Allahabad High Court

Dukhi vs Hardeo on 18 September, 2023

Bench: Saurabh Shyam Shamshery





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:179358
 
Court No. - 48
 

 
Case :- WRIT - B No. - 322 of 1977
 

 
Petitioner :- Dukhi
 
Respondent :- Hardeo
 
Counsel for Petitioner :- S.K. Verma,Bipin Lal Srivastava
 
Counsel for Respondent :- Ashok Kumar,SC
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri Vinayak Verma, learned counsel for petitioners and Sri A.K. Rai, learned Additional Chief Standing Counsel for State-Respondents. None appeared on behalf of contesting-respondents.

2. This writ petition is filed in 1977. Number of parties to litigation have expired and their legal heirs are already on record.

3. According to averments made in writ petition, the dispute relates to plots no. 506/2 and 492 appertaining to Khata No. 176 of Village Khadesar, Pargana Zahoorabad, District Ghazipur.

4. In the basic year names of petitioners were recorded exclusively. Hardeo, Barsati and Dwarika, original-respondents no. 1 to 3, filed objections on the ground that these plots were ancestral property and originally belongs to one Dhanu and all parties belongs to same ancestor. Objections were opposed by original petitioners that they were in long possession of plots in dispute for last 22 years and were recorded as occupants.

5. Consolidation Officer allowed objection of contesting-respondents with regard to plot no. 506/2 and dismissed objection with regard to other plots including plot no. 492.

6. Original petitioners as well as original respondents filed appeals before Settlement Officer of Consolidation. Appeals were partly allowed vide order dated 07.02.1974 and plot no. 492 was also declared to be the share of both parties. Petitioners thereafter filed revision before Deputy Director of Consolidation which was dismissed vide order dated 20.11.1976. Both these orders dated 07.02.1974 and 20.11.1976 are challenged in this writ petition.

7. Learned counsel for petitioners submits that the pedigree which was part of order of Consolidation Officer is not under dispute, however, only on the ground that original respondents were part of pedigree, they were declared to be co-sharer without specifically dealing with revenue records of last 22 years wherein petitioners were mentioned as sole occupants. Learned counsel for petitioners referred relevant part of impugned order that only basis to declare original respondents as co-sharer was that they were part of same pedigree.

8. None appeared on behalf of contesting-respondents, therefore, I have perused the counter affidavit with the help of Sri A.K. Rai, learned Additional Chief Standing Counsel appearing for State and for reference para 7 of the counter affidavit is reproduced hereinafter:

?7. That the petitioners filed revision against the aforesaid order of the Settlement Officer Consolidation. The revision was dismissed by the Deputy Director of Consolidation on 20th November, 1976. The finding of the Settlement Officer Consolidation was confirmed. The Deputy Director of Consolidation held that the aforesaid pedigree is not disputed between the parties. He further held that plots nos. 506/2 and 492 were recorded in the names of Ajodhya, Billar, Bheli and Khushi Lal sons of Thanu as occupancy tenancy in the settlement of 1288F. He also held that in Khatauni 1359F. the plots in dispute were recorded in the names of the petitioners as occupancy tenants in Zaman 6. there is minor difference in the area but it is established that the land in dispute was the occupancy tenancy from the time of the settlement and is coming down in the identical form. The contention of the petitioners that its continuity and identity had been broken is not correct. The Deputy Director of Consolidation further held that the settlement area of plot no. 506 in the settlement was 17 biswas, 5 dhoors but in the basic year the area was shown as 17 biswas, 18 dhoors. Similarly the settlement area of plot no. 492 was 5 biswas, 11 dhoors but in the basic year it was recorded as 5 biswas, 15 dhoors. The increase of the area is irrelevant because the land in dispute was the occupancy tenancy from the time of the settlement till the date of vesting throughout. Moreover, another sub-division of plot no. 506/1 area 5 biswas, 14 dhoors was recorded in different khata no. 183 in the basic year. Both the parties were declared co-tenure holders by the order of the Deputy Director of Consolidation dated 31st March, 1971 on the finding that the said plot was ancestral. This circumstance also favoured the claim of co-tenancy of the opposite parties. He confirmed the finding of the Settlement Officer Consolidation.?

9. Heard learned counsel for parties and perused the material available on record.

10. Consolidation Officer has framed following three issues:

?(1) ???? ???????? ??? ???? ??? 183 ? 176 ?? ????????? ?? ?? ???? ????? ?? ??? ?? ?? ???? ??? ???? ???

(2) ???? ????? ??? ???? ??? 176 ?? ????????? ?? ??? ?? ?? ???? ??? ???? ???

(3) ???? ????????? ?? ???????? ??????? ???? ??? 176 ?? ???? ??????? ?? ??? ????? ?? ??? ??? ???? ??? 183 ?? ????????? ?????

11. After considering material on record which includes oral and documentary evidence, Consolidation Officer held that:

"??? ???? ?????? 506/0-17-10 ????? ???????? ?????? ?? ?? / ????? ???????? ?? ?????? ?? ??? ??? ???? ?????? 492/0-5-11 ?? ????????? ??? ??????? ?????? ???? ? ???? ??? ?? ??? ????? ?? / ????????? ?? ??? ?? ???? 1359 ?? ?? ????? ????? ?? / ????? ?????? 6(1) ????? ?? / ?? 1901 ?? ???? ?? ??? ?? ?? / 1308 ?? 1309 ?? ?? ????? ????? ???? ?? / ????? ?? ?????? ???? ?? ??????? ?????? ? ???? ??? ? ???? ?? ??? ?? ?? / ?? ???? ???? ?? ???? ?? / ???? ??????? ?? ??? ?? ???? ?? ?? ?? ?? ??? ??? ?? ???? ????? ?????? ?? / ???????? ??? ?? ??? ???? ???? ?? / ????????? ?? ?? ??????? ???????? ?? ???? ??? ??? ????? ?? ??????? ????? ???????? ???? ??/ ??? ?????? ??? ??? ??? ??? ??????? ??? ?? ???? ??? ?? ?? ????????? ???? ?? ???? / ????? ???? ???? ??? ??? ??? ???? ??????? ???? ?? / ????? ?? ???? ???? ??? ??? ?? ?? ???? ? ???????? ?? ?? ????? ??? ???? ?? / ???? ??? ???? ? ???????? ?? ??? ???? ????? ?? ?? / ???? ???? ???? 5 ??? ?? ??? ??? ??? ???? ???? 12 ??? ?? ??? ??? ??? ??? ?? ??????

????? ???? ??? 70, 80 ??? ????? ?? ?? ?????? 65-75 ??? ?? ?????? ??? ?? ??? ??/ ????????? ?? ????? ??? ?? ??? ???? ??? ??? ?????? 70-80 ??? ?? ??? ?? ???? ????? ? ???? ??? ??????? ???????? ?????? ??? ???????? ?? ?? ??? ??? ?? ???? ???? ??? ??? ?? ???? ?? ?? ?? ??????? ???? ??? ??? ????????? ?? ??????? ???????? ?? ??? ?? ?? ??????? ?????? ????? ??? ??? ????? ?? ?????? 70,80 ??? ?? ??? ?? ??? ?????? ?? ??? ???????? 70-80 ??? ?? ????? ??? ??????? ???? ??????? ?????? ?? ??? ??? ?????? ???? ????? ???? ??? ??? ?????? ???? ???? 506 ?? ????????? ??? ??? ??????? ?? ??????? ???? ??? ??? ?? ????? ?? ?????? ??????? ????

????

??? ???? ??? ?? ???? ?????? 506/2/0-17-10 ?? ???????? ????? ??????????? ???? ???? ? ???? ?????? ??????? ???? ? ????? ? ??? ??????? ????? ?????? ????? ????? ?? ??? ???? ????????? ????? ????? ???? ?????? 492/0-5-15, 603/2/0-2-11, 603/6/0-4-0, 1965/2/ 0-1-12, 433/2/0-2-9 ???? ??? 176 ?? ??? ?????? ???????? ??? ? ????? ??? ?? ????? ????? ???? ?????? 506/2 ?? ?????? ?????????? ??? ?? ?????

1-???????? (2) ???? ???? ? ??????????? (3) ???? ??? ??? ??? (4) ????? ???? ??????"

12. Appellate Authority decided appeals filed by both parties by common order dated 07.02.1974 and held as under:

"?????? ?? ???? ???????? ???????? ??? ???? ?????? 509/2, 492 ????????? ??? ??????? ???? ???? ?????? ??????? ???? ?? ??? ???? ???? ???? ??? ??? 1359 ?? ??? ?? ???? ????? ???? ?? ?? ??? ????? 9 ???? ?? ?? ????? ?? ?? ???????? ?? ?? ?? ???? ?????? ?? ???????? ?? ???? ???? ????? ???? ??? ?? ?? ??? ???????? ?? ?? ?? ?? ???? ????? ???? ?? ?? ??? ???? ??? ???? ????? ?? ??? ????? ???? ?? ?? ????? ?? ?????? ??? ?? ?? ??? ???? ??? ????????? ?? ?? ?? ??????? ?? ????? ????? ????????? ?? ????? ???? ???? ?? ????????? ?? ?? ????? ??? ??????? ???? ?? ? ?? ?? ?? ?? ???? ?????????? ?? ?????? ?????? ??? ???? ????? ???? ?? ?? ?? ?? ???? ????? ?? ?????? ???? ?? ?????? ???? ???? ??? ??? ??? ?????? ??? ???? ????? ?? ?? ?????? ???? ???? ?? ?????

??????? ???????? ?? ????? ????? ?? ???? ??? ?? ????? ?? ???? ???? ??? ??????? ???? ?? ?? ?? ???? ?????? ?? ?????? ??? ??? ???? ??? ??? ?????? ????????? ??? ?? ??? ???? ??? ????? ??? ?? ??? ?? ???????? ?? ?? ?????? ??? ?????? ???? 70 ???? ????? ?? ??? ??? ????? ?? ????? ???? ?? ?? ??? ???? ?? ?? ???? ?? ?? ??? ??? ?? ?? ?? 110 ??/ ?? ???? ????? ???? ?? ?? ??? ?????? ??????? ???? ??? ?? ????? ??? ???? ????? ?? ?? ??? ?????? ??? ???? ???

??????? ??????? ?? ???? ?? ?????????? ???? ????? ???? ???? ???-

????

???? ???? ??? ????? ???? ???? ????? ??? ??? ???????? ??? ????? ??????? ???? ???? ??????? ??????? ?? ?????? ??????? ??? ?? ???? ?????? 492 ????????? 5 ?????? 15 ???? ?? ????? ??? ??? ???????? ??? ?? ??? ???? ???? ?????? ?????????? ?????? ???? ????

??????-1/4, ???????? ? ??????????

???? ??? ??? ??- ,

????? ??? ??????- 1/4? (Emphasis supplied)

13. In the above background petitioners preferred revision which was dismissed by order dated 20.11.1976 and relevant part thereof is mentioned hereinafter:

"???? ?? ?????????? ?? ?????? ?? ?? ????????? ??? ???? ?????? 506 ?? 492 ????????? ??? ??????? ?????? ????, ??????? ????? ?? ???? ?? ??? ???????? ????? ??? 1359 ???? ??? ???? ??????? ?? ?? ??? ??? 6 ??? ????? ?? ?????????? ????? ?? ????? ?? ?? ?? ???? ?????? ?? ?????? ?? ??? ?? ?? ???? ?? ???? ?? ????????? ?????? ??? ???? ???? ??? ???? ????? ?? ????? ??? ??????? ????? ?? ??????? ???????? ?? ??? ?? ??????? ????? ?? ????????? ??? ?? ???? ??? ??? ?? ???? ??? ?? ?????? ??? ??????? 1975 ?? ?? ????? 195 ??? ????? ???? ????? ??? ?????

?????? ????? ??? ?? ??? ???????? ?? ?? ???? ????? ??????? ???? ??? ???? ?? ????? ?? ??? ???????? ?? ?????? ?? ?? ????? ??? ?????? ??????? ?? ?? ?? ?? 1947 ?????? 125 ?????? ????? ???? ??? ????? ???? ????? ??? ???? ? 194 ?????? ????? ?????? 183 ???????? ???? ????? ????? ??? ???? ?? ??? ?? ??? ???????? ?? ??????? ???? ??? ?? ???? ?? ?????? ??? ??????? ??? ??????? ??? ?? ??? ?????? ?????? ??? ????? ?? ?? ?? ?????? ?? ??????? ???????? ???? ??????? 1947 ???? ????? ?????? 125 ??? ?? ??? ??? ?? ?? ??? ?????? ?? ????? ???? ???? ??? ??? ?? ???? ?? ?? ???? ?? ??? ???? ????? ?? ???? ????????? ??? ?? ???? ?????? ?? ???? ???? ?????? 506 ?? ????? ???? ???? 0-17-5 ?? ?? ???? ???? ??? 0-17-18 ?? ?? ???? ?????? 492 ?? ????????? ???? 0-5-11 ?? ?? ?? 0-5-15?? ?????? ???? ?? ???? ????????? ??? ????? ???? ????????? ??? ???? ?????? 506 ?? ?? ??? ???? 506/1/0-5-14 ??????? ?????? 136 ???????? ???? ????? ????? ?????? 31-3-71 ?? ???? ???? ?? ???? 183 ??? ????? ?? ??? ???? ?????? ?? ?????? ?? ???? ??? ?? ????????? ?? ??????? ?? ?? ?????? ???

??????? ????? ?? ?? ???? ??? ??? ?? ?? ??????? ????? ?? ?? ???? ?? ????????? ??? ?? ??? ???????? ?????? ?? ?? ??? ?????? ???? ???? ??? ??? ?????? ??? ?????? ?? ???? ???? ?? ????? ??????? ??????? ?? ???? ?? ??? ????? ??? ?? ??????? ????? ????? ???? ??????? (?) ?? ?????? ???? ??? ?? ?????? ??? ??? ??? ???? ???????? ???? ???? ??????? ????? ?? ?????? ?? ???? ???"

(Emphasis supplied)

14. In the background of above factual and legal aspect it is evident that the pedigree relied by Consolidation Officer is not in dispute, therefore, both parties are from common ancestors. All the parties have share in larger part of land except the plot wherein petitioners were recorded as sole occupants for last 22 years.

15. Settlement Officer of Consolidation has given above referred findings that contesting-respondents are also entitled for equal share on the land in dispute since they belong to common ancestors as well as there was no reason or source of sole occupancy of petitioners on land in dispute. These findings are authoritatively clarified by Deputy Director of Consolidation by relying upon judgments and I do not find any irregularity or illegality in the finding that, ???? ?????? ?? ????? ???? ???? ??? ??? ?? ???? ?? ?? ???? ?? ??? ???? ????? ?? ???? ????????? ??? ?? ???? ?????? ?? ????? and further that, "??????? ??????? ?? ????? ???? ?? ?? ?????????? ???? ?? ???? ???? ?? ???? ??? ?????? ??? ????? ???? ???? ?? ?? ?????? ?? ???? ????? ??????? ?? ????? ? ??????? ?????? ?? ??????? ???? ????? ??? ?????????? ?????? ??? ??? ???? ??????? ????? ???? ???? ??????? (?) ?? ???? ????

16. Above referred findings of fact are based on substantive legal premises and there is no material before this Court to disturb the said findings. All parties to this litigation are from one family, therefore, respondents cannot be denied the benefit for part of land only on the basis that petitioners were shown as sole occupants of land in dispute for more than two decades without any legal basis. The findings returned by Settlement Officer of Consolidation as well as Deputy Director of Consolidation are based on legal premises. Learned counsel for petitioner has failed to point out any manifest error in impugned order or any perversity, therefore, in view of judgment of Supreme Court in Central Council for Research in Ayurvedic Sciences and another vs. Bikartan Das and others, 2023 SCC OnLine SC 996, no case is made out to issue a writ of certiorari and I do not find any reason to interfere in impugned order.

17. Writ petition lacks merit and is accordingly dismissed.

18. Interim order, if any, stands vacated.

Order Date :- 18.9.2023