Paras Nath vs Jt.Director Of Consolidation ...
2022 Latest Caselaw 3237 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

								Reserved		
 
Court No. - 20
 
Case :- WRIT - B No. - 481 of 2005
 
Petitioner :- Paras Nath
 
Respondent :- Jt.Director Of Consolidation Pratapgarh And 5 Ors.
 
Counsel for Petitioner :- P.L. Mishra,Atiya Abid,Mohammad Abid Ali,Mohd.Abid Ali,Uma Shankar Sahai
 
Counsel for Respondent :- C.S.C.,Badrish Kumar Tripathi,D.S. Shukla
 

 
Hon'ble Jaspreet Singh,J.

1. Heard Sri U.S. Sahai, learned counsel for the petitioner. Sri Badrish Tripathi, learned counsel for the private respondents as well as the learned Additional Chief Standing Counsel for State-respondents.

2. The instant petition has been filed assailing the judgment dated 28.02.2005 passed by the Joint Director of Consolidation, Pratapgarh and judgment dated 21.12.1974 passed by the Settlement Officer of Consolidation, Pratapgarh and judgment dated 27.12.1973 passed by the Consolidation Officer, Pratapgarh, Derwa, District Pratapgarh whereby the contentions and claim of the petitioner in respect of two grove plots nos. 675, 676 has been rejeceted.

3. The brief facts giving rise to the instant petition are as under:-

4. Upon commencement of the consolidation operations in Village Kannupur, Pargana Bihar, Tehsil Kunda, District Pratapgarh. The base year entry in respect of Plot No. 675 and 676 was recorded in the name of Keshav Prasad, Shiv Harsh and Mst. Gullan widow of Lalta Prasad.

5. The original petitioner namely Paras Nath (who died during the pendency of the petition and is now represented by his legal heirs) filed his objections under Section 9-A (2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as Act of 1953). It was urged that the aforesaid two plots were the grove land coming down in the family of the petitioners since the time of their ancestors namely Ram Baksh and Har Govind. It was also stated that the name of Shiv Harsh and Mst. Gullan had been fraudelently incorporated and they had nothing to do with the aforesaid plots, accordingly, the names of Shiv Harsh and Mst. Gullan be expunged and the name of the petitioner Paras Nath be recorded instead.

6. Another set of objections came to be filed by Sri Keshav Prasad son of Shiv Harsh claiming rights over the property in question belonging and coming in their family from the time of the ancestor Sita Ram (Sri Keshav Prasad also died during the pendency of the proceedings and now his legal heirs are on record as private respondents nos. 4 to 6 represented by Sri Badrish Tripathi, Advocate).

7. In view of the conflicting claims, the Consolidation Officer framed two issues:-

(i) Whether Paras Nath was the exclusive bhumidhar of Plot Nos. 675 and 676 of Khata No. 90?

(ii) Whether the defendants are the owners of the disputed land?

8. After hearing the parties, the Consolidation Officer by means of its judgment dated 27.12.1973 dismissed the objections filed by Paras Nath and maintained the entries as recorded in the base year.

9. Sri Paras Nath carried the matter in appeal before the SOC, Pratapgarh who also by means of judgment dated 21.12.1974 dismissed the appeal. Sri Paras Nath further preferred a revision against the aforesaid two judgments before the DDC, Pratapgarh who also by means of judgment dated 01.09.1978 affirmed the findings of the C.O. and the SOC, consequently, the claim of the petitioner stood rejected.

10. The petitioner thereafter preferred W.P. No. 10 of 1979 (Paras Nath Vs. State of U.P. and others) which was allowed by means of judgment dated 14.03.1984 and the matter was remanded to the DDC. After remand, again the DDC by means of order dated 28.02.2005 dismissed the claim of the petitioner and being aggrieved against the aforesaid orders, the petitioner have yet again preferred the instant petition.

11. The submission of Sri U.S. Sahai, learned counsel for the petitioner is two fold:-

(i) It is submitted that the name of the ancestor of the present petitioner namely Ram Lal and Har Govind were recorded in the second settlement. It is only thereafter that erroneously the name of Shiv Harsh and Keshav Prasad came to be recorded at the time of third settlement which was erroneous since they did not belong to the family of Sita Ram, consequently, they had no right and this aspect of the matter was also noticed by the High Court while passing the judgment dated 14.03.1984 and had remanded the matter with a specific purpose to ascertain the status of the land in question as to whether it was a grove land or cultivatory plots and then decide the issue in accordance with law applicable but the DDC has failed to adhere to the terms of remand and has also not noticed the effect of Section 107 (b) of the Oudh Rent Act, 1886 which was applicable. It is further urged that once the grove land was settled with the ancestors of the petitioner namely Har Govind and Ram Lal, a fresh settlement could not have been made in favour of any third person and thus the names of Keshav Prasad and his father Shiv Harsh was erroneously recorded and could not confer any right on them.

(ii) The second limb of submission of Sri Sahai is that the petitioner had clearly established his family pedigree which has also been noticed by the three consolidation authorities below but unfortunately without assigning any reason, they have held that the petitioner could not establish the said pedigree. There has been no reason given as to why the testimony as well as the evidence tendered by the petitioner has been ignored and since the issue no. 2 as framed by the Consolidation Authority was equally important to be considered as to whether the defendants/private respondents were the owners of the property has also not been considered. The three Consolidation Authorities have erred in appreciating the contention and the evidence led by the petitioner and erred in coming to the conclusion that the petitioner could not establish his case but at the same time this automatically did not lead to the conclusion that the private respondents had proved their case and could be given any right.

It is further urged that the petitioners were successful in informing and establishing that the name of Har Govind and Ram Lal who are the ancestors of the petitioner coming from the branch of Ram Baksh Son of Sita Ram was duly recorded at the time of second settlement but there was nothing on record to indicate as to how the private respondents have come into the picture. In such circumstances where the petitioners had been able to prove their pedigree and the respondents have utterly failed to connect themselves to the branch and family of Sita Ram and in the aforesaid circumstances, neither the evidence has been properly appreciated nor the terms of remand as given by the High Court in its judgment dated 14.03.1984 has been complied with, accordingly, the order passed by the Consolidation Authorities is bad and cannot be sustained.

12. Per contra, Sri Badrish Tripathi, learned counsel for the private respondents submits that the three Consolidation Authorities have concurrently held that the petitioner could not establish the family pedigree as set up by him. In absence of any proper link to Sitaram, the petitioner cannot have any claim. It has further been urged that the pedigree as set up by the petitioner is different to the pedigree as explained by the private respondents, hence, the petitioner in absence of any proper explanation or proving the pedigree cannot get any releif.

13. Sri Tripathi has also urged that there is no explanation as to why the petitioner or his predecessors did not get the entries corrected, inasmuch as, in the third settlement, the name of the predecessors of the private respondents was recorded and the muddat was shown as 27 years which related to somwhere in the year 1923 (1330 Fasli) where the names of the predecessors of the private respondents have been continuing since the third settlement and even no attempt was made to correct the entries even after the date of vesting. Thus, the findings which have been recorded by the three Consolidation Authorities being findings of fact do not deserve to be interfered with and as such the petition deserves to be dismissed.

14. The Court has heard the learned counsel for the parties and perused the material on record.

15. The facts as borne out from the records indicates that the dispute in question relates to Plot No. 675 measuring 3 Bighas, 18 Biswa and 19 Biswansi and Plot No. 676 measuring 1 Bigha, 14 Biswa and 10 Biswansi situate in Village Kannupur, Pargana Bihar, Tehsil Kunda, District Pratapgarh.

16. The aforesaid two plots were recorded in the name of Keshav son of Sri Shiv Harsh and Mst. Gullan widow of Lalta Prasad in the basic year relating to Khata No. 90. The petitioner had filed his objections under Section 9-A(2) of the Act of 1953 and urged that the aforesaid plots have been coming in the family since the time of their ancestors. A pedigree has been setup by the petitioners wherein it is stated that Sita Ram was the common ancestor who had three sons Ram Gulam, Ram Tehal and Ram Baksh. The petitioner claims to be from the branch of Ram Baksh who was survived by his son Har Govind, Daya Deen and thereafter Paras Nath, the present petitioner.

17. It is also stated that the petitioners had first instituted a suit under Section 229-B of the U.P.Z.A. & L.R. Act which came to be decreed on 31.01.1967 in favour of the petitioner. The predecessor of the private respondents filed an appeal which was allowed and the matter was remanded once again to the Court of Assistant Collector, Ist Class for the decision afresh. After remand, the Court of Assistant Collector, Ist Class dismissed the suit of the petitioner by means of order dated 04.09.1970 against which the petitioner had preferred an appeal. During the pendency of the said appeal, the notification under Section 4(1) of the U.P.C.H. Act of 1953 was promulgated as a result, the proceedings abated and it is thereafter that the petitioner preferred the objections before the Consolidation Officer.

18. The petitioners while filing the documentary evidence sought to establish that the aforesaid two plots in dispute bearing No. 675 and 676 were initially recorded as Plot No. 425/11 and 426 (first settlement). Thereafter plots Nos. 668 and 669 (second settlement) and thereafter now recorded as Plot Nos. 675 and 676 (third settlement). It is the case of the petitioner that during the second settlement plot no. 668 and 669 were recorded in the names of Dilau widow of Jagannath and Mahadev Son of Visheshwar, Ram Lal son of Har Govind.

19. It is thus submitted that Ram Lal son of Har Govind is the grand-father of Paras Nath, the present petitioner. It is also submitted that during the time of the second settlement, the Oudh Rent Act, 1886 was operative and in terms of Section 107 (b), it provided that in so far as the grove land is concerned, no fresh settlement would be made. Hence, the emphasis is that the nature of the property in dispute always remained as a grove land. Thus, no fresh settlement could have been made since the names of Ram Lal Son of Har Govind was recorded, apparently, the entry of Shiv Harsh and Keshav Prasad crept in erroneously as neither they were members of the family and there is no basis for their names to have been recorded in the aforesaid plots.

20. It is in this view of the matter if the findings and the material on record is perused, it would indicate that the DDC while passing the impugned order has not considered this aspect at all.

21. Before proceeding further, it will also be relevant to notice the terms of remand as made by this Court in its order dated 14.03.1984 in W.P. No. 10 of 1979, a copy of which is on record as Annexure No. 8 and the relevant portion reads as under:-

". The entry in III Settlemen was not of the Branch of Sita Ram and the name of Shiv Harsh was entered in 1949 F. with a duration of 27 years continuing from 1923 F. the Deputy Director of Consolidation was of the view tht there was no reliable evidence from which it could be said that Ram Baksh was son of Sita Ram. In III Settlement name of an outsider was also entered. In Oudh there could not have been fresh settlement unless grove was denuded of trees. The entry in III Settlement was obviously not correrct because it appears that no evidence was tendered that the parties volutarily agreed to it and thereafter such an entry was made. The petitioner challenged the entry by filing the suit which ultimately abated because of start of consolidation operative. The Director of Consolidation observed that the entry of III Settlement and that of 1355 F. could not be rejected, as such the petitioner had no claim. The reasoning of the Deputy Director of Consolidation is faulty. In the III Settlement name of one Babu Raja Indra Bahadur Singh was entered thereafter name of his branch was not entered and it was entered in the name of Mahadev son of Bisheshwar etc. The Deputy Director of Consolidation was to find out whether the land in dispute was grove or cultivatory plot. The Deputy Director of Consolidation being the last court of facts was to decide the case on the basis of law applicable as the proved facts which was not done. As such the order passed by the Deputy Director of Consolidation cannot be sustained.

The writ petition is allowed and the order passed by the Deputy Director of Consolidation dated 01.09.1978 (Annexure-3) is quashed and he is directed to restore back the revision application to its original number and hear and decide the same in accordance with law in the light of the observations made above. It will be open for the parties to approach the Deputy Director of Consolidation and to file any additional documentary evidence and the Deputy Director of Consolidation may admit it if he is satisfied that case for same is made out. No order as to costs. "

22. From the perusal of the relevant portion as reproduced, it would indicate that the Court had already noticed the contradiction in the entries in the second and the third settlement and also noticing that before applying the appropriate law, it would be necessary ascertain the status of the plots and thus required the DDC to find out whether the land in dispute was grove land or cultivatory plots. Only thereafter it was required to apply the law to the proved facts.

23. In furtherance of the order passed by the High Court, the DDC got the inspection done through an Advocate Commissioner whose report has been brought on record as Annexure No. 9 dated 17.05.2002 which indicates that the land in question had about 63 trees and the land was not fit for cultivation rather it was in the shape of a grove. Having noticed this aspect of the matter, the DDC did not refer to the provisions of Section 107 (b) of the Oudh Rent Act nor considered the effect of that aforesaid section.

24. In the impugned order, it rejected the claim of the petitioner on the ground that the petitioner could not establish the pedigree, also that the petitioner could not indicate any entries in the name of his predecessors/ancestors, neither could establish his possession. It also found that no explanation was given as to why the ancestors of the petitioner did not get their name recorded nor initiated any proceedings in respect thereto. Since, in the third settlement, the names of Shiv Harak and Keshav Prasad was recorded as Muddat of 27 years, hence, it did not give any reasonable ground to interfere rejecting the claim of the petitioner.

25. This Court finds that it is not disputed that in the second settlement, the name of Ram Lal Son of Har Govind was mentioned that he is the son of Gaya Din who in turn is son of Ram Lal son of Har Govind. Thus, in so far as the conflicting claims before the Court is concerned, on one hand, the petitioner has been tentatively able to show that he belongs to the branch of Ram Baksh who was survived by his son Har Govind then Ram Lal, then Gaya Din and thereafter Paras Nath.

26. However, in so far as the private respondents are concerned, they have not categorically indicated as to how their names have been incorporated, neither in the counter affidavit or either of the three decisions referred by the Consolidation Authorities, it has come on record as to how the private respondents are claiming in the grove land which has been coming down from the branch of Sita Ram.

27. The record further indicates that Dilau whose name is recorded as widow of Jagannath is from the branch of Ram Gulam, one of the sons of Sita Ram whereas the other persons recorded is Visheshwar who is from the branch of Ram Tahal, the other son of Sita Ram and Ram Lal son of Har Govind who is said to be the son of Ram Baksh, the third son of Sita Ram. However, the private respondents have not indicated as to how they fit in the aforesaid pedigree. Though, a doubt is sought to be created that Ram Baksh was not the son of Sita Ram rather the third son of Sita Ram was Rajju but there is nothing on record to establish the same nor it is indicated that who are the successors from the branch of Rajju if at all he was the third son of Sita Ram.

28. Be that as it may, the aforesaid is merely a contention but there is no material on record to establish the said fact but the fact which has been brought on record is that the name of Ram Lal son of Har Govind is recorded in the second settlement. In the aforesaid facts and circumstance where the High Court in its remand order had directed two aspects of the matter to be considered (i) to ascertain what is the nature of the disputed property whether it is a grove land or cutivatory plots (ii) thereafter consider the contentions of the parties in light of the applicable law. If this is seen, it would indicate that the inspection part has been complied, inasmuch as, the Advocate Commissioner had visited the property and indicated that Plot was in shape of grove now once the High Court in its previous order had held that the findings recorded by the DDC regarding the relationship and the pedigree was not appropriate but unfortunately the same mistake has crept in the judgment passed by the DDC once again while passing the order dated 28.02.2005.

29. The DDC did not consider, how the private respondents who were claiming to have any right in the property got their names recorded in the third settlement when they were not able to establish their family tree or indicate as to how the property which was recorded in the second settlement in the names of Dilau widow of Jagannath, Visheshwar Singh son of Ram Tahal and Ram Lal son of Har Govind could come to them.

30. No proper reasoning has been given as to why the pedigree as set up by the petitioner is not acceptable. There is no consideration regarding the evidence on record which prompted the DDC to arrive at the findings that the petitioner has not been able to establish its pedigree. Where two conflicting claims were there and two issues had been framed by the Consolidation Officer, then it was incumbent upon the DDC to have noticed the contentions of both the parties before arriving at a finding regarding the relationship and pedigree. Merely, because the petitioners did not bring on record any evidence as to why they did not make any attempt to get the entries of the third settlement corrected will not on its own give rise to any circumstance to state that the petitioners did not belong to the branch of Ram Baksh, the third son of Sita Ram.

31. In the aforesaid facts and circumstances where it is now established that the land is in shape of grove now the only question that requires determination is whether the petitioner or the private respondents have been able to establish their respective contentions.

32. In this light, this Court finds that the petitioner at least has been able to trace their rights uptil the second settlement where the names of Ram Lal son of Har Govind has been mentioned but there is nothing on record to indicate the relationship and pedigree of private respondents. Since this is an issue which will require appreciation of evidence and even while passing the impugned order, the DDC has merely given its conclusions without noticing the respective evidence on record, accordingly, this Court has no option but to set aside the impugned order dated 28.02.2005 and remit the matter once again to the DDC, Pratapgarh to consider the evidence on record and return a clear finding regarding the pedigree set up by the respective parties and also answer in context with two specific issues framed by the Consolidation Officer which will determine the rights of the parties. Since the matter is quite old, hence, it would be appropriate that the DDC shall after affording an opportunity of hearing to the parties shall return his findings in light of the observations made in this judgment preferrably within a period of 6 months from the date a copy of this order is placed before the DDC, Pratapgarh.

33. In light of the above, the writ petition is allowed partly. The impugned order dated 28.02.2005 is quashed and set aside. The matter shall stand remanded to the Court of DDC, Pratapgarh where the revision shall stand restored and be decided in light of the observations and directions given hereinabove.

34. In the facts and circumstances, there shall be no order as to costs.

[Jaspreet Singh, J.]

Order Date: 18th May, 2022

Asheesh