Ram Sunder And Another vs Joint Director Of Consolidation, ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 13/Reserved                                                  AFR
 

 
Case :- CONSOLIDATION No. - 2839 of 1980
 

 
Petitioner :- Ram Sunder And Another
 
Respondent :- Joint Director Of Consolidation, Sultanpur And 2 Others
 
Counsel for Petitioner :- H.S.Sahai,Madhav Srivastava,R.D.Yadav,Uma Shankar Sahai
 
Counsel for Respondent :- D.P. Dwivedi,C.S.C.,Ram Dhiraj Yadav
 
Hon'ble Rajnish Kumar,J.

1. Heard, Shri U.S.Sahai, learned counsel for the petitioners and Shri Ram Dhiraj Yadav, learned counsel for the respondents no.3/1 and 3/2. Learned Standing Counsel is present for the respondents no.1 and 2.

2. The instant writ petition has been filed challenging the order dated 26.06.1975 and order dated 24.05.1980 passed by the opposite parties no.1 and 2 respectively.

3. The dispute relates to Khata No.35 recorded in the name of opposite party no.3-Ram Niwas in the basic year as 'bhumidhar'. On publication of records, the petitioners had filed objection under Section 9-A(2) of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred as the Act of 1953) alleging that the name of opposite party no.3 was recorded incorrectly, whereas he had no right or title over the land in dispute so his name should be expunged and the Khata should be recorded in the name of the petitioners. The petitioners had stated in their objection that Bhola @ Sheetal was son of Terhi and they relied on the following pedigree:-

TERHI

|

____________________________________________

| |

Bhola alias Bhabhuti

Shital |

| _____________________

Smt.Maina | |

(widow) Guru Din Sita Ram

|

______________

| |

Ram Sunder Ram Lal

4. The petitioners claim that the land in dispute was acquired by Terhi and on his death his two sons Bhola @ Shital and Bhabhuti became the heirs. Since Bhola @ Shital was elder, so his name was recorded. Bhola @ Shital died just before third settlement and on his death the land came to be recorded in the name of his widow Smt.Maina. Accordingly Smt. Maina and Bhabhuti came into joint possession. When Smt. Maina died Bhabhuti was alive, who was real brother of Bhola @ Shital so the land, which was recorded by succession in the name of Smt.Maina from her husband, reverted to the family of her husband and Bhabhuti, brother of her husband, being the sole heir, was entitled for entire land and on his death his two sons Guru Din and Sita Ram came in possession. On the death of Sita Ram his two sons Ram Sunder and Ram Lal came in possession alongwith Guru Din. It was further contended that Smt. Maina died after the date of vesting and the opposite party no.3 got his name entered in the Khatauni by the Lekhpal without any right or title, therefore the said entry was illegal and without jurisdiction.

5. The aforesaid claim of the petitioners was refuted by the opposite party no.3. He asserted that Bhola and Shital were two different persons. He claimed himself to be the son of daughter of Smt. Maina, wife of Shital. According to him Shital and Maula are two different persons and sons of Bhawani Bhikh. He relied on the following pedigree:-

Ganga

|

Bhawani Bheekh

|

___________________________________________

| |

Sheetal Maula

|

Musammat Maina

|

Sahdei

|

Ram Newaj

6. It appears that the dispute could not be reconciled before the Assistant Consolidation Officer therefore the case was forwarded to the Consolidation Officer for disposal. The parties tendered their oral and documentary evidence before the Consolidation Officer. On behalf of the petitioners khatauni extracts of 2nd settlement, 3rd settlement and khasra extracts of third settlement and khataui extracts of 1371, 1360 fasli and 24 rent receipts and khatauni extracts of 1362 fasli were filed. Petitioners examined Ram Sunder. On behalf of opposite party no.3 sanad bhumidhari dated 18.04.1951, khatauni extracts of 1363 fasli, khasra extract of 1363 fasli were filed. Ram Niwas, opposite party no.3 had not entered into witness box and on his behalf Mukhtar-e-Aam Ram Dularey was examined and rent receipts were also filed.

7. The Consolidation Officer, after considering the evidence on record, allowed the objection filed by the petitioners and directed to record the name of the petitioners after expunging the name of opposite party no.3 by the order dated 27.12.1974. The opposite party no.3 preferred an appeal before the Settlement Officer Consolidation, which came up for hearing before the Assistant Settlement Officer Consolidation, who allowed the appeal by the order dated 26.06.1975. Being aggrieved, the petitioners preferred the revision, which came up for hearing before the Joint Director of Consolidation, who dismissed the revision by the order dated 24.05.1980. Hence the present writ petition has been filed.

8. During pendency of the writ petition the petitioners no.2, 3 and opposite party no.3 died, therefore, their legal heirs have been brought on record.

9. Submission of learned counsel for the petitioners was that the land in dispute was coming from Terhi and after death of Bhola @ Shital name of his widow Smt. Maina was recorded. She died issueless. Therefore, as per law, the land in dispute reverted to the family of her husband and came to Bhabhuti, who was brother of her husband. Thereafter to his successors. But the opposite party no.3 had got his name recorded illegally. He further submitted that there was no evidence that opposite party no.3 was son of the daughter of Smt. Maina. Since neither the opposite party no.3 nor his mother came in the witness box, therefore evidence of power of attorney holder could not have been relied. In any case the entry in the Khatauni extract of the 1362 fasali was not in accordance with law inasmuch as no case number and signature was found. He had further submitted that the mother of the opposite party no.3 i.e. Sahdei was not the daughter of Smt. Maina and also asserted that Smt. Maina had died issueless in 1953. Therefore she could not have put the thumb impression while the name of opposite party no.3 was recorded allegedly on her consent but her thumb impression was not by way of consent, whereas the same could also not have been recorded in the alleged manner in accordance with law. He also submitted that even if Sahdei was the daughter of Smt.Maina and opposite party no.3 was the son of Sahdei, the name of opposite party no.3 could not have been recorded during life time of Smt. Maina and Sahdei because no Bhumidhar or Sirdar can get the name of a person recorded in his life time in the khatauni and as per the law applicable at the relevant point of time the land in dispute could not have been devolved on her and it should have been reverted to the family of his husband. The name can be recorded only on the basis of succession or transfer of property in accordance with law and on the basis of the order passed by the competent authority, but the opposite parties no.1 and 2 have failed to consider it. He further submitted that the opposite parties no.1 and 2 have committed manifest error of law in not considering the question of succession in accordance with Section 171 and 172 of U.P.Zamindari Abolition and Land Reforms Act 1950 (hereinafter referred as the Act of 1950) and considered under Section 174.

10. He further submitted that opposite party no.3 had raised a fresh plea of different pedigree at the appellate stage. As such the stand as taken before the Consolidation Officer was changed before the Settlement Officer Consolidation and Deputy Director of Consolidation. He also submitted that opposite party no.3 was habitual of committing fraud because he had got his name removed from one of the plots, the evidence in regard to which has been filed by the petitioners alongwith rejoinder affidavit. The opposite parties no.1 and 2 have passed the order without considering the law applicable on the facts and circumstances of the case, therefore, the impugned orders are not sustainable in the eyes of law.

11. Learned counsel for the respondents vehemently opposed the submissions of learned counsel for the petitioners. He had submitted that the basic year entry was in the name of opposite party no.3 and in fact in the verification i.e. partal the petitioners were not found in possession. The petitioners have claimed the land in dispute by alleging Bhola @ Shital as their ancestor without any basis and evidence and the Consolidation Officer had considered the same without considering the evidence and law applicable. He had further submitted that in the present case provisions of Section 171 and 172 of the Act of 1950 are not applicable and the provisions of Section 174 are applicable. The name of opposite party no.3 was got recorded by Smt. Maina by her consent in presence of the villagers and the authorities and he had also put her thumb impression which was recorded in pursuance of the order passed by the Tehsildar, but the same was not challenged knowing fully well. Petitioners have tried to create a doubt alleging that Smt. Maina had died in 1953 without any basis or evidence, whereas she was alive at that time. Lastly he submitted that merely because the opposite party no.3 had got his name struck off from any record, as it was wrongly recorded, cannot be a ground of alleging that opposite party no.3 is habitual of making fraud, rather it shows his bonafide. In fact the fraud had been committed by the petitioners by adding @ Shital alongwith Bhola. He had also submitted that opposite party no.3 had given Power of Attorney because he was hard of hearing & blind and there was no illegality or infirmity in the evidence adduced by the Power of Attorney holder.

12. On the basis of above learned counsel for the opposite party no.3/1 and 3/2 submitted that the orders passed by opposite party no.1 and 2 are in accordance with law and the writ petition has been filed on misconceived and baseless grounds, which is liable to be dismissed with costs.

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

14. The dispute relates to Khata No.35 recorded in the name of opposite party no.3 in the basic year as bhumidhar. The claim of the petitioners under Section 9-A(2) of the Act of 1950 has been set up on the ground that after death of Smt.Maina widow of Bhola @ Shital the property was reverted back to the family of her husband and accordingly devolved on them being the descendants of Bhabhuti brother of Bhola @ Shital because the property was acquired by their father Terhi. It is not in dispute that the family of the petitioners and the opposite party no.3 are different. Both the parties does not dispute that Smt. Maina was wife of Shital and the land in dispute had come to her from her husband. A claim has also been set up by the opposite party no.3 on the ground that it was self acquired by Smt. Maina. But it could not be proved. The allegation of the petitioners is also that Smt. Maina had died issueless, whereas the claim of opposite party no.3 is that Sahdei was her daughter and during life time Smt. Maina had got the name of the opposite party no.3, who is son of the daughter of Smt. Maina, recorded in the revenue records. This proceeding has been alleged to have been held in presence of the villagers and in pursuance of an order passed by the Tehsildar, the name of opposite party no.3 was recorded.

15. In regard to the claim that Bhola @ Shital was one and the same person the petitioners had filed the copy of Intkhab register of the year 1934 in which it has been shown that Shital @ Bhola had died on 19.02.1934 and the information of death was given by Terhi. The opposite parties had got summoned Shyam Singh, Incharge Mohafizkhana (Record Room) Sultanpur with original register of death. The witness on the basis of the register stated that only 1089 applications for copies were filed in the year 1974 while the application number of the copy filed by the petitioners is 1234. He also stated that no application for said certified copy was filed on the date i.e. 12.04.1974. Accordingly it was proved that a forged and false copy was produced in the court, which could not prove that Shital @ Bhola are one and the same person. In support of the claim of the petitioners no other evidence was adduced to prove that Bhola @ Shital are one and the same person. Therefore it is apparent that the petitioners by adding @ Shital with Bhola tried to include Shital in his family to get the land in dispute. The Settlement Officer Consolidation and Joint Director of Consolidation have rightly considered and recorded the finding in regard to it.

16. The learned Consolidation Officer, without recording any finding as to how Bhola @ Shital is one and the same person, had allowed the objection. It appears that the Consolidation Officer was impressed by the submissions of the petitioners that Shital, who was eldest son of Terhi, was of a very simple nature, therefore, the villagers had named him Bhola but mere submission without evidence cannot be a ground to accept that Bhola @ Shital is one and the same person. It has also not come anywhere that Smt. Maina was recorded as widow of Bhola @ Shital and she has been recorded everywhere as Smt. Maina widow of Shital. Therefore, the claim set up by the petitioners has not been proved by any cogent evidence, rather the claim has been tried to be set up on the basis of a forged and fabricated document. Therefore the claim of the petitioners is not sustainable in the eyes of law. It is also settled law that a party playing fraud with the court is not entitled for any relief. The Hon'ble Supreme Court, in the case of S.P. Chengalvaraya Naidu (Dead) By LRs Versus Joganath (Dead) by LRs and others; (1994) 1 SCC 1 about fraud and the effect of decree obtained by fraud, has held as under in paragraph 1:-

"1. Fraud avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings."

17. It appears from the orders and record filed before this court that the disputed plot nos.401, 402, 403 and 414 of land in dispute were recorded in the name of Bhawani Bhikh in the first settlement. Thereafter it was recorded in the name of Maula son of ...... Caste Aheer in the second settlement and plot nos.324 and 325 were recorded in the name of Bhola son of Terhi. Therefore Bhola and Maula were two separate persons. Both the parties had also admitted that their families are different and have no concern with each other. It also appears that land was not coming down in the identical form. This court, in the case of Jagdamba Singh and others versus Dy.Director of Consolidation and others; 1985 RD 281, has held that in order to uphold the claim of co-tenancy rights on the ground that the holding in dispute is an ancestral property, it is necessary that the holding should have come down intact in the identical form without any break and it would not be open to pick up few plots of the holding which initially belonged to common ancestor and declare them to be ancestral property giving a share to the claimant on that ground.

18. It is not in dispute that the land in dispute had come to Smt. Maina as widow from her husband Shital after his death. Therefore, the first question for consideration is as to whether a widow, who got the land from her husband which was coming from his ancestors can transfer it to anybody or not. Section 171 and 172 of the Act of 1950 provides the general order of succession. Since a bhumidhar with transferable rights can transfer his agricultural land subject to the restrictions contained in Chapter VIII of the Act of 1950, therefore, a widow, acquiring the bhumidhari rights from her husband, can also transfer the land during her life time in accordance with law. A Full Bench of this court, in the case of Ramji Dixit and another Versus Bhrigunath and others; AIR 1965 Allahabad 1 (V 52 C 1), has held that a female, who inherits the bhumidhari rights from the family of her husband, can transfer such holdings, which shall be valid and effective even beyond her life time. In view of above Smt.Maina could have transfered the land in dispute but in accordance with law.

19. However the question arises as to whether Smt. Maina could have got the land in dispute recorded with her consent in the name of opposite party no.3, who is alleged to be the son of her daughter without transferring in accordance with law because the alleged transfer was neither by any mode of transfer nor succession. It has also been alleged that the thumb impression of Smt. Maina in the remark column is not way of consent and the order of Tehsildar is also not signed and there is no case number and parties name. Section 152 of the Act of 1950 provides that the interest of a bhumidhar with transferable rights shall, subject to the conditions hereinafter contained, be transferable. Therefore a bhumidhar with transferable rights can transfer his/her interest in the land subject to conditions in the Act of 1950, but it can be only in accordance with law i.e. the Transfer of Property Act and the Indian Registration Act. No other mode of transfer has been provided in the Act of 1950. Section 166 of the Act of 1950 provides that any transfer made in contravention of the provisions of this Act, shall be void. In the present case the alleged transfer has not been made in accordance with any of the mode or procedure prescribed under law because it is no where provided that a person can get the name of anybody recorded without executing any deed of transfer. Therefore the alleged transfer made by Smt. Maina during her life time to the opposite party no.3 is alien to law, as such not sustainable in the eyes of law. Any transfer of property can not be made which is not covered by any statute or law.

20. This court, in the case of Devinder Singh and others Versus State of U.P. and Others; 2009 (1) ADJ 640, has held that agricultural land cannot be transferred through mutation application and partition can take place among co-tenure holders and not between the tenure holders and stranger. The agricultural land in U.P. is governed by U.P.Z.A. and L.R.Act. The relevant paragraph 6 is extracted below:-

"6. The A.D.M. was right in holding that agricultural land cannot be transferred through mutation application. Partition among co-tenure holders may be effected only through the suit under Section 176 of U.P.Z.A. and L.R. Act filed before S.D.O. Moreover, partition can take place amongst co-tenure holders and not between tenure-holder and stranger. Concept of the Joint Hindu Family property where sons may have right by birth in the ancestral property, which is in the hands of their father, is not applicable to agricultural land in U.P. which is governed by U.P.Z.A. and L.R. Act. As far as Ceiling Act is concerned, such mutation is meaningless for the Ceiling Act and under Ceiling Act in spite of mutation, the entire land would be treated to belong to the father/tenure holder. However, the A.D.M. was not correct in holding that stamp duty was payable on the oral arrangement in between father and sons and consequent mutation order. Moreover, A.D.M. himself rightly held that the mutation order was utterly illegal and without jurisdiction and void ab initio. This finding was additional reason for not directing payment of any stamp duty."

21. This court is of the considered view that the transfer of an agricultural land cannot be made by a mode, except as provided under law, which may be by way of sale, gift etc. It is also apparent from reference made in various Sections of Act of 1950. Such as section 154 provides that no bhumidhar shall have the right to transfer by sale or gift, section 155 provides that no bhumidhar shall have the right to mortgage any land belonging to him as such where possession of the mortgaged land is transferred or is agreed to be transferred in future to the mortgagee as security for the money advanced or to be advanced. Similarly in Section 157-A and 157-AA, the transfer of the land by way of sale, gift, mortgage or lease has been referred. The alleged mode by which the name of opposite party no.3 was recorded is not provided anywhere. Therefore the transfer of an agricultural land, being an immovable property, can be made by a bhumidhar with transferable rights only in accordance with the Transfer of Property Act and Indian Registration Act and not otherwise. Learned counsel for the respondents no.3/1 and 3/2 could also not show any other mode of transfer and validity of the alleged transfer under any law. This court in the case of, Umesh Chand and others Versus Board of Revenue, Allahabad and others; 2002(2) AWC 932, has held as under in paragraph 15:-

"15................No right or interest can pass in immovable property in a manner contrary to provisions of Transfer of Property Act and Indian Registration Act...................."

22. In view of above, claim of the opposite party no.3 on the basis of alleged transfer by Smt. Maina during her life time, by a mode not provided under any law, is illegal and not sustainable in the eyes of law and fails.

23. Now the question arises as to whether the opposite party no.3 is entitled for inheritance of the land in dispute of Smt. Maina, being the grandson of Sheetal and Smt.Maina, who had inherited the land in dispute from her husband as widow. Section 171 of the Act of 1950 provides the general order of succession. According to sub-section (1) 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) in accordance with the principles given in sub-section (i) to (iv) of sub-Section (1). Sub-section (2) provides that the following relatives of the male bhumidhar or asami are heirs subject to the provisions of sub-section (1) and sub section (a) provides the first category i.e. widow, unmarried daughter and the male lineal descendant, therefore, after the death of a male bhumidhar the property shall devolve on his widow. Therefore, since Shital had no male lineal descendant or unmarried daughter, therefore, it was rightly devolved on Smt. Maina, widow of Shital.

24. Section 172 of the Act of 1950 provides the succession in the case of a woman holding an interest inherited as a widow, mother, daughter, etc. According to sub-section(1) (a), when a bhumidhar or asami who has after the date of vesting, inherited an interest in any holding as a widow, 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 after the death of a widow, who has inherited the land on account of death of her husband, the land shall revert back to the family of her husband and devolve upon to the nearest surviving heirs in accordance with Section 171 of the Act of 1950.

25. In the present case, admittedly the land in dispute had come to Smt. Maina as widow of Shital; her husband. Therefore, after her death the property would revert back to the family of her husband Shital 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 (Supra), 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.

26. The claim of the opposite party no.3 is that he is son of the daughter of Smt.Maina, therefore the question arises as to in the case of reversion of property after death of Smt. Maina it would devolve to him under Section 172 read with Section 171 or not because after reversion of holding or part of property thereof shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of Section 171) of the last male bhumidhar, therefore, after reversion to the husband of Smt. Maina it would have to be seen as to whether it can devolve on the opposite party no.3 or not. The married daughter and daughter's son have been included in Section 171. Therefore if after the death of Smt. Maina and reversion of the property to her husband's family it could have been devolved on Sahdei the daughter of Smt. Maina, as it has been said that she was alive at that time, though her name was not recorded in the revenue records, it may devolve on the legal heirs of her daughter, in which the opposite party no.3 could have got any share or as a whole then the opposite party no.3 can get the same. Otherwise daughter's some has also a right under the above provision.

27. That a dispute has been raised that Smt. Maina had no daughter and the opposite party no.3 is not the son of the daughter of Smt. Maina. The Settlement Officer Consolidation and the Joint Director of Consolidation on the basis of family register and uncertified copy of the voter list have come to the conclusion that Sahdei was the daughter of Smt. Maina and the opposite party no.3 was the son of Sahdei. Whereas Sahdei has been shown as wife of Shree at one place and as daughter of Shree at another place. Therefore, first it is to be ascertained on the basis of cogent evidence, if any available on record, as to whether Sahdei was the daughter of Sheetal and Smt. Maina and the opposite party no.3 was the son of Sahdei and in case on the basis of some cogent evidence it is found that opposite party no.3 was the son of daughter of Smt.Maina, he may get the land in dispute as discussed above and in accordance with law failing which the interest shall stand extinguished on the death of Smt. Maina under Section 189 of the Act of 1950 and the Land Management Committee shall be entitled to take possession of the land under Section 194 of the Act of 1950 and accordingly it may be considered and the order may be passed under Section 11-C of the Act of 1953.

28. In view of above, this court is of the considered opinion that the writ petition is liable to be partly allowed and the matter is to be remanded to the Settlement Officer Consolidation to re-consider the case afresh in the light of aforesaid discussion only to the extent as to whether the opposite party no.3 was a legal heir of the male lineal descendant after reversion of the property after death of Smt. Maina and if so whether the same shall devolve on him in accordance with law or not, failing which the decision shall be taken in light of the observations made here-in-above under Section 11-C of the Act of 1953.

29. With the aforesaid the writ petition is partly allowed. The impugned order dated 24.05.1980 passed by the Deputy Director of Consolidation, Sultanpur in Revision No.5989/2884, under Section 48 of the Consolidation of Holdings Act is quashed and the order dated 26.06.1975 passed by the Assistant Settlement Officer Consolidation is also quashed to the extent of continuance of the entry of basic year and the order is upheld to the extent of quashing of the order passed by the Consolidation Officer. The matter is remanded to the Settlement Officer Consolidation, Sultanpur to decide a fresh in light of the observations made here-in-above.

30. The matter being old, shall be decided expeditiously say within a period of six months from the date of receipt of a certified copy of this order. Let a copy of this order be communicated to the Settlement Officer Consolidation, Sultanpur forthwith.

31. No order as to costs.

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

Order Date :-21.06.2021

Banswar