Lallan Lal vs Dy. Director Of Consolidation, ...
2013 Latest Caselaw 5864 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
AFR
 
Court No. - 18       							
 
Case :- WRIT - B No. - 42917 of  2013
 
Petitioner :- Lallan Lal  
 
Respondent :- Dy. Director Of Consolidation Kushinagar And 5 Others
 
Petitioner Counsel :- A. P. Tiwari, S.S. Tiwari 
 
Respondent Counsel :- C.S.C., R.C. Singh
 

 
Hon'ble Ram Surat Ram (Maurya),J.

1. Heard Sri A. P. Tiwari, counsel for the petitioner and Sri R.C. Singh, counsel for respondent-2.

2. The writ petition has been filed against the order Deputy Director of Consolidation dated 30.07.2013, passed in title proceeding, under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).

3. The dispute relates to the land of basic consolidation year khatas 38 and 127 of village Jakhniya, khatas 42 and 154 of village Sirsiya, khatas 36 and 165 of village Mishrauli and khata 269 of village Malahiya, pargana Sidhuwa Jobna, district Kushinagar. In basic consolidation records, the name of Ram Pyare Lal was alone recorded, over the aforesaid khatas, except khata 36 of village Jakhniya, which was jointly recorded in the names of Ram Pyare Lal, Indrajeet, Thakur Lal and Mohan Lal. Indrajeet and Mohan Lal filed an objection, under Section 9 of the Act, claiming themselves to be the co-tenants, having 1/3 share each, in the khatas in dispute. It has been stated by them that the disputed land were acquired by their father, in the name of Ram Pyare Lal with their own income or from joint family fund, time to time. Both the parties remained in joint possession over the disputed land through out. It was partitioned by the award of Panches dated 26.07.1962 but it could not be given effect to in the revenue records and the name of Ram Pyare Lal continued, over the land which were acquired in his name by their father. Ram Pyare Lal (now represented by the petitioner and respondents-3 to 6) (hereinafter referred to as the petitioner) filed another objection under Section 9 of the Act, for deleting the names of Indrajeet, Thakur Lal and Mohan Lal from khata 36 of village Jakhniya and recording his name exclusively over it. It has been stated by the petitioner that entire land in dispute were self acquisition of Ram Pyare Lal, from his own income and not by their father. Entire joint family properties were partitioned during the life time of the father, who died in the year 1948. The respondent never raised any dispute in respect of the land in dispute although two settlements of revenue records took place after partition. The petitioner is in exclusive possession over the land in dispute since the date of its acquisition. Both the objections were registered as Case no. 39, under Section 9-A (2) of the Act and tried by the Consolidation Officer (Final Record), Padrauna, Deoria.

4. Before the Consolidation Officer, the parties filed mass of documentary evidence, to prove their cases. On behalf of the petitioner, Ram Pyare Lal was examined and on behalf of Indrajeet and Mohan Lal (now represented by respondent-2) (hereinafter referred to as the respondent) Mohan Lal and Vindhyanchal were examined as the witnesses. The Consolidation Officer, by his judgment dated 15.04.1986 found that serving of Dukhan Lal (father of the parties) as Patwari up to the year 1926 and Ram Pyare Lal being elder son of Dukhan Lal was admitted to the parties; The respondent could not prove that Ram Pyare Lal was born in the year 1906; For the reasons that in various plaints of the suits filed by the parties time to time, the name of Ram Pyare Lal was mentioned at serial No. 1, it was not proved that family was joint and Ram Pyare Lal was 'karta' of the joint family at the time when these suits were filed; Tenancy could be acquired separately by the member of the family and no presumption can be raised of it being acquired by joint family; the respondent could not file any evidence, in respect of their cultivation, payment of the land revenue by them or any other evidence to prove their possession; The Panch Award dated 26.07.1962 was not proved by the witnesses of the award nor it has ever been acted upon in the revenue records; The respondent could not prove that the alleged application dated 08.07.1975 was filed by Ram Pyare Lal; Although partition of joint family property took place 70 years ago and two settlement have taken place thereafter but no effort was made by the respondent for getting their names recorded over the land in dispute. On these findings, both the objections were dismissed. The land recorded in khata No. 36 of village Jakhniya were directed to be partitioned, between the parties holding their 1/3 share each while basic year entry in respect of the remaining khatas has been maintained.

5. Mohan Lal filed an appeal (registered as Appeal No. 1677/1053) and Indrajeet filed an appeal (registered as Appeal No. 1677/1053) from the aforesaid order. These appeals were allowed by Settlement Officer Consolidation by judgment dated 25.02.1987. Ram Pyare Lal filed an application for recall of the order dated 25.02.1987. Several other applications for recall of the order dated 25.02.1987 were filed. Settlement Officer Consolidation by his order dated 22.03.1990 allowed the recall application. The respondent filed revision against the order dated 22.03.1990, which was allowed by order dated 27.12.1995. The petitioner filed a writ petition (registered as Writ B No. 1922 of 1996) which was allowed 20.03.2007 and the order dated 27.12.1995 was set aside. Thereafter the appeals were heard by Settlement Officer, Consolidation, Padrauna, Kushinagar, who by his judgment dated 05.04.2012 dismissed both the appeals.

6. Indrajeet thereafter did not file any revision from the aforesaid orders. The respondent filed a revision (registered as Revision No. 619/675) claiming her ½ share in the land in dispute. The revision was heard by Deputy Direction of Consolidation (respondent-1), who by his judgment dated 30.07.2013 held that from the various evidence on record, it was proved that Ram Pyare Lal was born in the year 1906; The disputed land were acquired in between 1907 to 1925, while Ram Pyare Lal came in service of Patwari, for the first time in the year 1926, as such at the time of acquisition of the land in dispute, he had no separate nucleus for acquiring the properties in dispute; Admittedly Dukhan Lal was Patwari of the villages, in which the properties in dispute were lying as such he had acquired properties in the name of his son: From the order of Sub-Divisional Magistrate dated 29.08.1983, passed in the proceedings under Section 145 Cr.P.C., the application filed by Ram Pyare Lal dated 08.07.1975, claiming exemption from levy on wheat and the various suits jointly filed by the parties against third persons in respect of joint family properties including Case No. 9 filed against Smt. Champa Devi in consolidation, which was decided on 09.02.1981, it was proved that there was no partition of the joint family properties; The Consolidation Officer by the impugned order held that the land of khata 36 of village Jakhniya, was joint family property, although Ram Pyare Lal had filed an objection claiming it to be his exclusive property but he has not filed any appeal against the order of Consolidation Officer, which proved that there had been no partition of the joint family properties. On these findings, the revision was allowed by order dated 30.07.2013 and order of Consolidation Officer dated 15.04.1986 and Settlement Officer Consolidation dated 05.04.2012 were set aside and the land of all the khatas were directed to be recorded in the names of three branches of Ram Pyare Lal, Indrajeet and Mohan Lal, in equal share.

6. The counsel for the petitioner submitted that respondent-1 has no jurisdiction to set aside the concurrent findings of fact of two consolidation authorities; the order of respondent-1 is an order of reversal and he was required consider the reasons and findings of the Consolidation Officer before setting it aside but he has neither referred nor considered the various findings recorded by the Consolidation Officer; Entire joint family properties were partitioned 70 years back and two settlements of revenue records have taken place thereafter but the respondent did not ever claim title over the land in dispute; The respondent admitted that partition took place during life time of Dukhan Lal, who admittedly died in the year 1948 but the respondents never tried to get their names recorded over the land in dispute, prior to the consolidation operation; The basic year entries were in favour of the petitioner and burden was on the respondent to prove the land in dispute was joint family properties and remained in joint possession of the parties; The order of Sub-Divisional Magistrate, dated 29.08.1983, passed in the proceedings under Section 145 Cr.P.C. was subject to the order passed by the Consolidation Officer and is no evidence of possession; The application dated 08.07.1975, allegedly filed by Ram Pyare Lal claiming exemption from levy of wheat, was a fabricated paper and no reliance could be placed on it; For the reason that the name of Ram Pyare Lal was mentioned at serial No. 1, in the various suits or they were filed jointly by the parties, no inference could be drawn that the properties in dispute were also joint family properties. He relied upon the judgments of this Court in Rumal and another Vs. DDC and others, 2003 (95) RD 732, in which it has been held that co-tenancy right cannot be claimed merely on the basis of solitary entry of 1336 F not thereafter without there being any evidence of payment of land revenue or possession, Bhola Vs. ADC and others, 2005 (99) RD 719, in which it has been held that burden lies upon the party claiming co-tenancy to prove that the land in dispute was joint acquisition, Ran Narain Vs. DDC and others, 2005 (99) RD 766, in which it has been held that there cannot be any presumption, in respect of joint family property merely for the reason that at the time of acquisition of the properties, the family was joint, Smt. Bhagwanti Vs. DDC and others, 2005 (99) RD 369 and Dularawa and others Vs. DDC and others, 2009 (108) RD 288, in which it has been held that DDC was required to consider the reasons and findings recorded by the sub-ordinate authorities in case of judgment of reversal and judgment of Supreme Court in Seth Ram Dayal Jat Vs. Laxmi Prasad, 2009 (108) RD 145, in which it has been held that judgment of the criminal courts are not admissible in evidence in civil suits, only admissions are admissible.

7. In reply to the aforesaid arguments, the counsel for the respondent with the help of the chart prepared on the basis of revenue records and filed as Annexure-CA-6 to the Counter Affidavit submitted that entire disputed properties were acquired during 1907 to 1925. Ram Pyare Lal, in his statement, has admitted that for the first time he was employed as Patwari in the year 1926 and when the properties in dispute were acquired, his father was Patwari of the villages where the properties in dispute are situated. However, he has stated that he had worked as 'karinda' of the Zamindar during 1922 to 1926, but no evidence was produced to prove this fact. During 1922 to 1925 only 5 plots were acquired but as admitted, the father was in service up to 1926 as such entire disputed land were acquired by the father, in the name of Ram Pyare Lal as he was eldest son. In order to prove the birth of Ram Pyare Lal, in the year 1906, the respondent filed the certificate issued by Girdawar Kanoongo, in which, it has been mentioned that Ram Pyare Lal was employed as Patwari in the year 1926 and at that time his age was mentioned as 20 years, plaint of O.S. No. 4557 of 1954 Ram Pyare Lal and others Vs. Balli, in which his age has been mentioned as 50 years, Memorandum of Civil Appeal No. 265 of 1959 Bhola Vs. Champa Devi and others, Copy of the Pariwar Register of the year 1954, in which his birth has been mentioned of the year 1907. In his statement, he has admitted that he had passed middle school (class VIII) in the year 1921. Ram Pyare Lal could not file any evidence to show that his birth was of the year 1895. He could have file his School Certificate and service record but material evidence in his possession has been withheld. The Consolidation Officer has illegally ignored the mass of documentary evidence only for the reason that extract of Birth Register was not filed. From the aforesaid evidence, respondent-1 has rightly found that Ram Pyare Lal was born in the year 1906. Ram Pyare Lal has came with the case that joint family properties were partitioned 70 years back but he could state that in partition what properties were given in the share of the respondent and could not give any reason as to how the land of khata 36 of village Jakhniya was jointly recorded in the name of all the brothers even after partition in the family and intervening the alleged two settlements of the revenue records. It is proved that the property in dispute was acquired by common ancestor or from joint family fund in the name of Ram Pyare Lal who was either minor or unemployed, the burden shifted upon the petitioner to prove that it was his self acquired and the joint family property was partitioned and share of other co sharers were given to them. In the absence of any proof relating to the ouster of the other co-sharers, possession of one co-sharer is possession of all. He relied upon the judgments of this Court in Viswanath Singh Vs. Brij Mangal Singh, 1986 RD 369, Bhagirath Devi Kumar Rani Saheba Vs. Agricultural Income Tax Revision Board, 1970 RD 365 (DB), Ram Chandra Dubey Vs. DDC and others, 1978 RD 1, Shri Ram and others Vs. DDC and others, 2011 (4) ADJ 289 (DB) and judgment of Supreme Court in Ram Deo Vs. Board of Revenue AIR 2011 SC 1548, in which it has been held that tenancy properties acquired during the jointness of the family from joint family fund was joint family property, although it was recorded in the name of one member in representative capacity and burden lies to prove it otherwise. Judgment of Supreme Court in Sheo Nand and others Vs. DDC and others, AIR 2001 SC 1141, in which it has been held that under Section 48 of the Act, DDC has very wide powers to record his own findings of fact and judgment of Supreme Court in Gurjar Singh and others Vs. DDC and others, AIR 2009 SC (Supp) 1560, in which it has been held that DDC could modify and correct the wrong entry.

8. I have considered the arguments of the parties and examined the record. The Consolidation Officer held that serving of Dukhan Lal (father of the parties) as Patwari up to the year 1926 and Ram Pyare Lal being elder son of Dukhan Lal was admitted to the parties. Further Ram Pyare Lal, in his statement, has admitted that he had passed middle school (class VIII) in the year 1921 and completed training of Patwari in the year 1922 and employed as Patwari in the year 1926, in place of his father. It is proved that the disputed land were acquired during 1907 to 1925 i.e. before employment of Ram Pyare Lal as Patwari. According to the respondent as Dukhan Lal was Patwari of the villages as such he acquired the disputed land in the name of Ram Pyare Lal, who was his elder son. As the disputed properties were acquired by the father as such all his sons have inherited it in equal share. According to the petitioner, he worked as 'karinda' of the zamindar during 1922 to 1926 and from the income derived from his services, he had acquired the land in dispute.

9. First issue arises in respect of year of birth of Ram Pyare Lal. According to the statement of Ram Pyare Lal, his date of birth comes in the year 1895. According to the respondent, Ram Pyare Lal was born in the year 1906. The respondent filed the certificate issued by Girdawar Kanoongo, in which, it has been mentioned that Ram Pyare Lal was employed as Patwari in the year 1926 and at that time his age was mentioned as 20 years, plaint of O.S. No. 4557 of 1954 Ram Pyare Lal and others Vs. Balli, in which his age has been mentioned as 50 years and copy of the Pariwar Register of the year 1954, in which his birth has been mentioned of the year 1907. The Consolidation Officer ignored these documents on the ground that the extract of Birth Register has not been filed and in the certificate issued by Girdawar Kanoongo pay scale was incorrect. The plaint of O.S. No. 4557 of 1954 contained admission of Ram Pyare Lal. Admittedly Ram Pyare Lal passed middle school (class VIII) in the year 1921 and employed as Patwari in the year 1926. Ram Pyare Lal could have filed School record and Service record to prove his date of birth but the material evidence in his possession has been withheld. He has not filed any evidence to prove that his birth was of the year 1895. Thus Adverse presumption was liable to be drawn against Ram Pyare Lal under Section 114 Illustration (g) of the Evidence Act, 1872. The Consolidation Officer has illegally ignored the mass of documentary evidence, including admission of Ram Pyare Lal in O.S. No. 4557 of 1954 only for the reason that extract of Birth Register was not filed. Respondent-1 has rightly found that Ram Pyare Lal was born in the year 1906, on the basis of aforesaid evidence and has rightly set aside the findings of Consolidation Officer. Order of respondent-1 does not suffer from any illegality.

10. The next question arise as to whether the properties in dispute were acquired by father? From the various extract of the khataunies filed by the respondent it is proved that entire disputed land was acquired during 1907 to 1925. Ram Pyare Lal passed middle school in 1921 and completed training of Patwari in 1922. According to his own statement he had no separate income till 1922, while the father was in service. Thus it is proved that the properties acquired prior to 1922 were acquired from the income of father who was serving as Patwari. Ram Pyare Lal has stated that during 1922 to 1926, he had worked as 'karinda' but no evidence has been adduced in this respect. Thus Ram Pyare Lal has failed to prove that he had any separate income at the time of acquisition of the disputed properties, while he has admitted that the father was in service till 1926. Thus respondent-1 has not committed any illegality in holding that the disputed properties were acquired from the income of the father.

11. Admittedly the disputed properties were acquired at the time when the family was joint. Ram Pyare Lal in his statement has stated that partition took place 70 years back. According to the respondent, joint family properties were remained through out joint. The respondents filed copies of the plaint of O.S. No. 4557 of 1954 Ram Pyare Lal and others Vs. Balli and order of Consolidation Officer dated 28.07.1980 passed in Case No. 2295, in which all the three brothers claimed disputed properties jointly and filed suits against third parties. Ram Pyare Lal filed his objection claiming his sole tenancy over the of land of khata 36 of village Jakhniya but after order of Consolidation Officer, he had not filed any appeal. Ram Pyare Lal could not prove that in partition what properties were given in the share of his other brother. In these circumstances, the case of partition of joint family properties 70 year back as set up by Ram Pyare Lal has not been proved. He could not adduce any evidence to show that in partition of joint family properties, what was given to his brothers.

12. This Court in Viswanath Singh Vs. Brij Mangal Singh, 1986 RD 369, Bhagirath Devi Kumar Rani Saheba Vs. Agricultural Income Tax Revision Board, 1970 RD 365 (DB), Ram Chandra Dubey Vs. DDC and others, 1978 RD 1, Shri Ram and others Vs. DDC and others, 2011 (4) ADJ 289 (DB) and and Supreme Court in Ram Deo Vs. Board of Revenue AIR 2011 SC 1548, held that tenancy properties acquired during the jointness of the family was joint family property, even if it was recorded in the name of one member of the family in representative capacity and burden lies to prove it otherwise. Supreme Court in Makhan Singh v. Kulwant Singh, (2007) 10 SCC 602, held that the legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available. From the aforesaid discussion it was proved by the respondent that the disputed properties were acquired from the income of the father during the time when family was joint and at that time Ram Pyare Lal was was minor or unemployed. The burden was upon the petitioner to prove that it was their self acquired properties. The petitioner could not adduce any evidence to prove his self acquisition.

13. So far as the arguments of the counsel for the petitioner that the respondent could not adduced any evidence to prove that they were ever in possession over the disputed land is concerned Supreme Court in Kailash Rai v. Jai Jai Ram, (1973) 1 SCC 527, held that one can very well visualize a family consisting of father and two sons, both of whom are minors. Normally, the cultivation will be done only by the father. Does it mean that when the father is found to be cultivating the land on June 30, 1952, he alone is entitled to the bhumidhari rights in the land and that his two minor sons are not entitled to any such rights? In our opinion, the normal principle that possession by one co-sharer is possession for all has to be applied. Further, even when one co-sharer is in possession of the land, the other co-sharers must be considered to be in constructive possession of the land. The expression "possession" in clause (a), in our opinion, takes in not only actual physical possession, but also constructive possession that a person has in law. If so, when the defendants were in possession of the lands and when no plea of ouster had been raised or established, such possession is also on behalf of the plaintiff-appellant. Under such circumstances, the lands can be considered to be in the "possession" of the appellant or, at any rate, in his constructive possession. Same principle has again been propounded in Tilak Raj Vs. Baikunthi Devi, AIR 2009 SC 2136.

14. So far as arguments of the counsel for the petitioner that respondent-1 has no jurisdiction to set aside the concurrent findings of fact of two consolidation authorities and the order of respondent-1 is an order of reversal and he was required to consider the reasons and findings of the Consolidation Officer before setting it aside is concerned, the order of Settlement Officer Consolidation does not contain any reason. As found above, order of the Consolidation Officer is illegal. Explanation (3) of Section 48 of the Act, added U.P. Act No. 3 of 2002, provides that the revisional power of Deputy Director of Consolidation of Consolidation to examine the correctness, legality or propriety of any order includes, the power to examine any finding, whether of fact or law, recorded by any subordinate authority and includes power to re-appreciate any oral or documentary evidence. Thus under Section 48 of the Act power of revision is very wide. Supreme Court in Sheo Nand v. Dy. Director of Consolidation, AIR 2000 SC 1141 and Guzar Singh Dy. Director of Consolidation, (2009) 12 SCC 590 held that Section 48 of the Act gives very wide powers to the Deputy Director. It enables him either suo motu on his own motion or on the application of any person to consider the propriety, legality, regularity and correctness of all the proceedings held under the Act and to pass appropriate orders. These powers have been conferred on the Deputy Director in the widest terms so that the claims of the parties under the Act may be effectively adjudicated upon and determined so as to confer finality to the rights of the parties and the revenue records may be prepared accordingly.

14. Last arguments of the counsel for the petitioner that Indrajeet has not challenged the orders of Consolidation Officer and Settlement Officer Consolidation even then respondent-1 has awarded 1/3 share to him. In this respect, it may be noted that Section 8 of the Act castes a duty upon the consolidation authorities to revise the annual register. While revising the annual register it was found that the land in dispute was joint tenancy of three brothers as such respondent-1 has directed that name of Indrajeet be also recorded over the land in dispute along with his other two brothers. Supreme Court in Gurjar Singh Vs. DDC and others, AIR 2009 SC (Supp) 1560 held that it is within the jurisdiction of the Deputy Director of Consolidation to correct the annual register even without there being any objection in this respect. The share of the petitioner was found to be 1/3. The findings of fact in this respect could not be challenged by the petitioner. Supreme Court in A. Viswanatha Pillai v. Special Tahsildar for Land Acquisition, (1991) 4 SCC 17, held that it is settled law that one of the co-owners can file a suit and recover the property against strangers and the decree would enure to all the co-owners. It is equally settled law that no co-owner has a definite right, title and interest in any particular item or a portion thereof. On the other hand he has right, title and interest in every part and parcel of the joint property or coparcenery under Hindu law by all the coparceners. In view of the law laid down by Supreme Court and on finding that the property in dispute is jointly inherited by three brothers, respondent-1 has not committed any illegality in giving share to Indrajeet as his share is still joint and has not been partitioned.

15. In view of the aforesaid discussion, the writ petition has no merit and it is dismissed.

Order Date :- 17.9.2013

Jaideep/-