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CHANDRAMA versus D.D.C.& OTHERS

High Court of Judicature at Allahabad

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Chandrama v. D.D.C.& Others - WRIT - B No. - 7042 of 1974 [2007] RD-AH 16788 (24 October 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

''Reserved'

Civil Misc. Writ Petition No. 7042 of 1974

Chandrama (minor) adopted son of Ram Kumar

Versus

Deputy Director of Consolidation, Ballia and others

Hon'ble Krishna Murari, J.

Though the case has been taken up in the revised list but no one has appeared on behalf of contesting respondent.

Heard Sri Shyam Narain, learned counsel for the petitioner.

Dispute relates to plots no. 575 area .22, 45 area .44 and 100/1 area .12 situate in village Kotwari, Pargana Lakhneshwar, district Ballia.

In the basic year, the name of Ram Kumar was recorded over the plot in dispute as ''Sirdar'. Respondent no. 3 filed an objection under section 9-A of the U. P. Consolidation of Holdings Act claiming that the land in dispute was his Bhumidhari and Ram Kumar who died issueless was wrongly recorded over the same. The claim of the respondent was contested by the petitioner claiming ''sirdari' rights over the land in dispute as adopted son of Ram Kumar. Since he was a minor, he contested the proceeding under guardianship of his mother Mst. Duleshwari. Consolidation Officer vide order dated 3.1.1972 dismissed the objection of the contesting respondent, against which an appeal was preferred by contesting respondent. In appeal, the petitioner, though was a minor, was not impleaded through his guardian (natural mother) but instead he was impleaded as "Chandrama son of Baijnath wrongly claiming to be adopted son of Ram Kumar". Settlement Officer Consolidation vide order dated 23.5.1973 allowed the appeal. Petitioner went up in revision which was dismissed by the Deputy Director of Consolidation vide order dated 23.7.1974. Aggrieved, the petitioner has approached this Court.

It has been urged by the learned counsel for the petitioner that though the petitioner who was minor, was not impleaded through guardian and notice was not served and the Settlement Officer Consolidation decided the appeal exparte. It has further been urged that the order passed against a minor without appointing a guardian was void and nullity and the Deputy Director of Consolidation without considering this aspect has wrongly dismissed the revision. It has also been contended that Settlement Officer Consolidation and the Deputy Director of Consolidation wrongly and illegally dismissed the claim of the petitioner on that ground that it is not clear that how the name of Ram Kumar came to be recorded in 1359 F. along with Sita Ram. It has also been contended that both the courts have failed to consider that Sita Ram and Ram Kumar were declared as ''sirdar' in 1362 F. and their names were directed to be recorded in case under Section 229-C of the U. P. Zamindari Abolition & Land Reforms Act (for short the ''Act').

I have considered the arguments advanced by the learned counsel for the petitioner and perused the record.

It is, no doubt, correct that the petitioner was not impleaded properly in appeal and the same was decided exparte without any service of notice. However, the petitioner challenged the said order by filing revision before the Deputy Director of Consolidation and contested on merits. Even though the judgment passed by Settlement Officer Consolidation in appeal may be exparte judgment against a minor who was not impleaded through guardian but the same cannot constitute a basis for setting aside the judgment of the Deputy Director of Consolidation which was passed on merits on the revision filed by the petitioner himself. In this view of the matter, first argument advanced by the learned counsel for the petitioner has no force.

In so far as merits of the claim of the petitioner is concerned, Consolidation Officer has recorded a clear finding that in 1358 F. name of Sita Ram and Ram Kumar are recorded and both were declared as ''sirdar' in 1362 F. but since by mistake only the name of Sita Ram was recorded over the land in dispute as such Ram Kumar filed a suit under Section 229-C of the Act and accordingly his name was also directed to be recorded. Consolidation Officer further rejected the claim of the contesting respondents on the ground that they failed to file any objection within time after the name of Ram Kumar was directed to be recorded in 1362 F. Settlement Officer Consolidation as well as Deputy Director of Consolidation though found that in ''INTEKHAB' of 1359 F name of Sita Ram and Ram Kumar are recorded as ''sikmi' and in 1370 F. they came to be recorded as ''sirdar' and in 1333F. name of Sita Ram above is recorded over the land in dispute as ''sikmi' and since the name of Ram Kumar was not recorded in 1333F. as such no rights can be given to him on the basis of entry of his name in 1359 F. In my view, the view taken by the Settlement Officer Consolidation and Deputy Director of Consolidation is patently erroneous. It is undisputed that the name of Sita Ram was recorded as ''sikmi' in 1333 F. As per findings recorded by the Settlement Officer Consolidation and Deputy Director of Consolidation the names of Sita Ram and Ram Kumar were recorded as ''sikmi' in 1359 Fasli. Both the courts below have lost sight of the fact that Sita Ram and Ram Kumar both came to be declared as ''sirdar' in 1362 F. but since the name of Ram Kumar was left out, a suit under Section 229-C of the Act was filed which ended into compromise and name of both the parties came to be recorded which continued till the basic year. Settlement Officer Consolidation and Deputy Director of Consolidation have failed to consider this aspect of the matter which was considered in detail by the Consolidation Officer and thus judgments are vitiated and cannot be sustained and are hereby quashed and that of Consolidation Officer is affirmed. The writ petition stands allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.

Date 24.10.2007

Dcs.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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