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Smt. Jhunia v. D.D.C.& Others - WRIT - B No. 9135 of 1978  RD-AH 5347 (8 November 2005)
These are two connected writ petition challenging the order dated 1.8.1978 passed by the Deputy Director of Consolidation, Azamgarh and order dated 23.3.1971 passed by the Consolidation Officer.
Heard Sri Ashutosh Srivastava, learned counsel for the petitioner, Sri Anoop Baranwal appearing for respondent nos. 4 & 5 and Sri S.S.P. Gupta appearing for respondent nos. 6 & 7 in writ petition no. 9135 of 1978.
Sri Ashutosh Srivastava has also appeared on behalf of respondent no.7 in writ petition no.1556 of 1979. No one has appeared on behalf of the petitioners in this petition.
In the basic year the plots in dispute were recorded in the name of Mohan, Sohan and Doobar sons of Jangi. Though Doobar had died leaving behind Smt. Jhunia (petitioner in writ petition no. 9135 of 1978) as his heir and legal representative but mutation could not be effected and the name of deceased Doobar continued in the records. During consolidation operation vide order dated 21.12.1969 passed by Assistant Consolidation Officer in case no. 541, the name of Smt. Jhunia came to be mutated in place of deceased Doobar and her share was separated. Respondent nos. 6, 7, 8 & 9 were also party to the said proceedings. Subsequently, two sets of objections were filed under Section 9A(2) of the U.P. Consolidation of Holdings Act; one by respondent nos. 6 & 7 claiming 1/8th share and another by respondent nos. 4 & 5 claiming 1/4th share each in the land in dispute. Smt. Jhunia, though her name came to be recorded over the land vide order dated 13.12.1969, was not impleaded as a party. The Consolidation Officer vide order dated 23.3.1971 decided the objection on the basis of an alleged compromise said to have been entered between the parties. Under the said compromise Mohan & Sohan and Murali & Phurali were given 1/8th share each and Kodai & Sudai were given 1/4th share each. Smt. Jhunia having come to know of the aforesaid order based on compromise filed a time barred appeal. The Settlement Officer of Consolidation vide order dated 23.7.1977 after condoning the delay allowed the appeal and remanded the case back to the Consolidation Officer to be decided afresh on merits. Feeling aggrieved, respondent nos. 4 to 7 in writ petition no. 9135 of 1978 filed a revision. The Deputy Director of Consolidation vide impugned order dated 1.8.1978 allowed the same and confirmed the judgement passed by Consolidation Officer based on alleged compromise. This order of Deputy Director of Consolidation has been challenged by Smt. Jhunia in writ petition no. 9135 of 1978 and by Mohan & Sohan in writ petition no. 1556 of 1979.
It has been urged by learned counsel for the petitioner that on the date of alleged compromise the name of Smt. Jhunia was recorded in place of Doobar as such she was a necessary party. It has further been urged that since the alleged compromise was not signed by Mohan as such it was not a valid compromise.
In reply it has been submitted that in view of the findings recorded by the Deputy Director of Consolidation that Mohan and Sohan had notice of the proceedings and Sohan has put his thumb impression on the compromise, the impugned judgment does not call for any interference by this court.
I have considered the argument advanced by learned counsel for the parties and perused the record.
The Settlement Officer of Consolidation has recorded a finding that Mohan and Sohan were not represented before the Consolidation Officer by any counsel as there is no vakalatnama on record. He has further held that since Mohan was not a party to the compromise as such it was not a valid and legal compromise. He after setting aside the order of Consolidation Officer remanded the case back to be decided on merits. However, in revision the Deputy Director of Consolidation held that even though the vakalatnama is not on record but since the signature of Sohan has been verified by an advocate and the same advocate has signed the compromise on behalf of Mohan as such it cannot be said that they were not represented. He has further held that the compromise was verified by Sohan through his counsel as such it cannot be said that the said compromise is not legal and binding.
The aforesaid findings of the Deputy Director of Consolidation are totally illegal. No advocate is authorized to represent a party in any proceeding unless he has the power, much less enter into a compromise on his behalf. In the absence of Mohan joining the compromise it cannot be held to be a legal and valid compromise having any binding effect. The Deputy Director of Consolidation has also failed to consider that name of Smt. Jhunia came to be recorded in place of deceased Doobar and in the absence of her being impleaded as a party entire proceeding would stand vitiated.
From the aforesaid discussions, it is clear that the impugned judgment of the Deputy Director of Consolidation dated 1.8.1978 cannot be sustained and is hereby quashed and that of the Settlement Officer of Consolidation dated 23.7.1977 remanding the case back to Consolidation Officer is hereby affirmed.
Both the writ petitions stand allowed.
The Consolidation Officer is directed to decide the matter in accordance with law preferably within a period of one year from the date of production of a certified copy of this order before him, after notice and opportunity of hearing to all the parties concerned.
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