Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 887 of 2007 (M/S) Hari Singh S/o Sri Chander Singh R/o Gandhi Nagar Sekhpuri Roorkee, Pargana & Tehsil Roorkee District Haridwar. ...…………. Petitioner Versus 1. Guman Singh (since deceased) 1/1. Surendra Singh 1/2. Prehlad Singh 1/3. Kishan Singh All S/o late Sri Guman Singh R/o Gandhi Nagar Sekhpuri Roorkee, Pargana & Tehsil Roorkee, District Haridwar. ...…………. Respondents Mr. Sharad Sharma, Sr. Advocate, assisted by Mr. Kamlesh Lohani, Advocate, present for the petitioner. Mr. Siddharth Singh, Advocate, present for the respondents. Hon’ble Prafulla C. Pant, J. By means of this writ petition, moved under Article 226 read with Article 227 of the Constitution of 2 India, the petitioner has sought quashing of the order dated 15.09.2003, passed by the Consolidation Officer; order dated 28.12.2004, passed by the Asstt. Settlement Officer of Consolidation; and order dated 19.04.2007, passed by Deputy Director of Consolidation, Haridwar (Camp Roorkee). 2) Heard learned counsel for the parties and perused the affidavit and counter affidavit filed on behalf of the parties. 3) Brief facts of the case are that the dispute between the parties relates to Khasra No. 35, measuring area 0.041 Hectares, and Khasra No. 36, measuring area 0.041 Hectares, situated in Village Ganeshpur, Tehsil Roorkee, District Haridwar. The petitioner’s case is that he purchased 4 Biswa land of plot No. 35, and 4 Biswa land of plot No. 36 from the predecessors-in- title, namely Tikka S/o Daulat and Bhagwati W/o Mohkam, through registered sale deed executed in the year 1978. It is further pleaded by the petitioner that his name was mutated on the revenue records on the basis of said sale deed. When the village came under consolidation operations, it was found that in respect of aforesaid Khasra numbers, equal area to that of petitioner, was also recorded in the name of respondent Guman Singh (since deceased). At the stage of proceedings under Section 8 and 9 of the Consolidation of Holdings Act, 1953, form CH-5 was issued in 3 respect of two separate equal areas, one Khata No. 15 (in the name of Guman Singh), and another Khata No. 118 (in the name of Hari Singh (petitioner). The petitioner filed an objection pointing out the mistake in form CH-5 that double entries has been made in form CH-5 in respect of same land. The Consolidation Officer on said objection, passed an order on 21.05.1999, directing the Chakbandi Karta to submit a report in the matter, in reply to which the Chakbandi Karta submitted his report dated 03.06.1999, and detected that infact there was double entry of the same land. On this, the Consolidation Officer vide order dated 19.08.2000 (copy Annexure –5 to the writ petition) accepted the objection raised by the petitioner, and directed to expunge entries in respect of Khata Nos. 35 and 36 from Khata No. 15, and further directed that the entry of Khata No. 118 be maintained. On coming to know of said order, respondent Guman Singh moved an application on 12.01.2001 (copy Annexure –6 to the writ petition) seeking recall of order dated 19.08.2000, and praying that the order be passed on merits after hearing him, as he was an affected party. The petitioner’s case is that the recall application was not maintainable. However, the Consolidation Officer vide order dated 19.06.2001 (copy Annexure –7 to the writ petition) allowed the recall application, and set aside the order dated 19.08.2000. On the very day i.e. 19.06.2001, petitioner filed objection under Section 9(a)(ii) challenging the case of the respondent that 4 respondent was the previous purchaser of the same land. On 13.03.2002, the case was adjudicated upon ex-parte by the Consolidation Officer, against the petitioner, rejecting his objection. The petitioner sought recall of said order and vide order dated 15.09.2003, the matter was decided afresh by the Consolidation Officer, rejecting the case of the petitioner and directing that entry of Khata Nos. 35 and 36 of an area 0.041 Hectares shall be recorded in Khata No. 15 in favour of the respondent, expunging the same from Khata No. 118 of the petitioner. This led the petitioner file Appeal No. 1261 / 632 / 353 of 2004-05 before the Asstt. Settlement Officer of Consolidation. The said authority vide impugned order dated 28.12.2004, dismissed the appeal, and affirmed the order dated 15.09.2003, passed by the Consolidation Officer. Finally, the petitioner preferred revision No. 549 of 2004-05 under Section 48 of the Consolidation of Holdings Act, 1953, which was also dismissed by the Deputy Director of Consolidation vide impugned order dated 19.04.2007. Hence, the petition before this Court. 4) In the counter affidavit filed on behalf of the respondents it is stated that land measuring 4 Biswa of Gata No. 35, and 4 biswas of Gata No. 36 were earlier purchased by Guman Singh (since deceased) from Tikka and legal heirs of Mohkam vide two registered sale deeds dated 01.03.1977 and 02.03.1977, and said 5 purchaser entered into possession of the land. It is further stated that since no interest remained with the sellers, as such, any sale deed executed thereafter in favour of the petitioner Hari Singh transfers no interest or title in the land in question. It is admitted that the petitioner filed an objection as to double entry during consolidation operations, and in his application / objection dated 21.05.1999, and sought expunging of the entry in favour of respondent Guman Singh (since deceased), which was allowed vide order dated 19.08.2000, by the Consolidation Officer. It is also admitted that Guman Singh moved an application for recalling of the order passed by the Consolidation Officer, as said order was passed against him without impleading him in the case, on which the Consolidation Officer vide his order dated 19.06.2001, allowed the recall application. Thereafter, vide order dated 15.09.2003 it was directed that the entry made in respect of Khata No. 35 and 36 in favour of Guman Singh be maintained, and the one in favour of petitioner Hari Singh be expunged. It is also admitted that petitioner Hari Singh filed an appeal before the Asstt. Settlement Officer of Consolidation, who dismissed the appeal. Consequently, the petitioner Hari Singh filed Revision No. 549 of 2004-05 before the Deputy Director of Consolidation, which was also dismissed vide impugned dated 19.04.2007. Defending the impugned orders it has been stated on behalf of the respondents that since no interest or title stood 6 transferred in favour of the petitioner Hari Singh, the authorities concerned have committed no error of law by refusing to expunge the entry made in favour of the respondent Guman Singh. 5) In the rejoinder affidavit the petitioner has reiterated the averments made in the writ petition. 6) Mr. Sharad Sharma, Senior Advocate, appearing on behalf of the petitioner drew attention of this Court to Section 11-A of the U.P. Consolidation of Holdings Act, 1953 (for short the Act), and it is argued that after the respondent Guman Singh failed to raise objection under Section 9 of the Act against form CH –5, the same cannot be raised at the subsequent stage of the consolidation proceedings. It is contended that the authorities below have erred in law in recalling the order dated 19.08.2000, passed by Consolidation Officer in favour of the petitioner. In reply to this on behalf of the respondents it is contended that in view of provisions contained in Clause (ii) of sub-Section (1) of Section 9-A of the Act, neither Section 11-A of the Act, nor the Rule 25(e) of the rules framed under the Act, help the petitioner. Clause (ii) of sub-Section (1) of Section 9-A of the Act provides that where no objections are filed after making inquiry, the Asstt. Settlement Officer of Consolidation shall settle the disputes, correct the mistakes as he may deem fit 7 necessary. It is pertinent to mention here that both petitioner Hari Singh and respondent Guman Singh purchased the same land from the same persons. There is concurrent finding of fact on the point that the two sale deeds executed in the year 1977, in favour of respondent Guman Singh are previous to the one executed by the sellers in the year 1978, in favour of petitioner Hari Singh. Since, it has come on the record that area of the land of each Khata No. 35 and 36 was 4 Biswa (0.041 Hectares), and both pieces of land had already been purchased by the respondent Guman Singh, as such, by the subsequent sale deed of 1978 executed by the same bhumidhars, namely Tikka and legal heris of Mohkam, in favour of the petitioner Hari Singh, did not transfer any interest or title in the land in question, in his favour. It appears that due to some reason that area of the above mentioned plots was wrongly mentioned in the revenue records as 8 Biswas in respect of each Khata due to which on the basis of sale deeds executed in favour of the petitioner Hari Singh and respondent Guman Singh, names of both the persons were got mutated, consequently, the double entry was found to have been made in respect of same land in form CH –5 during consolidation proceedings. No doubt, the petitioner did file an objection against the double entry praying that his name be retained in the record, and that of the respondent be expunged, but the petitioner did not implead respondent Guman Singh as a party. Therefore, it is only after the respondent 8 Guman Singh came to know of order dated 19.08.2000, he had to move an application on 12.01.2001, seeking recall of the order passed by the Consolidation Officer. Having gone through the impugned orders passed by all the three authorities below, this Court does not find that anyone of them has committed error of law in directing that name of the petitioner be expunged, and that of the respondent Guman Singh be retained. Allahabad High Court in Shrinath Pandey and another Vs. Dy. Director of Consolidation, Jaunpur and another 1981 (2) R.D. 351, held that even if a person who had not filed objection, but filed his claim in reply to objection filed by the other party, such claim (objection) cannot be said to be not maintainable. Similar view has been expressed in Ram Pal Singh Vs. Dy. Director of Consolidation 1980 R.D. (Supp.) 74. 7) Next, on behalf of the petitioner it is argued that neither the issue on adverse possession was framed by the Consolidation Officer and Asstt. Settlement Officer of Consolidation, nor any finding is given on said point. It is further contended that even if it is accepted that no title stood transferred to the petitioner through sale deed executed in 1978 which was subsequent to the one executed in favour of the respondent, by virtue of being in adverse possession, the petitioner has matured his title. In reply to this, on behalf of the respondents it is argued that two totally inconsistent pleas cannot be taken by a party, which are opposite to each other. Where the 9 petitioner had claimed ownership on the basis of the sale deed and entry in the revenue record, there is no question of claiming title on the basis of the adverse possession. Referring to the application / objection filed on behalf of the petitioner before the Consolidation Officer, it is submitted on behalf of the respondent that there is no clear and specific plea of adverse possession, nor is there any plea that the possession of the petitioner was continuous and uninterrupted and known to the title holder. This Court is of the view that in absence of said pleas, non-framing of issue on the point of adverse possession is not fatal to the present case. Apart from this, this Court agrees with the learned counsel for the respondents that totally inconsistent plea which kill each other cannot be taken by a party. In Shailendra Amar Singh Vs. Harnam Singh 1998 R.D. 559, on similar situation, Allahabad High Court has observed as under: “………Accordingly the two pleas claiming right of ownership and of adverse possession, cannot be raised in one breath. In the instant case the claim of adverse possession not being raised specifically, unequivocally and in clear terms disowning the right of the plaintiff, is not available to the defendant……….” . 8) Lastly, it is contended on behalf of the petitioner that in view of principle of law laid down in Smt. Shivraji Vs. Dy. Director of Consolidation 1997 A.W.C. 10 (Supp.) 454 (F.B.), the Consolidation Officer had no power to recall its order dated 19.08.2000. I have gone through the case law referred above. Had it been a case of reviewing an order passed by a consolidation authority after hearing the parties concerned, it could have been said that unless the Statute provides for review of an order, such power cannot be exercised. But, in the present case, without impleading respondent Guman Singh, who was an affected party, the petitioner Hari Singh obtained the order dated 19.08.2000, which directly and adversely affected the respondent. Naturally, the respondent on coming to know of said order sought recall of the order which was allowed by the Consolidation Officer. Assuming for a moment, that consolidation authority had no power to recall his order passed on merits, but said order dated 19.06.2001 (copy Annexure –7 to the writ petition) by which the recall application dated 12.01.2001 moved by the present respondent was allowed, and order dated 19.08.2000 was recalled, is not challenged by the present petitioner in this writ petition. The petitioner has challenged only order dated 15.09.2003, passed by Consolidation Officer, order dated 28.12.2004, passed by Asstt. Settlement Officer of Consolidation, and order dated 19.04.2007, passed by the Deputy Director of Consolidation. Not only this, even before Asstt. Settlement Officer of Consolidation and Deputy Director of Consolidation, the order dated 19.06.2001 was never challenged by the present petitioner. What he challenged before the Asstt. 11 Settlement Officer of Consolidation was order dated 15.09.2003. After said order was affirmed in appeal by Asstt. Settlement officer of Consolidation, only order dated 15.09.2003 and order dated 28.12.2004 were challenged in revision before Deputy Director of Consolidation, as such, the recall order was not challenged even before the authorities below. As such, it is not open for the petitioner to challenge the recall order suddenly at this stage. 9) For the reasons as discussed above, this Court does not find any sufficient reason to interfere with the impugned orders challenged by the petitioner. Apart from this, as held by the Apex court in Muneshwar Vs. Raja Mohd. Khan 1998 R.D. 615 (S.C.), it is not desirable on the part of this Court to upset the concurrent findings of fact recorded by the authorities below. 10) Therefore, the writ petition is dismissed. Costs easy. (Prafulla C. Pant, J.) [[ Dt. August 09, 2010. H. Negi 12