Kanauji Lal & Others (At 02:00 ... vs D.D.C. & Others
2012 Latest Caselaw 5372 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 18
 

 
Case :- CONSOLIDATION No. - 433 of 1995
 

 
Petitioner :- Kanauji Lal & Others (At 02:00 P.M.)
 
Respondent :- D.D.C. & Others
 
Petitioner Counsel :- H.S. Sahai,Anil Kumar Verma,U S Sahai,V.K.Pandey
 
Respondent Counsel :- C.S.C.,D.C.Mukerjee,Hemant Kumar Mishra,Kunwar R.P. Singh,Praveen Kumar Gupta,Vijay Bahadur Verma,Vinod Kr. Singh
 

 
Hon'ble Anil Kumar,J.

Heard Sri V.K.Pandey, learned counsel for the petitioners , Sri Vinay Bhushan, learned Additional Chief Standing Counsel as well as Sri D.C. Mukherjee, learned counsel appearing on behalf of opposite parties no. 16 to 22 and 24 to 26 and perused the record.

By means of present writ petition, petitioners have challenged the order dated 8.8.1995 ( Annexure no.15) passed by Deputy Director of Consolidation, Sitapur and order dated 27.4.1988 ( Annexure no.14 ) passed by Assistant Settlement Officer Consolidation, Sitapur .

Facts as submitted by learned counsel for the petitioners are to the effect that the controversy in the present case relates to Khata No. 161 which was acquired by Sri Ram Prasad and Bachhu Lal as well as Khata No. 160 which was acquired by Sri Ram Prasad and Manohar on the basis of patta granted by the Court of Wards. Subsequently the land of Khata No. 161 and 160 has been amalgamated and the entire land formed part of Khata no. 294.

Sri V.K. Pandey, learned counsel for the petitioners while challenging the impugned order has placed reliance on pedigree of Sri Jai Ram mentioned in para-8 of the writ petition submits that the said has not been disputed by learned Counsel for the respondents

He further submit that in the matter in question without any order or authority , the names of opposite parties , namely, Darbari, Digvijai, Babu , Badlu, Kalidin and Jagjiwan were incorrectly recorded in respect of the share of Sri Ram Prasad, who died issue-less, whereas after the death of Sri Ram Prasad , the land which belonged to Ram Prasad's share should have gone with his brothers, namely, Sri Ramadhin and Sri Ram Dayal. Accordingly, in view of the said fact, learned counsel for the petitioners submits that the sale deed which has been executed by said persons , namely, Darbari etc. who are nephews of Sri Ram Prasad in favour of contesting respondents , namely, respondents no. 16 to 22 and 24 to 26, who are represented by Sri D.C. Murkherjee Advocate , is not genuine transaction and the said persons nephews of Sri Ram Prasad have got no right to execute the sale deed in favour of opposite parties no. 16 to 22 and 24 to 26 .

Sri V.K. Pandey, learned counsel for the petitioners also submits that the land in dispute in revenue record pertaining to Fasli year 1344, the name of Sri Ram Prasad was recorded. It is also submitted by learned counsel for the petitioners that in respect of division of property in question which is subject matter of dispute , a suit for partition under Section 176 of the U.P.Z. A & L.R. Act has been filed by one Sri Guptar son of Prabhu, who is brother of Sri Ram Prasad . In the said suit , Sri Guptar has given a statement on 31.3.1970 ( Annexure no.10) that after the death of Sri Ram Prasad , his two brothers, namely,Sri Ramadhin and Sri Ram Dayal were alive .

He further submits that thereafter in the village in question where land in dispute is situated came under the consolidation operation as such the present petitioners in order to agitate their claims had filed a case before the Consolidation Officer under Section 9(A) (2) of the U.P. Consolidation of Holdings Act (hereinafter referred to as an 'Act'). In the said matter consolidation officer after hearing the learned counsel for the parties, has passed a judgment and order dated 28.10.1986 ( Annexure no.13) . Aggrieved by the said order, two appeals were filed before the appellate authority; i.e. one, Appeal No. 157/615 ( Digvijay and others Vs. Asharfi and others) and another appeal no.156/614( Autar Singh and others Vs. Asharfi and others).

Both the appeals were consolidated and heard by opposite party no.2 /Assistant Settlement Officer Consolidation , Sitapur, who by means of judgment and order dated 27.4.1988 ( Annexure no.14) , allowed the appeals partly thereby setting aside the order dated 28.10.1986 passed by Consolidation Officer holding therein that the share of Sri Ram Prasad in dispute will go to his nephews as all his brother died during his life time.

The order dated 27.4.1988 passed by opposite party no.2 was challenged by way of revisions bearing no. 193/121( Bachhu Lal Vs. Harnam and others ) and 194/122 ( Autar Singh and others Vs. Asharfi and others) . Both the revisions were consolidated, heard and dismissed by opposite party no.1/ Deputy Director of Consolidation, Sitapur vide judgment and order dated 8.8.1995 ( Annexure no.15) . Thus, aggrieved by the orders as contained in annexures no. 14 and 15 passed by opposite parties no. 2 and 1 respectively, present writ petition has been filed.

Sri V.K. Pandey, learned counsel for the petitioners while challenging the impugned orders submits that opposite parties no. 1 and 2 have erred in holding that at the time of death of Sri Ram Prasad, his brothers, namely, Sri Ramadhin and Sri Ram Dayal were not alive . The said findings given by opposite parties no. 1 an 2 in its judgments are wrong rather contrary to the facts on record as in the oral evidence given by Sri Guptar in partition suit filed in respect of the property in question under Section 176 of the U.P. Z.A. & L.R. Act, it has been categorically stated by Sri Guptar that after death of Ram Prasad , his two brothers namely , Sri Ramadhin and Sri Ram Dayal were alive .

Accordingly, Sri V.K. Pandey , learned counsel for the petitioners submits that after death of Sri Ram Prasad, his share will go to his brothers, namely, Sri Ramadhin and Sri Ram Dayal and not to his nephews . The said material fact was wrongly considered and decided by opposite parties no. 1 and 2 , so the impugned orders are liable to be set aside being contrary to the fact and pleadings on record.

Sri V.K. Pandey, learned counsel for the petitioners further submits that as per the admitted position in revenue record of Fasli year 1344, the name of Sri Ram Prasad was recorded and thereafter in fasli year 1349, the name of his nephews were recorded in respect of the share which has been held by Sri Ram Prasad in respect to property in question . The said fact is totally incorrect and wrong because in the present case , the material point which has to be considered whether at the time of death of Sri Ram Prasad, his two brothers were alive or not . If the brothers were alive then the share of Sri Ram Prasad in property in question shall not devolve to his nephews. But the said material point has not been correctly devided by opposite parties no. 1 and 2, so the entry recorded in Khata of fasli year 1349 is not correct. Accordingly, it is further submitted by learned counsel for the petitioners that impugned orders which are under challenge in the writ petition are contrary to the facts and documents on record, liable to be set aside.

Sri D.C. Mukherjee, learned counsel for respondent nos. 16 to 22 and 24 to 26, who has purchased the share of Sri Ram Prasad in the property in question from the nephews of Sri Ram Prasad by way of registered sale deeds ,submitted that at the time of death of Sri Ram Prasad , his brothers , namely, Ramadhin and Ram Dayal were not alive .

He further submits that as a matter of fact, no sons of Sri Jai Ram were alive when Sri Ram Prasad died , so after the death of Sri Ram Prasad his share in the property in dispute devolved as per law to his nephews from whom the land in question has been purchased by his clients namely, opposite parties no. 16 to 22 and 24 to 26 .

Sri D.C. Mukherjee, learned counsel for the respondents further submits that in the present case the statement of Sri Guptar is not material as the said statement has been given by Sri Guptar in the proceedings arising out of the suit filed for partition under Section 176 of the U.P. Z.A.& L.R. Act has been abated due to the fact that village in question where the property in question lies come under the consolidation proceedings as per the provisions under Section 5 (2) of the Act.

Sri D.C. Mukherjee, learned counsel for the respondents in order to strengthen his arguments submits that once the suit itself abates in view of the provisions under Section 5(2) of the Act , the entire proceedings in partition suit as well as oral given evidence given by Sri Guptar in the said matter shall also abate, that is to say that evidence which has given by Sri Guptar in respect to the fact that at the time of death of Ram Prasad his two brothers, namely, Ramadhin and Ram Dayal were alive will abate and has got no value . In order to support his arguments, he has placed reliance on the judgments given by this Court in the case of Kamta Singh and others Vs. Ganesh Prasad Dube and others,1961 RD 261 wherein it has been held that if a suit abates , it would not mean any special hardship to the plaintiffs. It may be that the court-fee paid on the plaint would be wasted . But there would be no effect on the merits of the claim of the plaintiffs, the object of the Legislature was that the entire proceedings or suit should abate.

Sri D.C. Murkherjee has also placed reliance on the judgment given by Hon'ble Apex Court in the case of Chattar Singh and others Vs. Thakur Prasad Singh , 1975 RD , 71 in which it has been held that "we therefore hold that the suit and the appeal stand abated. It is open to the parties to work out their rights before the appropriate consolidation authorities . With this direction the appeal is disposed of as abated. Parties will bear their cost throughout." In addition to the said fact he has also placed reliance on the judgment given by Apex Court in the case of Mst. Bibi Rahmani Khatoon and others VS. harkoo Gupe and others, AIR 1981SC 1450 wherein it has been stated that in view of the provisions as provided under Section 5(2) of the Act, the suit abates, the proceedings will also abate and in this context he relied on the observations made in para -11 of the said judgment , the relevant portion is quoted as under:-

" The proceedings stood abated which this Court understood to mean that the civil proceedings comes to a naught. In other words, the proceedings from its commencement abate and no decision in the proceeding at any stage would have any impact on the adjudication of claims by the parties under the Act."

Sri D.C. Mukherjee submit that the word 'Naught' as mentioned by his Lordship of Hon'ble the Supreme Court in the case of Mst. Bibi Rahmani Khatoon and others (Supra) has been defined in Websters Dictionary is as under:-

"Naught(not), n.1. a cipher(O);Zero. 2. Nothing. 3. destruction, ruin or compete failure: Her efforts came to naught. 4. set at naught, to regard or treat as of no importance; disdain : he entered a milieu that set his ideals at naught- adj. 5.Lost ; ruined. 6. Archaic. Worthless ; useless. 7. obs. morally bad; wicked.- adv. 8. Obs. not. Also, nought [ ME; OE nauht, nawiht ( na No + wihi thing ). See NOUGHT, WIGHT, WHIT]."

On the basis of said definition , he submits that the proceedings which has been done prior to consolidation proceedings in the matter in question are useless and worthless and the petitioners cannot derive any benefit from the said proceedings i.e. the statement given by Sri Guptar in the matter arising out of partition suit under Section 176 of the U.P.Z.A.& L.R. Act.

Next arguments which has been advanced by Sri D.C. Mukherjee, learned counsel for the respondents that the entry of the fasli year 1356/1359 cannot be challenged and adjudicated litigated in the present case / consolidation proceedings in the name of opposite parties no. 16 to 22 and 24 to 26 and in order to support his arguments, he placed reliance on the judgment given by Hon'ble Apex Court in the case of Ram Awadh and others Vs. Ram Das and others, 2009 (27 ) LCD 712 particularly in para-10 reproduced as under:-

"Learned Counsel for the respondents argued before us that the name of Faqir was entered fictitiously without there being any order of any authority showing the basis on which his name was entered. It is true that there does not appear any order passed by any competent authority to show how Faqir got his name entered in 1356 Fasli but that by itself would not lead us to infer that the name was fictitiously entered . Nothing has been shown to us to prove that Sanehi and Faqir had separated prior to 1915 except the result of the litigation of 1944 on which , as noted herein above, we are not inclined to place much weight. From the admitted pedigree chart also, as noted herein earlier, it is clear that Faqir and Sanehi were real brothers and sons of Dehpal. In this view of the matter, it would not be appropriate to raise such serious doubts over how Faqir's name appeared in the Khatauni. In any view of the matter, in our view, the vendors would be entitled to the benefit of Section 20 of the U.P.Z.A.& L.R. Act. Section 20 provides that where the person is recorded as an occupant of any land in Khasra or Khatauni for 1356 Fasli, which has been taken as the base year, he shall be entitled to retain possession thereof. If the entry was not challenged , it could not be doubted and have to be deemed to be correct in view of Explanation III of Section 20 which provide that the entries in the year 1356 Fasli is final and confers all right on occupant. In the present case , the name Faqir appeared alongwith Sanehi in the 1356 Fasli upto 1366 to 1368. Mutation was carried but after considering objections of respondents by the Tehsildar."

Accordingly, Sri D.C. Mukherjee learned counsel for the respondents submits that the present writ petition lacks merits and is liable to be dismissed.

Sri V.K. Pandey, learned counsel for the petitioners, in rebuttal, submits that the statements which have been given by Sri Guptar in a proceedings under Section 176 of the U.P.Z.A.& L.R. Act shall be read and relied in the matter in question even if the said suit/proceedings abates in view of the provisions as provided under Section 5 (2) of the Consolidation Act. keeping in view the definition of "evidence" as given under Section 3 of the Evidence Act.

Accordingly , he submits that the action on the part of respondents no. 1 and 2 in not placing reliance on the statement given by Sri Guptar that when Sri Ram Prasad died, his two brothers, namely, Sri Ramadhin and Sri Ram Dayal were alive. so the share of Sri Ram Prasad will vest in the said persons and not in favour of his nephews. .

I have heard the learned counsel for the parties and gone through the record.

The first and foremost question to be considered and decided is that when Sri Ram Prasad died , his two brothers , namely, Sri Ramadhin and Sri Ram Dayal were alive or not and in this regard what is the value of the statement given by Sri Guptar in the proceedings arising out of the partition suit filed under Section 176 of the U.P. Z.A. & L.R. Act and whether the said oral evidence shall abate of the said proceedings of the said suit suit abated in view of the provisions of Section 5(2) of the Act.

In order to deal the said question , I feel it appropriate to go through the provisions of under Section 5(2) of the Act, the same are reproduced as under:-

"5(2) Upon the said publication of the notification under sub section (2) of Section 4, the following further consequences shall ensue in the area to which the notification relates namely-

(a) every proceedings for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any Court or authority whether of the first instance or of appeal reference or revision, shall on an order being passed in that behalf by the Court or authority before whom such suit or proceeding is pending, stand abated:

Provided that no such order shall be passed without giving to the parties notice by post or in any other manner and after giving them an opportunity of being heard:

Provided further that on the issue of a notification under sub section (1) of Section 6 in respect of the said area or part thereof, every such order in relation to the land lying in such area or part as the case may be , shall stand vacated;

(b) Such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said suits or proceedings before the appropriate consolidation authorities under an in accordance with the previsions of this Act and the rules made thereunder.]"

As well as the pleadings given in para 12 of the counter affidavit filed by respondents no. 16 to 22 and 24 to 26 swear by Autar Singh son of Saudagar Singh, opposite party no.17 which quoted as under:-

" That in reply to the contents of para 15 of the writ petition it is stated that the said suit was not abated but the parties had compromised and their predecessors admitted the rights and title of the vendors of the answering opposite parties which is substantiated from the subsequent conduct of the petitioners and their predecessors. In this connection , it is pointed out that Bachchoo the father of Kanauji and Bharat, petitioners filed original Suit no. 222/77 on 31.10.1977 for cancellation of sale-deed dated 28.1.1976 executed by Kalideen in favour of Autar Singh and Gulvindar Singh in the Court of Munsif , Bisawa. However , the plaintiffs withdraw the said suit without seeking permission to file fresh suit. The said prayer for the withdrawl of the suit was granted on 28.4.1977 and the suit was dismissed . Thus, the sale deed in favour of Autar Singh and Gulvindar Singh became final and binding on the petitioner as valid this being so the petitioner became legally stopped from challenging the rights of the other recorded co-tenants like Kalideen . The photostat copies of the certified copy of the said plaint dated 29.10.1977, the application for withdrawal of the said suit dated 28.4.1978 and the order dated 28.4.1978 are being filed herewith as Annexure nos. C 3 C-4 and C-5 to this counter affidavit."

Thus, in view of the above said facts as per the pleadings as made by said respondents in their counter affidavit , the same was not abated but it had been compromised . However, even if as argued by Sri D.C. Mukherjee on behalf of the petitioner that the proceedings of the said suit has been abated as the consolidation operation came into the village even in that circumstances in view of Section 5(2) of the Act, the said suit as well as proceedings shall abate but the statement given by Guptar will not abate and the same shall be read and relied on the consolidation proceedings subject to right of rebuttal as per the law as laid down by Hon'ble Apex Court in the case of Sugan Chand Vs. Deputy Director of Consolidation, Dehradun/Saharanpur U.P. and others, 1996 (1) JCLR 603 (SC)

" para-6" The controversy as to the effect of the issue of notification under Section 5 and Section 53 (sie) thereof and the finding recorded in the earlier suit was considered by this Court in Ram Prasad Vs. Assistant Director of Consolidation . In paragraph 8 it was held that though the suit stood abated , yet the evidence recorded in the suit or appeal and the findings recorded by civil courts , do not get wiped out; are entitled to be considered and that , therefore, it being the relevant evidence the authorities under the consolidation Act , unless contrary evidence is produced, are entitled to rely upon the findings recorded by the civil court in support of its conclusions."

The same view has been further reiterated by Hon'ble the Supreme Court in the case of Ram Prasad ( dead ) by Lrs. And others Vs. Assistant Director of Consolidation and others, 2001(19) LCD , 958 and it has been held as under:-

" Though the suit stood abated , yet the evidence recorded in the suit or appeal and the findings recorded by civil courts , do not get wiped out; are entitled to be considered and that , therefore, it being the relevant evidence the authorities under the consolidation Act , unless contrary evidence is established, could got into the evidence and were entitled to rely upon the findings recorded by the civil court in support of its conclusions."

Recently , the said view has again reiterated by this Court in the Case of Chandi Prasad(D) through L.Rs. and others Vs. Dy. Director of Consolidation, Kanpur and others ,2012(1) AWC 56.

Now reverting to the facts of the present case, the Deputy Director of Consolidation, Sitapur while passing the impugned judgment and order dated 8.8.1995 ( Annexure no.15) under Section 48 of the Consolidation Act, has reiterated the findings given by the Assistant Settlement Officer Consolidation in its judgment dated 27.4.1988 ( Annexure no.14) under Section 11(1) of the Act. (The said fact has not been disputed by the learned counsel for the parties ) and as per the findings given by the Assistant Settlement Officer Consolidation while deciding the appeal are as under:-

"चुकि आयुक्त महोदय द्वारा धारा १७६ के अंतर्गत प्रत्यावर्तित वाद अनिर्णीत रहा है, अतः उक्त वाद परगनाधिकारी के यहाँ प्रत्यावर्तित होने के वाद चकबंदी क्रियाओ के कारण अवेट हो गया और अब इस वाद का निस्तारण चकबंदी न्यायालयों द्वारा अंतिम रूप से किया जायेगा।

रामप्रसाद व उनके भाइयो के मरने के क्रम के सम्बन्ध में कोई भी ठोस लिखित साक्ष्य किसी पक्ष ने प्रस्तुत नहीं  किया है, ऐसी दशा में उभय पक्षों द्वारा दिए गए मौखिक साक्ष्यो तथा उपलब्ध लिखित साक्ष्य के आधार पर ही इसे तय किया जा सकता है ।

इस सम्बन्ध में गुप्तार जिन्होंने धारा १७६ के अंतर्गत वाद दायर किया था, का उक्त मुकदमे में दिए गए बयान दिनांक ३१.३.१९७० की प्रतिलिपि पत्रावली पर उपलव्ध है ।  गुप्तार मृतक है तथा मृतक व्यक्ति का बयान साक्ष्य में ग्राह्य होता है । उन्होंने अपने बयान में कहा  है कि मंगल, महीपत, जगन्नाथ, प्रभु, रामप्रसाद के पाहिले ही मर गए थे । बेनिमाधो व रामदयाल रामप्रसाद के ज़माने में जिन्दा थे, रामघिन मर गए थे, रामदयाल जिन्दा थे । किन्तु उनके बयान से यह स्पस्ट नहीं है कि बेनिमाधो  और रामदयाल रामप्रसाद पहले मरे या पीछे ।

Further in the impugned judgment Assistant Settlement Officer Consolidation has also mentioned that the statement given by Sri Guptar in the Suit under Section 176 of the U.P. Z.A.& L.R Act dated 31.3.1970 but he does consider the same on the ground that it has no value because learned Commissioner in the said matter ( arising out of the partition suit in its judgment dated 19.1.1971) has not place any reliance on the statement of Sri Guptar in view of the fact that one Sri Krishna , who was witness of Guptar has stated that before the death of Sri Ram Prasad and Sri Ramadhin and all his brothers were dead, so there was a difference in the statements given by witnesses and Sri Guptar in the partition suit as the oral evidence of Sri Guptar cannot be considered.

In addition to above said findings, Settlement Officer of Consolidation while passing the judgment in appeal has given a finding of fact that one of the witness Maiku Lal in the matter in question has stated that after the death of Ram Prasad, Ramadhin and Ram Dayal were died . The said findings is as follows:-

"इनके गवाह मैकूलाल ने कहा है कि रामप्रसाद के मरने के बाद रामदयाल व रामाधीन साल  डेढ़ साल बाद मर गए ।"

Thereafter Settlement Officer Consolidation has given the following findings:-

"इसप्रकार जैसा कि लगभग सभी गवाहों ने स्वीकार किया है तथा पूर्व निर्णयों से भी सिद्ध है कि रामप्रसाद के जीवन काल में उनके भाइयो में मंगल, महीपत, जगन्नाथ, और प्रभु मर चुके थे । उनके भाइयो में रामप्रसाद, रामाधीन तथा रामदयाल जीवित थे । अत: मुख्य प्रश्न अब यह है कि उक्त तीनो की मृत्यु किस क्रम में हुई ? बच्चूलाल ने अपने बयान में रामाधीन को ४० साल, रामदयाल को ३०-३५ साल, रामप्रसाद को ४५ साल मरे हुए बताया है, साथ ही यह भी कहा है कि इन आठो में सबसे छोटे रामाधीन थे, जो सबसे बाद में मरे । इस प्रकार उक्त तीनो के मरने का क्रम स्वयं उनके ही बयान से गलत सिद्ध हो जाता है । इनके गवाह मैकूलाल द्वारा रामप्रसाद के मरने के बाद रामाधीन व रामदयाल को मरना बताया है ।दिग्विजय ने रामप्रसाद के पहले रामाधीन को मरना बताया है । इसप्रकार रामप्रसाद, रामाधीन तथा  रामदयाल के मरने के क्रम के  सम्बन्ध  में किसी का बयान एक दुसरे से समर्थित न होकर भिन्न है और इसप्रकार मौखिक साक्ष्य से यह सिद्ध नहीं है कि कौन भाई सबसे बाद में मरा ।"

Needless to mention herein that in the impugned judgment passed by Assistant Settlement officer Consolidation in appeal, he had not given categorical findings in respect to the date of death of Sri Ram Prasad but taken a view that after the death of Sri Ram Prasad,his two brothers, namely, Sri Ramadhin and Sri Ram Dayal were not alive because in revenue record of fasli year 1344, the name of Sri Ram Prasad has been recorded thereafter in fasli year 1349 , the names of his nephews, namely , Bachhu, Guptar , Badlu, Kalideen, Bharat, Jagjeevan have been recorded and on the said facts so he came to the conclusion that Sri Ram Prasad has died after fasli year 1344 and after his death none of his brother were alive.

Accordingly, I am of the considered opinion that as per the law laid down in respect to matter in issue by Hon'ble the Supreme Court as stated herein above, it is mandatory on the part of Assistant Settlement Officer Consolidation as well as the Deputy Director of Consolidation have to give a positive finding on the point in respect of date of death of Ram Prasad and also that whether at the time of death of Sri Ram Prasad, his two brothers, namely, Sri Ramadhin and Sri Ram Dayal were alive or not, as on the said finding , the rights of the parties are to be decided in the present case, because if the said two brothers were alive then after the death of Ram Prasad his share in property will vest with them, and if they are not alive then will devolve to his nephews .

Another arguments which advanced by Sri D.C. Mukherjee , learned counsel for respondents no 16 to 22 and 24 to 26 is that in view of longstanding entry in revenue record in Khatauni of Fasli year 1356 and 1359 so taking into consideration the section 20 of the Act that where the person is recorded as an occupant of any land in Khatauni of 1356 Fasli, which has been taken as the basic year, he shall be entitled to retain possession thereof. So in the present matter petitioners cannot challenge the impugned orders and in support of said argument he placed reliance on the judgment of the Hon'ble Supreme Court in the case of Ram Awadh and others( Supra), has also got no force because in the matter in question if at the time of death of Sri Ram Prasad , his two brothers were alive then in that circumstances the nephews of Sri Ram Prasad will not get his share in the property in question, as such the arguments advanced by Sri Murkerjee has no force, hence rejected being not in accordance with the provisions as provided under Section 44 of the U.P. Land Revenue Act, 1901 in which it has been provided that " All entries in the Annual Register shall, until contrary is proved , to be presumed to be true" .

Further, the Deputy Director of Consolidation,Sitapur while passing the impugned order dated 8.8.1995 (Annexure no.15) only reiterated the findings given by the Assistant Settlement Officer Consolidation , Sitapur in its judgment dated 27.4.1988 ( Annexure no. 14). So once the order passed by opposite party no.2 is contrary to the facts and circumstances of the case , as stated herein above, hence the said order falls being illegal, invalid or void , the consequential order cannot be given effect to as it automatically becomes inoperative(See: Badrinath Vs. Government of Tamil Nadu and others, (2000) 8 SCC 395). In view of the aforesaid background , the judgments as contained in Annexure no.14 and 15 respectively passed by opposite parties no. 2 and 1 being contrary to the facts as well as law , liable to be set aside.

No other point has been pressed or argued by learned counsel for the parties in the matter.

For the foregoing reasons, the writ petition is allowed. The Judgment and orders dated 8.8.1995 ( Annexure no.15) passed by Deputy Director Consolidation, Sitapur and the order dated 27.4.1988 (Annexure no.14) passed by Assistant Settlement Officer Consolidation, Sitapur are set aside and the matter is remanded back to the Assistant Settlement Officer Consolidation, Sitapur to decide the same after giving ample opportunity to the parties concerned on the point whether at the time of death of Ram Prasad son of Sri Jai Ram, his two brothers, namely, Sri Ramadhin and Sri Ram Dayal were alive or not and while doing so , the said authority will also give opportunity to the parties to lead oral as well as documentary evidence on the other points as raised by them. Said exercise shall be done by Assistant Settlement Officer Consolidation, Sitapur/ opposite party no.2 expeditiously say within a period of six months from the date a certified copy of this order is produced before him.

For a period of six months or till the decision is taken by opposite party no.2 whichever is earlier , parties are directed to maintain status quo.

Order Date :- 31.10.2012

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