Deviji Mandir vs C.O.
2018 Latest Caselaw 330 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 30
 
Case :- WRIT - B No. - 1248 of 1977
 

 
Petitioner :- Deviji Mandir
 
Respondent :- C.O.
 
Counsel for Petitioner :- T.P. Singh,Bhagwati Prasad,Chandreshwar Pd.,H.K.Nigam,Kirtikar Pande,Manish Kumar Niranjan,Pradeep Chandra,T.A. Khan,U.N.Khare
 
Counsel for Respondent :- Ghana Ram Niranjan,O.P. Misra,Prabha Shanker Pandey,R.K. Singh,S.C.,Siddarth Jaiswal,Vijay Singh Sengar,Y.D.Mishra
 

 
Hon'ble Vivek Kumar Birla, J.

Heard Sri Kirtikar Pandey, learned counsel for the petitioner and Sri Vijay Singh Sengar, learned counsel for the respondents and perused the record.

Present petition has been filed challenging the order dated 30.11.1974 passed by the Consolidation Officer, Orai, the order dated 21.3.1975 passed by the Settlement Officer Consolidation, Hamirpur and the order dated 13.7.1977 passed by the Deputy Director of Consolidation, Kanpur, Camp Orai.

The dispute in the writ petition pertains to the land held by one Nathu Ram (since deceased) who executed a gift deed in favour of Sri Devi Ji Virajman Mandir, Mauja Titara Khalilpur, Pargana Konch, District Jalaun and appointed the petitioners no. 2 to 4 as its mohitmiman. Through the aforesaid gift deed, Nathu Ram gifted the entire land included in his chak no. 49. The details of the land in the chak is also mentioned in the gift deed. Since validity of the gift deed is in question, relevant extract thereof is quoted as under:

eqftc dkxtkr pdcanh nku i= fy[kk gS vxj dksbZ vkxs ifjorZu gks mlds eqrkfcd nku i= ekuk tkos dqy pd dh fy[kk i uacj

jdck

yxku

2-92)

0-24)

16-75

0-40)

0-17)

0-17)

Eqftc 4 pkj fdrk 12-56 ckjk ,dM Niiu fM0 rgjhj rkjh[k 30-8-73

Before proceeding further, it would be relevant to note the factual background of the controversy involved in the present petition.

A suit for partition being Suit No. 850 of 1958 was filed in the Civil Court regarding property of one Ayodhya Prasad, the ancestor of the petitioners no. 2 to 4 and respondents no. 4 to 8. A compromise took place in the suit and accordingly compromise decree dated 20.10.1959 was passed in the aforesaid suit. Pursuant to the aforesaid decree, four kuras were prepared and each branch of the family got one kura. Plot no. 65 involved in the present petition came in the share of Nathu Ram. However, it is case of the petitioner that Nathu Ram never took possession of the aforesaid plot no. 65 and petitioners no. 2 to 4 continued to be in possession of the plot no. 65, which was with them before the partition suit and neither Nathu Ram nor anybody else ever raised any objection to the same. Plot no. 65 was recorded in the CH Form No. 5 in the name of the petitioners no. 2 to 4. Their names are also recorded on plot no. 65 in CH Form No. 23. In the basic year entry plot no. 65 is in the name of the petitioner no. 2 to 4. On 16.9.1970 Nathu Ram executed Will deed in favour of the contesting parties i.e. petitioner no. 2 to 4 and respondents no. 4 to 8 in respect of chak no. 49. Subsequently, the respondents no. 4 to 7 filed their objections before the Consolidation Officer wherein Consolidation Officer, being Misc. Case No. 1536 of 1972 under Section 9(8)(2) of the Consolidation of Holdings Act (hereinafter referred to as the 'Act') against late Nathu Ram to include plot no. 65 in their share. In this proceedings petitioners were not party though the aforesaid plot was recorded in their name and they were in possession. On the basis of compromise entered into between the parties to the proceedings, which was filed without impleading the petitioners no. 2 to 4, the Consolidation Officer allowed the compromise application on 29.9.1972. Vide order dated 20.5.1973 the application filed by the respondent no. 4 for including the plot no. 65 in Chak of Nathu Ram by excluding the name of petitioners no. 2 to 4 was rejected. Thereafter, on 30.8.1973 Nathu Ram gifted the entire chak no. 49 to petitioners no. 1 and appointed the petitioners no. 2 to 4 as 'Mohitmiman'. On the proceedings initiated before the Consolidation Officer, Jalaun at Orai by the petitioner under Section 12 of the Act for change of entry of chak no. 49 area 12.56 acres on the basis of gift deed dated 20.8.1973, the dispute arose between the parties. In the aforesaid proceedings Ram Lakhan and others (the contesting respondents herein) filed their objections.

Four issues were framed by the Consolidation Officer; (1) whether the gift deed by Nathu Ram in favour of Devi Ji Mandir situate in Titara Khalilpur was valid and its effect; (2) whether plot no. 65/3.69 is the self acquired land, if not, its effect; (3) whether the decree of the civil court in 1958 was given effect to in the records, if not, its effect; and (4) whether the Will by Nathu Ram in favour of the applicants and objectors would have an adverse effect on the gift deed or not.

The Consolidation Officer decided issue no. 1 and 4 in favour of Sri Devi Ji and against Ram Lakhan and accepted the gift deed executed by Nath Ram. The Consolidation Office decided the issue no. 2 against the petitioners no. 2 to 4 and held that plot no. 65 was erroneously recorded in the names of Vishal Singh and others and it should have gone in the kura of Nathu Ram. The Consolidation Officer distributed the land of plot no. 65 amongst the heirs of Nathu Ram as it was not included in the gift deed. The issue no. 3 was decided against Vishal Singh and others. The objections filed by Ram Lakhan Singh was rejected in respect of Chak No. 49 but was allowed for plot no. 65. In other words, the Consolidation Officer vide order dated 30.11.1974 upheld the gift valid but held that plot no. 65 belongs to Nathu Ram and distributed the same amongst the heir of Nathu Ram as per their share.

Against the aforesaid order, two appeals were filed before the Settlement Officer Consolidation, one by petitioner no. 2 and the other by the respondent no. 4 and others. The Settlement Officer Consolidation dismissed the appeals and upheld the gift deed invalid. The appeal of Ram Lakhan and others was allowed. The Settlement Officer Consolidation accepted the Will and directed that the names of the parties be recorded accordingly.

Being aggrieved, two revisions were filed by the petitioners, one by Vishal Singh (petitioner no. 4 herein) and other by Devi Ji. Both the revisions were dismissed by the Deputy Director of Consolidation. All these orders are under challenge in the present petition.

In the present case, the controversy is with regard to the gift deed executed by Nathu Ram whereby he has gifted entire holding to one Sri Devi Ji Mandir.

The case of the petitioner is that since Nathu Ram has gifted his entire holding, the provisions of Section 5(c)(ii) of the Act would not be attracted. Specific case of the petitioners no. 2 and 4 is that the plot no. 65 was not part of the holding of Nathu Ram but was recorded in their name and the same was held by them in their own rights. It was further submitted that the aforesaid plot no. 65 was, in fact, included in their chak no. 49 and that no objection was ever raised by Nathu Ram before the Consolidation Officer under Section 9 of the Act.

In support of his arguments, learned counsel for the petitioner has placed reliance on the judgements rendered in the cases of Smt. Ashrufnisa Begum vs. Dy. Director of Consolidation, R.D. 1970 page 532 (FB), Smt. Rajeshwari vs. Dy. Director of Consolidation, R.D. 1971 page 130 (FB) and Ram Rati vs. Gram Sama, Jehwa, R.D. 1974 page 163 to contend that it is only in a case of part transfer of holding permission of the Settlement Officer Consolidation under Section 5(c)(ii) of the Act is required and the same is not required in the case of transfer of the entire holding. Submission is that law on this issue is well settled and once the record reflects that Nathu Ram transferred his entire holding, therefore, the aforesaid provisions would not come into play. It was further submitted that except Civil Court no other Courts including the Consolidation Courts are competent to examine the genuineness of any deed. In support thereof, he has placed reliance on a judgement rendered in the case of Ram Asray Singh vs. State of UP and others, 2006(100) RD 98.

Per contra, learned counsel for the respondent in his written submissions has supported the impugned order and the stand taken by the respondent is that since no permission under Section 5(c)(ii) of the Act was not taken, the gift deed is invalid. It was pointed out that the case of the respondent is that in partition suit no. 850 of 1958 through compromise decree dated 20.10.1959 plot no. 65 came in share of Nathu Ram and therefore, the impugned orders are perfectly just and legal whereby plot no. 65 has been distributed amongst the parties.

I have heard learned counsel for the petitioner and considered the written submissions submitted by both the parties.

The facts of this case have already been noticed above. The facts as noticed clearly reflects that in partition suit no. 850 of 1958 through compromise decree dated 20.10.1959 the plot no. 65 came in possession of Nath Ram, however, the record reflects that Nathu Ram never took possession of the aforesaid plot. It is also not in dispute that in the basic year over plot no. 65 names of the petitioners no. 2 to 4 were recorded and they were in possession. Entries in favour of the petitioners no. 2 to 4 are recorded in CH Form No. 5 as well as in CH Form No. 23. The record reflects that in the alleged compromise dated 29.9.1972 in Misc. Case No. 1536 of 1972, which was filed to include the plot no. 65, the petitioners no. 2 to 4 were not party. The ACO has carved out the chak of 12.56 acres of Nathu Ram wherein plot no. 65 was not included. Although Nathu Ram has executed a Will dated 16.9.1970 in favour of the contesting parties i.e. petitioners no. 2 to 4 and the respondents no. 4 to 8 in respect of chak no. 49, however, it is also not in dispute that he subsequently executed gift deed dated 20.5.1973, which is in dispute. It is needless to say that if once this gift deed was executed by Nathu Ram for its entire property, the Will executed by him was rendered redundant.

In such factual background, it is clear that admittedly, the plot no. 65 came in the share of Nathu Ram as per decree dated 20.10.1959 passed in partition suit no. 850 of 1958, however, Nathu Ram never came forward to take the possession. The record reflects that the petitioners no. 2 to 4 were in possession and therefore, their names were recorded in basic year, CH Form No. 5 and CH Form No. 29. In such circumstances, once the plot no. 65 was recorded in the name of the petitioners no. 2 to 4 who were in possession over the aforesaid plot, which was included in kura of Nathu Ram as per compromise decree but who never came forward to take over the possession and never challenged the same under Section 9 of the Act, his claim become barred by Section 11-A of the Act. The record reflects that the name of Nathu Ram was never recorded in revenue record. On the contrary, the name of petitioners no. 2 to 4 was recorded in the revenue record. The order of Consolidation Officer dated 29.9.1972 in Misc. Case No. 1536 of 1972 to include the plot no. 65 on the basis of compromise was passed without impleading the petitioners no. 2 to 4 as a party. Apart from that, the record reflects that the aforesaid order dated 29.9.1972 was never implemented to record the name of Nathu Ram.

There is yet another aspect of the matter that brothers of Ram Lakhan, in fact, denied filing of any such objection before the authority concerned and this fact is on record. It is also not in dispute that objection dated 26.2.1976 filed by Ram Lakhan under Section 20 of the Act for including the plot no. 65 in chak of Nathu Ram by excluding the name of petitioners no. 2 to 4 was rejected vide order dated 20.5.1973.

In such factual scenario as reflected from the record, it is very much clear that Nathu Ram executed gift deed of his entire holding and therefore, provisions of Section 5(c)(ii) of the Act would not come into play. The presumption raised in the impugned order that by mistake name of Vishal Singh was recorded in the revenue record is neither here nor there and it is not reflected from the record that it was a mistake. No such presumption of mistake can be raised in such factual scenario of the case.

Consequently, in view of the discussions made herein above, present petition stands allowed. The impugned order order dated 30.11.1974 passed by the Consolidation Officer, Orai, the order dated 21.3.1975 passed by the Settlement Officer Consolidation, Hamirpur and the order dated 13.7.1977 passed by the Deputy Director of Consolidation, Kanpur, Camp Orai are hereby quashed.

The revenue authorities are directed to proceed accordingly.

There shall be no order as to costs.

Order Date :-3.05.2018

Abhishek