Ram Lakhan vs J.D.C. & Others
2021 Latest Caselaw 7779 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

                                                                                                         AFR
 
Court No.17/Reserved					
 
Case :- CONSOLIDATION No. - 4845 of 1985
 

 
Petitioner :- Ram Lakhan
 
Respondent :- J.D.C. & Others
 
Counsel for Petitioner :- A.S.Chaudhary,Arun Kumar Yadav,Prabhakar Vardhan Chaudha
 
Counsel for Respondent :- C.S.C.,S.P.Tiwari
 

 
Hon'ble Rajnish Kumar,J.

1. Heard, Sri P.V. Chaudhary, learned counsel for the petitioner and Sri S.P. Tiwari, learned counsel for the private respondents. Chief Standing Counsel has accepted notice on behalf of opposite party no.1.

2. The instant writ petition has been filed challenging the judgement and order dated 29.08.1985 passed by the opposite party no.1 i.e. Joint Director of Consolidation, Sultanpur(here-in-after referred as JDC).

3. The dispute relates to Plots of Gata No.47, situated in Village-Tihra, Pargana-Barosa,Tehsil and District-Sultanpur, which was recorded in the names of the petitioner-Ram Lakhan(now the deceased) and Ram Deen, son of Budhai, and uncle of the petitioner in the basic year. A joint objection dated 23.12.1978 was filed by Smt.Jhabra, the opposite party no.2(now deceased) and Ram Kishun, son of Budhai (now deceased), claiming co-tenancy in the disputed gata. The Consolidation Officer, by means of the order dated 24.11.1980, rejected the claim of Ram Kishun and Har Deen and determined the share of the petitioner as 2/3rd and the opposite party no.2 as 1/3rd in Gata No.47. Two appeals, bearing no. 790(Ram Lakhan versus Smt. Jhabra and others) and 371(Ram Kisun versus Ram Lakhan and others), were filed against the order dated 24.11.1980 under Section 11(1) of the U.P. Consolidation of Holdings Act, 1953 (here-in-after referred as the Act of 1953). The appeals were dismissed by means of the order dated 21.05.1981. Hence two revisions, bearing no.1058(Ram kishun versus Ram Lakhan) and 1059(Ram Lakhan versus Smt. Jhabra), under Section 48 of the Act of 1953 were filed. The revision of the opposite party no.2 was allowed and the revision of the petitioner was dismissed by means of the order dated 29.08.1985 and the order passed by the Settlement Officer Consolidation and Consolidation Officer have been amended accordingly and share of the opposite party no.2 has been determined as 2/3rd and share of the petitioner as 1/3rd in the land in dispute. Hence, the present writ petition was filed.

4. Submission of learned counsel for the petitioner was that the opposite party no.2 had set up the pedigree in the objection, in which the land in dispute was said to have been acquired by Bankey, and thereafter, the name of his three sons Jokhu, Budhai and Ghoghar were jointly recorded. Subsequently, by amendment in the objection, added 'alias Paltan' with Bankey and 'alias Golan' with Ghoghar, as land in dispute was recorded in the name of Paltan and thereafter in the name of Jokhu son of Paltan. Therefore, merely by adding alias Paltan, the opposite party no.2 does not get right without any proof that Bankey and Paltan were one and the same person, and similarly, Ghoghar and Golan. Ram Harakh son of Jokhu, Budhai son of Bankey and Ghoghar son of Bankey died prior to Jokhu. On the death of Jokhu, Ram Din, Sarva Din and Ram Kishun succeeded in equal share. The objection was filed by the petitioner claiming that the name of Ram Din was wrongly recorded as he never remained in possession. The father of the petitioner;Sarvadeen had separated from his family/brothers and lived with Mahdei, wife of Ram Harakh, son of Jokhu as Ghar Baitha. Some of the plots were acquired by Paltan, who was grand father of Ram Harak. Pedigree given by the petitioner was different, in which Paltan was the original tenant. Thereafter, the land devolved on Jokhu his son, and thereafter, on Mahdei. Thereafter it was settled with Sarvadeen by the Zamindar. As such, he was the sole tenant. The opposite party no.2 was claiming on the basis of Will, which was not proved. The period and rent of the land in dispute was changed and it was not in the same form. Since the land in dispute was acquired by Paltan which had come to the widow of Ram Harakh i.e. Smt. Mahdei, with whom the father of the petitioner had started living. He got the land of Mahdei. Therefore, the petitioner is only entitled to succeed even if the petitioner is treated to be illegitimate child of his father and Smt. Mahdei. Lastly, he had submitted that the learned JDC, without setting aside the findings, recorded by the Consolidation Officer and the SOC, has allowed the revision of the opposite party no.2 and rejected the revision of the petitioner ,which could not have been done, as there was concurrent findings.

5. Learned counsel for the petitioner has relied on 2014(32) LCD 2629; Hari Bans Versus Deputy Director of Consolidation and others, 1984(2) LCD 398; Jagdamba Singh and others Versus Deputy Director of Consolidation and others and AIR 1961 2 SC 1334; Singhai Ajit Kumar versus Ujayar Singh.

6. Per contra, learned counsel for the opposite party no.2 submitted that after death of Bankey @ Paltan, the land in dispute came jointly to his sons, Jokhu, Budhai and Ghoghar @ Golan. After death of Jokhu, his share was devolved on Ram Harak, and after death of Budhai, his share devolved to his five sons, namely, Ram Deen, Sarvadeen, Ram Kishun, Panchu and Hardeen. Panchu died issueless and Hardeen was residing in some other village. As such, Ram Deen, Sarva Deen and Ram Kishun became the co-tenant in equal shares, as the share of Panchu was divided in his three brothers and since Hardeen was residing in some other village, he had no share. Ramdeen, father of the opposite party no.2, had executed a Will in favour of the opposite party no.2 on 16.08.1989 and Ram Kishun had also executed a Will in favour of the opposite party no.2 on 05.05.1978. Therefore, the opposite party no.2 is entitled for 2/3rd share and the petitioner, for the share of Sarvadeen. As such, there is no illegality or infirmity in the impugned order. Therefore, the writ petition is misconceived and liable to be dismissed.

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

8. The dispute relates to Plots of Gata No. 47. During consolidation proceedings, two objections were filed. The opposite party no.2 had claimed on the basis of Will executed by Ram Deen and Ram Kishun and set up the following pedigree:-

        ___________________       Bankey (alias Paltan)___________________
 
       I                                                                I                                              I
 
Jokhu                                                         Budhai                                Ghoghar
 
    I                                                                  I
 
Ram Harakh
 
(died issueless)            ___________________________________                                     
 
                                           I                          I                                  I
 
                                  Ram Deen          Sarva Deen            Ram Kishun
 
                                         I                            I
 
                                     Smt. Jhabra      Ram Lakhan(son)
 

9. The petitioner had filed the objections, claiming the land in dispute, on the ground that his father had started living with Mahdei, wife of Ram Harak and he was their son. Therefore, the land which had come to Mahadei as widow of Ram Harak, should have been devolved on the petitioner, the only legal heir. He set up the following pedigree:-

Paltan

I

Jokhu

I

Ram Harakh=Mahdei

10. The pedigree was amended subsequently by the opposite party no.2 on the application allowed by the Consolidatoin officer and 'alias Paltan' with Bankey and 'alias Golan' with Ghoghar was added. The parties adduced their evidence before the Consolidation officer. On behalf of the objector Hardeen, his son Parasnath was examined. He stated in his evidence that Hardeen had 5 brothers, namely, Sarvadeen, Hardeen, Ram Deen, Ram Kishun and Panchu. Name of the father of the Hardeen was Budhai, who had three brothers, namely, Jokhu, Budhai and Golan. Name of their father was Paltan. Ram Harak was the son of Jokhu. The petitioner Ram Lakhan is the son of Sarvadeen. Among the five brothers Sarvadeen died at first. Thereafter, Panchu died. He also stated that the land in dispute was made by Paltan. In his sons, Jokhu was the eldest, so after death of Paltan, the land in dispute was rcorded in the name of Jokhu as Karta of the family.

11. On behalf of the opposite party no.2, her husband Ram Nihore appeared in evidence. He gave the following pedigree:-

______________ [email protected] Bankey_______________________

I I I

Jokhu [email protected] Budhai

I I I

Ram Harakh I ___________________

______________ _I________________ I I

I I I Ram Deen Ram Kishun

Panchu Sarva Deen Har Deen

I

Ram Deen

He also stated that the land in dispute was made by Paltan, in which Ram Deen, Sarva Deen and Ram Kishun had 1/3rd share each. Hardeen had no share. Panchu had died issueless.

12. On behalf of the petitioner, the petitioner himself and Ram Sahay appeared in evidence. The petitioner stated that he had got the land in dispute from his father Sarvadeen. Jokhu was not from his family, and the name of the son of Jokhu was Ram Harak. Widow of Ram Harak was Mahdei. His father had started living with Mahdei as Ghar baitha. His father had got all the land and property of Ram Harak. The name of the father of the Jokhu was Paltan. It was also stated that the petitioner was born from his father and Mahdei. The name of the father of Jokhu is not Bankey. The other witness Ram Sahay also stated that Sarva Deen had gone to Mahdei as Ghar Baitha and supported the evidence of the petitioner and stated that the petitioner is in exclusive possession of the land in dispute and denied the possession of Hardeen, Ram Kishun etc. He also supported the pedigree of Paltan given by the petitioner and further stated that Paltan was not called as Bankey.

13. The Consolidation Officer after considering the evidence, rejected the objections of Ram Kishun and Hardeen, and allowed the objections of opposite party no.2, Smt. Jhabra and determined his share as 1/3rd on the basis of Will executed by Ram Deen in her favour and 2/3rd in the name of Ram Lakhan. The SOC dismissed the appeals.

14. Initially, the opposite party no.2 and the other objectors, who subsequently left the contest claimed the land in dispute on the basis of pedigree which started from Bankey, but after filing of the objection, the alias was added by way of amendment with Bankey but it has not been proved by any cogent evidence that Bankey and Paltan were one and the same person and it was being recorded as 'alias Paltan' or 'Paltan alias Bankey' in revenue records. The Consolidation Officer has recorded a categorical finding that alias is not recorded alongwith Paltan in the revenue records and the objectors i.e. opposite party no.2 and others had also not stated initially Bankey alias Paltan, but subsequently, Paltan was got added by way of amendment. Accordingly, he recorded a finding that Jokhu was not from the family of the pedigree given by the objectors. The revisional authority also recorded that in the revenue records, there was no entry in the name of Bankey alias Paltan. The entry was in the name of Jokhan son of Paltan in second settlement, and in the first settlement the name of the Paltan was recorded. The land in dispute was also never recorded in the name of Ghoghar @ Golan.

15. In view of above, it is not in dispute that the land in dispute was made by Paltan. Thereafter, it came to Jokhu then to Ram Harak and thereafter to his widow Mahdei. Since father of the petitioner Sarva Deen had started living with Mahdei, widow of Ram Harak,it was recorded in the name of the petitioner. The objection was filed. On coming to know that it was initially recorded in the name of paltan, alias was added with Bankey by way of amendment in the objection, but it could not be proved that Bankey and Paltan were one and the same person. Therefore, this Court is of the view that the pedigrees given by the opposite party no.2 and the petitioner were different and had no concern with the family of each other except that the father of the petitioner had started living with the widow of Ram Harak namely Mahdei.

16. Now, the question arises as to whether the property which had come to Mahdei, who was widow of Ram Harak, could have come to the petitioner, who was son of Mehdei and Sarva Deen, who had started living with Mahdei as Ghar Baitha. This Court is of the view that the land which has devolved to Mahdei being widow of Ram Harak, could not have devolved on the petitioner. Firstly, because as per Section 172 of the U.P.Z.A. & L.R. Act 1950 when a bhumidhar or asami, who has after the date of vesting, inherited an interest in any holding as a widow or widow of a male lineal descendant dies, marries, abandons or surrenders such holding, or part thereof, the holding or the part shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of Section 171) of the last male bhumidhar or asami. Therefore, on her re-marriage or death, land would go back to the family of her husband and would devolve according to Section 171.Therefore the land would revert back after death of Mahdei. Secondly, the Ghar Baitha marriage claimed by the petitioner, is no marriage in the eyes of law and any right will not accrue to the father of the petitioner and/or the petitioner on the basis of the alleged claim.

17. The Hon'ble Apex Court, in the case of Santi Deb Berma Versus Kanchan Prava Devi; 1991 Supp (2) SCC 616, held that living together as husband and wife cannot in any way serve as proof of a valid marriage as per the Act, especially when there is no plea that the marriage was solemnized in accordance with the customary rites and usage, which do not include 'Saptpadi'.

18. This Court in the case of Dina Nath Verma and others Versus Gokaran and others;2003(94) RD 323 did not find "Ghar Baitha" as legal marriage. The relevant paragraphs 11 to 13 are extracted below:-

"11. Now coming to the other questions firstly, I consider whether Smt. Lakhraji re-married to Phagoo. Oral evidence has been produced regarding re-marriage. However, the same does not appear to convincting. There is absolutely no evidence to show that the marriage took place. On the other hand, only to is alleged that it was "Ghar Baitha"; that sagai took place and thereafter Smt. Lakhraji and Phagoo started living as husband and wife. It does not show that it was a legal marriage. It is not alleged in the plaint that "sapta-pati" took place and therefore, this marriage cannot be recognised and Smt. Lakhraji cannot be divested from the property.

12. In the present case, it is admitted position that the name of Smt. Lakhraji was recorded over the land on which dispute houses exist in CH Form No. 23. Smt. Lakhraji was declared as exclusive owner of the land and chack was carved out in her name. Smt. Yashoda Devi and respondent Nos. 2 and 3 did not raised any objection in the consolidation proceedings. They have not stated that Smt. Lakhraji has been divested from the land because she had re-married with Phagoo. Therefore, the allegations made in the suit is only a after thought and the allegation that Smt. Lakhraji has re-married cannot be accepted.

13. The Apex Court in the case of Surjit Kaur v. Garja Singh [ A.I.R. 1994 SCC 135.] , has held that where customary marriage is pleaded but the custom is not pleaded and there is no evidence of the nature of the ceremonies performed in marriage in such a case from the evidence that the parties were living together as husband and wife does not itself show that it would confer status of husband and wife."

19. The claim of the petitioner that, at the most, he can be said to be an illegitimate son of Mahdei, therefore even if the father of the petitioner had not married to Mahdei, he is entitled for the land in dispute of his mother, is also misconceived and not tenable. The succession could have been made in accordance with Section 171 of the Act 1950, which has come to the widow from her husband under Section 172 after she re-married or on her death after reversion of property to the family of her husband.

20. In the present case, the land in dispute was coming from the husband of Mahdei, namely Ram Harak and not from the father of the petitioner i.e. Sarvadeen. Therefore, even if the petitioner is treated to be illegitimate son of Mahdei and Sarvadeen, the petitioner cannot be treated to be successor of the land which had come to his mother from her legally wedded husband. Therefore, the petitioner is not entitled for any benefit of the judgment of the Hon'ble Apex Court in the case of Singhai Ajit Kumar versus Ujayar Singh(supra), in which, the question which was considered is, whether the illegitimate son of Sudra vis-a-vis self acquired property, after having succeeded to a half share of his putative father's estate, will be entitled to succeed to the other half share, got by the widow, after the succession opened out to his putative father on the death of the said widow. Therefore, even if the petitioner is treated to be illegitimate son of Mahdei and Sarvadeen, he is not entitled for the land, which had come from her husband. However, if the land in dispute would have been coming from the family of his father i.e. Sarvadeen, then only the petitioner could have got right according to his share.

21. In the present case, admittedly the land in dispute had come to Smt. Mahdei as widow of Ram Harak; her husband. Therefore, after her death the property would revert back to the family of her husband Ram Harak and devolve upon the nearest surviving heirs according to Section 171. The Full Bench, in the case of Ramji Dixit and another Versus Bhrigunath and others;AIR 1965 Allahabad 1(V 52 C 1), has held that it is worthy to note that on the death of a female bhumidhar succession to the holding goes not to her heirs but to the "nearest surviving heir of the last male bhumidhar". In other words it is the heirs of the last male-holder and not that of the deceased female bhumidhar who succeed to the holding. This would again indicate that her interest in the holding ends with her death.

22. The revisional authority without any pleadings and evidence and setting aside the findings recorded by the Consolidation Officer and Settlement Officer Consolidation, recorded a finding that the name of Sarva Deen was recorded in place of Jokhu and on the basis of presumption held that it does not seem that the same was recorded in the name of Sarva Deen after Mahdei and on the basis of substitution. Therefore the finding recorded by the learned revisional authority is not sustainable in the eyes of law. The revisional court could not have recorded its own finding without setting aside the finding recorded by the courts below. The law on the issue is settled, as it has been held by this Court in the case of Hari Bans versus Deputy Director of Consolidation and others; 2014(32) LCD 2629.

23. Now the question arises as to who is entitled for the portion of land in dispute which was recorded in the name of father of the petitioners after death of Mahdei, widow of Ram Harak. Since there was no claimant and the remaining portion of the land in dispute has been recorded in the name of the opposite party no.2 on the basis of Will executed by Ram Deen and Ram Kishun, therefore the interest in the land in dispute stands extinguished on the death of Mahdei under Section 189 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 and under Section 194, the Land Management Committee is entitled to take possession of the land in dispute which was wrongly and illegally recorded in the name of the father of the petitioners after the death of Mahdei under Section 171 of the U.P. Zamindari Abolition and Land Reforms Act, 1950.

24. In view of above, the court's below have dealt with the case of petitioner in an illegal manner without application of mind because under Section 11-C of the Act of 1953 it was the duty of the Consolidation Court's to see that if any land vests in State Govt. or Gaon Sabha or any local body or authority he may record in his name even if any objection has not been filed, but they have failed to do so. This Court in the case of Dheeraj and Another versus Deputy Director of Consolidation, Gautam Budh Nagar and Others; 2009(107) RD 695, has held that under Section 11-C of the U.P. Consolidation of Holdings Act it is provided that if C.O., S.O.C., D.D.C. while hearing a case comes to the conclusion that any land vests in the State Government or Gaon Sabha then it shall be recorded in the name of State or Gaon Sabha even though no objection, appeal or revision has been filed by State or Gaon Sabha.

25. In view of above, this Court is of the considered opinion that the impugned judgment and order is not sustainable to the extent of 1/3rd share of the petitioners determined in the land in dispute and the same is liable to be quashed.

26. The impugned judgment and order dated 29.08.1985 is accordingly quashed to the extent it determines the share of petitioner as 1/3 rd in the land in dispute and the order passed in favour of respondent no.2 is upheld. Accordingly the orders passed by Settlement Officer Consolidation and Consolidation Officer also stand quashed to the extent of 1/3rd share of petitioner. The said land shall be recorded in the name of concerned Land Management Committee. The Land Management Committee shall take possession of the said land. The petitioner is directed to vacate the land in question.

27. With the aforesaid, the writ petition is disposed of. The Joint Director of Consolidation , Sultanpur shall pass the consequential order and communicate to the concerned Land Management Committee for further action and submit a compliance report to this Court within four months. No order as to costs.

28. A copy of this order shall be communicated to the Joint Director of Consolidation, Sultanpur forthwith.

 
'N
 
..................................            (Rajnish Kumar,J.)
 
Order Date :12.07.2021
 
Akanksha