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Satya Narain v. D.D.C. & Others - WRIT - B No. 2608 of 1981  RD-AH 7321 (20 April 2007)
Civil Misc. Writ Petition No. 2606 of 1981
Deputy Director of Consolidation , Camp at Basti & Others
Civil Misc. Writ Petition No. 2608 of 1981
Deputy Director of Consolidation, Camp at Basti & Others
Hon'ble Krishna Murari, J.
Both the writ petitions are connected together and directed against the judgment of Deputy Director of Consolidation dated 10.10.1980 and as such are being disposed of by this common judgment.
Heard Sri Manoj Misra, learned counsel for the petitioner.
Inspite of service of notice, no one has appeared on behalf of respondents.
Dispute relates to the share of the petitioners in Khatas in dispute. During consolidation operation, an objection was filed by the petitioner claiming 16/36 shares. With regard to khata no. 5 claim of the petitioner was that either he should be declared exclusive owner of plot no. 240, 241, 242 and 306 or he should be given 16/36 share in the entire khata. Consolidation Officer vide order dated 15.2.1977 rejected the claim of the petitioner and held that share of opposite parties no. 4 to 7 was one-third. Appeal filed by the petitioner challenging the order of Consolidation Officer, was also dismissed by Settlement Officer Consolidation vide order dated 18.5.1978. Aggrieved, petitioner filed a revision. Deputy Director of Consolidation though held the share of petitioner was 16/36 and not one-third but also held that since he has obtained more area of land and a separate khata no. 91 has been carved out in his name as such all the parties will have one-third share each. Aggrieved by the aforesaid order, petitioner filed aforesaid two writ petitions.
It has been contended by the learned counsel for the petitioner that though the Deputy Director of Consolidation has found that the petitioner is entitled to 16/36 share in all the disputed khatas but has wrongly held that petitioner will have only one-third share on the ground that he has already been given excess land comprising of khata no. 91 which was exclusively carved out in his name. It has further been urged that khata no. 91 was not ancestral property and it was nobody's case that since petitioner has been given excess land as such his share in other khatas was liable to be adjusted by giving him 1/3 share only.
I have considered the arguments advanced on behalf of the learned counsel for petitioner and perused the record.
From a perusal of the judgments of the consolidation authorities, it is clear that it was nobody's case that land pertaining to khata no. 91 would cover up 16/36 share of the petitioner and as such he would be entitled to only one-third share. Apparently, Deputy Director of Consolidation has carved out a new case beyond the pleadings of the parties. Once Deputy Director of Consolidation came to the conclusion that the petitioner is entitled to 16/36 share in all the disputed khatas, he could not have reduced the same and held that the petitioner would be entitled only one-third share since the extra land given to him comprising khata no. 91 is liable to be adjusted from his share. Since this was neither the case of either of the parties nor there was any pleading or evidence in this regard, conclusion arrived at by the Deputy Director of Consolidation appears to be patently erroneous.
In view of the above facts, writ petition no. 2606 of 1981 is allowed. Impugned judgment 10.10.1980 passed by the Deputy Director of Consolidation stands modified to the extent that the petitioner would be entitled to 16/36 shares in all the disputed khatas.
In view of aforesaid judgment passed in Writ Petition No. 2606 of 1981, Sri Manoj Misra, learned counsel appearing for the petitioner states that cause in writ petition no. 2608 of 1981 does not survive and the same is rendered infructuous and is accordingly dismissed.
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