Ayodhya And Another vs Joint D.Ofconsolidation ...
2023 Latest Caselaw 24574 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. 2023:AHC:176767
 
Reserved -: 23/08/2023
 
Delivered -: 12/09/2023
 
Court No. - 48
 

 
Case :- WRIT - B No. - 11484 of 1983
 

 
Petitioner :- Ayodhya And Another
 
Respondent :- Joint D.Ofconsolidation Allahabad
 
Counsel for Petitioner :- C.P. Srivastava,Adarsh Bhushan,Anil Bhushan,Rajes Kumar
 
Counsel for Respondent :- V.K. Singh,Ajay Yadav,Anil Kr. Yadav,Anjani Yadav,Chandra Prakash Srivastava,D.K.Singh,G.K. Sahai,K.C.Sinha,K.M.Garg,N.P. Shukla,R.K. Mishra,S.C.,S.N. Singh,S.N.Sahai,S.S. Sharma,V.K.Singh
 

 
Hon'ble Saurabh Shyam Shamshery,J.

BRIEF FACTS OF THE PRESENT CASE AND FIRST ROUND OF LITIGATION -:

1. The dispute in the present case relates to khata no.4 and 114 of village Noorpur, Pargana Sikandra, District Allahabad which was recorded in the name of original petitioners in the basic year.

2. Father of contesting respondent no. 2 filed an objection under Section 9 of Uttar Pradesh Consolidation of Holdings Act, 1953 claiming himself to be co-tenant to the extent of one third share since land belongs to Ori and he being his son (out of Ori's three sons) was also entitled to one third share.

3. The original petitioners have contested the claim with a specific allegation that respondent no. 2 (Brijlal) was 'gohan lagua' and was not son of Ori. It was further claimed that there was a family settlement in lifetime of Ori, as a result of which Ramnath was given share in property of village Garapur and Madhopur but he was not given share in the properties of village Nagdilpur and Nurpur and on the basis of above settlement, after death of Ori, name of Ramnath was mutated along with the petitioners in village Gorapur and Madhopur and settlement was acted upon.

4. The Consolidation Officer after considering oral witnesses as well as revenue records by an order dated 18.10.1967 rejected objection of original respondent no. 2 and held that Ramnath was 'gohan lagua' and there was a family settlement and parties were bound by it.

5. The original respondent no. 2 being aggrieved filed an appeal which was allowed by an order dated 22.02.1977 and matter was remitted back to Consolidation Officer to decide afresh. This order was challenged by the petitioners before Deputy Director of Consolidation and revision petition was allowed by an order dated 02.03.1978 with a direction to the appellate authority to decide the appeal on merit.

SECOND ROUND OF LITIGATION-:

6. In pursuance of above order, the appeal filed by original respondent was re-heard by the settlement officer of consolidation and said appeal was dismissed by an order dated 18.12.1980. Relevant part of appellate order is reproduced below-:

"इन सभी लिखित सक्ष्याक से स्पष्ट है कि ओरी की मृत्यु की सन 1955 ई० में हुई और ग्राम गारापुर, माधवपुर में औरी के मरने के बाद राम नाथ का दर्ज चला आ रहा है तथा ग्राम नूरपुर, नगदिलपुर में औरी की मृत्यु के पश्चात अय़ोध्या, समई का तनहा नाम सन 1955 ई० से चला आ रहा है। स्पष्ट कि इन दोनों ग्रामों में पारिवारिक समझौते से राम नाथ को हिस्सा नही मिला है और इस तथ्य की पुष्टि में विपक्षी अयोध्या ने ग्राम नगदिलपुर का जोत चकबन्दी आकार पत्र 45 दाखिल किया है जिसके खाता संख्या 131 पर अयोध्या, समई पुत्रगण ओरी का तनहा नाम दर्ज है। इन दोनों ग्रामों की भूमि पर रामनाथ के नाम दर्ज नही है। विपक्षी का कथन है कि यदि रामनाथ को पारिवारिक समझौता मान्य नही है तो अपने को औरी का वैधानिक लडका मानते तो ग्राम माध्वपुर व गारापुर की तरह औरी के मरने के बाद ग्राम नगदिलपुर नूरपूर की भूमि 1/3 अंश पर रामनाथ को अपना नाम दर्ज कराना चाहिए था परन्तु औरी की मृत्यु 1955 ई० में हुई और अब तक 25 साल व्यतीत हो चुके है परन्तु रामनाथ की ओर से ग्राम नगदिलपुर व नूरपूर में अपने विरासत के सम्बन्ध में कोई कार्यवाही नही करायी गयी है तो इस बात को साबित करता है कि पक्षों के मध्य पारिवारिक समझौता हुआ था और उसकी पाबन्दी पक्षों पर है। अपीलकर्ता बृजलाल के विद्वान अधिवक्ता ने यह तर्क है कि पारिवारिक समझौता रजिस्टर्ड नही है और कहा कि आर०डी०1975 पृष्ठ 355 पर दी गयी व्यवस्था के अनुसार पाटीशिनडीड का रजिस्टर्ड होना आवश्यक और इस पारिवारिक समझौते के आधार पर विपक्षी अयोध्या आदि को को हक नही नही मिलेगा परन्तु उक्त व्यवस्था प्रस्तुत मुकदमें की प्रभावित नही करती है क्योंकि यह मुकदमा पार्टीशनडीड का नही है बल्कि फेमली सेटिलमेन्ट का है। इसलिए रजिस्टर्ड होना आवश्यक नही है। विपक्षी अयोध्या के विद्वान अधिवक्ता आर०डी० 1971 पृष्ठ 431 की ओर तथा इलाहाबाद मिसविल जज 1978 पृष्ठ 553 की ओर ध्यान आकर्षित किया है जिसके आधार पर पारिवारिक समझौते का रजिस्टर्ड होना आवश्यक नही है।

5- विपक्षी अयोध्या का कथन है कि रामनाथ ग्रहनलगुवा थे। मौखिक साक्ष्य में बृजलाल के स्वयं बयान से स्पष्ट होता है कि रामनाथ, अयोध्या व समई का सगा भाई नही था क्योंकि दोनों शाख की मां व ननिहाल अलग अलग है। बृजलाल व उसके गवाहान ने अपने बयान में ओरी की एक ही शादी होना स्वीकार किये है किन्तु अपीलकर्ता बृजलाल ने स्वयं अपनी जिरह में यह स्वीकार किया है कि रामनाथ ओरी का लडका नही है। राम नाथ की मां दूसरी थी। इससे भी यह स्पष्ट है कि रामनाथ गोहनलगुवा था तथा विपक्षी अयोध्या ने अपने बयान में कहा कि राम नाथ, बुद्दू का लडका था और गोहनलगुवा था तथा पारिवारिक झगडा समाप्त करने के लिए पारिवारिक समझौता हुआ था और इस बात की पुष्टि उसके द्वारा पेश किए गये गवाहान के बयानात से होती है।

6- अतः उपरोक्त विवेचन के आधार पर मैं इस निष्कर्ष का हूं कि रामनाथ ओरी का लडका सिद्ध नही होता है बल्कि वह बुद्धू का लडका साबित है। अतः चकबन्दी अधिकारी ने अपीलकर्ता की आपत्ति खारिज करने में कोई अवैधानिकता अथवा अनियमितता नही बरती है। अतः अपील खारिज होने के योग्य़ है और खारिज की जाती है।"	     (emphasis supplied)
 
7.	The original respondent no. 2 being aggrieved filed a revision petition before Deputy Director of Consolidation and said revision petition was allowed by impugned order dated 08.09.1983 and relevant part of order is mentioned below-:
 

"इससे दो बिन्दु स्पष्ट हो जाते है प्रथम यह कि परिवार के सदस्यों के स्वतूव का निर्धारण किया गया है, दूसरा परिवार के सदस्यों का स्थान मान लिया गया है, वह इस प्रकार है कि यदि रामनाथ की औरी के गोहनलगुवा पुत्र थे, तो उन्हे गारापुर एवं माधोंपुर में भी स्वत्व का/कु नही मिल सकता था पर अयोध्या एवं समयलाल के स्वत्व का कुछ अंश तक त्याग करके रामनाथ को अंश दिया गया है, इस सम्बन्ध में आर०डी० 1982 पेज 126 पर उच्च न्यायालय की व्यवस्था दृष्टिगत है, जिसके अवलोकन से यह स्पष्ट होता है, कि यदि किसी फेमिली सेटिलमेन्ट द्वारा किसी सदस्य का अधिकार हो रहा हो तो उस पारिवारिक समझौता का पंजीकरण कानूनन आवश्यक है। चूंकि यह कागज जिसको पारिवारिक समझौता कहा जा रहा है, पंजीकृत नही है, अतएव साक्ष्य के दृष्टिकोण से यह महत्व शून्य है, इसके अलावा यह भी उल्लेखनीय है, कि रामबचन जो इस कागज के तैयार किए जाने के गवाह है का बयान चकबन्दी अधिकारी के समक्ष हुआ है, उसमें इस कागज को साबित किया है, जिस पर उसके हस्ताक्षर जो उस कागज पर किए गए हस्ताक्षर से मिलाया जाता है तो यह स्पष्ट होता है, इस दोनों प्रकार के हस्ताक्षरों में भिन्नता अक्षर में और नाम के अन्त में अक्षर स देखने से पूर्णरूप से स्पष्ट हो जाता है, इसके अलावा तीसरी बात यह भी महत्वपूर्ण है कि जब राम नाथ को गोहनलगुआ बताया जा रहा है तो पारिवारिक समाझौता में उसे शामिल किया कैसे जा सकता है, जबकि निमयानुकूल ढंग से परिवार के सदस्य नही है। उपर्युक्त कारणों से अयोध्या द्वारा दाखिल गए इन कागजों का तात्विक महत्य शून्य है अतः इसके आधार पर कोई लाभ अयोध्या आदि को नही दिया जा सकता है।

5- अब प्रश्न यह उठता है कि क्या पत्रावली पर उपलब्ध अन्य साक्ष्य से राम नाथ औरी को गोहनलगुआ पुत्र साबित होता है, ऐसे प्रश्न का समाधान ढूंढना है, चकबन्दी प्रक्रिया के समक्ष अयोध्या आदि द्वारा प्रस्तुत दावे का उल्लेख आवश्यक है अयोध्या आदि द्वारा प्रस्तुत दावे से स्पष्ट होता है कि इन लोगो ने प्रथम तथा उसने इस दावे में रामनाथ को औरी का गोहनलगुआ पुत्र नही बताया है ऐसा लगता है कि खाता संख्या 214, के तथा 230 के सम्बन्ध में प्रस्तुत दावा प्रस्तुतीकरण के बाद किसी समय दूसरे हस्तक्षेप से प्रस्तर 2 के अन्त में रामनाथ गोहनलगुआ है दावा किया गया है उल्लेखनीय है कि गाटा संख्या 330 मि० रकबा 2-16-8 के सम्बन्ध में प्रस्तुत दावे में यह तथ्य कि रामनाथ ओरी का गौहनलगुआ पुत्र था प्रथम तथा नही लिहाजा अपितु यह लिखा गया है कि रामनाथ औरी का पुत्र नहीं है, क्योंकि रामनाथ पुत्र औरी अपने पिता के जीवन काल से अलग रहता है, आगे यह लिखा गया है कि रामनाथ का हक व हिस्सा मृतक पिता औरी ने अपने जीवन काल में बजाय नूरपूर के गारापुर और माधोपुर में दे दिया है इस प्रकार यह स्पष्ट होता है कि अयोध्या आदि ने अपने दावे में गोहनलगुआ के सम्बन्ध में जो केस साक्ष्य प्रस्तुत किया है उसे अनुरूप कथन अपने दावा में नही लिखा था इतना ही नही उन्होने अपने दावे में रामनाथ को औरी का पुत्र लिखा है पत्रावली पर उपलब्ध खतौनियों के उद्दरण से स्पष्ट होता है कि रामनाथ का बाप औरी इतना ही नही मतदाता सूची में यह तथ्य साबित होता है कि जहां तक मौखिक साक्ष्य का प्रश्न है रामनाथ के कथन को साबित करने के लिए गवाहान रामकलेख व रामकुमार एवं बृजलाल पुत्र राम नाथ का स्वयं बहाय हुआ है जिसमें यह कहा है कि राम नाथ औरी का लडका है। अयोध्या की तरफ से अयोध्या स्वंय, रामबक्स का बयान कराया गया है, राम वक्स के सम्बन्ध में ऊपर कहा जा चुका है कि उसके हस्ताक्षर तथा कथित पारिवारिक समझौता पर किए गए हस्ताक्षर से भिन्न लगते है, अतः इस गवाह को निष्पक्ष नही कहा जा सकता है स्वयं इस प्रकार यह निष्पक्ष गवाह नही है सिद्ध होता है कि रामनाथ औरी का लडका है अब यह भी विचारणीय है, कि औरी के मरने के बाद उसके तीनों लडके उसकी सम्पत्ति के मालिक हुए और यदि किसी ग्राम के किसी व्यक्ति का नाम अंकित नही हो तो उनके स्वत्व पर भी प्रभाव भी पडता है क्योंकि एक सहखातेदार सभी खातेदारों की ओर से कागज में अंकित किया गया माना जायेगा, जिससे नूरपूर में रामनाथ का नाम अंकित नही है, पर अयोध्या और प्रेमनाथ के नाम अंकित रहने का यह तात्पर्य होगा कि उनके नाम सहखातेदार रामनाथ की ओर से विवादित भूमि में अंकित है, जहां तक नूरपूर की संबंधित भूराजस्व खतौनियों अभिलेखों का सम्बन्ध है, उसमें भी रामनाथ के स्वत्व पर नही आयेगा क्योंकि सहखातेदार होने के नाते अयोध्या द्वारा दाखिल की गयी रसीदे रामनाथ की ओर से ही दाखिल की गयी मानी जायेगी। अयोध्या आदि का यह कही भी कथन नही है कि उन्हे एक सहखातेदार के विरुद्ध भौमिक अधिकार पूर्ण कर दिया है।

6- उपर्युक्त विवेचना से मैं इसमत का हूं कि रामनाथ औरी का लडका सिद्ध होता है, अतः विवादित भूमि में उसका 1/3 हिस्सा है, पत्रावली उपर्युक्त वर्णित साक्ष्य एवं कानून के समस्त पहलू लेकर अधीनस्थ न्यायालयों ने रामनाथ के स्तत्व को अस्वीकार किया है अतः उनका निर्णय कानून की दृष्टि में गलत है कि जिसके कारण निरस्त किए जाने योग्य है।

7- उपर्युक्त कारणों से अधीनस्थ न्यायालयों के आदेश निरस्त करते हुए निगरानी स्वीकार किया जाता है तथा विवादित भूमि में बृजलाल पुत्र रामनाथ मृतक का 1/3 हिस्सा घोषित किया जाता है। तदनुसार कागजात में अमलदरामद किया जावे।"

(emphasis supplied)

8. Above order is impugned in this writ petition.

9. This Court by an order dated 23.09.1983 granted stay till further orders as well as by an order dated 17.03.1988 it was directed that the petitioners shall deposit ₹ 3000/- per year before Deputy Director of Consolidation.

SUBMISSIONS-:

10. Sri Anil Bhushan, learned Senior Advocate assisted by Sri Abhishek Bhushan for petitioners have submitted that the Consolidation Officer has framed following two issues -:

"1. क्या वादी रामनाथ विवादित 4 व 114 में पैतृक संपत्ति है के आधार पर प्रतिवादीगण के साथ सह खातेदार है।

2. यदि हाँ, तो प्रतिवादी पक्षों में क्या अंश है।"

and after considering oral testimony as well as revenue records has returned a finding that -:

"वादी पक्ष साक्षी राजकुमार व राम कैलाश ने भी वादी पक्ष व प्रतिवादी पक्ष से औरी का संतान बताया है और वादी पक्ष ने अपने इस कथन के समर्थन में नवल खतौनी 1362 प० पेश की है जिससे सम्पूर्ण विवादित भूमि विवादित भूमि औरी के नाम अंकित है तथा नकल जोत चकबन्दी जो०च०अ० पत्र 45 व गांव माधोपुर व गारापुर के रामनाथ अयोध्या व समई पुत्र ओरी के नाम अलग अलग अंकित है ओर जोत चकबन्दी आकार पत्र 5 उक्त मौजा में कभी उभय पक्ष के नाम है तथा बल्दियत तीनों की ओरी लिखी है मतदाता सूची सन 1967 की नकल में रामनाथ पुत्र औरी अंकित नकल कुटुम्ब रजिस्टर नूरपूर में भी राम नाथ की बल्दियत औरी अंकित है।

प्रतिवादी पक्ष अयोध्या का बयान है कि औरी के दो लडके अयोध्या व समर्थ लाल है समर्थ लाल मर गये है उनका लडका प्रेम चन्द्र है उनके मरने के बाद विवादित भूमि पर प्रतिवादी पक्ष का ही कब्जा है। रामनाथ औरी का पुत्र नही है बल्कि वह गहन लगुवा था और बुद्दू निवासी को बचाने के लिए किया गया सभी परिवार के सदस्यों पर बाध्य है और वह हस्तान्तरण नही है।

प्रतिवादी से बहस में यह भी कहा गया है कि वादी ने पारिवारिक समझौता का अंकित रामनाथ का अंगूठे का चिन्ह की जांच किसी माहिर द्वारान कराया जाना भी यह सिद्ध होता है कि पारिवारिक समझौता पक्षों से मध्य हुआ था।

उभय पक्ष के लिखित एवं मौखिक साक्ष्यों एवं बहस से यह निष्कर्ष निकलता है कि पक्षों के मध्य सन 1941 ई० में भविष्य की मुकदमा बाजी से बचने के लिए किये गये पारिवारिक समझौते के आधार पर वादी पक्ष का कोई भी अधिकारी विवादित भूमि में नही रह पाता और वाद बिन्दू न० 01 नकारात्मक तय होता है।

निष्कर्ष वाद विन्दु नं० 02 - खाता नं० 4 व 214 में अयोध्या का ½ व प्रेमचन्द्र का ½ अंश स्पष्ट सिद्ध होता है।"

11. Learned Senior Advocate has further submitted that Ramnath was son of Buddhu and not of Ori as well as that the family settlement was binding on all the parties and that it was not mandatory to register the family settlement which has already been implemented.

12. Learned Senior Advocate has submitted that concurrent findings of the Consolidation Officer as well as the Appellate Authority which were based on oral as well as documentary evidence could not be interfered by the Deputy Director of Consolidation under revisional jurisdiction since no finding has been returned that the concurrent findings were perverse or were beyond jurisdiction.

13. Learned Senior Advocate has also submitted that since the family settlement was implemented, therefore, the parties are bound by it and in these circumstances, non-registration of the family settlement would not be an adverse factor.

14. Learned Senior Advocate has placed reliance upon a judgement passed by the Supreme Court in Kale and others vs. D.D.C. and others, 1976(3) SCC 119 and relevant paragraphs 42, 43, 44 and 45 are quoted below -:

"42. Finally in a recent decision of this Court in S. Shanmugam Pillai case after an exhaustive consideration of the authorities on the subject it was observed as follows:

"Equitable principles such as estoppel, election, family settlement, etc. are not mere technical rules of evidence. They have an important purpose to serve in the administration of justice. The ultimate aim of the law is to secure justice. In the recent times in order to render justice between the parties, courts have been liberally relying on those principles. We would hesitate to narrow down their scope.

* * *

As observed by this Court in T.V.R. Subbu Chetty's Family Charities case, that if a person having full knowledge of his right as a possible reversioner enters into a transaction which settles his claim as well as the claim of the opponents at the relevant time, he cannot be permitted to go back on that agreement when reversion actually falls open."

In these circumstances there can be no doubt that even if the family settlement was not registered it would operate as a complete estoppel against Respondents 4 and 5. Respondent 1 as also the High Court, therefore, committed substantial error of law in not giving effect to the doctrine of estoppel as spelt out by this Court in so many cases. The learned counsel for the respondents placed reliance upon a number of authorities in Rachbha v. Mt Mendha [AIR 1947 All 177 : 1946 ALJ 409] ; Chief Controlling Revenue Authority v. Smt Satyawati Sood [AIR 1972 Del 171 : ILR (1972) 2 Del 17 (FB)] and some other authorities, which, in our opinion have no bearing on the issues to be decided in this case and it is therefore not necessary for us to refer to the same.

43. Finally it was contended by the respondents that this Court should not interfere because there was no error of law in the judgment of the High Court or that of Respondent 1. This argument is only stated to be rejected.

44. In view of our finding that the family settlement did not contravene any provision of the law but was a legally valid and binding settlement in accordance with the law, the view of Respondent 1 that it was against the provisions of the law was clearly wrong on a point of law and could not be sustained. Similarly, the view of the High Court that the compromise required registration was also wrong in view of the clear fact that the mutation petition filed before the Assistant Commissioner did not embody the terms of the family arrangement but was merely in the nature of a memorandum meant for the information of the court. The High Court further erred in law in not giving effect to the doctrine of estoppel which is always applied whenever any party to the valid family settlement tries to assail it. The High Court further erred in not considering the fact that even if the family arrangement was not registered it could be used for a collateral purpose, namely, for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement and also for the purpose of applying the rule of estoppel which flowed from the conduct of the parties who having taken benefit under the settlement keep their mouths shut for full seven years and later try to resile from the settlement. In Shyam Sunder v. Siya Ram [AIR 1973 All 382, 389 : ILR (1972) 2 All 368 : 1973 ALJ 53] it was clearly held by the Allahabad High Court that the compromise could have been taken into consideration as a piece of evidence even if it was not registered or for that matter as an evidence of an antecedent title. The High Court observed as follows:

"The decision in Ram Gopal v. Tulshi Ram [AIR 1928 All 641, 649 : 26 ALJ 952] is clear that such a recital can be relied upon as a piece of evidence.

* * *

It is clear, therefore, that the compromise can be taken into consideration as a piece of evidence.... To sum up, therefore, we are of the view that the compromise could have been relied upon as an admission of antecedent title."

45. On a careful consideration of the facts and the circumstances and the law discussed above, we are clearly of the opinion that the orders of the High Court as also that of Respondent 1 suffer from a substantial error of law resulting in serious injustice to the appellant by reopening a dispute which had been settled almost seven to eight years before the proceedings for reopening the same were started. In not interfering to correct the clear error of law committed by Respondent 1, the High Court failed to exercise jurisdiction vested in it by law, and, therefore, the order of the High Court itself was legally erroneous and cannot be sustained. The contentions raised by the appellant are well founded and must prevail, while the contentions advanced by the respondent fail."

(emphasis supplied)

15. Per contra, Sri S.S. Sharma, learned counsel for respondents has submitted that on the date of family settlement, Ramnath was minor, therefore, it was not admissible upon him and has referred Section 9 of the Contract Act. He has further submitted that family settlement was not registered under Section 17 of Indian Registration Act, therefore, it could not be considered to be a valid document.

16. Learned counsel for respondents has further submitted that it was not proved that Ramnath was son of Buddhu by any evidence. The only reference on record is that name of the father of Ori was Buddhu, therefore, Ramnath may be grandson of Buddhu.

17. He has further submitted that petitioners have not paid ₹3000/- per year in terms of the interim order passed by this Court.

18. In support of his argument, he has placed reliance on Bankey Bihar vs. Suresh Narayan @ Munnoo, AIR 1997 All 167, Kale and others (supra) and Syed Ahmad Ali and others vs. Shafiq Ahmad, 1991 (2) ARC 90. Relevant paragraphs of above judgements are quoted below -:

Bankey Bihar vs. Suresh Narayan

"14. Learned counsel for the defendant-respondent has invited the attention of the Court to the Mangal Prasad v. Vth Additional District Judge, AIR 1992 All 235 in which on similar facts a learned single Judge of this Court had held that when by the impugned document the ancestral property was divided by metes and bound between two real brothers this clearly amounts to creating a fresh right in the property and such document requires registration. The observation made in this case supports the submissions made by the learned counsel for the defendant-respondent.

15. As a result this Court is of the view that the deed of family arrangement was rightly held to be inadmissible in evidence as the same was hit by S. 35 of the Stamp Act and S. 17(1)(b) of the Registration Act and the lower appellate Court was, therefore, right in allowing the appeal. The second appeal lacks merit and is dismissed. However in the facts and circumstances of the case the parties shall bear their own costs."

Kale and others

"27. As regards the first point it appears to us to be wholly untenable in law. From the principles enunciated by us and the case law discussed above, it is absolutely clear that the word "family" cannot be construed in a narrow sense so as to confine the parties to the family arrangement only to persons who have a legal title to the property. Even so it cannot be disputed that appellant Kale being the grandson of Lachman and therefore a reversioner at the time when the talks for compromise took place was undoubtedly a prospective heir and also a member of the family. Since Respondents 4 and 5 relinquished their claims in favour of appellant Kale in respect of Khatas Nos. 5 and 90 the appellant, according to the authorities mentioned above, would be deemed to have antecedent title which was acknowledged by Respondents 4 and 5. Apart from this there is one more important consideration which clearly shows that the family arrangement was undoubtedly a bona fide settlement of disputes. Under the family arrangement as referred to in the mutation petition the Respondents 4 and 5 were given absolute and permanent rights in the lands in dispute. In 1955 when the compromise is alleged to have taken place the Hindu Succession Act, 1956, was not passed and Respondents 4 & 5 would have only a limited interest even if they had got the entire property which would ultimately pass to appellant Kale after their death. Respondents 4 & 5 thought that it would be a good bargain if by dividing the properties equally they could retain part of the properties as absolute owners. At that time they did not know that the Hindu Succession Act would be passed a few months later. Finally the compromise sought to divide the properties between the children of Lachman, namely, his two daughters and his daughter's son appellant Kale in equal shares and was, therefore, both fair and equitable. In fact if Respondents 4 & 5 would have got all the lands the total area of which would be somewhere about 39 acres they might have to give away a substantial portion in view of the ceiling law. We have, therefore, to see the circumstances prevailing not after the order of the Assistant Commissioner was passed on the mutation petition but at the time when the parties sat down together to iron out differences. Having regard to the circumstances indicated above, we cannot conceive of a more just and equitable division of the properties than what appears to have been done by the family arrangement. In these circumstances, therefore, it cannot be said that the family settlement was not bona fide. Moreover, Respondents 4 and 5 had at no stage raised the issue before the revenue courts or even before the High Court that the settlement was not bona fide. The High Court as also Respondent 1 have both proceeded on the footing that the compromise was against the statutory provisions of law or that it was not registered although it should have been registered under the Registration Act.

28. There is yet one more intrinsic circumstance which shows that the compromise was an absolutely bona fide transaction. It would appear that at the time of the compromise Respondent 5 Ram Pyari was faced with a situation when her marriage in 1955 was not so far proved. If she was absolutely certain that her marriage had taken place in 1955 she would not have agreed to the terms at all. On the other hand if she thought that she might not be able to prove that her marriage took place in 1955 and if it was shown that she had married before 1955 then she would be completely disinherited and would get nothing at all with the result that the appellant Kale would get the entire property. On the other hand the appellant must have similarly thought that a bird in hand is worth two in the bush. So long as Ram Pyari was alive he would not be able to enjoy the property and would have to wait till her death. It was, therefore, better to take half of the property immediately as a permanent tenure holder and give the half to the daughters of Lachman, namely, Har Pyari and Ram Pyari. Thus under the terms of the compromise both the parties got substantial benefits and it was on the whole a very fair and equitable bargain. In these circumstances, therefore, the parties struck a just balance and a fair and beneficial settlement which put an end to their disputes."

Syed Ahmad Ali and others vs. Shafiq Ahmad

"10. Two substantial questions on which this second appeal was admitted relate to the validity of the agreement and whether the tenanted premises could be said to be building within the meaning of the U.P. Act No. 13 of 1972 so as to attract the provisions of the said Act.

12. The deed of agreement on which the first appellate court has relied on is admittedly an unregistered document. An unregistered document when it confers, limits and extinguishes title in any person in the immovable property, the said document has to be compulsorily registered and if it is not registered, it cannot be received in evidence. It may, however, be looked into for collateral purposes. It was contended by the learned counsel for the appellants that the deed of agreement being unregistered was not admissible in evidence. Therefore, the first appellate court was not correct in having relied on the contents of the unregistered document for the purposes of decision of the appeal. Some authorities on this question was cited at the Bar. In Zarif Ahmad v. Satish Kumar, [1983 (9) ALR 679.] reported in it was held that the lease deed in respect of immovable property for a period of less than a year, if made in writing, must be registered under section 107. In Satish Chand Makhan v. Goserdhan Das Byas, [1984 (1) ARC 551.] reported in the Supreme Court was of the view that unregistered lease deed is inadmissible in evidence for proving the nature of possession also. The terms of the lease deed are not collateral purposes. Such agreement cannot be looked into. In Budh Ram v. Ralla Ram, [1987 (2) ARC 461.] reported in the Supreme Court has held that the lease deed, registration whereof was compulsory, was not admissible in evidence. In Jai Ram Agarwal v. VI Addl. District Judge, Allahabad, [1988 (14) ALR 108.] it was held that unregistered lease deed cannot be received in evidence. The terms of the lease cannot explain the collateral purpose. Therefore Section 49 of the Registration Act also cannot make it admissible for collateral purpose."

CONCLUSION -:

19. Heard learned counsel for parties and perused the record.

20. There are concurrent findings of two authorities in favour of petitioners i.e. by the Consolidation Officer and the Appellate Authority, however, same were disturbed by the Revisional Authority by impugned order. In this regard, few paragraphs of judgement passed by this Court in Laxmi Upadhyaya vs. D.D.C. and others, 2023:AHC:175317 would be relevant to mention here-in-after in order to consider under what circumstances, concurrent findings could be disturbed -:

"9. Learned counsel for petitioner has raised a legal issue that Revisional Authority has erred in law by disturbing concurrent findings returned by Consolidation Officer and Assistant Settlement Officer, Consolidation, without any finding of perversity or being beyond jurisdiction and placed reliance on a judgment passed by Supreme Court in Ram Dular Vs. Deputy Director of Consolidation, Jaunpur, 1994 RD 290 (SC) and relevant paragraph thereof reproduced hereinafter :-

"3. The question, therefore, is whether the Deputy Director of Consolidation was legally justified in upsetting the findings recorded by the Consolidation Officer and the Settlement Officer. It is true that the finding whether Jokhu and Sampath are sons of Angan is a finding of fact and that the authorities are entitled to consider that question. But while exercising the revisional power under Section 48, what requires to be seen is, whether the Deputy Director has considered the question in its proper perspective or had ignored any material evidence on record in coming to the said conclusion. Section 48 reads thus:

"48. Revision and Reference.- (1) The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order other than an interlocutory order passed by such authority in the case or proceedings, may, after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit." It is clear that the Director had power to satisfy himself as to the legality of the proceedings or as to the correctness of the proceedings or correctness, legality or propriety of any order other than interlocutory order passed by the authorities under the Act. But in considering the correctness, legality or propriety of the order or correctness of the proceedings or regularity thereof it cannot assume to itself the jurisdiction of the original authority as a fact-finding authority by appreciating for itself of those facts de novo. It has to consider whether the legally admissible evidence had not been considered by the authorities in recording a finding of fact or law or the conclusion reached by it is based on no evidence, any patent illegality or impropriety had been committed or there was any procedural irregularity, which goes to the rest (sic root) of the matter, had been committed in recording the order or finding. In this case it is seen that admittedly all the parties have been residing in the same locality. It had been found by the Consolidation Officer that the appellant was in possession of the lands and he had produced revenue receipts for continuously 15 years from 1365 Fasli onwards and that finding was not disturbed by the Deputy Director. It is true that the record for the Fasli 1306 was found fabricated and the name of Sampath was not mutated and Jokhu alone was mutated in the revenue records for 1307 Fasli. The Consolidation Officer recorded the genuineness of the entries for the year 1308 Fasli which was not even disputed by the respondents. In the entries for 1308 Fasli the name of Sampath was found as son of Angan and was mutated. This vital aspect was omitted to be taken into consideration by the Deputy Director. The Deputy Director on the other hand concluded that for the year 1308 Fasli also the name of Sampath was fabricated. It is an obvious error committed by the Deputy Director and the High Court refused to correct it on the plea that it is only a finding of fact. Once, from the entries it is seen that Sampath was also mentioned as son of Angan and the appellant had been continuously in possession for 15 years it would clearly indicate that he has been in joint possession in respect of land in the aforesaid Khata Nos. along with the respondents. As seen, there is no alternative genealogy filed by the respondents. The Deputy Director merely recorded the genealogy of the respondents and their ancestry, omitting the branch of the appellant. Thereby he practically omitted to consider the genealogy which was even undisputed by the respondents. Under these circumstances the Deputy Director has committed manifest error of law by reversing the orders of the Consolidation Officer and Settlement Officer. Accordingly the appeal is allowed, the order of the Settlement Officer is confirmed to the extent of half share in the ancestral property acquired by Angan as affirmed by the Settlement Officer on appeal. But in the circumstances, parties are directed to bear their own costs."

10. Learned counsel for petitioner has also placed reliance on Sheshmani and Another Vs. Deputy Director of Consolidation, Basti and others, 2000 RD 210 (SC) and the relevant paragraphs thereof are reproduced hereinafter :-

4. Scope of Section 48 after its amendment in 1968 again came up for consideration by this Court in Ram Dular vs. Dy. Director of Consolidation, Jaunpur and others (1994 Supp. (2) SCC 198). Now this Section reads as under:-

"48. Revision and Reference.(1) The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order other than an interlocutory order passed by such authority in the case or proceedings, may, after allowing the parties concerned an opportunity of being, heard, make such order in the case or proceedings as he things fit.

5. Again question arose as to whether the Deputy Director of Consolidation was legally justified in upsetting the findings recorded by the Consolidation Officer and the Settlement Officer. The Court said that while exercising the revisional powers under Section 48 what was required to be seen was whether the Deputy Director had considered the questions in its proper perspective or had ignored any material findings on record in coming to a particular finding. The Court said: -

"It is clear that the Director had power to satisfy himself as to the legality of the proceedings or as to the correctness of the proceedings or correctness, legality or propriety of any order other than interlocutory order passed by the authorities under the Act. But in considering the correctness, legality or propriety of the order or correctness of the proceedings or regularity thereof it cannot assume to itself the jurisdiction of the original authority as a fact- finding authority by appreciating for itself of those facts de novo. It has to consider whether the legally admissible evidence had not been considered by the authorities in recording a finding of fact or law or the conclusion reached by it is based on no evidence, any patent illegality or impropriety had been committed or there was any procedural irregularity, which goes to the root of the matter, had been committed in recording the order or finding."

11. Learned counsel also placed reliance on Sheo Nand and others Vs. Deputy Director of Consolidation, Allahabad and others, 2000 RD 213 (SC) and the relevant paragraphs thereof are mentioned hereinafter :-

"19. The Section gives very wide powers to the Deputy Director. It enables him either suo-motu on his own motion or on the application of any person to consider the propriety, legality, regularity and correctness of all the proceedings held under the Act and to pass appropriate orders. These powers have been conferred on the Deputy Director in the widest terms so that the claims of the parties under the Act may be effectively adjudicated upon and determined so as to confer finality to the rights of the parties and the Revenue Records may be prepared accordingly.

20. Normally, the Deputy Director, in exercise of his powers, is not expected to disturb the findings of fact recorded concurrently by the Consolidation Officer and the Settlement Officer (Consolidation), but where the findings are perverse, in the sense that they are not supported by the evidence brought on record by the parties or that they are against the weight of evidence, it would be the duty of the Deputy Director to scrutinise the whole case again so as to determine the correctness, legality or propriety of the orders passed by the authorities subordinate to him. In a case, like the present, where the entries in the Revenue record are fictitious or forged or they were recorded in contravention of the statutory provisions contained in the U.P. Land Records Manual or other allied statutory provisions, the Deputy Director would have full power under Section 48 to re-appraise or re-evaluate the evidence on record so as to finally determine the rights of the parties by excluding forged and fictitious revenue entries or entries not made in accordance with law.

21. If, therefore, during the course of the hearing of the revision filed by the appellant under Section 48 of the Act, the Deputy Director reopened the whole case and scrutinised the claim of the appellants in respect of two other villages, it could not be said that the Deputy Director exceeded his jurisdiction in any manner. It will be noticed that while scrutinising the evidence on record, the Deputy Director had noticed that the entries were fictitious and in recording some of the entries in the revenue record in favour of the appellants, statutory provisions including those contained in U.P. Land Records Manual were not followed. In that situation, the Deputy Director was wholly justified in looking into the legality of the entire proceedings and disposing of the revision in the manner in which he has done."

12. Lastly, counsel for petitioner, has placed reliance on Ram Awadh Vs. Ramdas, 2009 (106) RD 625 (SC) and the relevant paragraph thereof is mentioned hereinafter :-

"12. Before parting with this judgment, we may also consider the submission of the learned counsel for the appellants that the revisional court viz. Assistant Director, Consolidation had no jurisdiction under Section 48 of the Act to set aside the concurrent findings of fact of the Consolidation Officer and the Settlement Officer, Consolidation. In support of her submission, she relied on two decisions of this court in Ram Avtar & Ors. Vs. Ram Dhani & Ors.[(1997) 2 SCC 263] and Ram Dular Vs. Dy. Director of Consolidation, Jaunpur & Ors. [JT 1994 (3) SCC 341]. From these authorities, it is clear that the Director Consolidation under Section 48 of the Act does not have the jurisdiction to interfere with the findings of fact, without any basis and on assumptions. In view of our foregoing discussion, we are, therefore, of the considered view that it was not open to the Assistant Director Consolidation, whose order was affirmed by the High Court in the impugned judgment, to interfere with the concurrent findings of fact arrived at by the Consolidation Officer as also the Settlement Officer, Consolidation.

13. For the reasons aforesaid, we set aside the judgment of the High Court and the Revisional Court and affirm the decisions of the Consolidation Officer and the Settlement Officer, Consolidation. The appeal is thus allowed. There will be no order as to costs."

18. The facts referred above would show that the Consolidation Officer and the Appellate Authority has accepted claim of petitioner and rejected claim of respondents and returned a finding that Sadiq Ali was not Dakhalkar Kastakar of the land since 1901. The Lekhpal has wrongly separated the khata in Khatauni of the year 1359 F. Sadiq Ali was not real Kashtkar and no settlement was effected to Sadiq Ali, whereas the Deputy Director of Consolidation, for the first time considered effect of a registered lease dated 8.2.1919 without even returning a finding about any legal consequence that it was not entered immediately in revenue records. Even the lease has not been proved as no evidence was led either before the Consolidation Officer or before the Appellate Authority and even before the Deputy Director of Consolidation, no evidence was led. No document was placed on record along with this writ petition in support of lease and erroneously interfered in concurrent findings returned by the authorities on basis of evidence. The effect of Bhumidhar Sanad and sale-deed executed in favour of the petitioner was also not considered, therefore, the Deputy Director of Consolidation has committed error by accepting the lease. Therefore, above referred judgments become relevant. Recently, the Supreme Court in Central Council for Research in Ayurvedic Sciences and another vs. Bikartan Das and others, 2023 SCC Online SC 1996, has reiterated scope of writ of certiorari and circumstances and conditions when it could be issued. The relevant paragraph thereof is reproduced hereinafter:-

"65. Thus, from the various decisions referred to above, we have no hesitation in reaching to the conclusion that a writ of certiorari is a high prerogative writ and should not be issued on mere asking. For the issue of a writ of certiorari, the party concerned has to make out a definite case for the same and is not a matter of course. To put it pithily, certiorari shall issue to correct errors of jurisdiction, that is to say, absence, excess or failure to exercise and also when in the exercise of undoubted jurisdiction, there has been illegality. It shall also issue to correct an error in the decision or determination itself, if it is an error manifest on the face of the proceedings. By its exercise, only a patent error can be corrected but not also a wrong decision. It should be well remembered at the cost of repetition that certiorari is not appellate but only supervisory.

66. A writ of certiorari, being a high prerogative writ, is issued by a superior court in respect of the exercise of judicial or quasi-judicial functions by another authority when the contention is that the exercising authority had no jurisdiction or exceeded the jurisdiction. It cannot be denied that the tribunals or the authorities concerned in this batch of appeals had the jurisdiction to deal with the matter. However, the argument would be that the tribunals had acted arbitrarily and illegally and that they had failed to give proper findings on the facts and circumstances of the case. We may only say that while adjudicating a writ-application for a writ of certiorari, the court is not sitting as a court of appeal against the order of the tribunals to test the legality thereof with a view to reach a different conclusion. If there is any evidence, the court will not examine whether the right conclusion is drawn from it or not. It is a well-established principle of law that a writ of certiorari will not lie where the order or decision of a tribunal or authority is wrong in matter of facts or on merits. (See : King v. Nat Bell Liquors Ltd., [1922] 2 A.C. 128 (PC))"

19. As referred in above cited judgments, consistent view of the Supreme Court is that the Deputy Director of Consolidation in exercise of his power is normally not expected to disturb the finding of fact recorded concurrently by Consolidation Officer and Settlement Officer Consolidation except where the findings are perverse i.e. not supported by evidence brought on record, however, in the facts of present case as discussed above, the referred eventualities are not present."

(emphasis supplied)

21. The crux of rival submissions of learned counsel for parties is firstly that what would be effect of unregistered family settlement though it was implemented; secondly, whether Ramnath was son of Ori or not? and; thirdly, whether Ramnath was a gohan lagua?

22. The Court proceeds to consider submissions on the issue whether a family settlement is mandatorily required to be registered or even an unregistered family settlement, if already been executed, would bind the parties or not?

23. Learned counsel for rival parties have placed reliance on different judgments. Both the parties have placed reliance on Kale and others (supra) and relevant paragraphs have already been referred in preceding paragraphs.

24. In the aforesaid judgment, a 3 Judges' Bench of Supreme Court has considered judgment and as referred above, the Supreme Court has held that even if family settlement was not registered, it would operate as a complete estoppel against parties and doctrine of estoppel shall be given effect of.

25. The contention of learned counsel for respondents that family settlement must be bonafide one so as to resolve family dispute by allotment of property between various members of family, but however, in the case at hand, it was not much objected about manner of settlement.

26. There is no dispute that family settlement was not registered. The Consolidation Officer as well as Appellate Authority have returned a specific finding that Ori died in year 1955 and name of Ramnath remained recorded in land of village Garapur and Madhopur, however, name of Ayodhya and Samai were remained recorded on land of village Noorpur and Nagdilpur alone since 1955 which was in terms of family settlement and in case Ramnath was not satisfied with family settlement, he ought to have taken remedy to get his name recorded on land of other two villages also but admittedly no such exercise was undertaken which indicates that parties were satisfied with family settlement, therefore, it would be binding on parties and doctrine of estoppel would definitely come in existence.

27. In above circumstances, when family settlement was bonafide since no one has challenged the terms of settlement as well as that from the revenue entries, it appeared that it was implemented also. Therefore, in the light of Kale and others (supra), despite a family settlement was not registered but it would operate as a complete estoppel against respondents.

28. Kale and others (supra) has been referred and followed in a subsequent judgment passed by Supreme Court in Narendra Kante vs. Anuradha Kante, (2010) 2 SCC 77 and relevant part is quoted below -:

"21. In support of his aforesaid submission, Mr Ranjit Kumar firstly relied on the decision of the three-Judge Bench in Kale v. Dy. Director of Consolidation [(1976) 3 SCC 119] in which the question of registration of a family arrangement had fallen for consideration. Their Lordships held that a family arrangement may be even oral in which case no registration is necessary. Registration would be necessary only if the terms of the family arrangement are reduced into writing but there also a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made, either for the purpose of recording or for information of the court for making necessary mutation. In such a case, the memorandum itself does not create or extinguish any right in the immovable properties and, therefore, neither does it fall within the mischief of Section 17(2) of the Registration Act, 1908 nor is it compulsorily registrable.

22. Their Lordships in Kale case [(1976) 3 SCC 119] went on further to conclude that a document, which was no more than a memorandum of what had been agreed to, did not require registration. While holding as above, Their Lordships also indicated that even if a family arrangement, which required registration was not registered, it would operate as a complete estoppel against the parties, which had taken advantage thereof."

29. The next issue which is required for consideration is whether Ramnath was 'gohan lagua' or he was son of Ori and for that it would be relevant to refer the findings returned by the Settlement Officer of Consolidation which is reiterated hereinafter -:

"विपक्षी अयोध्या का कथन है कि रामनाथ ग्रहनलगुवा थे। मौखिक साक्ष्य में बृजलाल के स्वयं बयान से स्पष्ट होता है कि रामनाथ, अयोध्या व समई का सगा भाई नही था क्योंकि दोनों शाख की मां व ननिहाल अलग अलग है। बृजलाल व उसके गवाहान ने अपने बयान में ओरी की एक ही शादी होना स्वीकार किये है किन्तु अपीलकर्ता बृजलाल ने स्वयं अपनी जिरह में यह स्वीकार किया है कि रामनाथ ओरी का लडका नही है। राम नाथ की मां दूसरी थी। इससे भी यह स्पष्ट है कि रामनाथ गोहनलगुवा था तथा विपक्षी अयोध्या ने अपने बयान में कहा कि राम नाथ, बुद्दू का लडका था और गोहनलगुवा था तथा पारिवारिक झगडा समाप्त करने के लिए पारिवारिक समझौता हुआ था और इस बात की पुष्टि उसके द्वारा पेश किए गये गवाहान के बयानात से होती है।"

(emphasis supplied)

30. The Deputy Director of Consolidation in revision has set aside the concurrent findings of two Authorities below and held that a claim that Ramnath was a 'gohan lagua' was not effectively pleaded or pleaded subsequently and has returned a finding that two witnesses have stated that Ramnath was son of Ori, however, rejected the testimony of Ayodhya and Ram Baksh on the ground that they were not independent witnesses as well as that their signatures were different as made in statement as well as in the family settlement. However, such finding appears to be vague without any substance and, has been returned in a very cursory manner, and has ignored effect of family settlement whereby Ramnath was not made co-sharer in the land of other village.

31. In case Deputy Director of Consolidation has to take a different view to the concurrent view taken by two lower Authorities, there must be a specific finding that those were perverse or beyond jurisdiction but same is absent in impugned order.

32. The Deputy Director of Consolidation has not dealt with issues such as effect that the family settlement was already implemented, therefore, what would be effect of doctrine of estoppel and that Ramnath has not raised any grievance against family settlement for many years and that concurrent findings of two Authorities were based on evidence on record, therefore, the Deputy Director of Consolidation has committed a jurisdictional error by setting aside the concurrent findings of two lower Authorities, therefore, in the light of Rengali Hydro Electric Project v. Giridhari Sahu, (2019) 10 SCC 695 that the writ of certiorari is intended to correct jurisdictional excesses and as held that in present case, the Revisional Authority has committed a jurisdictional error by interfering with concurrent findings of two lower Authorities without any specific finding that finding returned by them were perverse and that it has also been held that concurrent findings have to be considered based on material on record i.e. both oral as well as documentary evidence, therefore, it is a fit case to interfere since by the impugned order, the Revisional Authority has committed manifest error which requires to be cured by this Court in writ jurisdiction.

33. Accordingly, impugned order dated 08.09.1983 is set aside and writ petition is allowed. No order as to costs.

Dt/- September 12, 2023

Nirmal Sinha

[SAURABH SHYAM SHAMSHERY, J.]