Lalta Prasad And Others vs Haunsla Prasad And Others
2021 Latest Caselaw 11168 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

                                                                                                                         AFR
 
Reserved On :-26.08.2021
 
Delivered On:-01.10.2021
 
Court No. - 19                                                                                            
 
Case :- CONSOLIDATION No. - 2572 of 1978
 
Petitioner :- Lalta Prasad And Others
 
Respondent :- Haunsla Prasad And Others
 
Counsel for Petitioner :- S K Mehrotra,Rakesh Kumar Srivastava
 
Counsel for Respondent :- C S C,R.K. Srivastava
 
				
 
Hon'ble Jaspreet Singh,J.

1. The instant writ petition calls in question the judgment and order passed by the Consolidation Officer in Case No. 165 under Section 9-A(2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as 'U.P.C.H. Act, 1953') dated 30.04.1970 whereby the claim of the petitioners relating to co-tenancy rights in respect of base year Khata No. 123 and 141 was rejected. The petitioner preferred an appeal before the Settlement Officer of Consolidation which also was rejected by means of judgment and order dated 07.09.1974. The effort of the petitioner to challenge the aforesaid two judgments as mentioned above before the Deputy Director of Consolidation by filing a Revision under Section 48 of the U.P.C.H. Act of 1953 ended in an unsuccessful endevour.

2. Being faced with three such judgments, the petitioner have invoked the jurisdiction of this Court under Article 226 of the Constitution of India wherein by means of order dated 07.11.1978, the petition was admitted and the operation of the impugned orders was stayed.

3. During the pendency of the petition, the original petitioner Lalta Prasad expired so also the private respondent nos. 1, 5, 6, 8, 10, 11 and 12 expired and they were substituted by their legal heirs, however, for the sake of convenience, the Court has referred to the original parties, as they were impleaded at the time of institution of the writ petition.

4. In order to appreciate the controversy involved in the instant petition, an undisputed family tree as set up by the parties is being referred to.

5. Sri Debi Charan is the common ancestor who was survived by his four sons namely (i) Ram Avatar (ii) Nand Kishor (iii) Kali Prasad (iv) Bhagirathi.

6. As far as the petitioner is concerned, he is the son of Raghuvir son of Arjun who in turn is the son of Ram Awatar. While the private respondents no. 1 to 3 are the sons of Sarju Saran while private respondent nos. 4 and 5 are sons of Raj Narayan. They claim through the branch of Bhagirathi whereas the private respondent no. 6 is the son of Chandi Sahai, respondent no. 7 is the son of Suraj Narayan, private respondent nos. 8 and 9 are sons of Uday Narayan, private respondent no. 10 is the son of Lal Bahadur, private respondent no. 11 and 12 are the sons of Indrabali. All the aforesaid respondents nos. 6 to 12 claim their rights through the branch of Sri Nand Kishore.

7. It will also be relevant to notice that it is not disputed that Kali Prasad died issueless. Thus, on one hand the petitioner claiming his 1/3rd right through the branch of Ram Awatar whereas private respondent nos. 1 to 5 are the successors in interest from the branch of Bhagirathi while the respondent nos. 6 to 12 are from the branch of Nand Kishore.

8. The disputes arose upon the commencement of the consolidation operations in Village Sahra Mau, Pargana, Bidhar, Tehsil, Tanda, District Faizabad (now District Ambedkar Nagar).

9. In the base year, Khata No. 123 was recorded in the names of the respondents nos. 6 to 12 (from the branch of Nand Kishore) while Khata No. 141 was recorded in the names of respondents nos. 1 to 5 (from the branch of Bhagirathi).

10. It was the case of the petitioner that initially the land comprising of Khata No. 123, 141 and 126 was the ancestral/joint family property. Though, the land of Khata No. 126 stands exclusively in the name of the petitioner while the other plots of the Khata in question was joint family property, hence the petitioner have 1/3rd share in each of the three Khatas.

11. The basis of the petitioner's claim was that Sri Nand Kishore was the Karta of the joint family which consisted of his brothers and sons. Since the land was acquired within the family in a representative capacity, hence, the petitioner also had 1/3rd right therein.

12. Upon the commencement of the consolidation operations, the petitioner found that the land comprising of Khata No. 123 was in the name of the respondents nos. 6 to 12 whereas the land of Khata No. 141 was in the name of respondent nos. 1 to 5 and the petitioner claimed 1/3rd share in both the Khatas, thus, he filed his objections under Section 9-A(2) claiming co-tenancy rights to the extent of 1/3rd share. He elaborated in his objections that Debi Charan was the common ancestor who had four sons. One of the sons namely Kali Prasad expired issueless, hence, the property being joint and ancestral devolved amongst the three sons namely Ram Awatar, Nand Kishore and Bhagirathi.

13. He further states that both, his father namely Raghuvir and his grand-father namely Arjun, indulged in intoxication and thus both Arjun as well as Raghuvir were excluded and the property came to be recorded only in the names of Nand Kishore and Bhagirathi while the father and the grand-father of the petitioner also had 1/3rd share in the land in question.

14. The proceedings before the Consolidation Officer came to be contested by both the predecessors-in-interest of the respondents nos. 1 to 5 and 6 to 12 who categorically took the defence that the land in question was never recorded in the name of Debi Charan at any point of time. It was stated that the land was divided between Nand Kishore and Bhagirathi and accordingly the name of their successor continued to be recorded and so reflected in the basic year Khata No. 123 and 141. It was further objected by the private respondents that the father of the petitioner namely Raghuvir in the year 1929 had filed a suit claiming co-tenancy rights in the property in question before the Court of Munsif, Akbarpur, District Faizabad. The said suit was contested and was dismissed wherein it was held that the property in question was not joint, consequently, once the father of the petitioner had lost his right to claim co-tenancy rights, it was not open now for the petitioner to raise the issue once again in the consolidation proceedings.

15. It was also objected that the petitioner was not the legitimate son of Raghuvir and as such he was not entitled to any share. Moreover, both Bhagirathi and Nand Kishore out of their own tenure holding had provided 8 bighas each to Raghuvir and a Khata No. 126 comprising of the aforesaid was recorded in the name of the petitioner, hence, neither on the basis of the property being joint nor on the basis that the property was ancestral, the petitioner could not get any right.

16. The Consolidation Officer considering the material available on record including the oral as well as the documentary evidence dismissed the objections of the petitioner by means of judgment dated 30.04.1970.

17. The petitioner being aggrieved preferred two appeals bearing No. 798 and 797 before the Settlement Officer of Consolidation and both the appeals were dismissed by means of order dated 07.09.1974. The petitioner preferred two Revisions bearing No. 1 of 1974 and 2 of 1974 which were also dismissed by means of judgment dated 15.07.1978.

18. Being aggrieved, the petitioner preferred the instant writ petition assailing the three orders and Sri I.D. Shukla, learned counsel for the petitioner while assailing the impugned orders has primarily raised the following submissions:-

(i) It has been urged that the three Consolidation Authorities have misdirected itself and have relied simplicitor on the judgment passed in Regular Suit No. 204 of 1929 dated 11.03.1930 to hold that once the right of the petitioner's father namely Raghuvir was negatived by the Court of Munsif in an action claiming co-tenancy rights, hence, the same could not be raised again during the consolidation proceedings.

It is submitted that this approach was erroneous, inasmuch as, the three Authorities, whose decision is under challenge, did not appreciate that in so far as the family tree is concerned, it was not disputed that the father and grand-father of the petitioner was deriving their rights from the branch of Ram Awatar. It is not disputed that Ram Awatar was the real brother of Sri Nand Kishore and Bhagirathi. It is also not disputed that the land comprising of Khata No. 123, 141 and 126 were part of the land which was initially created and acquired within the family, hence, it was ancestral in nature as well as that since the father and grand father of the petitioner had co-tenancy rights, hence, his right claiming 1/3rd share has neither been adjudicated which is an error apparent on the face of record.

It has further been urged that the judgment and decree which is the basis of the three decisions under challenge is the one dated 11.03.1930 passed in R.S. No. 204 of 1929 which is wholly without jurisdiction, inasmuch as, at the relevant time, the Oudh Rent Act, 1886 was in operation and in terms of the aforesaid Act, the tenancy was neither heritable nor transferable, hence by virtue of the Section 108 of the Oudh Rent Act, 1886 no suit of partition or claiming co-tenancy rights could have been preferred before the Civil court, hence, the aforesaid judgment and decree dated 11.03.1930 was wholly without jurisdiction and such a decree could be ignored as it suffered from the vice of coram-non-judice.

(ii) It is also urged that since Oudh Rent Act, 1886 prohibited any transfer or division of the holding amongst the tenants, hence, the decree could not be made binding and in any case, the possession of the petitioner continued throughout which was also evidenced and reflected in a suit filed by the then landlord against the predecessors-in-interest of both the petitioners as well as the private respondents who were jointly impleaded as the defendants and in the said suit it was clearly reflected that the predecessors of the petitioner was in possession along with the predecessors-in-interest of the private respondents which also indicated the continuity and jointness and this aspect has also been lost sight of by the three Authorities.

(iii) It has further been urged that even though the names of the predecessors-in-interest of the private respondents remained recorded in the basic year Khata and even in the base year Khatauni of 1359 Fasli (year 1952) such entries were only presumptive and it did not prevent the Consolidation Authorities to adjudicate the matter regarding the rights of the petitioner which has not been done and thus the Authorities have committed an error in dismissing and rejecting the claim of the petitioner on technical reasons without entering into the merits of the case which has resulted in sheer miscarriage of justice, consequently, the three decisions deserve to be set aside and the petitioner's right may be recognized granting him 1/3rd share in the aforesaid two Khatas bearing No. 123 and 141 relating to Village Sahra Mau, Pargana Bidhar, Tehsil, Tanda, District Faizabad (now District Ambedkar Nagar).

19. In support of his submissions, Sri I.D. Shukla, learned counsel for the petitioner has relied upon the decision of the Apex Court in Muthavalli of Sha Madhari Diwan Wakf, S.J. Syed Zakrudeen and Another Vs. Syed Zindasha and Others reported in 2009 (12) SCC 280 as well as in Radhavar Vs. Devda 2016 (132) RD 23 for the proposition that no amount of consent can confer jurisdiction on a court which has none. If a Court had no jurisdiction, any order passed by it would be a nullity and a decree suffering from inherent lack of jurisdiction does not attract the procedural provisions of estoppel, waiver or res-judicata.

20. The learned counsel for the petitioner has also relied upon a decision of a larger bench of this Court in the case of Shree Ram and Others Vs. DDC and Others reported in 2011 (29) LCD 764 for the proposition that the doctrine of estoppel and acquiescence does not create an implied bar if a co-tenant has failed to assert his right under the U.P.Z.A. & L.R. Act and such a tenant can raise objections under the U.P.C.H. Act, 1953 which is a special Act and has an overriding effect over the other Acts. The other proposition for which the aforesaid Authority has been pressed into service is that the long standing entries can be questioned by filing objections under the U.P.C.H. Act of 1953 as the said entries only have presumptive value and cannot be taken to be the absolute proof for pressing the principles of estoppel and acquiescence so also Section 49 of the U.P.C.H. Act, 1953 shall not operate as an automatic bar.

21. In order to further buttress his submission, the learned counsel for the petitioner has relied upon a decision of the Apex Court in Gujrat Urja Vikas Nigam Ltd. Vs. S.R. Power Ltd. reported in 2008 (4) SCC 755 and V.K. Naswa Vs. Home Secretary, Union of India and Others reported in 2012 (30) 375 (SC) to submit that the provisions of a special Act will override the provisions of the general law as well as that the Court by a legal proposition can neither legislate nor issue a direction to legislature to enact in a particular manner. Though, certain other decisions have also been relied upon but since they primarily relate to the aforesaid propositions, hence, this Court does not deem necessary to burden the judgment by multiplying the Authorities where the propositions and decisions on the points have been noticed.

22. Sri Rakesh Srivastava, learned counsel appearing for the private respondents on the other hand has refuted the aforesaid contentions and has submitted that it is not a case where the Court of Munsif, Faizabad in R.S. No. 204 of 1929 while deciding the claim of the father of the petitioner namely Raghuvir was not the Competent Court or that the decree passed by the said Court was a nullity, inasmuch as, there is no bar either in Section 108 of the Oudh Rent Act which prohibited such proceedings while there are authorities to the effect that it was only a bar for the Revenue Court but no such bar was attracted on the Civil Court which was competent to deal with the matter and pass appropriate orders.

23. It is further submitted that the petitioner has not come to the Court with clean hands and has not disclosed the complete facts. It is urged that the father of the petitioner had already instituted a suit claiming co-tenancy rights in respect of the disputed property in question which after due contest was decided in the negative. The said decree dated 11.03.1930 was never challenged nor ever set aside, moreover, the ground that the aforesaid decree was wholly without jurisdiction was also not raised before the three Consolidation Authorities and it is for the first time that it is being urged before this Court in writ jurisdiction apart from the fact that neither there are adequate pleadings nor ground raised in the writ petition to support the aforesaid contention.

24. It is also urged by the learned counsel for the private respondents that the petitioner has also incorrectly stated that the possession of the petitioner and his predecessors was admitted by the landlord who had instituted the suit for eviction and arrears of rent in the year 1949. It is submitted that the alleged suit which is referred to by the petitioner was instituted by the then landlord wherein the primary relief was against the predecessors in interest of the answering private respondents, however, as a matter of abundant caution the then landlord had impleaded the petitioner and his predecessors, however, since the said suit abated and was never taken to its logical conclusion, hence, no benefit can be derived by the petitioner from the said suit.

25. It is further stated that in so far as the three Consolidation Authorities are concerned, each have taken note of the evidence led and have recorded a categorical finding of fact that the property was never ancestral nor it could be shown to be joint property having been acquired in a representative capacity rather the effort of the father of the petitioner to claim co-tenancy rights stood already rejected. The evidence on record rather indicated that both Nand Kishore and Bhagirathi out of their own holdings had given 8 bighas each to Raghuvir the father of petitioner who has a separate khata of his own. At no point of time, the father of the petitioner or his grand father ever claimed or raised any issue after having lost the case in the year 1930, hence, it was not open for the petitioner to re-agitate the same issues which have rightly been held by the three courts to have attained finality.

26. It is also urged that the father of the petitioner had leased out 5 bigahas of land to various tenants whereas he still has 11 bighas of land and only to linger on the disputes, the aforesaid case has been filed which deserves no attention and three decisions being concluded by findings of fact are not liable to be disturbed in exercise of powers conferred under Article 226 of the Constitution of India.

27. Sri Rakesh Srivastava, learned counsel for the respondents in support of his submissions has relied upon a full bench decision of the Chief Court of Oudh in the case of Mst. Maluka Kunwar Vs. Pateshwar Singh and Others reported in 1926 Rent Cases 301 wherein the issue before the Full Bench was whether a suit for seeking possession of land held in occupancy rights under the Oudh Rent Act, claimed, on the basis of title and law of inheritance against another person not being a landlord is barred by Section 108 (Clause 10 (b) and by a unanimous decision, the Full Bench answered the question in the negative.

28. Sri Srivastava has relied upon a Division Bench Decision of Judicial Commissioners Court in Karingan Vs. Harihar Datt @ Bhola and Rajaram reported in 1926 Rent Cases 48 for the proposition that a Civil suit for the relief of partition for cultivatory holdings amongst the tenant is maintainable. Lastly, reliance has been placed on a decision of this Court in the case of Jagdamba Singh and Others Vs. Deputy Director of Consolidation and Others reported in 1984 (2) LCD 398 to highlight the difference between an ancestral and joint holding and what ingredients are required to establish a case under the aforesaid two claims. It has been urged that for all the aforesaid reasons, neither the decree passed by the Civil Court in the year 1930 was a nullity, nor the petitioner was able to establish any case either of ancestral property or of joint family property, hence, the findings recorded by the three Consolidation Courts are absolutely just and proper which requires no interference, hence, the writ petition deserves to be dismissed.

29. The Court has heard the learned counsel for the parties at length who have painstakingly taken the Court through the records of the writ petition to support the irrespective contentions.

30. Before adverting to the respective contentions, it will be appropriate to formulate the questions which arise for consideration.

(i) The effect of the judgment and decree dated 11.03.1930 passed in R.S. No. 204 of 1929, whether the said decree was without jurisdiction;

(ii) The effect of the plaint in suit filed by the landlord in the year 1949 seeking eviction and arrears of rent which abated.

(iii) Whether the petitioner has been able to establish its case seeking co-tenancy rights on the basis of the property being ancestral in nature.

31. Referring to the first issue at hand, it would be noticed that the three Courts have specifically taken note of the judgment dated 11.03.1930 passed in R.S. No. 204 of 1929 to hold that once the right of the father of the petitioner was rejected by the Court holding that the property was not joint and the same issue could not be re-agitated, hence, the claim of the petitioner has been rejected.

32. The primary submission of the learned counsel for the petitioner while attacking the three judgments that the judgment and decree dated 11.03.1930 is without jurisdiction on the premise that since at the relevant time the Oudh Rent Act, 1886 was in operation, hence, the said Act did not permit the tenants to either have the rights of inheritance or division or transfer of the holding, hence, the decree passed by the Civil Court was wholly without jurisdiction and specific attention has been drawn to Section 108 of the Oudh Rent Act, 1886 which relates to the jurisdiction of the Court.

33. On the other hand, the aforesaid contention is repelled on the ground that the bar of the jurisdiction as contained in Section 108 is only in respect of such matters where a tenant institutes a suit against the landlord, however, where there is a claim between two co-tenants, the same was cognizable by the Civil Court and was preserved by Clause 10 (b) of Section 108.

34. Before proceeding further, it will be relevant to notice the tenor and contents of Section 108 which is the pivot upon which the controversy is revolving and it reads as under:-

"                                          Chapter VIII
 
Jurisdiction of the Court
 
Suits Cognizable
 

 

108. Suits cognizable under the Act.- Except in the way of appeal as hereinafter provided, Courts other than Courts to Revenue shall not take cognizance of the following descriptions of suits, and those suits shall be heard and determined in Courts of Revenue in the manner provided in this Act, and not otherwise-

A-Suits by a Landlord

(1) For the delivery by a tenant of the counter-part of a patta;

(1-a) for a declaration that a notice of relinquishment is invalid;

(2) for arrears of rent, or where rent is payable in kind, for the money equivalent of rent;

(3) for the enhancement of the rent of a tenant;

(3-a) for the determination of the rent of a tenant;

(3-aa) for the determination of the rent of a tenant in respect of a holding part of which has been relinquished under the first proviso to Section 20 (3);

(4) for the ejectment of a tenant;

(5) against patwaris or agents employed by landlords in the management of land or the collection of revenue or rent, or against the sureties of those patwaris or agents for money received or accounts kept by then patwaris or agents in the course of their employment as aforesaid, or for papers in their possession or for the rendering and settlement of accounts;

(5-a) for resumption of, or assessment or enhancement of, rent on land held rent free or at a favourable rate of rent or for declaration of any right as determined under Section 107-G or Section 107-H;

B- Suits by a under-proprietor or a tenant

(6) for establishing a right of occupancy;

(7) for the delivery by a landlord of a patta;

(8) for contesting a notice of enhancement or ejectment;

(9) for compensation-

(a) on account of illegal enhancement of payment of rent, or of any sum in excess of rent due, or

(b) on account of the withholding of a receipt for a payment of rent, or

(c) on account of illegal ejectment, or

(d) on account of loss caused by the making of an improvement under Section 29, sub-Section (3), or

(e) on account of the value of standing crops under Section 66;

(10) for the recovery of the occupancy of any land which has been treated by a landlord as abandoned or from which an under-proprietor or tenant has been illegally ejected by the landlord or for possession by a person in whose favour an ex-proprietary tenancy arises under Section 7-A:

Provided that nothing in this section shall operate to debar any person claiming to be an under-proprietor who has been ejected under the provisions of Section 60 from bringing a suit for possession in a civil court;

(10-a) under the third proviso to Section 30-A or for the recovery of the occupancy of a holding or part thereof, and for compensation for dispossession;

(10-b) for occupancy of a holding by a person claiming such occupancy as the heir of the deceased tenant of the holding;

(11) for contesting the exercise of the power of distraint conferred on landlords and others by this Act, or any act purporting to be done in exercise of that power, or for compensation for illegal distraint or for recovery of the amount realized by proceedings in distraint;

(12) for abatement of rent [***];

(13) for the recovery of compensation for improvements [***];

(13-a) for the recovery of an amount which was recovered from him under Section 12-A in excess of the amount due from him;

C-Suit regarding the division or appraisement of produce

(14) to set aside an award in respect of a division, estimate, appraisement or proceeding under Section 32;

D- Suit by and against lambardars, co-sharers and muafidars

(15) by a sharer against a lambardar or Co-sharer for a share of the profits of an estate or any part thereof, or for the rendering and settlement of accounts in respect to those profits;

(16) by a lambardar, or by a pattidar who is entitled to collect the rents of the patti, for arrears of revenue or rent payable through him by the Co-sharers whom the represents, or by a lambardar for village expenses and other dues for which the Co-sharers may be responsible to him, or against a joint lambardar for compensation for revenue or rent paid by the lambardar on account of the joint lambardar;

(17) by Co-sharers against lambardars, or by proprietors, or lessees against muafidars or assignees of revenue, for compensation on account of exaction in excess of revenue or rent, or on account of the withholding of a receipt for a payment of revenue or rent;

(18) by muafidars or assignees of revenue for arrears of revenue. "

35. Sri Shukla, learned counsel for the petitioner has submitted that Section 108 which is part of the Oudh Rent Act, 1886 is a special Act which contemplated only occupancy rights for the tenants. The Act did not provide for any inheritance or any transfer of the holding by the tenant. It has further been urged that there has been a marked shift, inasmuch as, under the Oudh Rent Act, 1886, the rights conferred on the tenant did not include the right of transfer or inheritance. Later, with the advent of the United Provinces Tenancy Act, 1939 which later was followed by the U.P.Z.A. & L.R. Act 1950 which provided both heritable and transferrable rights to the tenure holders which has also further found its reflection in the U.P. Revenue Code, 2006, however, the fact remains that under the Oudh Rent Act no such right was granted.

36. Section 108 clearly provided that no courts other than the courts of Revenue shall take cognizance of the suits which have been described in the said Section and it would indicate that there is no category of a suit relating to either division of the holding amongst co-tenants hence the necessary corollary is that since the Act prohibited inheritance and transferability, thus, there was no category of such a nature of a suit followed by the fact that where such specific type of suits were provided to be cognizable by the Revenue Court, the jurisdiction of the Civil Court would stand excluded.

37. It is in the aforesaid context that the learned counsel for the petitioner has relied upon a decision of the Apex Court as well of this Court in Mst. Mutwalli (Supra) and Radhawar (Supra) to contend that a decree which was without jurisdiction, no amount of consent can cure the defect nor the principles of resjudicata, acquiescence can be pressed into service and for the said reason, the petitioner could not be have been non-suited only on account of the judgment and decree dated 11.03.1930.

38. It is in the aforesaid context as well that the decision of the Apex Court in the case of Gujarat Urza Vikas Nigam Ltd. (Supra) and V.K. Nasva (supra) has been pressed into service to indicate that the provisions of U.P.C.H. Act, 1953 is part of a special Act which has an overriding effect and thus the claim of the petitioner ought to have been adjudicated on its own merits after considering the effect of the judgment and decree and not merely on the ground that there has been a decree of 1930 and the matter was not adjudicated at all.

39. Though, in so far as the decisions referred to by the learned counsel for the petitioner on first principles and proposition is concerned, there can be no two view at all. However, what is to be noticed is that there has been no pleading regarding the fact that the judgment and decree dated 11.03.1930 is a nullity. The writ petition has been pending before this Court since 1978 and though large number of parties have expired and substitutions applications were made so much so that even the counter affidavit was filed sometime in the year 2014 to which the petitioner filed his rejoinder but till then no such plea was raised.

40. Be that as it may, since the issue of jurisdiction has been raised, this Court considers it appropriate that despite that an objection being raised by the learned counsel for the respondents that in absence of pleadings and appropriate foundation for raising the aforesaid plea, the same may not be considered, however, the Court embarks upon the aforesaid submissions strictly in light of the provisions of law and upon the decision cited by the respective parties.

41. The learned counsel for the private respondents has drawn the attention of the Court to the language of Section 108 and the category of suits provided thereunder. It has been submitted that the nature of the suits which have been enumerated in Section 108 have been categorized under broadly four heads. For the purposes of the instant controversy, suits under the head (B) titled suits by a under-proprietor or a tenant is relevant. It has been submitted that Clause 10 (b) clearly brings the suit which was filed by the father of the petitioner amongst his other brothers, is squarely covered by the aforesaid provisions. It has been submitted that any occupant of a holding claiming such occupancy right as an heir of a deceased tenant of a holding to file a suit in the Civil Court. It is only when such a suit is sought to be brought against the landlord then it would be hit by Section 108 of the Act and such a suit necessarily would be within the jurisdiction of the Revenue Court.

42. It has further been submitted that Full Bench of Chief Court of Oudh in the case of Ms. Maluka Kunwar (Supra) precisely dealt with the aforesaid question and by a unanimous decision, the three Hon'ble Judges who gave their separate opinion but came to the same conclusion is an elucidating decisions on the point.

43. Upon considering the case of Mst. Maluka Kunwar (Supra), it would indicate that the matter went up before the Full Bench where a suit in respect of the properties in question consisted of three classes of tenure. The suit of the plaintiff was decreed in respect of under-proprietary land but dismissed as regard, the land held in occupancy right on the ground that the suit in regard to that class of land was not maintainable before the Civil Court and it is in this backdrop that the matter went up in appeal before the Chief Court of Oudh.

44. The question framed before the Full Bench was "Is a suit for recovery for possession of land, held in right of occupancy tenancy, by a person claiming title on general law of inheritance, against a person who is not a landlord, barred by Clause 10 (b) of Section 108 of the Oudh Rent Act, 1886?"

45. After noticing the relevant provisions, Justice Ashworth member of the Full Bench held that a suit against a person who is not the landlord, is not barred from cognizance of a Civil Court, whether the plaintiff claims possession under a title based on general law of inheritance as modified in the case of statutory tenant by the provisions under Section 48 (2) of the Oudh Rent Act.

46. The relevant portion of the opinion of the Justice Ashworth as well as the relevant reasoning given by the other Hon'ble Judges namely Justice Hasan and Chief Justice Mr. Stuart is being reproduced hereinafter for ready reference:

The opinion of Justice Ashworth is as under:-

"My finding on the reference is, that if, the suit is against a person who is not the landlord, it is not barred from the cognizance of a civil Court, whether the plaintiff claims possession under a title based on the general law of inheritance or under the general law of inheritance as modified in the case of a statutory tenant by the provision in Section 48(2) of the Oudh Rent Act."

The opinion of Justice Hasan is as under:-

*************

"It logically follows, to my mind, that a person is only a tenant in legal relation to the landlord and not otherwise. Outside the scope of such a legal relation that person is not a tenant. In other words, a person had the "status" of a tenant in respect of his rights and duties only in relation to his landlord. Outside that relation he is a person capable of possessing all the rights and subject to all the obligations of an owner, pro-tanto, of his holding. I will make my meaning clear by an illustration. A is the tenant, B is the landlord, and C is the third person. A is a tenant in relation to B and he is an owner, in a restricted sense of the word, in relation to C. When therefore a 'tenant' is given the right to sue, he is given that right in respect of his rights enforceable against his landlord.

The word "holding" is used throughout the Act in the Technical sense of land possessed by a tenant as such and the provisions of the Act deal with the land only in so far as its possession gives rise to "rights and obligations" of a tenant and the landlord inter se. Wherever a tenant is given any right in his holding he is given that right against his landlord and wherever an obligation is imposed upon a tenant in respect of the holding such an obligation arises in favour of the landlord only. The land which he holds constitutes his "holding" in relation to his landlord only and his rights in that land are available only against the same person. The right to sue therefore given to a tenant in respect of his holding is a right enforceable against the landlord only.

Similarly, suits under class B are suits against the landlord as the nature of the suits described in the several clauses clearly implies.

It must therefore be held that having regard to the setting in which clause (10b) is placed that clause also relates to a suit against the landlord. This is particularly so when we bear in mind the nature of the suit contemplated by clause (10a) which was also introduced into the Oudh Rent Act along with clause (10b). In clause (10a) we find the nature of she suit described as "Under the third proviso to S. 30A, for the recovery of the occupancy of a holding or part thereof for compensation for dispossession" When we turn to the third proviso to S. 30A, we find therein the tenant's right of recovery of the occupancy of his holding and compensation as against his landlord provided for. The expression "occupancy of a holding" is used in both clauses (10a) and (10b) and should in my opinion bear the same meaning at both the places, that is, a suit for the recovery of the occupancy of a holding against the landlord."

The opinion of Hon'ble Chief Justice Sir Louis Stuart is as under:-

"I have no hesitation in finding, that a suit for recovery of possession of lands, held in the right of occupancy tenancy, by a person claiming title on the general law of inheritance against a person, who is not a landlord, is not barred by Clause (10b) of Section 108 of the Oudh Rent Act, 1886."

47. It will be noticed that all the three Hon'ble Judges came to a unanimous conclusion that Section 108 Clause 10 (b) did not bar a suit and such a suit was cognizable by the Civil Court.

48. This Court hastens to refer to another judgment of the Division Bench of the Judicial Commissioner's Court in the case of Karingan (Supra) wherein a similar controversy raised as to whether a cultivatory holding could be partitioned without the consent of the landlord. It will be relevant to notice that the aforesaid decision is also relating to the year 1924 when the Oudh Rent Act of 1886 was in operation. Though, the said decision does not refer to the provisions or the bar of Section 108, however, it takes note of the provisions of Section 39 (2) of the Land Revenue Act. However, what can be inferred is that in so far as the jurisdiction is concerned, the same has already been clarified by the Full Bench judgment in the case of Mst. Maluka Kunwar (Supra) while whether the suit for partition between two tenants could be maintainable before a Civil Court has been considered and the relevant portion of the report in Karingan (Supra) is being reproduced hereinafter:-

" The only point that has been argued before me is a point of law that a cultivatory holding could not be partitioned without the consent of the landlord, which has not been obtained in this case.

.....The argument put forward is precisely the same which was put forward before the learned District Judge and I fully agree with the view taken by him. Section 39, clause (2) does not mean that no division of the holding held by two or more tenants should be effected; it only says that if such a partition has been arrived at and the distribution of land has taken place it shall not be recorded in the revenue papers until the consent of the landholder has been obtained. It is clear that this provision of law is intended for the purpose of protecting the rights of the landlord. Any partition of a cultivatory holding should not obviously be binding upon the landlord if effected without his consent. The liability for the payment of rent among the tenants cultivating a particular holding is joint one and they are not entitled to covert their joint liability into a separate liability without the consent of the landlord. This, however, does not mean that the tenants cannot partition their holding among themselves."

49. Thus, it would be seen that both the aforesaid decisions are specific on the point of jurisdiction and maintainability of the suit and this Court is in agreement thereof. Thus, from the aforesaid, it would be clear that a suit by a tenants i.e. from the branch of the petitioner as well as amongst other co-tenants of the other branch i.e. private respondents, was maintainable.

50. The pleadings and the decision of the R.S. No. 204 of 1929 have been brought on record along with the counter affidavit. A translated copy of the pleadings and the typed copy of the judgment dated 11.03.1930 has been brought on record and from the perusal thereof the pedigree which has been mentioned in the instant proceedings are one in the same. The Court while deciding the issue had framed certain issues. The issue no. (i) related whether the property in suit was joint property of the parties as alleged by the plaintiff. It will be relevant to notice that Raghuvir Tiwari, the father of the petitioner was the plaintiff while Chandi Sahai and others which included the predecessors in interest of the present respondents were the defendants.

51. At this stage, it will also be relevant to notice that in paragraph 3 of the written statement filed by the predecessors in interest of the present private respondents, it was urged that a partition had already been effected between Nageshwar Tiwari and Bhagirathi some time in the year 1901 where the grand father of the petitioner namely Arjun had not raised any objections and whether in light of law of limitation such a claim could be considered.

52. The learned Munsif in its judgment dated 11.03.1930 after referring to the evidence both oral and documentary held that the plaintiff Raghuvir Tiwari had failed to prove that the property in suit was a joint family property while the defendants had succeeded in showing that it was their specific and separate property.

53. In light of the aforesaid decision where as a fact the property in question was held to be not joint and the fact now being raised that the said decree was nullity which in light of what has been stated above is found to be not tenable, hence, this Court comes to the conclusion that in so far as the judgment and decree dated 11.03.1930 is concerned, the same was passed by the Court of Competent Jurisdiction and could not be treated to be a nullity as suggested by the learned counsel for the petitioner. For the aforesaid reasons, the decision relied upon by the learned counsel for the petitioner do not come to his rescue.

54. The next issue which has been canvassed before the Court is that as per the petitioner, the then landlord had initiated proceedings for arrears of rent and ejectment against his tenants which included the petitioners as well as the private respondents which clearly indicates that the petitioner was in possession. Had the property being partitioned between Bhagirathi and Nand Kishore and the petitioner and his predecessors have no right then obviously the then landlord would not have impleaded the petitioner and his predecessors as a party. This in itself was indicative of the fact that the property was ancestral and the petitioner and his predecessor continued to remain in possession. Since there is no material to indicate as to how the petitioners were evicted, thus, it would be presumed that the petitioner continues to remain in possession as their names was also recorded in the revenue records of rights, thus, this aspect has also not been considered.

55. The Court has given its thoughtful consideration to the aforesaid aspect, however, the aforesaid submissions may at the first blush seem attractive but is fallacious.

56. In order to establish the aforesaid contentions, the petitioner has relied upon the pleading of the suit instituted by the then landlord. Even if the same is taken at its face value what could not be disputed by the learned counsel for the petitioner is that the aforesaid proceedings abated. There is nothing on record to indicate that in response to the said plaint any of the private respondents or even for that matter the predecessor-in-interest of the petitioner had filed their response. Even if taking the best case scenario, the aforesaid plaint and its averments can only be taken as an admission in so far as the then landlord was concerned, however, the same could not be pressed against either the private respondents or their predecessor-in-interest. Since there is nothing on record to indicate that any of the private respondents or their predecessors had accepted the aforesaid averments. Even otherwise the effect of abatement of a proceedings has been noticed under Order 22 Rule 9 C.P.C. The effect of an abatement has been mentioned in the aforesaid provision and is reproduced hereinafter:-

"Rule 9 Order XXII of Code of Civil Procedure 1908 "Effect of abatement or dismissal"

(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.

(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.

(3) The provisions of section 5 of the Indian Limitation Act, 1877 (15 of 1877) shall apply to applications under sub-rule (2).

[Explanation.-Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order."

57. The effect of abatement is clear from the explanation which is appended to Order 22 Rule 9 and it clarifies that in a later suit a defence which is based on the facts which constituted a cause of action in the suit which abated or is dismissed under the said Rule does not operate as a bar. Thus, the effect of abatement does not create any conclusive bar.

58. This being the situation merely by referring to the plaint avements of a suit instituted in the year 1945 by the then landlord and that too a suit which abated in absence of any other material or evidence, it cannot be stated that mere averment in the said plaint instituted by a third party can be made binding or be treated as a admission of possession by the private respondents or their predecessor-in-interest. Thus, for the aforesaid reason, this Court finds that the aforesaid contention raised by the learned counsel for the petitioner does not hold water. Moreover, this aspect of the matter has also been considered by the Consolidation Courts and a finding to the contrary has been recorded by them which does not suffer from any error to persuade this Court to upset the same.

59. Coming to the next question as to whether the petitioner has been able to establish its claim on the basis that the property was ancestral.

60. At the very outset, it may be stated that the petitioner had laid his claims before the Consolidation Courts on the ground that the property was joint family property. It was never his case that it was ancestral but nevertheless this Court giving the benefit to the petitioner is assessing the claim of the petitioner on both the counts treating it to be ancestral as well as joint family property.

61. At this stage, it will be relevant to note the decision of this Court in the case of Jagdamba Singh & Ors. vs. Dy. Director of Consolidation & Ors., reported in 1984 (2) LCD Page 398 [LB] wherein the ingredients for a claim of co-tenancy and ancestral has been considered very lucidly and the relevant Paragraphs 14, 15, 22 and 23 will be apposite to resolve this controversy.

"....14. It is fairly well settled that in order to entitle a party to claim co-tenancy rights in the holding on the ground of its being ancestral the unbroken identity of the holding has got to be established throughout the period. If the identity has changed of the holding the claim cannot succeed. This view has been expressed in several decisions of Board of Revenue and also of this Court in the cases noted below:--

(1) 1943 RD 567 (BR)Jodhia v. Bhikwa.

(2) 1942 RD 379 (BR)Hamid Ali v. Benares Bank.

(3) 1942 RD 401 (BR)Mohd. Yasin v. Mohd. Shafi.

(4) 1945 RD 122 (BR)Rajaram v. Narain Singh.

(5) 1969 RD 175 (BR)Abhai Narain v. Ram Manorath.

(6) 1973 RD 242 (BR)Aminuddin v. Kamuruddin.

(7) 1975 RD 195 (BR)Ram Narain v. Buddhu.

(8) 1963 RD 37 (BR)Mahadeo Singh v. Sunder Kewat.

(9) 1979 RD 125 (BR) Balwanti v. Bhaiya Ram.

(10) 1983 (1) Lucknow Civil Decision, 40 (HC) Jhagroo v. The Deputy Director of Consolidation.

15. In all the aforesaid decisions it has been consistently held that in order to uphold the claim of co-tenancy rights on the ground of land being ancestral it is essential that the entire land of the holding of the common ancestor must have come down in the identical form an it must have remained unchanged and intact. It would, however, be correct to say that where as a result of survey made during settlements, the area of some plots might have decreased or increased or that some plot or plots are eliminated for some explained reason from the holding in question viz. having fallen in the bed of river due to the alluvial and deluvial action of the river or by the construction of the canal etc., then in such event it cannot be said that there is break in the identity of the holding in dispute. The slight change like elimination of certain plot or the increase or decrease in the area of certain plots for the aforesaid reasons shown would not operate to destroy the identity of the holding coming down in identical form in the family from the time of common ancestor. But in order to uphold the claim of co-tenancy rights on the ground of land being ancestral it must be established by the claimant that the holding has come down intact and in identical form that it has not been sub-divided or resettled with one or some of the heirs or with the strangers. Thus, where the disputed holding has not come intact in the identical form and only some of the plots of the holding belonging to common ancestor are found included as in the present disputed holding it would not make it ancestral holding so as to give a share in it to the claimants on that ground nor it would be permissible to pick up those plots from the holding and declare them to be ancestral property and give a share in those plots to the claimant.

* * * * * * * * * * *

22. Learned counsel for the opposite parties Sri Hargun Charan, however, urged that even if the claim of the opposite parties 5 to 8 cannot be sustained on the ground that the disputed holding is ancestral, yet their claim is sustainable on the ground that the entire land of the disputed Khata No. 36 is joint family property and the name of Mata Dihal Singh was recorded in the representative capacity as he was head and Karta of the joint family. His further contention was that even if it be held that the holding in dispute consisting of 84 plots with an area of 44 bighas, 9 biswas, 14 biswansis was settled afresh by the landlord with Mata Dihal Singh, the same would be deemed to be joint family property as at the time of acquisition he was head and Karta of the family being elder brother. Learned counsel pointed out that the opposite parties 1 to 3 have recorded a finding to the effect that at the time of second settlement in the year 1301 F., both these brothers Mata Dihal Singh and Ram Baran Singh formed joint family and on the basis of this finding learned counsel urged that even if land of the disputed holding was acquired by Mata Dihal Singh, but the same would be treated to be joint family property and the opposite parties 5 to 8 would get half share in all the plots of the disputed holding-Khata No. 36.1 am unable to agree with this contention as well.

23. It is well settled that the creation of tenancy in respect of agricultural land is a matter of contract between the landlord and the tenant. Even in the joint Hindu family a member of the joint family could acquire land for himself and unless it is proved that the land was acquired by him in the representative capacity and for the benefit of the family, it cannot be held to be joint family land merely because it was acquired by him when he formed joint family with other members. Even a Karta of joint Hindu family can acquire land in his name for his own benefit and it cannot be treated to be joint family property merely because he happens to be Karta of the family at the time of the alleged acquisition of the property. It has to be positively proved that when the land was acquired by the Karta of the joint family he had acquired it in the representative capacity for the entire body of coparceners and it is treated as such by the members of the family."

61. This Court had the occasion to consider the issue of joint family and joint family property in the case of Dropadi Devi & others Vs. Shiv Chandra Dixit, 2020 SCC Online, All 104. The relevant paragraphs 54 and 55 of the said report is being reproduced as under:-

"54. There is a difference between a joint family and a joint family property merely because a joint family exists does not give rise to a presumption that the property also belongs to the joint family. In this regard, this Court draws strength from the decision of the Apex Court in the case of D.S. Lakshmaiah and Another Vs. L. Balasubramanyam reported in 2003 (10) SCC 310, the relevant portion reads as under:-

18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.

55. Similarly, the Coordinate Bench of this Court in the case of Kunj Bihari Vs. Ganga Sahai Pande reported in 2013 SCC Online Alld. 13489: 2013 (99) ALR 826 wherein tracing the history and considering the earlier decision on the point of Joint Hindu Family and property, the burden of proof etc. This Court has held as under:-

24. The "patriarchal family" may be defined as a group of natural or adoptive descendants, held together by subjection to the eldest living ascendant, father, grand-father, great-grandfather. Whatever be a formal prescription of law, the head of such a group is always in practice, despotic; and he is the object of respect, if not always of affection, which is probably seated deeper than any positive institution. Manu says, "three persons, a wife, a son and a slave, are declared by law to have in general no wealth exclusively their own; the wealth which they may earn is regularly acquired for the man to whom they belong." Narada says, "he is of age and independent, in case his parents be dead; during their lifetime he is dependent, even though he be grown old."

25. The "joint family" is normally a transition form from "patriarchal family". At the death of common ancestors or head of house, if the family chooses to continue united, the eldest son would be the natural head. The former one was head of family by natural authority, the later other can only be so by a delegated authority. He is primus but inter pares. An undivided Hindu family thus is ordinarily joint, not only in estate but in food and worship. The presumption, therefore, is that members of a Hindu family are living in a state of union unless contrary is established. This presumption however varies inasmuch as it is stronger in case of real brother than in case of cousin and farther one go, from the founder of family, the presumption becomes weaker and weaker. However, there is no presumption that a family, because it is joint, possesses joint property. Under Mitakshara Law, possession of property is not necessary requisite for constitution of a joint family, though where persons live together, joint in food and worship, it is difficult to conceive of their possessing no property whatever, such as, at least, ordinary household articles which they would enjoy in common.

32. The joint undivided family is the normal condition of Hindu society as observed in Raghunadha Vs. Brozo Kishroe (1876) 3 IA 154 and Neelkisto Deb Vs. Beerchunder (1989) 12 MIA 523. An HUF is ordinarily joint not only in estate but in food and worship. Unless contrary is established, the presumption is that the members of a Hindu family are living in a state of union (see: Govind Dass Vs. Kuldip Singh AIR 1971 Delhi 151 and Bhagwan Dayal Vs. Mst. Reoti Devi AIR 1962 SC 287). If, however, one of the coparceners is admittedly living separately from other members of the family, neither it can be said that other members do not constitute a Hindu joint family nor the member living separately, who has stripped his relation with the joint family, can be said to be still a coparcener or member of joint family. Simultaneously, merely if some members are working and living at different places, though own a joint family in common, it cannot be said that they do not form a joint Hindu family. Since it is only a presumption, the strength thereof necessarily varies in every case. The presumption of union is stronger in the case of brothers than in the case of cousins and farther one goes from the founder of the family, the presumption becomes weaker and weaker.

33. Brothers may be presumed to be joint but conclusion of jointness with collaterals must be affirmatively proved. The presumption lies strongly in favour of father and son that they are living jointly unless proved otherwise.

34. This presumption, however, does not apply in respect of property. There is no presumption that a family, because it is joint, possess joint property. As per Mitakshara law, the possession of property is not a necessary requisite for the constitution of a joint family, though where persons live together, joint in food and worship, it is difficult to conceive that they are possessing no property whatever, such as ordinary household articles which they would enjoy in common.

35. In Sher Singh Vs. Gamdoor Singh 1997 (2) HLR 81 (SC), the Court said that once existence of a joint family is not in dispute, necessarily the property held by family assumed the character of a coparcenary property and every member of family would be entitled, by birth, to a share in coparcenary property, unless any one of the coparcener pleads, by separate pleadings and proves, that some of the properties or all the properties are his self-acquired properties and cannot be blended in coparcenary property. Merely because the family is joint, there is no presumption of joint property. A Hindu, even if he be joint may possess separate property. Such property belongs exclusively to him. Neither member of the coparcenary, nor his male issue, acquires any interest in it by birth. On his death (intestate), it passes by succession to his heirs and not by survivorship to the surviving coparcener. The existence of joint family does not raise presumption that it owns properties jointly. But once joint family nucleus is either proved or admitted so as to draw inference that such property could have been acquired out of joint family funds, the burden shifts to the party alleging self acquisition, to establish affirmatively, that such property was acquired without aid of joint family. Initial burden always lies upon the party asserting that any item of property is joint family property.

38. In Appalaswami Vs. Suryanarayanamurti and Ors., AIR 1947 PC 189, it was held that Hindu law is very clear. Proof of existence of a joint family does not lead to the presumption that property held by any member of family is joint. The burden rests upon one who asserts that an item of property is joint, to establish that fact. But where it is established that the family possessed some joint property which, from its nature and relative value, may have formed the nucleus, from which property in question may have been acquired, the burden shifts to the party alleging self-acquisition, to establish affirmatively that the property was acquired without the aid of joint family property/fund.

39. Again in Srinivas Krishnarao Kango Vs. Narayan Devji Kango AIR 1954 SC 379, it was held that proof of existence of a joint family does not lead to the presumption that property held by any member of family is joint. The burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which form its nature and relative value, may have formed the nucleus, from which property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of joint family property.

40. The legal proposition which emerges therefrom is that initial burden is on the person who claims that it is joint family property but after initial burden is discharged, the burden shifts to the party claiming that the property was self acquired and without the aid of joint family property/fund.

41. In Rukhmabai Vs. Lala Laxminarayan AIR 1960 SC 335, the Court said:

"There is a presumption in Hindu Law that a family is joint. There can be a division in status among the members of a joint Hindu family by refinement of shares which is technically called "division in status", or an actual division among them by allotment of specific property to each one of them which is described as "division by metes and bounds". A member need. not receive any share in the joint estate but may renounce his interest therein, his renunciation merely extinguishes his interest in the estate but does not affect the status of the remaining members vis- a-vis the family property, A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether movable or immovable, held by a member of, a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property. to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property..."

(emphasis added)"

62. Now applying the principles as have been noticed above, it will be seen that in so far as the claim of the petitioner treating the property to be joint is concerned, there is neither any pleadings nor any material to indicate that the property in question was acquired in a representative capacity. There is nothing on record to indicate that the property was acquired from the joint family nucleus.

62. Moreover, even though, there is absence of pleadings and proof in this regard another fact which cannot be effaced from the record is that the father of the petitioner had instituted a suit claiming partition on the same very premise that the property was joint which in terms of the judgment dated 11.03.1930 was held to be separate property of Nand Kishore and Bhagirathi.

63. Thus, for the aforesaid reasons, the aforesaid contentions of the petitioner cannot be countenanced.

64. Now in case if the property is considered to be ancestral then as per principles as noticed in the case of Jagdamba Singh (Supra), it ought to have been shown by the petitioner that the property was recorded at any point of time in the name of the common ancestor Debi Charan. It is not disputed nor could be shown from the record that the property in question at any point of time was recorded in the name of Debi Charan. It has also not been shown that the partition which had occurred between Nageshwar belonging to the branch of Nand Kishore and Bhagirathi in the year 1901 was ever assailed and since that point of time, the property has been recorded separately. The petitioner also could not explain that it is Nand Kishore and Bhagirathi who had granted 8 bighas of land out of their own holdings in favour of Sri Raghuvir which continues to be held by the petitioner in a separate Khata No. 126. From the said Khata No. 126, the father of the petitioner had leased out certain lands.

65. Thus, all the aforesaid facts and circumstances cumulatively indicate that all the three namely Nand Kishore, his successors, Bhagirathi, his successors and Arjun and his successors continued to occupy their separate land. Nothing from record could indicate that the property was ancestral and even the fact that the entries were recorded separately in the names of Bhagirathi and his successors, Nand Kishore and his successors in respect of separate areas and separate Khata No. 123 and 141 indicates the severability, the exclusive ownership and possession, thus, for all the reasons, the said property cannot be treated to be ancestral. The three Consolidation Courts have also taken note of it and have found that the property was enjoyed by the parties separately.

66. Even noticing the submission of learned counsel for the petitioner who by relying upon a larger Bench decision of this Court in the case of Sri Ram (Supra), it would indicate that the same also does not come to the help of the petitioner for the reasons that even if the long standing entries of the revenue records may be treated as presumptive but nevertheless the fact remains that it is for the petitioner to have displaced the said presumption by leading cogent and substantial evidence to rebut the said presumption.

67. Needless to say that the same has not been done and despite both oral and documentary evidence having been led before the three Consolidation Authorities which have concurrently recorded that the petitioner is not entitled to claim of 1/3rd share on the basis of co-tenancy in Khata No. 123 and 141 is based on proper appreciation and material available on record and is concluded by the concurrent findings which for the reasons as recorded herein above do not suffer from any error which may persuade this Court to interfere in exercise of powers conferred on this Court under Article 226 of the Constitution of India.

68. This Court does not find that there is any merit in the petition, accordingly, the same is liable to be dismissed. Accordingly, the writ petition is dismissed. The order passed by the Consolidation Authorities are affirmed. In the facts and circumstances, there shall be no order as to costs.

(Jaspreet Singh, J.)

Order Date :- 01.10.2021

Asheesh