Ram Sakal vs Sheo Pal
2019 Latest Caselaw 4472 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 16.11.2018
 
Delivered on 14.5.2019
 
Court No. - 45
 

 
Case :- WRIT - B No. - 15822 of 1981
 

 
Petitioner :- Ram Sakal and Others
 
Respondent :- Sheo Pal and Others
 
Counsel for Petitioner :- S.K. Verma,Anish Kumar Sinha
 
Counsel for Respondent :- R.K. Jain,Md. Zeaul Hoda,Rahul Jain,Ram Niwas Singh,S.C.,Syed Farman Ahmad Naqvi
 

 
Hon'ble Salil Kumar Rai, J.

1. Heard learned counsel for the parties.

2. The dispute in the present writ petition as well as in the consolidation proceedings from which the present writ petition arises relates to Khata Nos. 41 and 42 (hereinafter referred to as, 'disputed khatas') of Village Hetimpur, Paragana Zamania, District-Ghazipur. It is the admitted case of the parties that the disputed khatas were acquired by one Santu. The petitioners were recorded as the tenure holders of the disputed khatas in the basic year records,. During the consolidation proceedings in the village Case No. 72/310 under Section 9-A(2) of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') was registered on the objections dated 26.3.1971 filed by Jhuri, i.e., respondent No. 2. Respondent No. 2 is the son of Sheopal. In his objections, the respondent No. 2 claimed that Sheopal was the sole tenure holder of the disputed khatas and the petitioners were fictitiously recorded in the basic year records relating to the disputed khatas.

3. In his objections, respondent No. 2 alleged that Santu had two sons Jokhan and Mokhan and Sheopal was the descendant of Mokhan. In his objections, the respondent No. 2 alleged that the petitioners were not the descendant of Santu, and therefore, had no right or title in the disputed khatas. Sheopal was alive on the date objections were filed by respondent No. 2 and it was stated in the objections that Sheopal was of unsound mind and not in a position to judge his interest, and therefore, the objections were being filed by respondent No. 2. The petitioners contested the objections filed by respondent No. 2 and in their reply the petitioners challenged the maintainability of the objections filed by respondent No. 2 on the ground that Sheopal was not of unsound mind and Jhuri was not an interested person under Section 9 of the Act, 1953. The petitioners also denied the pedigree as alleged by respondent No. 2 and set up a different pedigree. In their reply, the petitioners alleged that Santu had three sons Jokhan, Mokhan and Harkhu and the petitioners were the descendants of Harkhu while Sheopal was the descendant of Mokhan. On the basis of the pedigree set up by them, the petitioners claimed 1/2 share in the disputed khatas. In their reply, the petitioners also alleged that Sheopal had sold his half share in the disputed khatas through sale-deeds dated 10.10.1956 and 11.2.1959, and therefore, he had no share in the disputed khatas.

4. In case No. 72/310, the Consolidation Officer (hereinafter referred to as, 'C.O.') framed eight issues which related to the maintainability of the objections filed by Jhuri, i.e., respondent No. 2 and the rights of the parties in the disputed khatas. The C.O. vide his order dated 8.6.1972 dismissed the objections filed by respondent No. 2 as not maintainable. Respondent No. 2 did not file any documentary evidence before the C.O. to prove that Sheopal was of unsound mind. After noticing the failure of respondent No. 2 to produce any documentary evidence to support his allegation that Sheopal was of unsound mind and the fact that Sheopal had executed sale-deeds dated 10.10.1956 and 11.2.1959, which were not challenged as well as after considering the oral testimony of the witnesses, the C.O. recorded a finding that Sheopal did not suffer from any mental infirmity, and therefore, the objections by Jhuri, i.e., respondent No. 2 were not maintainable. In his order dated 8.6.1972. the C.O. also rejected the claim of respondent No. 2 on merits and held that the petitioners were tenure holders of the disputed khatas. In his order dated 8.6.1972, the C.O. held that respondent No. 2 had failed to prove the pedigree as alleged by him in his objections. While recording a finding that the petitioners were correctly recorded as tenure holders of the disputed khatas, the C.O. relied on the entries in the revenue records of 1356 Fasli, 1359 Fasli, 1363 Fasli to 1365 Fasli and 1370 Fasli, in which the petitioners were recorded as occupancy tenant of the disputed khatas and the fact that the respondent No. 2 had not produced any evidence to rebut the entries in the said revenue records. The C.O., while holding in favour of the petitioners, also considered the sale-deed dated 10.10.1956 executed by Sheopal wherein Sheopal had sold his share in the disputed khatas to one Shiv Jag.

5. Aggrieved by the order dated 8.6.1972 passed by the C.O., respondent No. 2 filed Appeal No. 2482 under Section 11(1) of the Act, 1953 before the Settlement Officer of Consolidation (hereinafter referred to as, 'S.O.C.') which was dismissed by the S.O.C. vide his order dated 27.3.1973. In his order dated 27.3.1973, the S.O.C. gave an additional reason in favour of the petitioners to uphold the order passed by the C.O. In his order, the S.O.C. held that the petitioners had been granted Bhumidhari Sanand under Section 6 of the United Provinces Agricultural Tenants (Acquisition of Privileges) Act, 1949 (hereinafter referred to as, 'Act, 1949') and no objections to the aforesaid was filed by Sheopal, therefore, the entries in the revenue records of 1356 Fasli in favour of the petitioners stood proved. Aggrieved, the respondent No. 2 filed Revision No. 968 under Section 48 of the Act, 1953 before the Deputy Director of Consolidation, Ghazipur, i.e., respondent No. 3 (hereinafter referred to as, 'D.D.C.') which was allowed by the D.D.C. vide his order dated 23.11.1981. It appears from a reading of the order dated 23.11.1981 passed by the D.D.C. that before the D.D.C., the petitioners had raised an additional plea that Sheopal had instituted a suit under Section 229-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950') in 1964, which was withdrawn by him on 30.6.1964 and subsequently the objections by respondent No. 2 were filed after almost six years. However, the D.D.C. relying on the entries in the revenue records of 1288 Fasli, 1308 Fasli and 1309 Fasli wherein Mokhan and Jokhan were recorded as tenure holders of the disputed khatas and Harkhu was not recorded as a tenure holder held that the pedigree as alleged by respondent No. 2 was proved and in view of the entries in the revenue records of 1288 Fasli, 1308 Fasli and 1309 Fasli, the petitioners cannot be held to be co-tenure holders of the disputed khatas. In his order dated 23.11.1981, the D.D.C. held that the petitioners had not produced any order passed by any competent court directing that the revenue records be corrected so as to justify the entries in the revenue records relating to 1356 Fasli, 1359 Fasli, 1363 Fasli to 1365 Fasli and 1370 Fasli and no Bhumidhari rights would accrue in favour of the petitioners by acquiescence and estoppel. It is relevant to note that in his order dated 23.11.1981, the D.D.C. did not consider the issue regarding the maintainability of objections filed by respondent No. 2 under Section 9 of the Act, 1953. The order dated 23.11.1981 passed by the D.D.C. has been challenged in the present writ petition.

6. Challenging the order dated 23.11.1981 passed by the D.D.C. in Revision No. 968, counsel for the petitioners has argued that on the date the objections were filed by respondent No. 2, Sheopal was alive and was not a lunatic or idiot or otherwise suffered from any mental infirmity. It was argued that even if Sheopal was a lunatic or idiot the objections, in view of Order 32 Rule 15 Civil Procedure Code, 1908, could have been filed only through the next friend and a guardian had to be appointed by the Assistant Consolidation Officer (hereinafter referred to as, 'A.C.O.') under Rule 14 of Uttar Pradesh Consolidation of Holdings Rules, 1954 (hereinafter referred to as, 'Rules, 1954') and the objections could have been filed only through the said guardian. It was argued that as Jhuri, i.e., respondent No. 2 was not appointed as a guardian of Sheopal, therefore, the objection filed by respondent No. 2 to protect the interest of Sheopal was not maintainable. It was argued that the objections filed by respondent No. 2 can not be treated as having been filed on behalf of Sheopal and Jhuri, i.e., respondent No. 2 himself had no right or interest in the disputed Khatas. It was argued that respondent No. 2 was neither a tenure holder nor a 'person interested', and therefore, the objections filed by him were not maintainable and liable to be dismissed summarily. It was further argued by the counsel for the petitioners that admittedly, the petitioners were granted Bhumidhari Sanad under the Act, 1949, and therefore, under Section 18(2) of the Act, 1950, the petitioners became the Bhumidhars of the disputed khatas and the opinion of the D.D.C. as recorded in his order dated 23.11.1981 that the petitioners could not claim to be the tenure holders of the disputed khatas on the basis of Bhumidhari Sanad granted to them is contrary to law. It was argued by the counsel for the petitioners that in any case the petitioners acquired Bhumidhari rights by acquiescence and estoppel as there were long standing entries in their favour and the findings of the D.D.C. in his order dated 23.11.1981 that the petitioners cannot acquire tenancy rights by acquiescence and estoppel is vitiated by an error of law apparent on the face of record. It was argued that for the aforesaid reasons, the order dated 23.11.1981 passed by the D.D.C. in Revision No. 968 is liable to be set aside and the writ petition deserves to be allowed. In support of his contention, the counsel for the petitioners has relied on the judgements of this Court in Ram Niwaz Vs. Deputy Director of Consolidation, U.P., Lucknow and Others, 1967 RD 400 (LB), Basdeo Minor and Another Vs. Director of Consolidation, U.P., Lucknow, 1970 RD 75 (LB), Kanhaiya Lal and Others Vs. District Deputy Director of Consolidation, Pratapgarh and Others, 1974, ALJ 552, Maksood Khan and Others Vs. D.D.C. and Others, 1970 RD 10 (Hindi), Mewaram and Others Vs. Shankar and Others, 1970 ALJ 1019, Kalawati Vs. Consolidation Officer and Others, 1968 RD 45, Dudh Nath Kori and Another Vs. Smt. Dhamrajja and Another, 1964 RD 324 and an unreported judgement dated 2.5.1995 of this Court passed in Writ-B No. 4623 of 1989 (Bal Govind Ji Mahraj Vs. State of U.P. and Others).

7. Rebutting the argument of the counsel for the petitioners, the counsel for the respondents has argued that Jhuri, i.e., respondent No. 2 was an interested person under Section 9 of the Act, 1953 and the objections filed by him were maintainable. It was argued that Jhuri was was the son of Sheopal and would have succeeded to the estate of Sheopal. It was argued that even a person having a remote interest in the property or an interest in future and an interest in property less than title was an interested person under Section 9 of the Act, 1953 and was therefore entitled to file objections under Section 9 of the Act, 1953, and therefore, respondent No. 2 was an interested person and the objections filed by him were maintainable. It was further argued that Case No. 72/310 was registered under Section 9-A(2) of the Act, 1953 after the same was remanded back by the S.O.C. vide his order dated 15.2.1971 passed in an appeal filed by Sheopal against the order dated 23.5.1970 passed by the A.C.O. It was argued that as Case No. 72/310 was registered on an appeal filed by Sheopal, therefore, the objections of respondent No. 2 were maintainable and the opinion of the C.O. and the S.O.C. that the objections filed by respondent No. 2 were not maintainable were contrary to law and the D.D.C. has rightly decided the case on merits. It was further argued that mere acquisition of Bhumidhari Sanad granted under the Act, 1949 did not create any right in favour of the petitioners and the petitioners did not acquire Bhumidhari rights by acquiescence and estoppel as there was no evidence on record to show that Sheopal had made any representation to the petitioners and the petitioners had acted upon such representation. It was further argued by the counsel for the respondents that the petitioners have not approached the court with clean hands and had committed forgery as would be evident from the order dated 7.7.2015 passed by this Court, therefore, the petitioners were not entitled to a discretionary relief by this Court in exercise of its powers under Article 226 of the Constitution of India. It was argued that for the aforesaid reasons, the order dated 23.11.1981 passed by the D.D.C. is according to law and requires no interference by this Court and the writ petition is liable to be dismissed. In view of his submission, the counsel for the respondents has relied on the judgements of the Supreme Court in Zelia M. Xavier Fernandes E. Gonsalves Vs. Joana Rodrigues and Others, (2012) 3 SCC 188, Ram Bahal and Another Vs. Deputy Director of Consolidation, Azamgarh and Others, (2016) 16 SCC 493, K.C. Kapoor Vs. Radhika Devi & Others, AIR 1981 SC 2128, Mahindra & Mahindra Ltd. Vs. Union of India & Another, AIR 1979 SC 798, and the judgements of this Court in Palakdhari Vs. Deputy Director of Consolidation and Others, 1992 RD 111, Ramayan Singh Vs. Balbhadra Chaubey, 1966 RD 416, Achhaibar and Others Vs. Deputy Director of Consolidation, Varanasi and Others, 2006(1) AWC 397 and Basdeo Minor and Another Vs. Director of Consolidation, U.P., Lucknow, 1970 RD 75 (LB).

8. I have considered the rival submissions of the learned counsel for the parties and perused the record.

9. Before considering the case on merits, it would be appropriate to consider whether the order dated 7.7.2015 passed by this Court disentitles the petitioners from any relief by this Court in exercise of its discretionary powers under Article 226 of the Constitution of India. The order dated 7.7.2015 was passed by this Court on different substitution applications filed in the case for substituting the heirs of the deceased parties. The substitution applications were belated and were therefore accompanied by applications under Section 5 of the Limitation Act and in the delay condonation applications, notices were issued to the deponent of the writ petition to explain certain discrepancies relating to the thumb impression as well as the signatures of the petitioners on the Vakalatnama executed by them. The said discrepancies related to the date of death of petitioner Nos. 15 and 16 as it was stated in the affidavit filed in support of the substitution applications and the delay condonation applications that the said petitioners had died before the date of filing the writ petition. The averments made in the affidavit indicate that the thumb impression and the signatures of petitioner Nos. 15 and 16 were forged on the Vakalatnama. In its order dated 7.7.2015, the Court recorded its opinion that the forgery committed by the petitionersdisentitles them to any relief under Article 226 of the Constitution of India and notices were issued to the deponent of the writ petition. However, the Court vide its order dated 7.7.2015 did not dismiss the writ petition. The notices returned back undelivered with an endorsement that the addressee was not available. A perusal of the order-sheet of the case shows that no subsequent action was taken by this Court against the deponent of the writ petition. However, through a detailed order passed on 17.5.2017, this Court allowed the substitution applications and permitted necessary substitutions in relation to the petitioners including petitioner Nos. 15 and 16. In view of the order dated 17.5.2017 passed by this Court, the heirs of petitioner Nos. 15 and 16 have been substituted as petitioners in the present case and they cannot be refused a hearing on the ground of any alleged forgery committed either by their predecessors or the deponent of the writ petition. The opinion of this Court recorded in its order dated 7.7.2015 was only a prima facie opinion and no conclusions can be drawn regarding the conduct of the petitioners on the basis of the order dated 7.7.2015.

10. In view of the aforesaid, the Court has proceeded to decide the case on merits.

11. The other argument of the counsel for respondent No. 2 was that Case No. 72/310 under Section 9-A(2) of the Act, 1953 was registered after the order dated 15.2.1971 passed by the S.O.C. in an appeal filed by Sheopal whereby the order dated 23.5.1970 passed by the A.C.O. was set aside and the matter was remanded back to the C.O. to pass fresh orders in accordance with law and therefore Case No. 72/310 under Section 9-A(2) of the Act, 1953 was maintainable and cannot be dismissed on the ground that the objections filed by Jhuri were not maintainable. The argument can not be accepted. A reading of the orders dated 8.6.1972 and 27.3.1973 passed by the C.O. and the S.O.C. show that the argument that objections by Jhuri were maintainable as initially appeal against the order dated 23.5.1970 passed by the A.C.O. was filed by Sheopal himself was not raised by respondent No. 2 before the aforesaid authorities and is being raised for the first time before this Court. A reading of the order dated 8.6.1972 passed by the C.O. shows that no objections either by the petitioners or Sheopal were on record and therefore vide order dated 25.6.1971 the court registered Case No. 72/310 on the objections filed by Jhuri on 26.3.1971. The order dated 25.6.1971 was never challenged by respondent No. 2. Further, a reading of the different orders passed by the consolidation authorities would show that before the consolidation authorities, the respondent No. 2 never alleged that any objection or appeal was filed by Sheopal and their plea before the consolidation authorities was that objections of respondent No. 2, i.e., Jhuri was maintainable or that the objections of Jhuri should be treated to have been filed on behalf of Sheopal. The merits of the argument of the counsel for respondent No. 2 can not be considered without investigation into facts, i.e., whether it was Sheopal who had appealed against the order dated 23.5.1970 passed by the A.C.O. or whether the appeal against the order dated 23.5.1970 was only titled as Sheopal Vs. Ram Sakal and filed by someone else. The said inquiry would be necessary in view of the fact that Appeal No. 2482 and Revision No. 968 filed against the orders dated 8.6.1972 passed by the C.O. and 27.3.1973 passed by the S.O.C. are also titled as Sheopal Vs. Ram Sakal and Others. The petitioner or the respondents have not brought on record any document to enable the court to record a finding as to whether Appeal No. 2482 and Revision No. 968 or the previous appeal filed against the order dated 23.7.1970 were actually filed by Sheopal or the cases were merely titled as Sheopal Vs. Ram Sakal and actually filed by respondent No. 2. In any case, as the order dated 25.6.1971 was never challenged by the respondents and the only objections on record is the objection dated 26.3.1971 filed by Jhuri, i.e., respondent No. 2, the argument of the respondents can not be accepted.

12. In view of the aforesaid, the issues arising in the present writ petition are whether the objection filed by Jhuri on 26.3.1971 registering Case No. 72/310 was maintainable under Section 9 of the Act, 1953 and whether in the facts of the case and in light of the evidence on record, the petitioners were entitled to be recorded as tenure holders of the disputed khatas.

13. The dispute regarding maintainability of objections filed by Jhuri, i.e., respondent No. 2 under Section 9 of the Act, 1953 relates to jurisdiction of the consolidation authorities to decide any dispute under Section 9-A(2) of the Act, 1953. In case a person filing objections under Section 9 of the Act, 1953 has no locus standi, the consolidation authorities do not acquire the jurisdiction to decide any dispute raised through the objections. [Kanhaiya Lal (Supra)]. A court cannot decide on the merits of the dispute if it does not have the jurisdiction to decide the same. (Paragraph No. 13 of Athmanathaswami Devasthanam Vs. K. Gopalaswami Ayyangar, AIR 1965 S.C. 338).

14. Thus, the first issue that has to be decided in the present writ petition is whether the objections filed by respondent No. 2 were maintainable under Section 9 of the Act, 1953. It is relevant to note that the D.D.C. has not decided the aforesaid issue and has decided the case on merits. As the matter is pending in this Court since 1981 and before the consolidation authorities since 1971 and relates to question of law and the counsel for the parties have argued on the issue regarding maintainability of objections filed by respondent No. 2, therefore it would be futile to remand back the matter to the D.D.C. to record his findings on the issue and the Court has itself proceeded to decide the issue. A decision on the other issues would be necessary only if the decision on the issue regarding maintainability of the objections would be against the petitioners, i.e., if it is held that the objections filed by respondent No. 2 were maintainable.

15. After considering the testimony of different witnesses and on the ground that respondent No. 2 had not produced any documentary evidence to show that his father Sheopal was an idiot or lunatic, the C.O. and the S.O.C. have recorded a concurrent finding that Sheopal, i.e., the father of respondent No. 2, i.e., Jhuri was not insane/mad, and therefore, did not suffer from any legal disability. While recording a finding against respondent No. 2 regarding the legal disability of Sheopal, the C.O. and the S.O.C. also took note of the fact that Sheopal had executed sale-deeds dated 10.10.1956 and 11.2.1959. The findings recorded by the C.O. and the S.O.C. that Sheopal did not suffer from the legal disability pleaded by respondent No. 2 are findings of facts based on evidence on record and there is no perversity in the aforesaid findings. The respondent No. 2 has not filed any document to controvert the said findings of the C.O. and the S.O.C. The said findings have not been reversed by the D.D.C. in his impugned order dated 23.11.1981 and are not amenable to interference by this Court under Article 226 of the Constitution of India.

16. Even assuming that Sheopal suffered from the legal disability as alleged by respondent No. 2, i.e., he was either idiot or lunatic or suffered from any other mental infirmity, any objections on his behalf could have been filed by a person appointed as a guardian under Rule 14 of the Rules, 1954. It is not the case of respondent No. 2 that he was appointed as a guardian of Sheopal under Rule 14 of the Rules, 1954. It is also not the case of respondent No. 2 that any power of attorney was executed by Sheopal in his favour or that he was the recognized agent of Sheopal. It was not the case of respondent No. 2 either before the consolidation courts or before this Court that he, in any manner, was authorized by Sheopal to file the objections on his behalf. For the aforesaid reasons, the objections filed by respondent No. 2 allegedly to protect the interest of Sheopal cannot be considered as objections filed on behalf of Sheopal.

17. The decision on the issue regarding maintainability of objections filed by respondent No. 2, thus, depends on the answer to the question whether Jhuri, i.e., respondent No. 2 can be considered to be a 'person interested' under Section 9 of the Act, 1953 because a tenure holder or a 'person interested' is entitled to file objections under Section 9 of the Act, 1953.

18. The dispute in the present case relates to land covered by the definition of 'Land' under Section 3(14) of the Act, 1950, and therefore the substantive rights of the parties are governed by the Act, 1950. Respondent No. 2 is the son of Sheopal.

19. The phrase 'person interested' is used in Section 9 in addition to the word 'tenure holder'. Tenure holder has been defined in Section 3(11) of the Act, 1953 to mean a bhumidhar with transferable or non-transferable rights and includes an asami, a Government lessee or Government grantee, or a co-operative farming society satisfying such conditions as may be prescribed. The Act, 1950 recognizes interests in property other than those enumerated in Section 3(11) of the Act, 1953 e.g., a lessee under Sections 156/157 of the Act, 1950 and in certain circumstances, a mortgagee. The definition of tenure holder in Section 3(14) of the Act, 1953 is not identical to definition of tenure holder in Section 129 of the Act, 1950. Government grantee or a co-operative farming society are not included in the definition of a tenure holder in Section 129 of the Act, 1950 but have been included in Section 3(14) of the Act, 1953. The phrase 'person interested' used in Section 9 of the Act, 1953 has the effect of conferring the right to file objections on persons who already have a vested right in the holdings recognized either by the Act, 1950 or Act, 1953. The phrase can not be interpreted as acknowledging an interest in the property not recognized either by the Act, 1953 or the Act, 1950.

20. Under Section 171 of the Act, 1950 the son is one of the heirs of a Bhumidhar. However, under the Act, 1950 the Bhumidhar is the absolute owner of agricultural holdings and the sons or other heirs do not have any right in the agricultural holdings by reasons of their birth and during the lieftime of the original Bhumidhar. The right of the son under the Act 1950 arises on the demise of the father and not prior thereto. The chances of a son inheriting the holdings of which his father is the Bhumidhar materialises only if the father retains the holdings till his death. The father has the absolute right (subject to certain restrictions imposed by the Act, 1950 which are not relevant in the present case) to dispose of the property either by sale, gift or through any other mean and also has the right to execute a Will of his agricultural holdings if he is a Bhumidhar with transferable rights. It is evident that the chances of a son inheriting the agricultural holdings of his father depends on many contingencies. The Act, 1950 does not recognize any contingent right of succession. The son of a tenure holder under the Act, 1950 does not inherit any interest or right during the lifetime of his father, i.e., the original Bhumidhar and therefore he does not have any interest in any estate which can be defended or protected. The right to inherit a property in future by operation of a statutory provision can, at best, be referred to as a contingent right which may or may not metamorphose into a legal interest depending on the occurrence or non-occurrence of certain events. A future right of succession does not create any present legal interest or an enforceable claim in the heir during the lifetime of the Bhumidhar. If, the son during the lifetime of his father does not have any legal interest in the holdings of his father then he also does not have any right to question any claim raised by any other person against his father because no one can question an infirm title unless he himself has a better title. [Kanhaiya Lal (Supra)].

21. At this stage, it would be relevant to consider the judgements referred by the counsel for respondent No. 2 in support of his contention that respondent No. 2 was a person interested under Section 9 of the Act, 1953.

22. The counsel for respondent No. 2 has relied on the observations of the Supreme Court in Paragraph No. 17 of its judgement in Zelia (Supra) to argue that a right in the nature of property can be less than a title. The observations of the Supreme Court in paragraph No. 17 are reproduced below :-

"17. In P. Ramanatha Aiyar's The Law Lexicon, 2nd Edition (Reprint 1999) the term "interest" is explained thus:

"Interest -Legal concern, right, pecuniary stake the legal concern of a person in the thing or property or in the right to some of the benefits or use from which the property is inseparable; such a right in or to a thing capable of being possessed or enjoyed as property which can be enforced by judicial proceedings. The word is capable of different meanings, according to the context in which it is used or the subject-matter to which it is applied. It may have even the same meaning as the phrase "right title and interest" but it has been said also to mean any right in the nature of property, but less than title. The word is sometimes employed synonymous with estate, or property.

'Interest means concern, advantage, good ; share, portion, part, or participation.'

A person interested is one having an interest ; i.e. a right of property or in the nature of property, less than title.

The word 'interest' in the broadest term applicable to claims in or upon real estate, in its ordinary signification among men of all classes. It is broad enough to include any right, title, or estate in or lien upon real estate. One who holds a mortgage upon a piece of land for half its value is commonly and truly said to be interested in it.

The word "interest" has a basic meaning of participation in advantage, profit and responsibility. "Interest" is a right, title or share in a thing."

(Emphasis added)

23. A reading of the observations of the Supreme Court reproduced above would show that interest is a legal concern in or to a thing capable of being possessed or enjoyed as property which can be enforced by judicial proceedings. Interest has a basic meaning of participation in advantage, profit and responsibility. Under the Act, 1950, an heir of a Bhumidhar has no right to possess or enjoy the property which can be enforced by judicial proceedings and also has no judicially enforceable right to share in the profit or responsibility or advantage of the holdings of the Bhumidhar. The heir of a Bhumidhar has no vested right in the holdings. There is nothing in the observations of the Supreme Court to indicate that a person would have an interest in the property even if no judicially enforceable right regarding the property vests in him but he may have a chance to acquire the property in future on the occurrence or non-occurrence of certain events. It is true that an interest in property can be less than a title but it should be a right capable of being possessed or enjoyed as property and be judicially enforceable. A more heir has no such right.

24. The other case that was relied upon by respondent No. 2 was the judement of this Court in Basdeo (Supra). In Basdeo (Supra), this Court held that right of transfer and hereditability were two essential attributes of ownership of property and referred to Pollock to describe ownership as the entirety of the powers of use and disposal allowed by law. The Court also observed that the owner of a thing is not necessarily the person who at a given time had the whole power of use and disposal and a person will be owner even if the immediate power of control and use was elsewhere. The observations of this Court have to be read in the context of the facts of the said case where a person claiming rights in the property had a residuary right under a compromise as he was the sole heir of the last male owner and the other party to the compromise was given two plots for her lifetime without any right of sale or mortgage. It is evident that in Basdeo (Supra) the person who had filed objections under Section 9 of the Act, 1953 had a vested right in the holdings. Also, in Basdeo (Supra), it was held that right of transfer was one of the essential attributes of ownership. A Bhumidhar is the absolute owner of his holdings and his heir has no right of transfer during the lifetime of the Bhumidhar. In the present case, it is not the case of respondent No. 2 that there was any agreement or compromise or a family settlement between him and his father Sheopal regarding the disputed plots creating any right in favour of respondent No. 2 in the disputed property.

25. In Palakdhari (Supra), the objections by a member of the Gaon Sabha were held to be maintainable in view of Section 11-C of the Act, 1953 by virtue of which the consolidation authorities are empowered to direct that a plot shall vest in the Gaon Sabha if during the course of objection, appeal or revision it transpires that the land had vested in the Gaon Sabha or the State even though no objections were filed by Gaon Sabha or the State at the proper stage. The judgement of this Court in Palakdhari (Supra) is not applicable in private dispute between rival claimants. The judgement of this Court in Palakdhari (Supra) is in light of Section 11-C of the Act, 1953 and is thus not applicable in the present case.

26. In light of the above discussion, the phrase 'person interested' used in Section 9 of the Act, 1953 has to be read as person having a vested right in the holding and not some contingent right which may arise in future.

27. It is evident that during the lieftime of Sheopal, respondent No. 2 had no vested right in the disputed property and no interest in the holdings which he could have defended or protected and therefore respondent No. 2 was not a person interested under Section 9 of the Act, 1953. Therefore the objections of respondent No. 2 registering Case No. 72/310 under Section 9-A(2) of the Act, 1953 were not maintainable. At this stage it would be relevant to refer to the observations of this Court in Kanhaiya Lal (Supra) in paragraph No. 23 :-

"23. Now the question about the locus sandi of an objector under Sec. 9 is a question which affects the very jurisdiction of the Consolidation Officer to proceed in the matter. It is only at the instance of an interested part that he can proceed to dispose of the controversy. If a party is not an interested party then no objection can be entertained under Sec. 9 at his instance. It will be strange if at the instance of a complete stranger the name of the existing tenure holder is removed and the name of another person is mutated even though the latter has himself not filed any objection. In the present case even though Rani Vishwa Kumari Devi did not claim any right with respect to the plots in question, still, her name has been directed to be entered as bhumidhar of the plots in question at the instance of a complete stranger i.e. Lal Pratap Bahadur Singh. Apart from the language of Se. 9 which speaks of a 'person interested', in general law such a course is not permissible. It will be almost compelling a person to be mutated as a tenure holder even though he may not be willing to do so. In being entered as a tenure holder certain liabilities will also come into existence. The recorded tenure holder will be bound to pay the dues of the State in respect of the plots in question. It is inconceivable that a party can be compelled to be subject to such liabilities at the instance of a rank stranger who has no interest in the plots in question and as such who has no locus standi to file objections. All these considerations lead to the conclusion that before the jurisdiction of the Consolidation Officer can be invoked under Section 9. the objector must be a person interested and only then he will have a locus standi to file objection on the basis of which the Consolidation Officer will proceed to decide the controversy between the parties. If the objections are filed at the instance of a rank stranger, the Consolidation Officer has no jurisdiction to act in the matter and to direct the name of the recorded tenure holder to be elected."

(Emphasis added)

28. Thus, the objections filed by respondent No. 2 were not maintainable and the merits of the claim of respondent No. 2 or Sheopal at the instance of respondent No. 2 could not have been considered by the consolidation authorities.

29. For the aforesaid reasons, the order dated 23.11.1981 passed by the Deputy Director of Consolidation, Ghazipur, i.e., respondent No. 3 in Revision No. 968 is liable to be set aside.

30. In view of the aforesaid, no findings are required on the other issue raised in the writ petition regarding the merit of the claim of either side.

31. The order dated 23.11.1981 passed by the Deputy Director of Consolidation, Ghazipur, i.e., respondent No. 3 in Revision No. 968 is hereby set aside.

32. The writ petition is allowed.

Order Date :- 14.5.2019

Anurag/-