Allahabad High Court
Ram Kishore And 14 Others vs Deputy Director Of Consolidation ... on 13 April, 2023
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No.18
Reserved On: 14.3.2023
Delivered on: 13.4.2023
WRIT - B No. - 3191/2022
Petitioner :- Ram Kishore and Others
Respondent :- Deputy Director of Consolidation and Others
Counsel for Petitioner:- Sudhanshu Pandey, Manish Pandey
Counsel for Respondent :- C.S.C., Ramesh Chandra Tiwari
Hon'ble Chandra Kumar Rai,J.
1. Heard Sri Sudhansu Pandey / Sri Manish Pandey, learned counsel for the petitioners, Sri R.C. Tiwari, learned counsel for contesting respondent no.3 and the learned standing counsel for the state respondents.
2. Brief facts of the case are that dispute relates to khata no. 361, plot o. 111/1M, area 2.68260 hectare, situated at village Majhola, Pargana+Tahsil Chandausi, District Sambhal. Land in dispute belongs to the predecessor of the petitioners and the contesting respondent no.3 who were recorded bhumidhar of plot no.111/1M, area 2.8260 hectare. In order to appreciate the controversy, the family pedigree would be relevant which is as under:-
Puran Jukkhi
Sukkhi Sukhadi @ Sukadu
Bhookan Hori Shobhi Babu Ram Prasad Gomti ( Wife) Tikola
Rajpal
Rajpal Harpal Chandrawati Bhuri Chooti (adopted son)
(Daughter) (Daughter)
3. One Ram Prasad, co-sharer filed Suit No.45/35/02, under Section 176 of the U.P. Z.A. & L.R. Act which was decided vide order dated 10.5.2002/3.6.2002 in which the partition has been made according to the respective share of the parties. Against the order dated 10.5.2002/3.6.2002, respondent no.3 filed a restoration application on 13.11.2007 which was allowed and the aforementioned suit under Section 176 of the U.P. Z.A. & L.R. Act has been restored to its original number. Petitioner nos. 5 & 6 challenged the order, restoring the case to its original number by Revision No.57/2013-14, under Section 333 of the U.P. Z.A. & L.R. Act, the Board of Revenue entertained the revision, summoned the L.C.R and granted an interim protection in the matter. During pendency of the aforementioned revision before the Board of Revision, the notification under Section 4(2) of the U.P. C.H. Act has been issued in respect to the disputed plot, situated in village Majhola. Accordingly, Revision No.57/2013-14 has been abated vide order dated 1.7.2021. In C.H. Form 5, the name of every co-sharer of the plot in dispute has been recorded and an objection under Section 9-A(2) of the U.P. C.H. Act was filed which was registered as Case No.355 before the Consolidation Officer and the same was decided vide order dated 24.8.2018 by which the share of each co-sharer has been determined on the basis of compromise. Against the order dated 24.8.2018, contesting respondent no.3 filed an appeal before the Settlement Officer (Consolidation) along with an application under Section 5 of the Limitation Act, the appeal was registered as Appeal No.245/2021. In appeal, respondent no.3 has claimed the title on the basis of an adoption deed executed in his favour by Tikola, sone of Sukhari @ Sukari. The Settlement Officer (Consolidation), considering the evidence on record, dismissed the appeal filed by respondent no.3 and maintained the order of the Assistant Consolidation Officer dated 24.8.2018. Against the order of the Settlement Officer (Consolidation) dated 5.10.2021, respondent no.3 filed a revision before the Deputy Director of Consolidation, under Section 48 of the U.P. C.H. Act which was registered as Revision No.555/2022. The Deputy Director of Consolidation / revisional court vide order dated 30.3.2022, allowed the revision, set aside the order dated 24.8.2018 as well as 5.10.2021 and remanded the matter back to the Consolidation Officer for a fresh decision. In compliance of the revisional order dated 30.3.2022, the Consolidation Officer has accepted the claim of respondent no.3 on the basis of the alleged adoption deed and provided 1/2 share to the respondent no.3. Against the order of the Consolidation Officer dated 24.6.2022, petitioners filed the appeal under Section 11(1) of the U.P. C.H. Act before the Settlement Officer (Consolidation). Some of the tenure holders who were parties in the proceeding before the Consolidation Officer, filed revision against the order dated 24.6.2022 before the revisional court which was numbered as Revision No.614/2022. Accordingly, the Deputy Director of Consolidation / respondent no.2 called for the record of Appeal No.328/2022, filed by the petitioners before him and converted the same into Revision No.691/2022. The Deputy Director of Consolidation vide order dated 28.9.2022, dismissed the appeal / revision filed by the petitioners. Hence, this writ petition.
4. This Court while entertaining the writ petition, granted the interim order dated 23.11.2022 for maintaining status quo with regard to nature, character and possession over the property in dispute and directed the counsel for respondent no.3 to file counter affidavit in the matter. In compliance of the order of this Court dated 23.11.2022/28.11.2022, respondent no.3 has filed his counter affidavit and petitioners have also filed rejoinder affidavit.
5. Counsel for the petitioners submitted that the impugned orders have been passed in illegal / arbitrary manner, without considering the fact that adoption deed as set up by the respondent no.3, has not been filed in any proceeding nor the same has been proved in any proceeding, as such, no right can been given to respondent no.3 on the basis of the alleged adoption deed. It is further submitted that even in the civil suit, there was no issue to the effect that the alleged adoption deed is genuine or not. It is also submitted that in absence of any adjudication about the alleged adoption deed by any court, the order passed by the Consolidation Officer, giving right to respondent no.3, on the basis of alleged adoption deed is wholly illegal. It is also submitted that the Consolidation Officer has decided the objection only on the ground that the issue of adoption has already been settled in the earlier proceeding, as such, the principle of res judicata will be applicable. He further submitted that the revisional court has also maintained the judgment of the Consolidation Officer in arbitrary manner, without considering the fact that adoption deed has not been produced before any court of law nor the same has been proved in accordance with law, as such, no right can be given to respondent no.3 on the basis of the alleged adoption deed. Learned counsel for the petitioners further placed reliance upon the judgment of the civil court in order to demonstrate that no issue was framed before the civil court regarding the adoption deed nor there was any adjudication to the effect that whether the adoption deed was valid or not. He further submitted that in the civil suit, the order passed in the partition proceeding has been set aside. It is also submitted that even in the suit under Section 229-B, the order passed in favour of respondent no.3 has been set aside but there was no adjudication in any of the proceeding that adoption deed executed in favour of respondent no.3 is valid. It is lastly submitted that the impugned order be set aside and the earlier order of the Assistant Consolidation Officer passed on 24.8.2018 be maintained.
6. On the other hand, counsel for the respondent no.3 submitted that the order passed by the Assistant Consolidation Officer dated 24.8.2018 was on the basis of fraudulent and manipulated compromise, as such, the same was rightly set aside. He further submitted that respondent no.3 is adopted son of Tikola and the adoption deed has been proved in the earlier proceeding, as such, the Consolidation Officer has rightly held that respondent no.3 is entitled to the right in the plot in dispute on the basis of adoption deed. He further submitted that the Consolidation Officer has held that the plea of adoption is barred by principles of res judicata and the same has been rightly maintained by the Deputy Director of Consolidation, as such, no interference is required in the matter. He further placed reliance upon the orders passed in the partition suit under Section 176 of the U.P. Z.A. & L.R. Act as well as the judgment passed in the Civil Suit No.90/1984 (Rajpal vs. Smt. Chhoti and Others) in order to demonstrate that respondent no.3 has been given right on the basis of adoption deed. It is also submitted that the writ petition is devoid of merit and is liable to be dismissed.
7. I have considered the arguments advanced by learned counsel for the parties and perused the records.
8. There is no dispute about the fact that earlier proceeding under Section 9-A(2) of the U.P. C.H. Act was decided by the Assistant Consolidation Officer on the basis of compromise vide order dated 24.8.2018. There is also no dispute about the fact that in the proceeding initiated by respondent no.3, the Deputy Director of Consolidation has allowed the revision filed by respondent no. 3 and remanded the matter to the Consolidation Officer to decide the objection afresh on merit. There is also no dispute about the fact that in pursuance of the revisional order, the Consolidation Officer has decided the matter in favour of respondent no.3 accepting the case of adoption set up by respondent no.3 only on the ground that in the earlier proceeding, respondent no.3 was found to be the adopted son of Tikola. There is also no dispute of the fact that the order passed by the Consolidation Officer has been maintained in revision by the revisional court by summoning the record of the appeal from the appellate court which was filed by the petitioners and treating the same as revision.
9. It is material that respondent no.3 is claiming right on the basis of adoption deed but the adoption deed has not been proved before any court of law. Even before the civil court, there was no issue framed regarding the validity of the adoption deed, as such, there was no adjudication regarding the adoption deed set up by respondent no.3. In the revenue proceeding under Section 176 of the U.P. Z.A. & L.R. Act, there was no adjudication regarding the validity of the adoption deed. So far as the proceeding under Section 229-B of the U.P. Z.A. & L.R. Act filed by ancestor of the petitioners is concerned, the copy of the same has not been filed by either of the parties, as such, it cannot be said that issue of adoption deed has been adjudicated even in the proceeding under Section 229-B of the U.P. Z.A. & L.R. Act.
1. 10. The Consolidation Officer while deciding the objection, in favour of respondent no.3, accepted the adoption deed only on the ground that in the earlier proceeding, the case of adoption has been accepted by the court although, there is no evidence on record before this Court that in any of the proceeding either civil / revenue, there was any adjudication regarding the validity of the adoption deed. Relevant portion of the judgment of the civil court is as follows:-
"प्रतिवादीगण प्रारम्भ में अपना पक्ष प्रस्तुत करने हेतु न्यायालय में उपस्थित आते रहे और बाद में वह उपस्थित नहीं आये। अतः दिनाकं - 16.8.90 के आदेश द्वारा वाद को एक पक्षीय रूप से चलाये जाने के आदेश पारित किये गये।
वादी ने अपने वाद की पुष्टि में स्वयं को पी.डब्लू-1 के रूप में न्यायालय के समक्ष पेश किया है और अपने वादपत्र के कथनों की पुष्टि की है। पी.डब्लू-2 शोभाराम ने भी वादपत्र के कथनो की पुष्टि की है। चूंकि वादी की एक पक्षीय साक्ष्य के अतिरिक्त अन्य कोई साक्ष्य पत्रावली, पर उपलब्ध नही है अतः वादी का वाद प्रतिवादीगण के विरूद्ध एक पक्षीय रूप से आज्ञप्ति किये जाने योग्य है।
आदेश
वादी का वाद प्रतिवादीगण के विरूद्ध एक पक्षीय रूप से एक पक्षीय वाद व्यव सहित आज्ञप्ति किया जाता है। सहायक कलक्टर प्रथम श्रेणी, मुरादाबाद द्वारा वाद सं०-53/79 में प्रतिवादी सं०-1 व भूरी मृतक बनाम भूकन आदि में जो वाद पत्र में वर्णित सम्पत्ति के विभाजन से सम्बन्धित है, विवादित सम्पत्ति को खण्डित किया जाता है। प्रतिवादीगण की स्थाई निषेधाज्ञा द्वारा वाद सं०-53/79 के आधार पर विवादित सम्पत्ति पर कब्जा करने से भी निषेध किया जाता है।"
A perusal of the civil court judgment reveals that even no issue was framed and the suit was decreed in ex parte manner. It further reveals that there was no adjudication of the adoption deed in the civil suit.
11. So far as the question of admissibility of adoption deed is concerned, unless the same is produced and proved before the court, no right can be given to the person who is claiming the benefit of the adoption deed.
12. Section 16 of the Hindu Adoption and Maintenance Act is relevant for perusal which is as under:-
"16. Presumption as to registered documents relating to adoption.--Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved."
13. This Court in the case of Harihar vs. Deputy Director of Consolidation, Mau and Others, reported in 2015 (127) RD 144 has held that ceremony of adoption has to be proved either by direct evidence or presumption has to be raised according to the provisions of Section 16 of the Hindu Adoption and Maintenance Act. Paragraphs nos. 7 to 9 of the judgment rendered in Harihar (supra) are as follows:-
"7. I have considered the arguments of the counsel for the parties and examined the record. Admittedly, the ceremonies of adoption have not been proved by any witness. Thus the only evidence relating to adoption is adoption deed dated 12.08.1964. The arguments of the counsel for the petitioner that the document, being twenty years old was admissible in evidence without any formal proof under Section 90 of the Act as such the consolidation authorities are bound to raise presumption of the ceremonies of adoption as provided under Section 16 of Hindu Adoption and Maintenance Act, 1956. Section 16 of which is relevant is quoted below:-
16. Presumption as to registered documents relating to adoption.-- Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.
8. In order to raise presumption regarding adoption on the basis of adoption deed, the deed must have been signed by the person giving and the person taking the child in adoption both. Admittedly, deed dated 12.08.1964 was not signed by natural father and mother of the petitioner. As such presumption regarding ceremonies of adoption on its basis cannot be raised. In order to be valid adoption, the child must have been adopted according to the rites and custom of Hindu law. So far as admissibility of the document being 20 years old under Section 90 of Evidence Act, 1872, it has nothing to do with ceremonies of the adoption which has to be proved either by direct evidence or presumption has to be raised according to the provisions of Section 16 above.
9. Findings regarding Udasi being daughter of Soti and Khedani is based upon Pariwar Register as well as oral evidence of Udasi, which is admissible under Section 50 of the Evidence Act, 1872. There is no illegality in respect of findings of fact in this respect and no interference is required by this Court in exercise of writ jurisdiction. Similarly, the consolidation authorities have jurisdiction to correct the revenue entries of other khatas, even there was no objection by Udasi. In view of aforesaid discussions, orders of respondents-1 and 2 do not suffer from any illegality. The writ petition has no merit and is dismissed."
14. This Court in another case reported in 2006 (100) RD 581, Ram Vrat Tripathi vs. Deputy Director of Consolidation and Others, has held that ceremony of giving and taking is essential to validate adoption. Paragraph no.5 of the judgment is as follows:-
"5. Besides the controversy that whether the adoption deed being tweenty year old, no further proof was required and document was to be accepted as it is, this Court has to consider various other facts and circumstances besides voluminous evidence as was available before the Courts below and as has been placed before this Court also. Petitioner has brought on record bulk of documentary evidence in the shape of school record, Khasra extracts and documents relating to proceedings of earlier cases. In all the school record, respondent No. 3 is shown to be the son of Sahadeo. In the Transfer Certificate, School Leaving Certificate, admission documents and in the declaration in the University, respondent No. 3 was shown to be recorded as son of Sahadeo. The adoption deed is said to be dated 13.12.1946 but thereafter when for the first time, respondent No. 3 was admitted in school, form was filed by Sahadeo himself and Sahadeo was shown to be father of Ram Chandra. There is a mention in the documents so filed by petitioner that college staff asked the signatory on the form namely Sahadeo about parentage upon which, a declaration was given that Ram Chandra is the son of Sahadeo. In all Khasra extracts, Ram Chandra is shown to be the son of Sahadeo. There are several money order receipts from which, it is clear that the petitioner has been sending money to Sahadeo who happened to be elder brother. In Khasra extracts, petitioner is shown to be in possession as ''marfat' to Sahadeo. The adoption deed is not signed by Sahadeo who is said to have given his son in adoption to Ram Cheez. The Consolidation Officer by referring these factors in a precise manner, gave a clear finding that the name of Ram Chandra alone came in the papers without any reference to any amaldaramad in 1354 Fasli. Beeran Tiwari and Thag Tiwari the marginal witnesses of the adoption deed have not been examined. In all the school papers, revenue papers throughout Ram Chandra is shown to be son of Sahadeo. For the first time when Ram Chandra was admitted in School which was after the alleged adoption deed, he was shown to be son of Sahadeo. At no point of time, till the last Ram Chandra ever tried to get his parentage corrected as adopted son of Ram Cheez. In his service book also, he is shown to be son of Sahadeo. Oral evidence is contradictory in respect to the ceremony of giving and taking. It is on all these findings, genuineness of deed was rejected by the Consolidation Officer and the petitioner was accepted to be co-tenant with the respondents along with his legitimate share according to the pedigree. The appellate authority and the Revisional Court mainly on the ground that deed is twenty year old and it has not been cancelled in any competent Court have negatived the petitioner's claim and have reversed the judgment of the Consolidation Officer. The Deputy Director of Consolidation appears to have made wrong observation by saying that the land was throughout recorded in the name of Bikkan and thereafter Ram Cheez whereas the record placed before this Court states otherwise. A further wrong finding was given that Ram Chandra is entered as adopted son of Ram Cheez in the record which is not so. There is a further wrong finding that in no document, the petitioner has been shown to be in possession whereas Khasra extracts have been filed to show his name in possession as ''marfat'. The Deputy director of Consolidation has concluded by saying that in any view of the matter, entry of Ram Chandra showing his long possession, confers independent rights on him which appears to be totally misconceived as it was not the case of even respondent and on the other hand, all three were shown to be in possession in the shape of ''marfat' entry. The appellate authority in a very cryptic manner only by giving emphasis about the document being twenty year old, allowed the appeal and the Revisional Court by recording varous findings on the question of fact as noticed above, which apparently do not born out from the record has dismissed the revision. In view of the aforesaid discussion, it is clear that besides adoption deed, own conduct of the respondent No. 3 and his father throughout as is apparent from voluminous evidence was liable to be taken note of by Appellate Court and the Revisional Court. By adoption, mode of succession stands changed and therefore, that is to be accepted with all care. Even in presence of adoption deed, ceremony of giving and taking as stated in the principle of Hindu Law as has been noticed by the Apex Court in the case of Lakshman Singh(supra) has to be kept in mind. Few observations as are contained in the judgment of the Apex Court will be useful to be quoted here;
"That a formal ceremony of giving and taking is essential to validate the adoption has been emphasized by the Judicial. Committee again in Krishna Rao v. Sundara Siva Rao."
Further observation as has been made by the Apex Court in paras-9 and 10 will be useful to be referred at this place;
Para-9: Strong reliance is placed by learned Counsel for the appellant on the decision of the Judicial Committee in Biradhmal v. Prabhabhati. There a widow executed a deed of adoption whereby she purported to have adopted son to her deceased husband a boy. The Sub-Registrar before whom the document was registered put to the boy's natural father and to the widow questions whether they had executed the deed. The boy was also present at that time. The Judicial Committee held that, under the said circumstances, there was proof of giving and taking. The question posed by the Privy Council was stated thus: "The sole issue discussed before their Lordships was the question of fact whether on 30th June, 1924, at about 6 P.M. when the adoption deed was being registered the boy was present and was given by Bhanwarmal and taken by the widow." The question so posed was answered thus at p. 155--
"....... Their Lordships think that the evidence that the boy was present at the time when the sub-registrar put to his father and to the widow the questions whether they had executed the deed is sufficient to prove a giving and taking." This sentence is rather laconic and may lend support to the argument that mere putting questions by the sub-registrar would amount to giving and taking of the adoptive boy but the subsequent discussion makes it clear that the Privy Council had not laid down any such wide proposition. Their Lordships proceeded to observe:
"Even if the suggestion be accepted that the auspicious day ended at noon on the 30th and that the deed was executed before noon and before the boy arrived at Ajmer, it seems quite probable that the registration proceedings which were arranged for 6 P.M. would be regarded as a suitable occasion for carrying out the very simple ceremony that was necessary." These observations indicate that on the material placed before the Privy Council-it is not necessary to say that we would come to the same conclusion on the same material it held that there was giving and taking of the boy at about 6 p.m. when the judicial committee, in our view, did not intend to depart from the well recognized doctrine of Hindu Law that there should be a ceremony of giving and taking to validate an adoption.
Para-10: The law may be briefly stated thus: Under the Hindu Law, whether among the regenerate caste or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adoption is obviously to secure due publicity. To achieve this object, it is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law required that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him. The nature of the ceremony may vary depending upon the circumstances of the case. But a ceremony there shall be part of the exigencies of the situation arising out of diverse circumstances necessitated to the introduction of the doctrine of delegation and therefore, the parents, after exercising their volition to give and take the boy in adoption, may both or either of them delegate the physical act of handing over the boy or receiving him, as the case may be, to a third party."
15. In the instant case, there is no proper adjudication regarding the validity of the adoption deed by the consolidation authorities, as such, matter requires fresh consideration by the Consolidation Officer to adjudicate the matter afresh.
16. Considering the entire facts and circumstances as well as the ratio of law laid down by this Court in Harihar (supra) and Ram Vrat Tripathi (supra), the impugned revisional order dated 28.9.2022, passed by the Deputy Director of Consolidation and order dated 24.6.2022, passed by the Consolidation Officer are liable to be set aside and the same are hereby set aside.
17. The writ petition stands allowed in part and the matter is remanded back before the respondent no.2/Consolidation Officer to decide the objection afresh, after framing issues, specially issue relating to the validity of the adoption deed and affording proper opportunity to lead evidence to the parties in respect to the adoption deed and other issues and decide the same on merit, expeditiously, preferably within a period of 6 months, from the date of production of the certified copy of the order.
No order as to costs.
Order Date :- 13.4.2023
C.Prakash
(Chandra Kumar Rai, J.)
