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SukhdIn Vs. Deputy Director of Consolidation, U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. No. 988 of 1968
Judge
Reported inAIR1974All450
ActsConstitution of India - Article 226
AppellantSukhdin
RespondentDeputy Director of Consolidation, U.P. and ors.
Appellant AdvocateHargur Charan Srivastava
Respondent AdvocateK.N. Misra, Adv.
DispositionPetition dismissed
Excerpt:
.....contention, as raised in the writ petition with regard to the extent of share of the remaining opposite parties, is accepted and the impugned order of the deputy director of consolidation is quashed by certiorari, as prayed, then such a decision will clearly collide against the order of the deputy director which has already assumed finality so far as the share of ram shankar, opposite party no. if the petition is allowed against opposite parties 3, 4, 6 to 8, as urged, it will clearly lead to two contradictory orders being made: this court will clearly refuse to proceed with a writ petition under article 226 of the constitution which, if allowed, will lead to such conflict of decisions. in that case the supreme court observed mat 'courts will not proceed with an appeal when the..........parties 3 to 8 were signatories. by this compromise it was agreed that sukhdin shall have l/3rd share, opposite parties 3 to 5 each 1/8 share and opposite parties 6 to 8 each 1/6 share in the disputed khata. the assistant consolidation officer passed anorder on the basis of annexure a to the counter-affidavit on 13-6-66 and directed that names of opposite parties 3 to 8 along with the petitioner may be recorded in the papers according to the share agreed between the parties in the compromise. the petitioner challenged this order of the assistant consolidation officer in appeal before the settlement officer (consolidation). before the settlement officer (consolidation) there was another compromise, copy of which is annexed to the writ petition as annexure 2 which was signed by opposite.....
Judgment:
ORDER

O.P. Trivedi, J.

1. Sukhdin has filed this petition under Article 226 of the Constitution of India claiming 1/3rd share in certain land situate in the district of Rae Bareli. The petition arises out of consolidation proceedings. In the basic year petitioner's name alone was recorded against this land. Admittedly the petitioner Sukhdin and Ram Kumar (opposite party No. 3), Ram Swaroop (opposite party No. 4), Ram Shankar (opposite party No. 5), Ram Nath, (opposite party No. 6), Ram Ratan (opposite party No. 7) and Smt. Sundara (opposite party No. 8) belong to the same family. At the time of field-to-field partal opposite parties 3 to 7 were reported to be co-tenants of the disputed khata. The mistake was accordingly entered in C. H. Form 5 issued on 29-5-66. There was a compromise (Annexure A to the counter-affidavit) before the Assistant Consolidation Officer to which the petitioner Sukhdin and opposite parties 3 to 8 were signatories. By this compromise it was agreed that Sukhdin shall have l/3rd share, opposite parties 3 to 5 each 1/8 share and opposite parties 6 to 8 each 1/6 share in the disputed khata. The Assistant Consolidation Officer passed anorder on the basis of Annexure A to the counter-affidavit on 13-6-66 and directed that names of opposite parties 3 to 8 along with the petitioner may be recorded in the papers according to the share agreed between the parties in the compromise. The petitioner challenged this order of the Assistant Consolidation Officer in appeal before the Settlement Officer (Consolidation). Before the Settlement Officer (Consolidation) there was another compromise, copy of which is annexed to the writ petition as Annexure 2 which was signed by opposite party No. 7 and the counsel for opposite party No. 8 and was not signed by or on behalf of opposite parties 3 to 5. Under this compromise it was agreed that the petitioner Sukhdin shall have 8/18 share, opposite parties 3 to 5 shall have 1/54 share each, opposite parties 6 to 8 shall have each 4/18 share and opposite party No. 7 shall have 1/18 share in the disputed khata. The Settlement Officer (Consolidation) allowed the appeal, set aside the order of the Assistant Consolidation Officer and decided the appeal in terms of this second compromise declaring that the petitioner and opposite parties 3 to 8 shall have shares in the disputed khata according to this compromise. Opposite party No. 3 Ram Kumar challenged this order of the Settlement Officer (Consolidation) in revision filed before the Deputy Director of Consolidation on the ground amongst others, that the decision of the Settlement Officer on the basis of the compromise was not binding upon him as opposite parties 3 to 5 had not joined the compromise before the Settlement Officer. This plea prevailed with the Deputy Director of Consolidation who set aside the order of the Settlement Officer (Consolidation) and restored the order of the Assistant Consolidation Officer by an order dated 9-8-68 of which Annexure 4 is a copy. Sukhdin assails the validity of this order of the Deputy Director of Consolidation on a variety of grounds maintaining that the Settlement Officer (Consolidation) was right in proceeding on the basis of the compromise which was reached before him and that the shares of the petitioner ,and opposite parties 3 to 8 should have been declared in accordance with that compromise and the Deputy Director of Consolidation should have affirmed that decision and rejected the revision.

2. The learned counsel for the opposite parties Sri K. N. Misra has raised a preliminary objection that this petition is not maintainable because it was dismissed by this court on 14th March, 1972 against Ram Shankar, opposite party No. 5, for the petitioner's failure to take any steps forservice of notice of this petition against him. The submission is that the petition is no longer maintainable against the remaining opposite parties 3, 4, 6 to 8.

3. I have heard Sri K. N. Misra and Sri Hargur Charan Srivastava on the preliminary objection which appears to me valid and sound. The Deputy Director of Consolidation has by the impugned order restored the order of the Asstt. Consolidation Officer based on compromise recorded at this stage and thereby the petitioner and opposite parties 3 to 8 have been declared to be co-tenants of the dispute khata and their shares have been declared as agreed in that compromise. The share of Ram Shankar, opposite party No. 5 against whom the writ petition has already been dismissed was declared, as a result of this order of the Deputy Director of Consolidation, to be 1/18, while in this writ petition Sukhdin maintained that the share of Ram Shankar should be declared 1/54 and the share of the remaining opposite parties should also be declared in accordance with the compromise before the Settlement Officer (Consolidation). Now so far as Ram Shankar, opposite party No. 5, is concerned the result of dismissal of the writ petition against him has been that the impugned order of the Deputy Director of Consolidation has become final so far as he is concerned and consequently his share must be taken to have been finally declared to be 1/18. If the petitioner's contention, as raised in the writ petition with regard to the extent of share of the remaining opposite parties, is accepted and the impugned order of the Deputy Director of Consolidation is quashed by certiorari, as prayed, then such a decision will clearly collide against the order of the Deputy Director which has already assumed finality so far as the share of Ram Shankar, opposite party No. 5, is concerned. Indeed, if the share of Ram Shankar is accepted as 1/18 on the basis of the order of the Assistant Consolidation Officer restored by the Deputy Director of Consolidation, as it must be accepted as a result of finality of the latter order as regards Ram Shanker. then it would be impossible to make a declaration of shares of the petitioner and opposite parties 3, 4, 6 to 8 on the basis of the compromise reached before the Settlement Officer (Consolidation) as urged for the petitioner. If the petition is allowed against opposite parties 3, 4, 6 to 8, as urged, it will clearly lead to two contradictory orders being made: There is the order of the Deputy Director of Consolidation in favour of Ram Shanker by which the order of the Settlement Officer Consolidation has been set aside and the order of the Assistant Consolidation Officer has been restored. If the writpetition is allowed there will be another order by the Court by which the order of the Settlement Officer (Consolidation) will be maintained and the order of the Assistant Consolidation Officer will be set aside. This court will clearly refuse to proceed with a writ petition under Article 226 of the Constitution which, if allowed, will lead to such conflict of decisions. To my mind, the principle propounded by the Supreme Court in the case of State of Punjab v. Nathu Ram (AIR 1962 SC 89) will be applicable to the present set of facts. In that case the Supreme Court observed mat 'courts will not proceed with an appeal when the success of the appeal may lead to the court's coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and, therefore, which would lead to the court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent.' From yet another point of view also the petition is no longer maintainable against opposite par-ties 3, 4, 6 to 8 as a result of its dismissal against Ram Shankar, opposite party No. 5. Admittedly Sukhdin petitioner and opposite parties 3 to 8 are co-tenants in the disputed khata. Consequently the petitioner has a joint cause of action against the remaining co-sharers in the khata and the order of the Deputy Director of Consolidation having been passed against the petitioner as well as all those co-tenants, the petition could not be maintained unless all the co-sharers were made parties to the writ petition. The petition clearly could not have been maintainable if Ram Shankar, opposite party No. 5, had not been impleaded in the writ petition as an opposite party. The dismissal of the writ petition against Ram Shankar, opposite party No. 5 for the petitioner's failure to take steps for service upon him is analogous to a situation which may have been created by the non-impleadment of Ram Shankar to the writ petition. The cause of action of the petitioner against the entire body of co-sharers (opposite parties 3 to 8) being joint, the petition is no longer maintainable on account of its dismissal against one of the co-sharers, namely. Ram Shankar, opposite party No. 5.

4. The foregoing reasons compelme to the view that the preliminary objection raised by the opposite parties is well founded. It is, therefore, upheld and the writ petition is dismissed as not maintainable. Opposite parties 3, 4, 5 to 8 will be entitled to get their costs from the petitioner.


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