Allahabad High Court
Durga Prasad vs D.D.C.And Others on 4 January, 2023
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
RESERVED ON 30.11.2022
DELIVERED ON 4.1.2023
Case :- WRIT - B No. - 5317 of 1979
Petitioner :- Durga Prasad
Respondent :- D.D.C.And Others
Counsel for Petitioner :- G.C. Gaharana,G.C. Dwivedi,Rajesh Kumar
Counsel for Respondent :- R.N. Singh,A.K. Rai,Prashant Pandey,S.C.,V.K. Singh
Hon'ble Siddharth,J.
1. Heard Sri Rajesh Kumar, learned counsel for the petitioner, Sri Prashant Pandey, learned counsel for the opposite party no.2 and learned Standing Counsel for the State.
2. This writ petition has been filed praying for quashing of the judgement and order dated 12.7.1979 passed by the Joint Director of Consolidation, Agra in revision no. 513/1976/95 under section 48 of U.P. C.H. Act.
3. Petitioner's case is that the dispute relates to Khata no. 203 consisting of plot nos. 452,453,454, and 481/1 situated in village Naunare recorded in the name of Bhogi Lal son of Ochchey Lal and Bansidhar son of Ochchey Lal. Bhogi Lal died during the course of consolidation proceedings and the petitioners, namely,Durga Prasad and Ram Nath are the only sons and legal representatives of late Bhogi Lal.
4. The following pedigree is given in the writ petition:-
Vishwanath
I
----------------------------------------------------------
I I I
Ochchey Lal Kali Charan Chhote Lal
I X I
Bhawani Shanker (R.No. 2)
--------------------------------
I I
Bhogi Lal Banshidhar
------------------------ I
I I I
Durga Prasad Ram Nath I (P.No. 1) (P.No.2) I
I
---------------------------------------------
I I
Ram Prakash Om Prakash
(P. No.3) (P.No.4)
5. It has been pleaded that the land in dispute formerly belonged to Dwarika Prasad, who was Zamindar-Mafidar. In the year 1940, Dwarika Prasad transfered his rights of Mafidari in favour of Bhogi Lal and Banshidhar by means of registered sale deed dated 3.9.1940 and Bhogi Lal and Bansidhar came in actual physical possession on its basis over the land in dispute. However for making the abandonment of the land declared, a relinquishment deed was executed by Kali Charan and Bhawani Shanker(respondent no.2)on 29.6.1942. Bhawani Shanker signed the deed of relinquishment and his age according to himself was about 15 years at the time of execution of relinquishment deed . Bhawani Shankar set up the case that land in dispute is ancetral property acquired by Vishwanath and Bhawani Shanker has half share therein.Due to mistake of Lekhpal his name was not recorded as Sahkhatedar(Co-tenure holder) over the land in dispute.The Consolidation Officer framed the following two issues:-
1.Whether the objector, Bhawani Shankar, is co-tenure holder of the disputed land; and
2.What is correct share of the parties in the disputed Khatas.
6. Petitioners filed the sale deed dated 3.9.1940 and relinquishment deed dated 29.6.1942 in evidence before the Consolidation Officer. Copies of Khewat, Khasra, Khatauni and and receipts of revenue were also filed by the petitioners. In oral evidence Ram Autar, Durga Prasad, Bhogi Lal, Jwala Prasad and Shyam Lal and Registrar Qanungo were produced as witnesses by the petitioners. The Consolidation Officer by its judgement and order dated 11.2.1975 rejected the claim of the respondent no.2 and appeal preferred against the same by the respondent no.2 before the Settlement Officer Consolidation was also dismissed by judgment and order dated 12.9.1975. However the revisional court has allowed the objection of respondent no.2 by means of the impugned judgement and order and given ½ share in the land in dispute to Bhawani Shanker,respondent no.2.Hence petitioners are before this court against the order of the revisional court.
7. The case of the respondent no.2 in the counter affidavit is that sale deed in favour of Bhogi Lal and Bansidhar was never given effect. The Mafidar, Ochchey Lal, Kalicharn and Chottey Lal were Sikami(tenants) and hence Dwarika Prasad had no right to execute sale deed of the land in favour of Bhogi Lal and Banshidher who were in possession in the capacity of co-tenants and were members of the family of respondent no.2.No relinquishment deed was ever executed by Bhawani Shanker. Kali Charan and Ochchey Lal colluded and got the relinquishment deed made in the name of respondent no.2, while he was minor and living with them.The revisional court has rightly ignored the relinquishment deed being a forged document. Ochchey Lal was elder to all the brothers and respondent no.2 was dependant on him being minor at the time of execution of alleged relinquishment deed. He got service of driver in fire brigade and Bhogi Lal and Bansidhar were looking after the entire cultivation of the family property. No delivery of possession has taken place in pursuance of the relinquishment deed .The sale deed is also of the year 1940 and does not confers any right ,title and interest. There is no case of adverse possession taken by the petitioners nor there is any evidence of ouster. The finding of the revisional court is in accordance with law and does not calls for any interference.
8. Learned counsel for the petitioner has submitted that relinquishment deed dated 29.6.1942 was duly attested by Shyam Lal, Supervisor Kanoongo, as per section 57 of U.P. Tenancy Act, 1939.Respondent no.2 attained majority in 1945 but he did not raised any objection regarding aforesaid relinquishment deed, which became final against him.The names of Kalicharan and Bhawani Shanker were deleted from revenue record on the basis of relinquishment deed dated 29.6.1942 and name of the Ochchey Lal was duly recorded which continued in the year 1359 Fasli.Hence Ochchey Lal became Adhivasi under section 20 of U.P. Z.A. & L.R. Act. The respondent no.2 remained silent for 30 years and filed objection in consolidation proceedings without explaining the reason for the delay. On the basis of sale deed executed by Dwarika Prasad, Zamindar, Bhogi Lal and Bhumidhar came in actual possession over the land in dispute in the year 1940.But the revisional court did not considered the same. In case the petitioners were recorded in possession in 1359 Fasli then they became adhivashi and then Sirdar in accordance with section 20 of U.P. Z.A. and L.R. Act ,which was ignored by the revisional court.
9. Learned counsel for the respondent no.2 has submitted that the finding of the revisional court regarding the incompetence of Kali Charan to execute the relinquishment deed dated 29.6.1942 on behalf of his nephew Bhawani Shanker ,respondent no.2 is in accordance with law.The uncle of respondent no.2, Kali Charan, was not the natural guardian of respondent no.2 nor he was duly appointed guardian by the court. Therefore, the relinquishment deed was wrongly executed by him regarding the share of the respondent no.2. He has submitted that fraud vitiates all proceedings. Once the relinquishment deed is found to be fraudulent the entry in 1356 and 1359 Fasli would be treated as without any basis and legally non-est.
10. After hearing the learned counsel for the parties, this court has gone through the relinquishment deed in dispute, which has been brought on record as annexure-II to the writ petition.It has been mentioned at the top of deed,that the same is being executed by Kali Charan son of Vishwanth on his own behalf and also as guardian of his nephew, Bhawani Shanker son of Chottey Lal. Deed has been signed by Kali Charan and Bhogi Lal but Bhawani Shanker is only a witness with Sukhbashi Lal anothr witness of the deed. He is not signatory to the deed .The Consolidation Officer as well as Settlement Officer of Consolidation have not considered recitals in the relinquishment deed.The Consolidation Officer as well as the Deputy Director of Consolidation have recorded the findings that in the Khatauni of 1348 Fasli name of Ochchey Lal, Kali Charan and Bhawani Shanker was recorded but the name of Kali Charan and Bhawani shanker got deleted in Kahtauni 1356 Fasli.It was explained on behalf of the petitioners that because execution of relinquishment deed dated 29.6.1942, the names of Kalicharan and Bhawani Shanker were deleted from the Khatauni. There is no reference of any order passed by any competent authority regarding deletion of names of Kali Charan, Bhawani Shanker on record nor it has been pleaded by the petitioner that any such order was passed by any competent authority.
11. It is clear that the share of respondent no.2 in land in dispute was taken by the Ochchey Lal, while he was minor on the basis of the relinquishment deed dated 29.6.1942.
12. Law is well settled that fraud vitiates all proceedings and the technicalities of law cannot come in the way of setting aside of the orders obtained by way of fraud. The Consolidation Officer and Settlement Officer Consolidation have not considered the relinquishment deed dated 29.6.1942, wherein respondent no.2 is not a signatory at all. He is only a witness and deed has been executed by his uncle, Kali Charan, on his behalf as well as on behalf of respondent no.2, Bhawani Shanker, who was admittedly minor at the time of execution of relinquishment deed .Parties belong to the same family and merely on the ground of delay in raising objection against the fraudulently executed document whereby entire right of the respondent no.2 were got fraudulently relinquished in the land in dispute relief cannot be denied to respondent no.2. When respondent no.2 was not signatory to the deed there was no reason for him to challenge the same on get it set aside. He was not even a competent witness to due execution of deed being minor at that time. Claim of the respondent no.2 was wrongly rejected by the subordinate consolidation courts. The order passed by Joint Director of Consolidation/revisional court is in accordance with law and does not calls for any interference .
13. Petitioners have enjoyed the half share of the respondent no.2 in the property in dispute since more than eight decades. Taking very lenient view, petitioners are directed to make payment of cost of Rs. Two lacs to the respondent no.2 @ Rs25,000/- per decade within a period of two months by electronic mode in his bank account.
14. The writ petition is dismissed with aforesaid cost
Order Date :- 4.1.2023
Atul kr. sri.
