HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No.5 Civil Misc. Writ Petition No. 69205 of 2011 Chandrabali & others. Vs. Deputy Director of Consolidation, Allahabad & others ***** Hon'ble A.P. Sahi,J.
This petition arises out of orders passed by the Consolidation Authorities in relation to the title over the land in dispute between the father of the petitioners no. 1 to 5 late Vashishth Narain and the objectors namely Narvada Prasad the father of the respondent no. 3 to 6 and one Tribhuwan Nath his brother.
The objections were preferred in the year 1984 on a clear allegation that Vashishth Narain belongs to a separate pedigree altogether and not to the pedigree of the objectors now represented through the contesting respondents no. 3 to 6. The pedigree which was relied upon by the respondents in their objection under Section 9-A(2) of the U.P. Consolidation of Holdings Act, 1953 is contained therein and has been filed as Annexure 2 to the writ petition. The case set-up by them was that land of Khata No. 367 was the exclusive tenancy of the objectors and the details of the plots were mentioned in paragraph 1 of the objection. In Paragraphs 3 ans 4 of the objection it has been asserted that plot no. 742 jointly stood in the name of the predecessors in interest of the petitioners and the predecessors in interest of the respondents, and they were equal shareholders therein. The objection further narrates that since the objectors Tribhuwan Nath and Narvada Prasad were minors, therefore, they were represented through their guardian Lallan who manipulated the entries in his favour. It was further contended that the name of Vashishth Narain against the said disputed Khata which has been entered is "farji". Certain other objections relating to shortage of area in other plots were also mentioned. This objections were allowed by the Consolidation Officer on 27.7.2009 recording a finding to the effect that the name of the petitioner-opposite party which had been entered on the basis of an order of the Sub Divisional Officer dated 4.7.1962 appears to be doubtful and he further recorded that according to the pedigree set up by the objectors the land in dispute came to be recorded entirely in the name of Mata Palat the predecessor in interest of respondents objectors since 1282 Fasli which corresponds to 1844 AD.
The Consolidation Officer recorded that the entries in favour of the objectors were supported by documentary evidence and in view of the said long standing entries he presumed that a partition of the properties had taken place on the alternative argument of assuming the pedigree set up by the petitioners to be correct. The entry therefore in favour of the predecessors in interest of the petitioners was disbelieved which had continued for 22 years between 1970 and 1984.
The petitioners went up in appeal and their appeals were allowed by the Settlement Officer Consolidation holding that since they were entered for the past 22 years after abolition of zamindari and they have filed a summon relating to the proceedings under Section 33/39 of mutation under the U.P. Land Revenue Act, 1901, therefore the genuine entry in their favour deserves to be believed. The order of the Consolidation Officer was accordingly set aside.
The respondents went up in revision before the Deputy Director of Consolidation who has reversed the order of the Settlement Officer Consolidation and has recorded findings which uphold the conclusion drawn by the Consolidation Officer and has further assumed that on the basis of the pedigree as set up by the petitioners themselves, the partition appears to have been undertaken long before and hence the objections filed by the respondents have been rightly allowed.
Aggrieved, the petitioners who were the opposite party in the objection, have filed this writ petition assailing the orders on the ground that if the pedigree as set up by them is correct, then the issue of partition could have been gone into on that basis, but if the pedigree set up is being denied by the respondents then the theory of partition deserves to be disbelieved as the very basis of the claim of the objectors has no legs to stand.
Sri Anil Sharma learned counsel for the petitioners contends that the objection admits the guardianship of Lallan and that could not have been possible, unless the parties belonged to the same family and were governed by the same pedigree. In this view of the matter the findings recorded being contradictory, the Deputy Director of Consolidation has committed an error by reversing the order of the Settlement Officer Consolidation. He therefore contends that the impugned order deserves to be quashed. He has also filed written submissions.
He submits that in view of this admission itself there was no occasion for the authorities to proceed with the case on the basis of an alternative argument and then proceed to decide the matter and if the pedigree has been found to be correct then the matter ought to have been remitted back for trial afresh in relation to the issue of partition.
Sri Sharma further urged that if the objectors had set up a claim that they were minors, then they ought to have proved as to when they attained majority and as to why they did not take steps for expunging of the entries, as such in the absence of any such finding the objection deserves to be rejected. In short the contention is that the findings recorded are contrary to the pleadings of the objectors as they had denied the pedigree altogether.
Sri S.C. Verma and Sri Shashi Kant Shukla have filed a counter affidavit on behalf of the contesting respondents no. 3 to 6 and a rejoinder to the same has also been filed by the learned counsel for the petitioners. Learned Standing Counsel has also supported the impugned order and the parties agree that the matter be disposed of finally at this stage itself as nothing more is required to be brought on record. Sri Verma has emphasised that once the entry relied upon by the petitioners is not genuine and has no source, the finding on this issue cannot be faulted with.
Having heard learned counsel for the parties, the contention of Sri Sharma that the respondents have to be confined to their pleadings and the case set up by them appears to be the basis of the dispute. Admittedly, the respondents had set up a different pedigree. The pedigree set up by the petitioners is as follows:-
Matauli Mata Palat Thakuri Dadu Kaloo Ram Sunder Tribhuwan Nath Narvada Prasad Radhey Shyam Shiv Bahadur Amar Bahadur Vijay Bahadur Lallan Babban Ram Prasad Vishwanath Vashishtha Narain Banshdhari Brij Narain Mahadev Surendra Kumar Virendra Kumar Harishchandra Chandrabali Chandrama Pd. Hari Prasad Dilip Kumar Ashok Kumar Lalit Kumar Krishna Kumar Narendra Kumar Vinod Kumar Sanjay Kumar This now brings the court to the issue relating to the claim of partition which has been accepted by the Deputy Director of Consolidation. In my opinion, the very objection raised by the respondents was based on the denial of the pedigree and if there was no common pedigree then there could be no partition as according to the objectors-respondents they did not belong to the same family.
From a perusal of the pleadings and the findings recorded Sri S.C. Verma could not dispute the aforesaid pedigree successfully and it is for this reason that the Consolidation Officer and the Deputy Director of Consolidation both have alternatively adjudicated the controversy on the basis of the common pedigree of the parties. According to this pedigree, which in my opinion also is the correct pedigree, Mata Palat and Thakuri were two sons of Matauli. The petitioners belong to the line of Thakuri whereas the contesting respondents belong to the line of Mata Palat. It is thus clear that they are descendants of a common ancestor and they belong to the same family. Once this is concluded then the objection filed by the respondents by denying the pedigree could not have succeeded on that score. The pedigree therefore in my opinion will govern the parties in relation to their shares. The respondents had not amended their pleadings and therefore the alternative plea of partition could not be sustained without accepting the pedigree.
The next issue is relating to the theory of partition taken as an alternative case. The Consolidation Officer and the Deputy Director of Consolidation have relied on the entry of 1282 fasli but at the same time it is the admission of the respondents that the parties are jointly recorded over plot no. 742. The comparative study therefore had to be made only on the basis of the admitted pedigree in relation to the dispute raised in the objection. It appears that the objection of the respondents was allowed on an alternative finding of the pedigree being correct in relation to their claim of partition which does not appear to be the claim of the respondents in their pleadings or evidence.
Nonetheless Paragraph 3 of the objection indicates that the descendants of Mata Palat and Thakuri were equal shareholders in relation to Plot No. 742 which is of the same Khata 367. This, therefore, fortifies the contest of the petitioners that the pedigree set up by them is correct. The issue relating to partition therefore should have been adjudicated on this foundation alone after remanding the matter to the Consolidation Officer afresh.
The next question is in relation to the entry relied upon by the petitioners on the basis of the order of 1962 in proceedings under Section 33/39 of the Act. The respondents while filing their revision before the Deputy Director of Consolidation obtained a question-answer from the revenue record room on 6.2.2010 clarifying that there is no such file available or entry of the order in Register No. 6 in relation to the order of 4th July, 1962 as relied upon by the petitioners. This was taken specifically as Ground No. 5 in the memo of revision, copy whereof is Annexure 6 to the writ petition. The petitioners replied to the said revision in writing which is Annexure 7 where they have asserted their claim of entry of 22 years but no evidence to contradict the said question answer obtained by the respondents was led. The petitioners were fully aware of the said document which appears to be filed for the first time before the Deputy Director of Consolidation yet they did not choose to controvert the same by filing any evidence in rebuttal. They also did not file the copy of the alleged compromise which was made the basis of that order.
Sri Anil Sharma submits that the summons that had been issued in the said proceedings had been filed and have been taken notice of by the Settlement Officer Consolidation. It is true that the Settlement Officer Consolidation has noted the same yet the same is no evidence of the order in existence when the respondents had clearly come out with a question answer from the revenue record room and a photostat copy whereof has been filed as Annexure 4 to the counter affidavit. The petitioners therefore have failed to controvert the said document and as such in my opinion the finding on that issue by the Consolidation Officer and the Deputy Director of Consolidation cannot be faulted with.
Fortunately before this Court, the respondents have not been able to controvert the pedigree about which an assumption has been drawn by the Consolidation Officer as well as by the Deputy Director of Consolidation as concluded hereinabove. In such a situation, the issue relating to partition will have to be gone into keeping in view the evidence that may be required to be led and for that in my opinion it shall be open to the parties to take all appropriate steps for setting up their respective claims before the authority concerned.
Accordingly, the entire matter deserves a remand to the Consolidation Officer. The impugned order passed by the Deputy Director of Consolidation dated 23.8.2011 affirming the order of the Consolidation Officer dated 23.7.2009 is hereby set aside to the extent indicated above.
It is further held that the pedigree as set up by the petitioners about which a correct assumption has been drawn by the Consolidation Officer and the Deputy Director of Consolidation shall be treated as undisputed. Thus, the objections shall now be decided accepting the pedigree as extracted hereinabove treating the parties to belong to the family of the common ancestor Matauli.
The writ petition is accordingly allowed. The Consolidation Officer is expected to dispose of the objections as expeditiously as possible preferably within a period of six months from the date of presentation of a certified copy of this order before him.
Dt. 9.12.2011 Sahu