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REPORTABLE

IN     THE      SUPREME      COURT      OF     INDIA

CIVIL      APPELLATE      JURISDICTION

CIVIL      APPEAL      NOS.87­88      Of     2019  

HANSRAJ               ...APPELLANT(S)  

VERSUS

MEWALAL AND ORS.          ...RESPONDENT(S)   

J U D G M E N T

ASHOK BHUSHAN, J.

The appellant aggrieved by the judgment of the

High Court of Allahabad in Writ­B No.55952 of 2012 has

come up in these appeals. The High Court by the

impugned judgment dated 25.07.2013 has allowed the

writ petition filed by the private respondents by

setting aside the order dated 28.04.2012 of the

Settlement Officer Consolidation and order dated

19.07.2012 of Deputy Director of Consolidation.

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2. The brief facts necessary to be noticed for

deciding these appeals are:

The appellant along with his brother Bansraj were

Bhumidhar of Plot No.677 of Village Bahria, District

Basti. Bansraj, brother of the appellant by sale deed

dated 12.10.1989 sold his 1/2 share in favour of

respondents. The Village in question was brought under

Consolidation operation after issuance of notification

under the U.P. Consolidation of Holdings Act, 1953

(hereinafter referred to as 'the Act'). The Assistant

Consolidation Officer prepared a provisional

Consolidation Scheme proposing chaks to the appellant

as well as respondents on Plot No.677 of which

appellant was original tenure holder and the

respondents were co­tenure holders by virtue of sale

deed from Bansraj. In the northern side of Plot No.677

a pitch road was constructed six years before start of

Consolidation operation. The Assistant Consolidation

Officer proposed chaks to the appellant and the

respondents opening towards pitch road in the north of

Plot No.677. The respondents filed belated objection

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under Section 21 of the Act objecting to the chaks as

proposed by the Assistant Consolidation Officer. The

case of the objectors was that they should be proposed

chaks on Plot No.677 in accordance with their

possession. They stated that Their possession is

towards north of the plot whereas the appellant is in

possession towards South of the Plot No.677. The

Consolidation Officer allowed the objection filed by

the respondents. The respondents were allotted chaks

on the pitch road towards north, the chak of appellant

was  carved  on the south  of  the  plot  away  from the

pitch road.  

3. The appeal was filed by the appellant before the

Settlement Officer  Consolidation  under  Section 21(2)

of the Act. The Settlement Officer Consolidation noted

that appellant was original tenure holder of Plot

No.677 and Ram Milan etc. have also become joint

holders on the basis of the sale deed. Ram Milan was

constructing a house on the north east side of the

plot after obtaining permission of Settlement Officer

Consolidation which construction was stopped on the

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objection of the appellant. The Settlement Officer

Consolidation concluded that it would be legal and

appropriate to give chak to all the joint holders

adjacent to pitch road.   The appeal was allowed. Ram

Milan was given chak on the north east side where he

started construction. The appellant was given chak on

the pitch road including area where his boring and

pumping set was situated.

4. Against the order of the Settlement Officer

Consolidation revision was filed by the respondents

under Section 48 of the Act. The Deputy Director,

Consolidation affirmed the order of the Settlement

Officer Consolidation. The Deputy Director,

Consolidation has also inspected the spot and found

that all the co­tenure holders have been allotted chak

adjacent to the pitch road and if the claim of the

revisionist is allowed the appellant shall not get

chak adjacent to pitch road which would be illegal.

5. Aggrieved by the order of the Deputy Director,

Consolidation a writ petition was filed by the

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respondents.  Learned Single Judge while allowing the

writ petition has given the following reasons:

"I have considered the arguments of the learned counsel for the parties and examined the material available on record. From the perusal of the order of Consolidation Officer, it is proved that the house of one of the petitioners is situated in the northern side and boring and pumping set of respondent no.3 are situated in the southern side as such severance of the possession on the spot is fully proved. In the circumstances of the case, the Consolidation Officer has rightly allotted the chak to the petitioners in the northern side and no interference was required in it. The orders of Settlement Officer Consolidation as well as Deputy Director of Consolidation are illegal and are liable to be set aside.”

6. Learned counsel for the appellant submits that

appellant being original tenure holder of Plot No.677

he was co­sharer on the entire plot and was rightly

proposed chak by the Assistant Consolidation Officer

on a part of the pitch road. The area on the pitch

road became valuable after construction of the road

and the appellant could not have been denied his chak

on the part of pitch road. The Consolidation Officer

committed error in setting aside chak proposed by the

Assistant Consolidation Officer, which was rightly

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reversed by the Settlement Consolidation Officer and

Deputy Director, Consolidation. He submitted that

there was no partition of the agricultural land in

accordance with law nor there was any right in the

respondents to claim chak comprising the entire area

of the plot on the pitch road.  

7. No one appeared for the respondents.

8. As noted above, the Assistant Consolidation

Officer has proposed chaks to the parties which were

all on the pitch road.   The Consolidation Officer

allowed the objection filed by the respondents under

Section 21(1) by allocating chaks to the respondents

on the northern side of the plot on the pitch road by

carving the chak of the appellant on the southern side

away from the pitch road. The Consolidation Officer

allowed the objection of the respondents by noticing

following reasons:

“(i) The objectors are cultivating as per the sketch maps produced by them.

(ii) The House of Ram Milan is situated on the northern eastern corner.

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(iii) The Assistant Consolidation Officer has not shown the chak of Ram Milan in his proposal.”

9. The Settlement Officer Consolidation set aside the

order of Consolidation Officer in the appeal filed by

the appellant. The Settlement Consolidation Officer

has allotted the chak to Ram Milan on the north east

corner. The Settlement Officer Consolidation allocated

the chaks of the parties in the manner that every one

was allotted the chak on the pitch road. The reason

for altering the chaks by the Consolidation Officer

with regard to Ram Milan was fully satisfied by the

Settlement Officer of Consolidation since he was

allotted the chak where he was constructing the house.

In the chak of the appellant, the trees and boring and

pumping set were also included to maintain the

possession of the parties on the plot.

10. The appellant was original holder of the Plot

No.677/1. When in the northern side of the plot a

pitch road was constructed which was prior to

consolidation operation, the co­sharers of Plot No.677

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were entitled to get the benefit of road and when the

Settlement Officer of Consolidation had carved the

chaks in the manner that all the co­sharers including

the appellant and respondents were given the chaks on

the pitch road which order was confirmed by the Deputy

Director of Consolidation, we see no valid reason for

the High Court to reverse the orders passed by the

Deputy Director of Consolidation and the Settlement

Officer Consolidation. The reasons as given by the

High Court, as noticed above, indicate that the High

Court had noticed that as house of one of the

petitioners (writ petitioners) is situated in the

north­eastern side and boring and pumping set of the

appellant is situated in the southern side, the High

Court has justified the order of the Consolidation

Officer. The High Court has lost sight of the fact

that by amendment made by the Settlement Officer

Consolidation, one of the writ petitioners, Ram Milan

was allotted chak at the north east corner on the Plot

No.677 where his house was in existence and the

appellant was given the chak also on pitch road

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including his boring and pumping set.

11. There is one more reason due to which no

interference was required in the order of the

Settlement Officer Consolidation and the Deputy

Director, Consolidation, i.e., the appellant and the

respondents were all co­sharers of Plot No.677. Even

though parties were in possession of some portions of

the plot by mutual arrangement, there was   no

partition of holding. It is relevant to note that

agricultural holding can be partitioned by instituting

the proceedings under Section 176 of U.P. Zamindari

Abolition & Land Reforms Act, 1950 which is as

follows:

“176. Holding of a bhumidhar or sirdar divisible. ­ (1) A bhumidhar may sue for [division] of his holding.

(2) To every such suit the Gaon Sabha concerned   shall be made a party.”

Till holding is divided in accordance with Section 176

every co­sharer of plot has right on the holding.

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12. It is not the case of any of the parties that

holding was partitioned by an order obtained under

Section 176.  All the co­sharers had right in the plot

in question and holdings were not partitioned as per

law. The appellant was fully justified in claiming

right of allotment on a portion of plot on the pitch

road. The Assistant Consolidation Officer has proposed

the chaks to the parties in a manner so that every one

gets   chak on the pitch road. The Consolidation

Officer has reversed the allotment of chaks by putting

the appellant on the southern side away from the road

and allocating the chaks on the pitch road in favour

of the respondents which order was rightly reversed by

the Settlement Officer of the Consolidation which was

an equitable order by which Ram Milan who was given

chak including the area where he was constructing the

house on the north­eastern portion of the plot. The

appellant was allotted an area comprising his pumping

set and also by allocating chak part of which was  on

pitch road, other respondents were allotted the chak

in such a manner that everyone got their chak on the

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pitch road. There was no justifiable reason for

setting aside the order of the Settlement Officer

Consolidation and Deputy  Director,  Consolidation. It

is to be noticed that   Settlement Officer

Consolidation and Deputy Director while passing their

orders have also inspected the spot and the orders

passed by them were on the basis of spot inspection.

The High Court in exercise of its jurisdiction under

Act 226 committed error in allowing the writ petition

by restoring the order of the Consolidation Officer

which was an inequitable order. In the facts and

circumstances of the present case, equity was adjusted

by the order of Settlement Officer of Consolidation

in making the chak in the manner that chak of every

co­sharer was on the pitch road which order needed no

interference by the High Court. The appellant filed a

review which was too dismissed by the High Court on

20.01.2014.

13. In view of the foregoing discussion, we are of the

view that orders of the High Court are unsustainable

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and are hereby set aside. The appeals are allowed,

judgment dated 25.07.2013 as well as order dated

20.01.2014 are set aside. The writ petition filed by

the respondents stand dismissed. No costs.

..........................J.     ( ASHOK BHUSHAN )

..........................J. ( K.M. JOSEPH )

NEW DELHI, JANUARY 09, 2019.