Jawahar And 2 Others vs Deputy Director Of ...
2021 Latest Caselaw 7780 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

                                                                                                     AFR
 
Court No. - 17 / Reserved
 

 
Case :- CONSOLIDATION No. - 117 of 2005
 

 
Petitioner :- Jawahar And 2 Others
 
Respondent :- Deputy Director Of Consolidation,Faizabad And 2 Others
 
Counsel for Petitioner :- Radhey Shyam Tiwari,Vinod Kumar Singh Ii
 
Counsel for Respondent :- C.S.C.,M.A.Siddiqui
 

 
Hon'ble Rajnish Kumar,J.

1. Heard, Sri R.R. Upadhyaya, learned counsel for the petitioner and Sri Aftab Ahmad, Advocate holding brief of Sri M.A.Siddiqui, learned counsel for the respondents no. 2 and 3. Notice on behalf of respondent no.1 has been accepted by learned Chief Standing Counsel.

2. The instant writ petition has been filed challenging the order dated 27.11.2004 passed by the Deputy Director of Consolidation, Faizabad (respondent no.1) in Revision No.986 / 165.

3. The brief facts, for adjudication of the present case, are that the land in dispute relating to Khata No.169 situated in Village- Chandipur Nagahra was recorded in the name of Tulsi Ram son of Ram Sanehi, Khata No.87 situated in Bansawa was recorded in the name of Ram Sanehi son of Sahti and Khata No.857 situated in the Village- Mehdauna was recorded in the name of Tulsi Ram son of Ram Sanehi in the basic year. The dispute was also recorded, showing the mistake and on the basis of enquiry, that the petitioners are the co-tenure holders of the land in dispute so their names should also be recorded. On publication of records, an objection was filed under Section 9(2) of the Consolidation of Holdings Act, 1953 (here-in-after referred as the Act of 1953) by the father of the petitioners about half share in above Khatas i.e. in the land in dispute before Assistant Consolidation Officer (here-in-after referred as the A.C.O.). The matter could not be settled therefore A.C.O. referred the matter to the Consolidation Officer for adjudication. The Consolidation Officer, after consolidating all the cases, framed six issues on the basis of pleadings of the parties. After considering the evidence adduced by the parties and the pleadings, the Consolidation Officer allowed the objection and directed to record the name of the petitioners also as per their shares by means of the order dated 08.02.2002 as their father had died during pendency of the case. The respondents no.2 and 3 filed an appeal because their father had also died during pendency of the case before the Consolidation Officer.

4. The Appeal No.6297 / 5474 under Section 11(1) of the Act of 1953 was dismissed by the Settlement Officer Consolidation (here-in-after referred as S.O.C.) by means of the order dated 18.04.2003. Being aggrieved a revision under Section 48 of the Act of 1953 was filed before the Deputy Director of Consolidation (here-in-after referred as D.D.C.), Faizabad now Ayodhya which was allowed by means of the order dated 19.11.2004 and the orders passed by the Consolidation Officer and the S.O.C. have been quashed. Hence the present writ petition has been filed.

5. Submission of learned counsel for the petitioners was that the land in dispute was acquired by a common ancestor of the petitioners and the respondents no.2 and 3, Sahti son of Bandhan. Sahti had two sons; Ram Sanehi and Budhai. Budhai was a dancer and living out in Burma for the purposes of earning therefore the name of only Ram Sanehi was recorded and the name of Budhai; predecessor-in-interest of the petitioners was left to be recorded in the records after death of Sahti, while the land in dispute which was coming from the common ancestor was devolved on both the sons as per section 171 of the U.P. Zamidari Abolition and Land Reforms Act, 1950 (here-in-after referred as the Act of 1950). Therefore in case the name of the predecessor in interest of the petitioners was left to be recorded it can not be said that their right was extinguished. Therefore at the time of verification of records during the consolidation proceedings a dispute was recorded in CH Form-5 to the effect that the petitioners are also entitled for half of the share in the land in dispute. Accordingly objection was duly considered and allowed after considering the evidence adduced by the parties.

6. The father of the respondents no.2 and 3 had admitted in his evidence that Budhai i.e. the grandfather of the petitioners was his uncle. He further submitted that the objection regarding Section 11(A) was neither raised nor any issue was framed by the Consolidation Officer therefore it could not have been considered. The appeal filed by the respondents no.2 and 3 was also dismissed but the revision has been allowed without considering the aforesaid and setting aside the findings recorded by the Consolidation Officer and the S.O.C. only on the ground that no objection was filed at the time of first consolidation.

7. He had also submitted that the learned D.D.C. has wrongly and illegally held that it could not be proved that the land in dispute was acquired by the common ancestor and was coming in the same form. He had also submitted that the respondents had tried to create a doubt by making a new plea of another pedigree before the appellate court which was rejected. He had also submitted that there was no issue of jointness of family or joint nucleus because the land was coming from a common ancestor but the learned D.D.C. has wrongly and illegally considered it and held that it could not be proved.

8. On the basis of above, learned counsel for the petitioners had submitted that the impugned order is not sustainable in eyes of law and liable to be quashed and the writ petition is liable to be allowed. He relied on Beni Prasad and Others Vs. Deputy Director of Consolidation, Allahabad and Others; 1986 All. 999, and Shri Ram and Others Vs. Deputy Director of Consolidation, Allahabad and Others; 2011 (29) LCD 764.

9. Per contra, learned counsel for the respondents no.2 and 3 had submitted that the petitioners' grandfather had not filed any objection at the time of first consolidation which was held around the year 1962 therefore in the second consolidation he could not have filed any objection and it was barred by Section 11(A) of the Act of 1953. The respondents no.2 and 3 had raised a ground in the appeal but the same was not considered and the revisional authority after considering it has rightly allowed the revision on the ground that the objection raised by the petitioners is barred by Section 11(A) of the Act of 1953. There is no illegality or infirmity in it. The writ petition has been filed on misconceived and baseless ground which is liable to be dismissed. He relied on Shahid Khan and Others Vs. Deputy Director of Consolidation, Gautam Budhha Nagar and Others; 2011 (113) RD 723 and Bhagwat Sharan (Dead through LRs.) Vs. Purshottam and Others; 2020 (6) SCC 387.

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

11. The dispute relates to Khata No.169 situated in Village- Chandipur Nagahra, Khata No.87 situated in Village- Bansawa and Khata No.857 situated in Village- Mehdauna. On publication of records after enquiry in the consolidation proceedings, an objection under Section 9(2) was filed by Budhai, grandfather of the petitioners no.1 and 2 which was objected by the father of the respondents no.2 and 3. The claim was set up on the basis of following pedigree:-

Bandhan

I

_______Sahti________

I I

Ram Sanehi Budhai

I I

Tulsi Ram Ram Bahore

(died during case) (died during case)

____________I____________ _______I_________________

I I I I I

Ram Nath Gaya Prasad Jawahar Ram Anjore Smt. Bhagwanta

(O.P. No.2) (O.P. No.3) (Pr. No.1) (Pr. No.2) (Pr. No.3)

12. The learned Consolidation Officer, after examining the records and the evidence adduced before it, recorded a categorical finding that the land in dispute was recorded in the name of Sahti son of Bandhan in the earlier records which were of 1356-65 Fasli, 1362-65 Fasli, 1360-66 Fasli and 1368 Fasli etc. He has also recorded that the name of common ancestor of the parties Sahti is recorded in the documents which have been filed by the respondents also in support of their claim. Tulsi Ram, the father of the respondents no.2 and 3, who got himself examined in evidence had also admitted that मेरे बाबा का नाम सहती था। उनको सहतु भी कहते थे। मेरे बाबा के बाप का नाम बंधन था। सहतु के दो लड़के राम सनेही, बुधई थे। बुधई के लड़के राम बहोर है तथा राम सनेही का मै लड़का हूँ। बुधई मेरे सगे चाचा थे। बुधई कब मरे मै समझता नहीं हूँ। उनकी शक्ल मैंने देखा नहीं था। यह सही है कि राम सनेही बुधई सगे भाई थे । बुधई राम सनेही कब अलग हुए थे मैं नहीं जानता हूँ। A copy of the statement has been filed as annexure no.19 to the writ petition. As such it was admitted by the respondents that Sahti was the common ancestor of the parties and Budhai was the real brother of Ram Sanehi and when they separated, it was not known, therefore partition has not been proved. It was also proved from the record that the land in dispute was acquired by Sahti son of Bandhan. Therefore after death of Sahti, the land devolved on Ram Sanehi and Budhai both and the names of both should have been recorded but since the name of only Ram Sanehi was recorded and Budhai was left to be recorded by mistake therefore the objection was allowed.

13. In the objection filed by the respondents before the Consolidation Officer the plea of Section 11 (A) was not taken but in the appeal a plea was taken that the objection is barred by Section 11(A) and a fresh case was also sought to be set up by presenting a fresh pedigree and depicting that Budhai had two sons; Sahti and Bahti and Ram Sanehi was the son of Sahti and it was acquired by Sahti. It was also pleaded that the partition had already taken place therefore the petitioners are not entitled for any co-tenancy and share. The learned appellate court, after examining the records and evidence, found that the pedigree set up by the respondents is off the record and this plea was not taken before the lower court. The land in dispute was recorded in the name of Sahti son of Bandhan who was the common ancestor of the parties. Accordingly the S.O.C. dismissed the appeal holding that the respondents have failed to prove that Bandhan had two sons; Sahti and Bahti whereas it was admitted by Tulsi Ram in his evidence that the name of his grandfather was Sahti who was used to be called Sahtoo also and the name of his father was Bandhan. Sahti had two sons; Ram Sanehi and Budhai and Budhai was his real uncle. Therefore, it is apparent that the respondents had tried to deny the claim to the petitioners fraudulently on the basis of false pleading.

14. The respondents no.2 and 3 had filed the revision. The revisional authority recorded a finding that the petitioners have failed to prove the jointness of two families from any document while it is apparent from the oral evidence that the partition had taken place at the time of ancestor of the petitioners namely Budhai therefore the findings recorded by the revisional authority are not sustainable because on the one hand he is saying that on the basis of oral evidence, it has been found that the partition had taken place at the time of Budhai against the admission of Tulsiram that he does not know when Budhai and Ram Sanehi had separated and it has also not been proved that if separated what was given to the petitioners. On the other hand he has recorded a finding that jointness of two families could not be shown by any documentary evidence while it was not the case of anybody therefore it is not sustainable in the eyes of law. This Court also failed to find from any record placed before this Court that there was any issue of jointness of two families or joint nucleous whereas the case in hand is that the land in dispute was acquired by common ancestor of the parties, Sahti son of Bandhan, therefore it was devolved on both the sons of Sahti equally as per Section 171 of the Act of 1950 or not. If it was devolved on both the sons, the name of the petitioners should also be recorded.

15. The revisional authority has allowed the revision on the ground of bar under Section 11(A). While this plea was not taken in the memo of revision which is annexed as annexure no.5 to the writ petition. The revisional authority, also without setting aside the factual and concurrent findings recorded by the Consolidation Officer and S.O.C., held that it is not proved that the land in dispute was recorded in the name of the common ancestor of the parties and it was coming in the same form while a categorical finding has been recorded by the Consolidation Officer and the S.O.C. after considering the evidence and previous records also and giving the old and new numbers of plots. Learned Revisional Authority has also failed to consider that the grandfather of the petitioners lived his most of the life out and he had come only four years ago whereas Ram Sanehi was living here, which has not been disputed by the opposite parties. In these undisputed facts and circumstances, if the name of the petitioners could not be recorded, it can not be a ground to deny the rightful claim, if the petitioners are entitled for the same in accordance with law.

16. Section 171 of the Act of 1950 provides that Subject to the provisions of Section 169, when a bhumidhar or asami, being a male dies, his interest in his holding shall devolve upon his heirs being the relatives specified in sub-section (2). Sub-section 2 (A) provides widow, unmarried daughter and the male lineal descendant per stirps. Therefore on the death of a bhumidhar or asami his land shall devolve on his male lineal descendant i.e. sons and others, if any, by operation of law. The names are to be recorded in the revenue records in accordance with the procedure prescribed by law. Therefore, in case the name of any person has been left to be recorded by mistake or for some other reasons it can not be said that the right of a male lineal descendant accrued to him by operation of law has been extinguished.

17. In the present case, during verification of records at the time of consolidation proceedings, it was found that the petitioners are also entitled for half of the shares in the land in dispute therefore this dispute was also recorded. As such on objection being filed it can be examined in case it is found that there are valid reasons the right can not be taken away because in view of Section-9, 9(A) and 11(A) it is the duty of A.C.O. to make an enquiry and in case it is found that there are some other legal heirs also he has to record it and refer the matter to the Consolidation Officer for adjudication, who has to adjudicate after considering the pleadings and evidence adduced by the parties.

18. So far as the ground of Section 11(A) is concerned, this plea was neither raised nor any issue was framed and considered by the Consolidation Officer so it can also not be said as to whether the land in dispute was in consolidation or not in earlier consolidation operation, and if it was, any notice was issued and served on the predecessor-in-interest of petitioners or not. Section 9(2) of the Act provides that any person to whom a notice under sub-section (1) has been sent, or any other person interested may, within 21 days of the receipt of notice, or of the publication under sub-section (1), as the case may be, file before the Assistant Consolidation Officer, objections in respect thereof disputing the correctness or nature of the entries in the records or in the extracts furnished therefrom, or in the Statement of Principles, or the need for partition. A substantive right accrued to a person can not be taken away merely on the basis of some procedural lapse, however it would be material and may be fatal in case any other person was claiming the land in dispute on the basis of adverse possession or otherwise.

19. This Court, considered similar issue in the case of Shri Ram and Others Vs. Deputy Director of Consolidation, Allahabad and Others (Supra), which was decided by a Division Bench on being referred by a Single Judge. In the said case the objection of the respondent no.3 therein and the appeal was dismissed on the ground that the claim of the respondent no.3 is barred under Section 49 of the Act, 1953, since the claim of co-tenancy was not raised during the earlier consolidation proceeding but the revision filed by the respondent no.3 was allowed and he was declared co-tenant to extent of half of the share. The Division Bench has held that the Act, 1953, was enacted with the object of ensuring compactness of holdings and also to provide a forum for settlement of disputes of all nature including rules in relation of land, mistakes in the revenue records and shares of tenure holders etc. It has further held that in filing objection no kind of limitation can be read in filing objection under Sections 9 and 9A, nor there can be any classification on the ground of disputes of recent past or dispute of remote past. When an objection can be filed by any interested person, objection can be raised on any conceivable or valid ground and to read any prohibition in the provision that objection should relate to only recent disputes is doing violence to the express provision of the Act. It has further been observed that law pertaining to land tenure is principally for determining rights of peasants of this country who earn their livelihood from agriculture. Most of them are not literate enough to know their rights and vigilantly assert their rights. The other relevant paragraph nos.57 to 61, 63 and 64 are extracted below:-

"57. The Assistant Consolidation Officer, under Section 9Aof the Act, 1953, is entitled to settle the disputes even in cases where any objection is not filed on the basis of conciliation for eg. with regard to a plot, name of one branch of a family is recorded and the name of two other branches are not recorded. A dispute is raised at the time of partal (survey) which is noticed by the consolidation officials and if no objection is filed by the person claiming co-tenancy right, the Assistant Consolidation Officer is fully empowered under Section 9A, of the Act, 1953 to decide the dispute on the basis of conciliation between the parties in accordance with the rules.

58. Taking a case, where the parties agree for conciliation and by conciliation, shares are allotted and the dispute is decided according to rules, the same shall be perfectly in accordance with the scheme of the Act.

59. Taking a converse case, i.e. if objections are filed claiming co-tenancy rights by a branch of a family whose name is not recorded for the last say 50 years, if the interpretation put by the learned Single Judge is accepted, such objections are to be treated as barred.

60. Thus for the same dispute although by conciliation it can be decided, but on objection it cannot be decided would lead to anomalous results, which cannot be the intention of the legislature. Thus no such implied bar for filing objections can be read into the provisions of  Section 49.

61. The entries in the revenue records raise only a presumption which is a rebuttable presumption. There is one more principle i.e. presumption of correctness of entries can apply to only genuine not forged or fraudulent entries. If the bar is read in filing objections against such entries it would lead to injustice.

63. It is relevant to note that even the records prepared in consolidation proceedings raise only a rebutabble presumption. Section 27(1)) and 27 (2) of the Act, 1953 are quoted below:

"27.(1) As soon as may be, after the final Consolidation Scheme has come into force, the district Deputy Director of Consolidation shall cause to be prepared for each village, a new map, field-book and record of rights in respect of the consolidation area, on the basis of the entries in the map, as corrected under Section 7 7, the Khasra chakbandi, the annual register prepared under Section 10 and the allotment orders as finally made and issued in accordance with the provisions of this Act. The provisions of the Uttar Pradesh Land Revenue Act, 1901, shall, subject to such modifications and alterations as may be prescribed, be followed in the preparation of the said map and records.

(2). All entries in the record of rights prepared in accordance with the provisions of sub-section (1) shall be presumed to be true until the contrary is proved."

64. Thus, when the revenue entries raise only a rebuttable presumption a party objecting to the said entry can always by sufficient evidence rebut the presumption. Shutting out such objections at the very threshold cannot be said to be in accordance with the provisions of the Act, 1953."

20. This Court, in the case of Beni Prasad and Others Vs. Deputy Director of Consolidation, Allahabad and Others (Supra), has held that if sections 9, 9A and 11A are read together the only possible conclusion is that even in these cases where no objections has been filed, the Assistant Consolidation Officer would make an enquiry and he would refer the matter to the Consolidation Officer and he shall decide the same in accordance with the procedure prescribed particularly in view of Rule 25 A(2), Rule 26 and Rule 27 of the rules framed under the U.P. Consolidation Of Holdings Act. Therefore, once a dispute was recorded by the Assistant Consolidation Officer and on objection being filed the same was referred to the Consolidation Officer, it is incumbent to the Consolidation Officer to decide the same in accordance with law.

21. This Court, in the case of Shahid Khan and Others Vs. Deputy Director of Consolidation, Gautam Buddha Nagar and Others (Supra), has held that there is a bar also created during the consolidation operations itself under Section 11-A therefore the petitioners will have to establish that there was a cause of action existing so as to allow them to file objections under Section 9-A in the second round of consolidation proceedings. In the present case undisputedly the predecessor in interest of petitioner at the relevant point of time i.e. at the alleged time of earlier round of consolidation proceeding was out and it has also not been proved that any notice was served to him. This plea was also not taken before the Consolidation Officer, therefore it could not be examined so it can not be said that the objection filed by the petitioner could not have been filed or examined. During enquiry (Padtal) it was recorded that the petitioners are entitled for half share, therefore it has rightly been examined and decided.

22. The judgment of Hon'ble Supreme Court in the case of Bhagwat Sharan (Dead through LRs.) Vs. Purshottam and Others (Supra) relied by learned counsel for the opposite parties no.2 and 3 is in regard to the Hindu undivided family which is not applicable on the facts and circumstances of the present case.

23. In view of above, this Court is of the considered view that the impugned Judgment and order is not sustainable in the eyes of law and liable to be quashed.

24. The writ petition is, accordingly, allowed. The impugned order dated 27.11.2004 passed by A.D.M. Executive / Deputy Director of Consolidation, Faizabad in Revision No.986 of 165 contained in annexure no.1 to the writ petition is hereby quashed. No order as to costs.

25. The consequences shall follow accordingly as per law.

............................................................                  .(Rajnish Kumar,J.)
 
Order Date :- 12.07.2021
 
Haseen U.