Neutral Citation No. - 2025:AHC:83432 Reserved On:23.4.2025 Delivered On:19.5.2025 Court No. - 50 Case :- WRIT - B No. - 57710 of 2007 Petitioner :- Puran And Others Respondent :- D.D.C. And Others Counsel for Petitioner :- Manish Kumar Nigam,Anup Kumar Srivastava,Sachida Nand Tripathi Counsel for Respondent :- C.S.C.,B.N.Singh,H.N.Singh,M.P. Tiwari,Vineet Kumar Singh Hon'ble Chandra Kumar Rai,J. 1. Heard Mr. Sachida Nand Tripathi, learned counsel for the petitioners, Mr. Vineet Kumar Singh, learned counsel for the respondent no.2 and learned Standing Counsel for the State-respondents. 2. Brief facts of the case are that Khata No.49 situated in Village-Karmaha, Tappa Kewatali, Pargana Haveli, Tahsil- Sadar, District- Gorakhpur was recorded in the name of Ramdhari son of Bhikkhu in the basic year of the consolidation operation. Khata no.29 situated in the aforementioned village was recorded in the basic year of consolidation operation in the name of Puran son of Bhikkhu and Ram Asrey, Kanhaiya son of Dhodha. Against the basic year entry of khata no.49 situated in the village- Karmaha, an objection under Section 9-A (2) of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "U.P.C.H. Act") was filed by Puran and others (petitioners) claiming co- tenancy right along with Ramdhari. In respective khata no.29, an objection under Section 9-A (2) of the U.P.C.H. Act was filed by Ramdhari claiming co-tenancy right. The aforementioned objections were registered before the Consolidation Officer and the same were decided vide order dated 5.11.1988 rejecting the objection of the petitioner relating to khata no.49 and allowed the objection of Ramdhari relating to khata no.29. Against the order dated 5.11.1988 passed by the Consolidation Officer, an appeal under Section 11 (1) of U.P.C.H. Act was filed by the petitioner which was registered as Appeal No.591. The aforementioned appeal was heard and allowed by the Settlement Officer of Consolidation vide order dated 7.7.1989 with respect to khata no.49 directing to record the name of petitioners/ Puran and others as co-tenure holder along with recorded tenure holder-respondent no.4/ Ramdhari. The finding of fact was also recorded by Settlement Officer of Consolidation that the khata in dispute was not the self acquisition of Ramdhari and Fulesari rather the same was the acquisition of Doodh Nath. Against the appellate order dated 7.7.1989, revision under Section 48 of U.P.C.H. Act was filed by Ramdhari which was registered as Revision No.281. The aforementioned revision was heard by Deputy Director of Consolidation and the same was dismissed vide order dated 12.5.1994. Writ petition no.26793 of 1994 filed by Ramdhari against the order of 2 Settlement Officer of Consolidation as well as Deputy Director of Consolidation was dismissed by this Court vide order dated 19.8.1994. After dismissal of the writ petition filed by Ramdhari, respondent nos.2 & 3, Hari Lal and Chhotey Lal sons of Ramdhari filed a time barred appeal on 1.11.1994, under Section 11 (1) of U.P.C.H. Act challenging the order of Consolidation Officer dated 5.11.1988. The prayer for condonation of delay was also made in the aforementioned appeal. Settlement Officer of Consolidation vide order dated 16.7.2002 dismissed the appeal as not maintainable on the ground that the appeal, revision as well as the writ petition filed by father of the appellant, namely, Ramdhari have already been dismissed by the Court. Against the appellate order dated 16.7.2002, revision under Section 48 of U.P.C.H. Act was filed by respondent nos.2 & 3, which was registered as Revision No.78 of 2007. The aforementioned revision was heard by Deputy Director of Consolidation and the same was allowed vide order dated 25.9.2007 setting aside the order dated 16.7.2002 as well as 5.11.1988 and matter was remitted back before Consolidation Officer to decide the objection under Section 9-A (2) of U.P.C.H. Act afresh on merit. Hence this writ petition for the following reliefs: "i. a writ, order or direction in the nature of certiorari quashing the order dated 25.9.2007 passed by respondent 3 no.1 in Revision No.78 of 2007 (Annexure No.1 to this writ petition). ii. any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in this circumstances of the case. iii. to award costs of the writ petition to the petitioners." 3. This Court entertained the matter on 5.12.2007 and stayed the operation of the impugned order dated 25.9.2007 passed by Deputy Director of Consolidation. 4. In pursuance of the order dated 5.12.2007, parties have exchanged their pleadings. 5. Learned counsel for the petitioners submitted that the proceedings under Section 9-A (2) of U.P.C.H. Act initiated at the instance of petitioners in respect to Khata no.49 has attained finality for recording the name of petitioners as co- tenure holder along with recorded tenure holder-Ramdhari, as such, the filing of appeal against the order of Consolidation Officer at the instance of respondent nos.2 & 3 who are sons of deceased Ramdhari cannot be entertained and allowed by the consolidation authorities. He further submitted that after dismissal of the writ petition by this Court giving finality to the dispute for recording the name of petitioners as co-tenure holder in respect to khata no.49, the filing of title appeal filed by the sons of deceased -Ramdhari is total abuse of the process of law. He further 4 submitted that inordinate delay in filing of appeal by respondent nos.2 & 3 has been condoned in casual manner. He further submitted that the Settlement Officer of Consolidation has rightly dismissed the appeal filed by respondent nos.2 & 3 on the ground of jurisdiction and maintainability but Deputy Director of Consolidation has exceeded his revisional jurisdiction in setting aside the order of Consolidation Officer and Settlement Officer of Consolidation as well as the matter was remitted back for fresh adjudication of dispute under Section 9-A (2) of U.P.C.H. Act. He further submitted that the impugned revisional order should be set aside and order of Settlement Officer of Consolidation dated 7.7.1989 giving co-tenancy right to the petitioners should be affirmed. 6. On the other hand, Mr. Vineet Kumar Singh, learned counsel for the respondent no.2 submitted that the appeal under Section 11 (1) of U.P.C.H. Act filed by respondent nos.2 & 3 along with prayer for condonation of delay has been dismissed by the Settlement Officer of Consolidation in the arbitrary manner without considering the fact that separate claim on the basis of succession in respect to the property of Smt. Phulesari has been raised while in the earlier dispute the father of respondent nos.2 & 3 has claimed the co-tenancy right, as such, the claim of 5 respondent nos.2 & 3 should be examined in proper manner. He further submitted that the Consolidation Officer has illegally held that the claim of succession in respect to the property of Phulesari will be governed according to the provisions contained under Section 174 of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as “U.P.Z.A. & L.R. Act) which is wholly illegal. He further submitted that the revisional Court has rightly remitted the matter back before Consolidation Officer to decide the dispute regarding succession of Smt. Phuleswari in accordance with law He further submitted that the claim of respondent no.3 will not be refused on the ground that the title dispute raised by their father in respect to the same khata has been dismissed by the consolidation authorities as well as this Court. He further submitted that under the impugned revisional order, the matter has been remitted back before the Consolidation Officer, as such, petitioners have full opportunity to contest the matter before the Consolidation Officer rather writ petition before this Court. He further submitted that the writ petition against the remand order passed by the Deputy Director of Consolidation in revision cannot be entertained. 7. I have considered the argument advanced by learned counsel for the parties and perused the records. 6 8. There is no dispute about the fact that khata no.49 situated in Village-Karmaha was recorded in the name of Ramdhari (father of respondent nos.2 & 3) in the basic year of the consolidation operation and khata no.29 was recorded in the name of Puran (petitioner no.1), Ram Asrey (petitioner no.4) and Kanhaiya (petitioner no.3). There is also no dispute about the fact that the title objection filed by petitioners claiming co-tenancy right was refused by the Consolidation Officer but in appeal the claim was allowed and order of co-tenancy has been maintained up to this Court by dismissing the writ petition filed by Ramdhari (father of respondent nos.2 & 3). There is also no dispute about the fact that after dismissal of the writ petition filed by Ramdhari (father of respondent nos.2 & 3), a time barred title appeal has been filed on behalf of respondent nos.2 & 3 (sons of Ramdhari) against the order of Consolidation Officer dated 5.11.1988 claiming right on the basis of succession in respect to the khata no.49 which has been dismissed by the appellate Court but in revision the matter has been remanded back before Consolidation Officer setting aside the earlier order of Consolidation Officer dated 5.11.1988 & Settlement Officer of Consolidation dated 16.7.2002. 7 9. In order to appreciate the controversy involved in the matter, perusal of the family pedigree will be relevant which is as under: साधो गोकु ल लच्छन काशी मथुरा उर्फ जमुना दशरथ दूधनाथ शिशवबरन दूवर तपेशर पुलेसरा मुनेसर छत्रधारी राजपतित बृजमोहन चंद्रभान ढोढा भीखू रामाश्रय कन्हैया रामधारी मुनेसर पूरन (पिपटीशनर नंबर 4) (पिपटीशनर नंबर 3) (पिपटीशनर नंबर 1) 10. Perusal of the issues framed before the Consolidation Officer will be also relevant which are as under: " पिववाद के आधार पर पिनम्न वाद पिबन्दु पिनर्मिमत पिकये गये हैं- 1. क्या खाता संख्या 49 म4 पूरन आपिद सहखातेदार है व कापिबज है? 2. क्या रामधारी पुत्र पिनषक खाता 29 म4 सहखातेदार हैं? यपिद हाँ, तो प्रभाव। 3. गाटा संख्या 133 का सह कब्जा क्या है? 4. आया गाटा संख्या 133/1 बाग व 143/3 आबादी है? यपिद हाँ तो प्रभाव। -47 -43 8 5. आया गाटा संख्या 180/6 व 181/7 क्रमशः आबादी नाली है आबादी नाली है? यपिद हां तो प्रभाव। -18 -28 6. खाते म4 प्रभापिवत खातेदारों का अंश का अंश?” 11. Consolidation Officer after considering the evidence adduced by the parties on the basis of issues framed in the proceeding with respect to plots of khata nos.49 and 29 has held that the claim of petitioners regarding co-tenancy in respect to Khata no.49 cannot be accepted but claim of Ramdhari for co-tenancy in respect to plot of khata no.29 is fit to be allowed but in appeal filed by petitioners, Settlement Officer of Consolidation has held that the petitioners are entitled to be recorded as co-tenure holder in respect to plot of khata no.49 along with recorded tenure holder Ramdhari and the order of Settlement Officer of Consolidation was maintained in revision as well as in writ petition filed by Ramdhari (father of respondent nos.2 & 3) before this Court. 12. After dismissal of the writ petition no.26793 of 1994 filed by Ramdhari a fresh highly time barred appeal under Section 11 (1) of U.P.C.H. Act has been filed on behalf of respondent nos.2 & 3 (sons of Ramdhari) in respect to khata no.49 which has been rightly dismissed by the Settlement Officer of Consolidation holding that dispute in respect to Khata no.49 has already been adjudicated by the consolidation authorities, as such, fresh claim cannot be 9 raised by sons of Ramdhari in respect to the same khata no.49. There is no illegality in the order passed by the Settlement Officer of Consolidation dated 16.7.2002 dismissing the appeal of respondent nos.2 & 3 but Deputy Director of Consolidation has exceeded his revisional jurisdiction in setting aside the appellate order and the order of Consolidation Officer dated 1.11.1988 as well as matter was remitted back before Consolidation Officer for fresh adjudication which is total abuse of process of law as the same dispute cannot be examined again and again by the consolidation authorities at the instance of the legal heir of the Ramdhari who had lost his claim up to this Court in the first round of litigation. 13. 13. Considering the entire facts and circumstances of the case, the impugned revisional order dated 25.9.2007 passed by respondent no.1 in revision no.78 of 2007 is liable to be set aside and the same is hereby set aside. 14. The writ petition is allowed and order of Settlement Officer of Consolidation dated 16.7.2002 is hereby affirmed. 15. No order as to costs. Order Date :- 19.5.2025 Rameez 10 Digitally signed by :- RAMEEZ AHMED High Court of Judicature at Allahabad