716, (referred in paragraph 2 of the writ petition) similar orders were
passed by the Consolidation Officer on the basis of the compromise
entered into between the parties. Copy of the order is Annexure -2 filed
with the writ petition. but this order was not challenged before the
appellate court which shows that the intention of the private respondents
was malafide. Where the compromise entered between the parties extended
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benefit to them, they have not challenged it and where it extended benefit
to the petitioners, its validity was challenged. Learned counsel for the
petitioners argued that courts below have not given thought to it.
Further it was contended on behalf of the petitioners that no law
prohibits the parties to enter into compromise, in case where lis between
them was in respect only one property and they want to settle their dispute
regarding other property which was not subject matter of that case pending.
In respect of this, learned counsel cited the Law AIR 1933 Allahabad 649
Sahu Shyam Lal vs. M. Shyam Lal where in Full Bench decision, this
Court laid down as follows :
” In cases where a part of the compromise does not
strictly speaking relate to the suit and nevertheless the
Court decides that it relates to the suit and incorporates it
into the operative portion and passes a decree in terms of
it, the decree is not a nullity and not one passed without
jurisdiction, but would be binding upon the parties to the
decree………”
” Where a Court has jurisdiction to deal with the
property having regard to its nature, character and
valuation, the mere fact that it was not originally included
in the plaint would not oust the jurisdiction of the Court
when it was acting upon the agreement of the parties.”
Principles laid down in Full Bench decision was also followed by
this Court in another case 1985 (3) LCD 202 Amar Nath vs. D.D.C., it was
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further argued that wrong findings were recorded by the courts below that
there was no dispute between the parties regarding the land of plot no. 76.
In another case, (referred in paragraph 2 of the writ petition) orders for
strucking off and adding the names of the parties were passed on the land
of plot no. 76 on the basis of compromise which prima-facie shows that
there was some dispute between them regarding this plot also and they
have settled it by compromise and they have not filed appeal against the
order passed in that case (Annexure -2).
Learned counsel for the respondents including the learned Standing
Counsel have only tried to support the finding of S.O.C./D.D.C. but no
specific reply was given on their behalf of the arguments raised by the
learned counsel for the petitioners and also Law cited by him. It was
simply said as there was no dispute of the land of plot no. 76 in the case
before the A.C.O. and alleged compromise-deed was based on fraud and
misrepresentation and such compromise was never entered between the
parties. Firstly there was no evidence of fraud and misrepresentation and
forgery on the record before the S.O.C. Secondly, there is no such finding
of the S.O.C. and the D.D.C. of fraud and misrepresentation and forgery by
the petitioners. Partly for the land of plot no. 75, order of the A.C.O. was
confirmed by both the courts and orders were passed against the petitioners
on the basis of the compromise and their objections under Section 9 of
C.H.Act were dismissed. Sufficient reasons are not given why the
Compromise for the land of plot no. 76 was not accepted and if it was not
filed by the respondents and it was not a valid Compromise, why it was
accepted in part and why the objections under Section 9 C.H. Act of the
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petitioners were not decided on merit. These orders of S.O.C. and D.D.C.
are prejudicial to the right of the petitioners regarding the land in dispute.
In the facts and circumstances of the case, impugned orders passed
by the learned D.D.C. and S.O.C. are liable to be set aside and case is to be
remanded back to the court of S.O.C. to decide the appeal again in the light
of observations made above.
Accordingly, the writ petition is hereby allowed. Finding recorded
by the D.D.C. and the S.O.C. are hereby set aside. Case is remitted back to
the court of S.O.C. and first he will decide whether parties entered into the
compromise or not and compromise is valid or not.
If it is found that the same was filed then its validity will be seen for
the land of plot no. 76 in the light of Law referred above. However, if it is
found that parties did not entered into such compromise then the learned
S.O.C. will take steps to get decided the objections raised by the petitioners
under Section 9 of the C.H. Act giving opportunity of filing reply and
adducing evidence to both the parties. However, the matter is very old.
Learned S.O.C. will take all steps so that the matter should be decided
within three months from the date when the copy of this order is placed
before him or record is received in his court.
Copy of this order be sent to the District Magistrate of the district
concerned to see the compliance the order of this Court.
07.07.2010
Kaushal