Sheo Bahadur And Others vs Deputy Director Of Consolidation ...
2021 Latest Caselaw 6995 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 17 / Reserved
 

 
Case :- CONSOLIDATION No. - 4028 of 1987
 

 
petitioner :- Sheo Bahadur And Others
 
Respondent :- Deputy Director Of Consolidation And Others
 
Counsel for petitioner :- R.S. Pandey,A.P.Singh Vatsa,Abhijeet Bharti,Ajay Kumar,Brijesh Kr.Yadav
 
Counsel for Respondent :- C.S.C.,Nitin Kumar Mishra,Rakesh Sharma
 

 
Hon'ble Rajnish Kumar,J.

1. Heard, Shri A.P. Singh Vatsa, learned counsel for the petitioner and Shri Nitin Kumar Mishra, learned counsel for opposite party no.4. Notice on behalf of opposite parties no.1 and 2 has been accepted by learned Chief Standing Counsel. None appeared for opposite party no.3.

2. This petition has been filed challenging the judgment and order dated 03.03.1981 passed by the Consolidation Officer and judgment and order dated 09.02.1987 passed by the Deputy Director of Consolidation (here-in-after referred as D.D.C.).

3. The brief facts, for adjudication of the case in hand, are that the dispute relates to Gata Nos. 216, 187, 271, 273 and 170 of Khata Nos.33 and 34 situated at Village- Fatehpur, Pargana- Jagdishpur, Tahsil- Musafirkhana, District- Sultanpur. The name of the respondent no.3 was recorded in the basic year in Khata Nos.33 and 34. On publication of records two objections were filed. One by Bechu son of Ganga Deen, who was found in possession in the enquiry (Padtal) on plot nos. 216, 271 and 273, claiming on the basis of sale deed executed by the petitioner. The second objection was filed by the petitioner namely Sheo Bahadur son of Ram Aadhar denying that the respondent no.3 is the daughter of the petitioner no.1 and claimed for recording his name and deleting the name of the respondent no.3. The aforesaid two objections were opposed by the respondent no.3 through his guardian Shatrughan son of Mahadev as respondent no.3 was minor. He stated that sale deed executed by Sheo Bahadur son of Ram Aadhar in favour of Bechu is a fraudulent document as the same has been executed by Bahadur son of Ram Aadhar impersonating him as Sheo Bahadur because Sheo Bahadur had died much before execution of sale deed. It was asserted that the respondent no.3 Km. Nirmala was the daughter of Sheo Bahadur and the only legal heir.

4. Ram Aadhar father of the petitioner no.1 Sheo Bahadur was the original tenure holder of the land in dispute. After his death Sheo Bahadur was recorded. Thereafter an application for mutation was filed by the respondent no.3 which was allowed on 15.05.1978, against which an appeal under Section 210 was filed which was rejected on 29.01.1979. The appellate order was challenged before the Commissioner, Faizabad now Ayodhya and on commencement of consolidation operations on 17.10.1979, the revisions were abated and the aforesaid objections were filed under Section-9 (2) of the Consolidation of Holdings Act, 1953 (here-in-after referred as the Act of 1953).

5. On the basis of pleadings two issues were framed. One of which was as to whether the plaintiff is Bhumidhar on the basis of adverse possession on the land in dispute and the other as to whether Bechu is Bhumidhar of land in dispute on the basis of sale deed as has been stated by him. During pendency of the objections before the Consolidation Officer, Bechu died therefore his sons i.e. petitioner no.2 and 3 were substituted. After the evidence adduced by the parties and considering the same, the objections of Bechu and Sheo Bahadur were rejected. The appeal was filed by the petitioners under Section 11(1) of the Act of 1953, which was allowed by means of the order dated 04.06.1986. Hence the revision bearing no.1883 was filed under Section-48 of the Act of 1953 by the respondent no.3 which was allowed by the D.D.C. by means of the order dated 09.02.1987 and the order passed by the Settlement Officer of Consolidation (here-in-after referred as S.O.C.) was quashed and the order passed by the Consolidation Officer was approved. Hence the present writ petition has been filed. During pendency of the present writ petition the opposite party no.4 namely Waziha Begum was impleaded as respondent no.3 sold the land in dispute to her.

6. Learned counsel for the petitioners submitted that the Consolidation Officer had rejected the objections and D.D.C. approved the order passed by the Consolidation Officer on the ground that the petitioner no.1, who was alleged to have died before the execution of sale deed by him in favour of Bechu, had not appeared for evidence without considering other evidence adduced before it. The petitioner is still alive and contesting the present writ petition and no cogent evidence of death of the petitioner was filed. The appellate authority, after considering the evidence and material on record, had allowed the objections but the revisional authority without setting aside the finding recorded by the appellate authority upheld the order passed by the Consolidation Officer, therefore it is not sustainable. The mother of the petitioner had remarried after death of his father and the petitioner had gone with her to the other village, where he was married and the respondent no.3 is not daughter of the petitioner no.1, which was proved by the evidence of mother of the petitioner no.1 namely Ram Kala but the same has not been considered.

7. On the basis of above, learned counsel for the petitioners submitted that the learned courts below have erred in holding that the petitioner no.1 had died before execution of sale deed and respondent no.3 is the daughter of the petitioner no.1 and the court has failed to extract the truth. Therefore the impugned orders are not sustainable in the eyes of law and liable to quashed and the writ petition is liable to be allowed.

8. Learned counsel for the petitioner has relied on judgment of Hon'ble Apex Court in the case of State of Rajasthan and Others Vs. Shiv Dayal and Others; Civil Appeal No.7363 of 2000, Ram Pyarey and Others Vs. J.D.C., Sultanpur and Others; 2019 (37) LCD 697 and judgment and order dated 26.11.2014 passed in Hari Bans Vs. D.D.C. and Others; Writ Petition Consolidation No.471 of 1992 by this Court.

9. Per contra, learned counsel for the respondent no.4 vehemently opposed the submissions of learned counsel for the petitioners. He submitted that the impugned orders have rightly been passed in accordance with law. There is no illegality or infirmity in it. The Consolidation Officer had made the issue no.1 as to whether the plaintiff is entitled on the basis of adverse possession. Bechu had not appeared in evidence, who was claiming to have purchased the land from the petitioner no.1 through a sale deed. The evidence of mother of the petitioner no.1 Ram Kala of other case was considered but she was not produced so her cross-examination could also not be recorded. In fact the petitioner no.1, despite specific allegation that he had died before execution of sale deed, never appeared for evidence and cross-examination.

10. The petitioner no.1 had earlier filed a suit under Section 209 through his grandfather Mahadev as guardian, from which it is apparent that after mother of Sheo Bahadur remarried, he lived with his grandfather. But it has not been considered. The brothers of Sheo Bahadur were not produced. In fact Bahadur was impersonating him as Sheo Bahadur. The death of Sheo Bahadur was proved by the evidence of person who took him to hospital and with whom he was working. On the basis of above, learned counsel for the respondent no.4 submitted that the writ petition has been filed on misconceived and baseless grounds which is liable to be dismissed.

11. I have considered the submissions of learned counsel for the parties and perused the records.

12. The Consolidation Officer, on the basis of pleadings of the parties, had framed two issues as disclosed above and observed that only two questions are to be decided. One as to whether Sheo Bahadur, who is contesting, is not actually Sheo Bahadur and the other as to whether the sale deed executed in favour of Bechu has not been executed by Sheo Bahadur son of Ram Aadhar and Sheo Bahadur had died before execution of sale deed. The appellate authority has also recorded that the main issue in this case is the death of Sheo Bahadur and Km. Nirmala is the daughter of Sheo Bahadur. Learned D.D.C. also, after recording the statement of parties, has observed that the main issue for adjudication in the case is as to whether Sheo Bahadur is alive or has died and as to whether Bahadur is contesting the case impersonating him as Sheo Bahadur and he has executed the sale deed impersonating Sheo Bahadur in favour of Bechu. Submission of learned counsel for the petitioners was also that it is a case where the petitioner no.1 is proving him to be alive.

13. It is not in dispute that in the basic year the name of the respondent no.3 was recorded. It was on the basis of an order passed by Tahsildar in a mutation proceeding in Case No.362 under Section-34 of Land Revenue Act on 15.05.1978, which was challenged in appeal which was rejected on 29.01.1979 against which a revision was filed which was pending on the date of start of consolidation operation on 17.10.1979 therefore the proceeding abated.

14. The petitioner no.1 had filed objection under Section 9(2) of the Act of 1953 alleging that he is still alive and is residing in Niwajgarh and executed the sale deed. The respondent no.3 is not the daughter of Sheo Bahadur but Shatrughan had got the land in dispute recorded in the name of the respondent no.3 as guardian. The objection of the respondent no.3 was that Sheo Bahadur had died in 1974-75 before execution of sale deed on 13.04.1976 in respect of Khata No.33 and Gata Nos.216 and 187. Therefore the sale deed could not have been executed by him and it was got executed by impersonation by some other person. The plea of the petitioner is that the mother of the petitioner Ram Kala wife of Ram Aadhar, after death of his father, had started living with Golai resident of Khem Mau. The name of Sheo Bahadur was recorded after the death of Ram Aadhar, but since he had gone with her mother to other village after her remarriage, respondent no.3 through her guardian Shatrughan had got recorded her name depicting her as daughter and Sheo Bahadur dead, while he is alive.

15. The contention of the petitioner has not found favour by the Consolidation Officer on the basis of evidence adduced before it and the D.C. C. approved it. The contention of the petitioner that Sheo Bahadur had gone with his mother after remarriage is not correct because Sheo Bahadur had filed Case No.134 of 2012 through his grandfather Mahadev under Section-209 therefore he was residing with his grandfather otherwise the said suit should have been filed by the mother of Sheo Bahadur as guardian. Much reliance has been placed on the statement of mother of the petitioner no.1 Ram Kala. She stated that the respondent no.3 is not daughter of the petitioner no.1 but the said statement has not been recorded in the proceeding before the Consolidation Officer and she was not produced for cross-examination. On the basis of evidence, it has been found that Sheo Bahadur son of Ram Aadhar was working as servant for 5-6 years with Pradhan of Dhanpatganj @ Atarsuva Kala and died before him. It was proved by his evidence. The same has been discarded by the appellate authority merely on the ground that entry of the same was not in the Register produced by Dr. V.N. Khare, Medical Officer though it was admitted by the medical officer in cross-examination that Dr. Sharif, who had treated the petitioner, was in the hospital and considering the evidence of other case.

16. It has not been disputed that Sheo Bahadur was born from Ram Kala and Ram Aadhar and after remarriage of Ram Kala three sons Ram Teerath, Ram Dheeraj and Bahadur were borne from Golai. The allegation is that Bahadur was contesting the case impersonating him as Sheo bahadur. Despite this allegation and strong contest, Sheo Bahadur never appeared before the Consolidation Officer or even thereafter when the objection was rejected holding that Sheo Bahadur son of Ram Aadhar had died before the Consolidation operation in 1974-75. The allegation was that Bahadur had executed the sale deed and contesting the case impersonating him as Sheo Bahadur therefore it was incumbent upon the petitioners to produce both Bahadur son of Golai and Sheo Bahadur son of Ram Aadhar for evidence and cross-examination simultaneously. But Sheo Bahadur never appeared. Therefore, it is apparent that Sheo Bahadur had died and in his place the name of the respondent no.3, who was his daughter was recorded.

17. The learned D.D.C., after considering the evidence and the material available on record, found that the S.O.C. has passed the order without considering the facts and circumstances of the case and the Consolidation Officer has passed the correct order, therefore it can not be said that the finding recorded by the appellate authority have not been considered and the findings recorded by the appellate authority stands set-aside.

18. This Court in the case of Hari Bans Vs. D.D.C. and Others (Supra) has dealt with the revisional authority under Section 48 of the Act of 1953 has held that it has not examined the correctness and propriety of orders passed by the subordinate authority then it is not sustainable. In the present case it is not so.

19. This Court in the case of Ram Pyarey and Others Vs. J.D.C., Sultanpur and Others (Supra) has held that the D.D.C. ought to have considered the reasons and findings given by the Court below and could have only interfered in the matter after setting-aside the same by giving cogent reasons therefore.

20. The Hon'ble Apex Court in the case of State of Rajasthan and Others Vs. Shiv Dayal and Others (Supra) has held that if the Appellate Court affirms the finding, it is called "concurrent finding of fact" whereas if the finding is reversed, it is called "reversing finding". In the present case learned D.D.C. has affirmed the order passed by the Consolidation Officer.

21. Section 101 of the Evidence Act, 1872 (here-in-after referred as Act of 1872) provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 102 provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Section 103 provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

22. In the present case the petitioner no.1 is asserting that he is alive therefore the burden was on him to prove by cogent evidence that he was alive but he has failed to do so and he has even never appeared before court therefore this Court is of the view that the petitioner has failed to discharge his burden so his contention can not be accepted and is rejected.

23. In view of the aforesaid discussions and considering the overall facts and circumstances of the case, this Court is of the view that there is no illegality or error in the impugned orders and the writ petition has been filed on misconceived grounds, which lacks merit and liable to be dismissed.

24. The writ petition is, accordingly, dismissed. No orders as to cost.

.............................................................(Rajnish Kumar,J.)

Order Date :- 05.07.2021

Haseen U.