{"id":93472,"date":"2010-01-25T00:00:00","date_gmt":"2010-01-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rais-ahmad-others-vs-d-d-c-another-on-25-january-2010"},"modified":"2015-10-25T12:57:47","modified_gmt":"2015-10-25T07:27:47","slug":"rais-ahmad-others-vs-d-d-c-another-on-25-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rais-ahmad-others-vs-d-d-c-another-on-25-january-2010","title":{"rendered":"Rais Ahmad & Others vs D.D.C. & Another on 25 January, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Rais Ahmad & Others vs D.D.C. & Another on 25 January, 2010<\/div>\n
Court                   No.                    -                   40\n\nCase    :-    WRIT      -     B    No.     -       65719   of    2005\n\nPetitioner    :-         Rais       Ahmad      &                Others\nRespondent         :-         D.D.C.       &                   Another\nPetitioner       Counsel         :-       M.A.                  Qadeer\nRespondent Counsel :- C.S.C.,A.N. Verma,Dr.Madhu           Tandon,G.N.\nVerma,Girish                     Kr.                            Yadav\n\nHon'ble Bala Krishna Narayana,J.\n<\/pre>\n
Heard Sri M.A. Qadeer learned Senior Advocate, assisted by Sri
\nMustaqeem Ahmad for the petitioners and Sri O.P.Singh learned
\nSenior Advocate assisted by Sri S.K.Rao.\n<\/p>\n
The dispute involved in the present writ petition is confined to
\n1\/3rd share of Husain Bux and 1\/6th shares each of Jameel and
\nIsmail in Khata No.151 (new Nos.23 and 24 which comprised of
\nplot No.249 area 1.75 acres and plot No.368 area 2.03 acres total
\narea 3.78 acres ( hereinafter referred to as disputed Khatas and
\ndisputed plots) The disputed khatas were recorded in the names of
\nJameel and Ismail sons of Ahmad Hussain, Yaseen, Yameen and
\nSalim sons of Kallu and Husain Bux son of Ali Husain. It is
\nundisputed that Husain Bux had 1\/3 share and Jameel and Ismail
\nhad 1\/6th share each in the disputed Khatas. Husain Bux
\ntransferred 0.68 acre of his share in the disputed khtatas in favour
\nof Abdul Majeed father of petitioner no.4 to 6 and Mohammad
\nJareef petitioner No.3 for a sum of Rs.3000\/ by a registered sale
\ndeed dated 23.2.1973 . By means of the same sale deed the
\naforesaid Husain Bux transferred his remaining share in disputed
\nkhatas measuring 0.58 acre in favour of his wife Smt. Mustafai
\nBegum for a sum of Rs.3000\/.\n<\/p>\n
Ismail who had 1\/6th share in the disputed khatas transferred 0.3
\nacre of his share in the disputed kahatas in favour of Rais Ahmad
\npetitioner no.1 and Mohammad Anis petitioner no.2 for a sum of
\n Rs.2000\/ by a registered sale deed dated 8.4.1973. By means of
\nanother sale deed he transferred his remaining share in the
\ndisputed khatas measuring .9 acre in favour of his own sons Azhar
\nHussain , Subrati and Akhtar Hussain and Muzaffar. Smt. Mustafai
\nBegum executed a sale deed on 27.3.1991 in favour of Mobin
\nHusain respondent No.2 for a sum of Rs.1600\/ in respect of 0.58
\nacre land of the disputed Khatas which she had purchased from her
\nhusband Husain Bux. Azhar Husain, Subrati, Akhtar Husain and
\nMuzaffar sons of Ismail also transferred their share in the disputed
\nkhatas which they had purchased from their father vide sale deed
\ndated 8.4.1973 in favour of Mobin Husain by a sale deed dated
\n27.3.1991whereupon respondent no.2 Mobin Husain acquired 1\/2
\nshare in the disputed Khatas.\n<\/p>\n
It is admitted to the parties that all the above noted sale deeds were
\nin respect of specific areas which connoted the shares of the
\nvendors in the disputed Khatas and no plot numbers were
\nmentioned in any of the sale deeds.\n<\/p>\n
In the basic year record of the consolidation authorities Abdul
\nMajeed father of petitioner nos 4 to 6, Mohammad Jareef
\npetitioner no.3 and Mobin Husain respondent No.2 were recorded
\nas co tenure holders of disputed Khatas no.23 having 1\/3 share
\neach. Similarly, Sayeed Ahmad father of petitioner nos.1 and 2,
\nAbdul Majeed father of petitioner Nos.4 to 6 and Mobin Husain
\nrespondent No. 2 were recorded as co tenure holders to the extent
\nof having 1\/3 share each in the disputed Khata No.24 in the basic
\nyear.\n<\/p>\n
Since on the basis of the sale deeds dated 27.3.1991 executed by
\nSmt. Mustafai Begum and the sons of Ismail in respect of their
\nshares in the disputed Khatas in favour of Mobin Husain he was
\nentitled to 1\/2 share in each of the disputed khatas instead of 1\/3
\n share as recorded in the basic year , the respondent no.2 filed an
\nobjection   under    Section     9A(2)   of     U.P.Consolidation   of
\nHoldingsAct (hereinafter referred to as the ‘Act’) before the
\nConsolidation Officer Sirsi, Moradabad which was registered as
\nCase No.982, claiming half share in each of the disputed khatas.
\nThe petitioners contested the claim of the respondent no.2 by filing
\ntheir written statement before the Consolidation Officer. The
\npetitioners did not dispute the correctness of the shares of co
\ntenure holders in the disputed khatas as recorded in the basic year
\nand filed a family arrangement \/ partition dated 12.10 .1973 signed
\nby Husain Bux and Ismail the vendors of parties and made a
\nprayer that the disputed khatas be partitioned amongst the co
\ntenure holders on the basis of the specific plots as mentioned in the
\nfamily partition\/ arrangement dated 12.10.1973.
\nThe aforesaid prayer of the petitioners was opposed by the
\nrespondent no.2 on the ground that the family arrangement\/
\npartition dated 12.10.1973 had no sanctity of law and the
\nrespondent no.2 was not bound by it for the reason that he had not
\nsigned the said family partition and that the persons who had
\nagreed to partition the disputed khatas on the basis of specific plots
\nnamely Ismail and Husain Bux had no right, title or interest left in
\nthe   disputed    Khatas    on     the   date     when   the   family
\npartition\/arrangement was made as on the said date they had
\nalready transferred their shares in the disputed khatas to the
\nrespondent no.2 and the petitioners. The Consolidation Officer
\nSirsi, Moradabad, however, by his order dated 10.7.2000 copy
\nwhereof has been filed as Annexure 12 to the writ petition,
\npartitioned the disputed khatas between the petitioners and the
\nrespondent no.2 on the basis of specific plots in accordance with
\nthe terms and conditions stipulated in the family partition
\n \/arrangement dated 23.2.1973 and also held that the shares of the
\nparties in the disputed khatas recorded in the basic year were
\ncorrect. By the order of the Consolidation Officer the petitioner
\nwas allotted plot No.249 whereas the petitioners were given plot
\nno.568 of the disputed khatas.\n<\/p>\n
Aggrieved by the order of the Consoldiation Officer the
\nrespondent no.2 preferred an appeal before the Settlement Officer
\nConsolidation Moradabad which was numbered as Appeal
\nNo.895 . The said appeal was heard by the Settlement Officer
\nConsolidation alongwith two other appeals namely Appeal
\nNos.902 and 900 and all the three appeals were decided by him by
\na common order dated 12.9.2000, copy whereof has been filed as
\nAnnexure 14 to the writ petition. By the said order the Settlement
\nOfficer Consolidation dismissed the appeal of the respondent no.2.
\nChallenging the above noted orders of the Consolidation Officer
\nand the Settlement Officer Consolidation respondent no.2 filed a
\nrevision under Section 48 (1) of the U.P.Consolidation of Holdings
\nAct before the respondent no.1which was numberd as Revision
\nNo.17\/16\/48\/119\/128\/239 and allowed by him by his order dated
\n14.9.2005 copy whereof has been filed as Annexure 14 to the writ
\npetition whereby orders passed by the Consolidation Officer and
\nthe Settlement Officer Consolidation were set aside and the matter
\nwas remitted back to the Consolidation Officer with a direction to
\npartition the disputed khatas on the basis of the shares of the
\nparties as determined byhim in the impugned order.
\nThe instant writ petition has been filed by the petitioners for
\nquashing the order dated 14.9.2005 passed by the respondent
\nno.1(Annexure 15 to the writ petition).\n<\/p>\n
Sri M.A.Qadeer learned counsel for the petitioners vehemently
\nsubmitted that the orders passed by the Consolidation Officer and
\nthe Settlement Officer Consolidation did not suffer from any
\n illegality or infirmity warranting any interference by respondent
\nno.1. The Consolidation Officer and the Settlement Officer
\nConsolidation had rightly partitioned the joint holdings on the
\nbasis of specific plots by relying upon thefamily agreement dated
\n12.10.1973 and the respondent no.1 clearly exceeded his
\njurisdiction in setting aside the orders which were challenged by
\nthe respondent no.3 in revision and in remanding the matter back
\nto the Consolidation Officer.\n<\/p>\n
Sri M.A.Qadeer also submitted that the respondent no.1 had also
\nmanifestly erred in law in coming to the conclusion that the
\nrespondent no.2 had 1\/2 share in each of the disputed khatas and
\nnot 1\/3 share as recorded in the basic year.\n<\/p>\n
Sri OP Singh learned Senior Advocate appearing for the
\nrespondent no.2 submitted that the impugned order is a just and
\nlegal order and being an order of remand is not liable to be
\ninterfered with by this Courtin the exercise of its extra- ordinary
\njurisdiction.\n<\/p>\n
Sri O.P.Singh further submitted that the Consolidation Officer
\ncommitted a manifest error or law in par;titioning the disputed
\nKhatas on the basis of the specific plots in contravention of
\nSection 9C of the Act as the respondent no.2 had never given his
\nconsent to the partition of the disputed Khatas on the basis of
\nspecific plots and the Settlement Officer Consolidation fell into the
\nsame error in affirming the order of the Settlement Officer
\nConsolidation in appeal.\n<\/p>\n
Sri O.P.Singh lastly submitted that the respondent no.1 rightly held
\nthat the petitioners had 1\/2 share in both the disputed khatas and
\nthe reason given by him in the impugned order for reaching the
\naforesaid conclusion can not be faulted with.\n<\/p>\n
I have examined the submissions made by learned counsel for the
\npartiesand have also perused the record of the writ petition.\n<\/p>\n
In the basic year the recorded tenure holders were shown as having
\n1\/3 share in each of the disputed Khatas. The respondent No.2
\nfiled an objection under Section 9A(2) of the Act before the
\nConsolidation Officer claiming 1\/2 share in both the khatas on the
\nbasis of the two sale deeds executed in his favour by Mustafai
\nBegum and Azhar Husain and others sons of Ismail on 27.3.1991
\nThe petitioners had set up a family partition before the
\nConsolidation Officer and on the basis of the said family partition
\nthey claimed that plot No.368 be allotted to them and plot No.249
\n be given to the respondent no.2. Although the said family
\npartition\/arrangement was neither signed by the respondent no.2
\nnor he had agreed for partitioning the disputed Khatas on the basis
\nof the specific plots yet the Consolidation Officer by his order
\ndated 10.7.2000 partitioned the disputed plots on the basis of
\nspecific plots in accordance with the family arrangement dated
\n12.10.1973 Although the legality of the order of the Consolidation
\nOfficer was challenged by the respondent no.2 in appeal on the
\nground that the said order was passed by the Consolidation Officer
\nin violation of Section 9C(2) of the Act, yet the Settlement Officer
\nConsolidation dismissed the petitioners’ appeal. However, the
\nrespondent no.1 by the impugned order allowed the revision
\npreferred by the respondent no.2 against the orders of the
\nConsolidation Officer and the Settlement Officer Consolidation
\nand after setting aside their orders remitted the matter back to the
\nConsolidation Officer for a fresh decision.\n<\/p>\n
A perusal of the order passed by the respondent no.1 copy whereof
\nhas been filed as Annexure 15 to the writ petition shows that the
\nrespondent no.1 set aside the orders impugned before him on the
\nfollowing grounds:\n<\/p>\n
(i) The respondent no.2 having never agreed to the partition of the
\ndisputed khatas on the basis of specific plots and neither he nor his
\nvendors being signatories to the family arrangement dated
\n12.10.1973 , the partition of the disputed khatas effected by the
\nConsolidation Officer on the basis of the specific plots as affirmed
\nby the Settlement Officer Consolidation was in violation of
\nSection 9C(2) of the Act.\n<\/p>\n
(ii) The Consolidation Officer and the Settlement Officer
\nConsolidation while holding that respondent no.2 had 1\/3 share in
\nboth the khatas and not 1\/2 share as claimed by him illegally
\nignored the sale deed dated 27.3.1991 executed in favour of the
\nrespondent no.2 by Azahar Husain , Subrati, Akhtar Husain and
\nMuzaffar sons of Ismail in respect of their shares in disputed
\nkhatas in favour of respondent no.2 and upon said sale deeds being
\ntaken into consideration there was no iota of any doubt that the
\nrespondent no.2 had 1\/2 share of both the disputed khatas.\n<\/p>\n
The question which arises for determination in this case is as to
\nwhether the respondent no.1 was legally justified in setting aside
\nthe orders passed by the Consolidation officer and the Settlement
\nOfficer Consolidation on the grounds mentioned in the impugned
\norders.\n<\/p>\n
 In order to appreciate whether the first ground on which the orders
\nimpugned before the respondent no.1 were set aside by him , it is
\nnecessary to extract Section 9C of the Act which reads as
\nhereunder.\n<\/p>\n
“9-C Partition of joint holdings: (1) The Assistant Consolidation
\nOfficer , or the Consolidation Officer, may partition joint holdings
\nunderSection 9-A, notwithstanding anything to the contrary
\ncontained inSection 178 of the Uttar Pradesh Zamindari Abolition
\nand Land Reforms Act, 1950, or any other law, and may also
\npartition the same suo motu.\n<\/p>\n
(2)The partition of joint holdings shall be effected on the basis of
\nshares provided that where the tenure-holders concerned agree, it
\nmay be effected on the basis of specific plots.”\n<\/p>\n
After having carefully gone through the averments made in the
\nwrit petition as well as the counter and rejoinder affidavits and the
\norder impugned in this writ petition and examined the rival
\ncontentions advanced by learned counsel for the parties and the
\nprovisions ofSection 9C of the Act this Court is of the opinion that
\nthe view taken by the respondent no.1 that the partition of the
\ndisputed khatas effected by the Consolidation Officer and affirmed
\nby the Settlement Officer Consolidation was in contravention of
\nSection 9C(2) of the Act, is absolutely correct.\n<\/p>\n
A bare reading of Section 9C(2) of the Act makes it clear that
\npartition of joint holding shall be effected on the basis of shares
\nprovided that where tenure holders concerned agree , it may be
\neffected on the basis of the plots. Since admittedly in the present
\ncase the respondent no.2 never agreed to the partition of the
\ndisputed khatas on the basis of specific plots , the partition of the
\ndisputed khatas effected on the basis of specific plots by the
\nConsolidation Officer and affirmed by the Settlement Officer
\nConsolidation can not be sustained on account of being in
\nviolation of Section 9C(2) of the Act.\n<\/p>\n
Upon examining the second ground on which the orders of the
\nConsolidation Officer and the Settlement Officer Consolidation
\nwere set aside by the respondent no.1, this Court has no hesitation
\nin holding that the respondent No.1 rightfully held that the
\nrespondent no.2 had 1\/2 share in both the disputed khatas and not
\n1\/3 share as recorded in the basic year. Learned counsel for the
\npetitioner has failed to demonstrate that the aforesaid finding
\nwhich is based upon evidence suffers from any error.
\n In view of the aforesaid reasons, I find that there is no force in the
\nsubmissions advanced on behalf of the petitioners.\n<\/p>\n
The impugned order passed by the respondent no.1 is based upon
\nrelevant considerations and supported by cogent reasons.\n<\/p>\n
Learned counsel for petitioners has failed to demonstrate that the
\nimpugned order suffers from any illegality ,infirmity or perversity
\nwarranting any interference by this Court.\n<\/p>\n
The writ petition has no merit and is accordingly dismissed.\n<\/p>\n
It will be open to the parties to raise all the pleas legally available
\nto them before the Consolidation Officer.\n<\/p>\n
Order Date :- 25.1.2010<\/p>\n
cps\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Rais Ahmad & Others vs D.D.C. & Another on 25 January, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-93472","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nRais Ahmad & Others vs D.D.C. & Another on 25 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rais-ahmad-others-vs-d-d-c-another-on-25-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rais Ahmad & Others vs D.D.C. & Another on 25 January, 2010 - 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