Allahabad High Court
Ram Deo And Others vs Dy. Director Of Consolidation Mirzapur ... on 3 July, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:105898
Reserved on 23.05.2024
Delivered on 03.07.2024
Court No. -33
Case :- WRIT - B No. - 7781 of 2006
Petitioner :- Ram Deo And Others
Respondent :- Dy. Director Of Consolidation Mirzapur And Others
Counsel for Petitioner :- Vijai Kumar Rai,Dr. Vinod Kumar Rai,Sankatha Rai
Counsel for Respondent :- C.S.C.,Devi Prasad Mishra,Dharmendra Kumar Tripathi,Gautam,Suneel Kumar Rai,Vivek Kumar Singh
Hon'ble Chandra Kumar Rai,J.
1. Heard Mr Ashok Kumar Singh & Dr Vinod Kumar Rai, learned Counsel for the petitioners, Mr Dharmendra Kumar Tripathi learned Counsel for respondent Nos.4, 5, 6 and learned Standing Counsel for the State-respondents.
2. Brief facts of the case according to petitioners are that following three pedigree as mentioned in paragraph No.5 of the writ petition, are relevant to disclose the relationship among the parties:-
First Pedigree
Janki
|
Tulsi
______________________|________________________
| | | |
Sita Ram Ram Deo Shym Deo Ram Pyarey
P-2 P-1 P-3 P-4
(P-represents petitioner)
Second Pedigree
Dukhi
|
Sadhu
_____________|___________
| |
Raghu Nath Gaya
________|_______ ______|___________
| | | |
Sukkal Mangroo Dadai =Smt.Gulabiya Kolai R-4 | | _________|___
| | | |
________|____ | Budhiram Nanhak | | | P-5 P-6
Shankar Bhola |
R-5 R-6 |
|
|
______________________|____________________
| | |
Lal Ji=Smt Shanti Tribhuwan Mohar
|
|
_______|____________________________________________ | | | |Vinod Kumar Kapil Kumar Ajay Kumar Jitendra Kumar
P-9 P-10 P-11 P-12
Third Pedigree
Jhoori
|
Molai
_________|________
| |
Kanhai Girdhari
P-7 P-8
Plot No- 105 Ka, 114 Ga 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128 whose old numbers were 40, 25 m, 26m, 27m, 28 m, 17, 19, 20, 21 M, 22, 23, 24, 25M to 31m, 32 and 33 total area 29-9-0 as mentioned in paragraph No.6 of the writ petition are situated in village-Musahi, Pergana - Barhar, Tehasil - Robertsganj, District - Mirzapur. It is mentioned in paragraph No- 7 of the writ- petition that in correction drive scheme the names of Molai son of Jhoori, Tulsi son of Janki, Gaya son of Sadhu were ordered to be recorded along with Rughu Nath son of Sadhu over 20 plots area 19 Bigha 3 Biswa, vide order dated 27.7.1957 passed by sub Divisional Officer Robertsganj. A notification of Record operation under section-48 of U.P. Land Revenue Act 1901 was issued in the year 1962 in respect to village in question accordingly total 13 plots were carved out against the old numbers in the names of Sukkal & Mangroo sons of Raghu Nath, Molai son of Jhoori, Tulsi son of Janki, Gaya son of Sadhu and no objection was filed by anybody during record operation. Sukkal, Mongroo, Molai alleged to file a suit under Section-176 of U.P. Zamindari Abolition & Land Reforms Act 1950 hereinafter referred to as U.P.Z.A.&L.R.Act on 17.5.1976 against Tulsi, Molai, Lalji, Tribhuwan, Mohar, Gaon Sabha for partition in respect to aforementioned 13 plots area 21 Bigha 9 Biswa. The aforementioned Suit No-60 of 1976 was decided on the basis of compromise vide order dated 12.7.1976/ 27.8.1976. In respect to some of the plots in question sale-dead were executed on 23.12.1980/17.4.1987 in favour of petitioner No.13/petitioner No.14 and names were accordingly recorded. The aforementioned facts are not admitted to respondent Nos. 4 to 6. A notification under Section-4 of U.P. Consolidation of Holdings Act 1953 hereinafter referred to as U.P.C.H. Act was issued on 27.12.1986/30.7.1987 in respect to village in question. Basic Year Entry in respect to the disputed khata was in following manner:-
S.N. Khata Nos. Name of the person recorded
1. 87 Tribhuwan son of Dadal
___
2. 63 |
| Lalji son of Dadai
47 ___|
3. 25 Tulsi son of Janki
4. 74 Sukkal & Mongoo con of Raghu Nath
S.N. Khata Nos. Name of the person recorded
5. 43 Kalai son of Gaya
6. 127 Mangroo son of Raghu Nath
7. 75 Smt Kiran Devi wife of Ram Cheej Singh Yadav
8. 68 Smt. Lalli Devi wife of Bhullan Ram
Against the basic Year entry several set of objections were filed under section- 9A (2) of U.P.C.H .Act. One objection was filled by one Algoo son of Bauram for recorded his name in respect to plot No. 71 area 0.13 acre on the basis of adverse possession after expunging the name of Tulsi son Janki which was registered as case No. 262 (Algoo Vs Tulsi). One objection was filed by Mangroo & Sukkal sons of Raghu Nath in respect to Khata No-25 to expunge the name of Tulsi and record their names as the Khata in dispute was the sole acquisition of their father Raghu Nath but the name of Tulsi was recorded in fraudulent manner. One objection was filed by Mangroo & Sukkal sons of Raghu Nath in respect to khala N..47 & 63 to record their names after expunging the name Lalji and Smt. Kiran Devi as the Khata in dispute was the sole acquisition of Raghu Nath. Another objection was filed by Sukkal and Mangroo sons of Raghu Nath in respect to Khata No.87 to record their names after expunging the name of Tribhuwan on the ground of self acquisition of the Khata in dispute by Raghu Nath, one objection was filed by Mangroo separately in respect to Khata No.127 that his village be mentioned as Musahi in the place of Harahua. Other objections were also filed by Sukkal & Mangroo in respect to others disputed Khata to record their names after expunging the names of recorded person. Tulsi (father of petitioner Nos. 1 to 4) contested the claim of Sukkal & Mangroo on the ground that they are co-tenure holders of the khata in dispute and the claim of Sukkal & Mangroo is barred by Principle of estoppel, acquiescence and res-judicata. The consolidation officer had framed issues and afforded opportunity to the parties to lead evidence in support of their cases. Consolidation Officer vide order dated 14.3.2000 allowed the objection filed by Sukkal & Mangroo & directed to record the name of Sukkal as well as Shanker & Bhola sons of Mangroo over the Khata in dispute, after expunging the basic Year Entry. Ramdeo son of Tulsi, Kolai son of Gaya & Kanhai son of Malai filed appeal under Sechon-11 (1) of U.P.CH. Act which was registered as Appeal No- 367/217. The above-mentioned appeal was heard and dismissed by respondent No.2/ Assistant Settlement Officer of Consolidation vide order dated 19.2.2004. Revision filed under Section 48 of U.P.C. H. Act by Ramdeo, Buddhi Ram, Nanhak, Kanhai, Vinod against the order dated 14.3.2000 & 19.2.2004 was registered us Revision No-8/25/143 of 2004. The aforementioned revision was heard & dismissed vide order dated 27.12.2005 hence this writ-petition on behalf petitioners for following relief:
"(a) issue a writ, order or direction in the nature of certiorari and quash the order of the respondent No.1 dated 27.12.2005 (Annexure No.1 to the order of the respondent No.2 dated 19.02.2004 (Annexure No.2) and the order of the respondent No.3 dated 14.03.2000 (Annexure No.3).
(b) issue an interim mandamus staying the operation of the impugned order of the respondent No.1 dated 27.12.2005 (Annexure No.1) the order of the respondent No.2 dated 19.02.2004 (Annexure No.2) and the order of the respondent No.3 dated 14.03.2000 (Annexure No.3) and also restraining the respondents II set Sukkal and others from interfering in the petitioners' possession over the land in dispute in any manner whatsoever during the pendency of the present writ petition in this Hon'ble Court.
(c) issue any other and further suitable suitable writ, order or direction which this Hon'ble Court may deem fit and proper to meet the ends of justice on the facts and circumstances of the case.
(d) allow this writ petition with costs."
3. This Court entertained the matter on 10.2.2006 and granted interim protection for maintaining status quo on spot as well as in the records.
4. In pursuance of the order dated 10.2.2006 passed by this Court, parties have exchanged their pleadings.
5. Learned counsel for the petitioners submitted that both parties were in possession jointly over the Khata in dispute since before the date of vesting and they had been paying rent to Zamindar Raja Sahab of Barhar State therefore in the corrections drive scheme, the sub Divisional officer had passed the order dated 27.7.1957 with the consent of the parties to record the name of predecessor of petitioners along with Raghu Nath. He further submitted that the name of predecessor of petitioners were recorded in the Khatauni of 1363-1365 fasli as well as in subsequent Khatauni of 1366-68 fasli. He further submitted that during record operation which took place in 1369 fasli i.e. 1962, both parties were recorded jointly. He further submitted that suit under Section 176 of U.P.Z.A.& L.R. Act filed by Sukkal and others was decided vide judgment/ decree dated 12.07.1976/ 27.08.1976 by Sub Divisional Officer on the basis of compromise took place between the parties but no steps have been taken by Sukkal & others in respect to long standing entries of the petitioners as well as their predecessors. He further submitted that Consolidation operation started in the Village in the year 1986 in which Sukkal & others had filed frivolous objection against the basic Year entry which was even barred by Principle of res-judicata & estoppel but Consolidation Officer has allowed that the objection of Sukkal and others directing to record their names after expunging the names of predecessor of petitioners. He further submitted that compromise decree passed on 12.7.1976/ 27.8.1976 in suit under Section 176 of U.P.Z.A. & L.R. Act can not be examined by Consolidation authorities as no proper steps have been taken by any body to challenge the decree passed by Revenue Court in accordance with law. He further submitted that Consolidation authorities have illegally embarked inquiry regarding pedigree & the long standing entries of the khata in dispute which is not permissible. He further submitted that appeal & revision filed by petitioners have been also dismissed in arbitrary and illegal manner. He placed reliance upon the judgment of this Court reported in 2004 (97) RD 703 Ramdeo Versus Deputy Director of Consolidation and others in support of his argument.
6. On the other hand, learned Counsel appearing for the respondent No.4,5 & 6 submitted that following pedigree will be relevant for perusal.
Dukhi
|
Sadhu
_____________|___________
| |
Raghu Nath Gaya
________|_______ ______|________
| | | |
Sukkal Mangroo Dadai Kolai
_____|______ | |
| | | _______|___
Shankar Bhola | | | | Budhiram Nanhak
|
________________|_____________________
| | | |
Lal Ji Tribhuwan Mohar Harihar
|
____________________________________________ | | | |
Vinod Kumar Kapil Kumar Ajay Kumar Jitendra Kumar
The aforementioned pedigree is the second pedigree which is mentioned in paragraph No. 5 of the writ petition. Learned counsel for respondent Nos. 4, 5 & 6 Submitted that person belonging to first & third pedigree never belong to second pedigree. He further submitted that Khata in dispute was earned by Raghu Nath alone therefore the heirs of Raghu Nath are only entitled to be recorded as tenure holder. He further submitted that persons belonging to third pedigree i.e. Jhoori & others are dhobi by caste where as the answering respondents are Vishwakarma (Lohar) by caste as such persons of third pedigree can not became co-sharer of the Khata in dispute. He further submitted that Dadai & Kolai sons of Gaya had about 22.16 bigha of separate land and answering respondents never claimed share in the land of Dadai & Kolai. He further submitted that Kolai is not son of Jhoori. He further submitted that Raghu Nath alone was paying rent to Zamindar before date of vesting and Tulsi was not recorded before date of vesting as Asami of the Khata in dispute but his name was added in fraudulent manner in the khatauni of 1365 fasli without any order of Revenue authority. He submitted that no order was passed on 27.7.1957 in any judicial proceeding as such no reliance can be placed upon the same. He further submitted that copy of the order dated 27.7.1957 has not been filed along with writ petition before this Court or even before the Consolidation authorities which fully demonstrate that there is no order of 27.7.1957. He submitted that Suit No. 60 of 1976 under Section-176 of U.P. Z. A. &.L. R. Act was not filed by answering respondents rather the same is fraud, collusion & manipulation of petitioners. He further submitted that expert opinion came before Consolidation Officer fully demonstrate that the alleged thumb impression put on the compromise alleged to take place in Suit No. 60 of 1976 are not of Sukkal, Mangroo & Molai accordingly Consolidation Authorities have concurrently decided the dispute against the petitioners which requires no interference by this Court under Article 226 of the Constitution of India. He submitted that Tulsi was very much alive when the proceeding was pending before Consolidation Officer but he did not appear before Consolidation Officer to adduce his oral evidence in support of his written statement filed before Consolidation Officer accordingly consolidation offices has rightly decided the objection under section 9-A (2) of U.P.C.H. Act for expunging the names of predecessor of petitioners as well as petitioners which has been rightly maintained in appeal & revision under the impugned orders. He placed reliance upon the following judgement of Hon'ble Apex Court & this court in support of his argument:-
(i) 2007 (3) AWC 2538 A.V. Papayya Sastry & Ors Versus Government of A.P. & Ors
(ii) 1994 (1)SCC 1 S.P. Chengalvaraya Naidu (dead) by L Rs. Versus Jagannath (dead) by L. Rs and others
(iii) 2011 (10) ADJ 629 Rikhvev and Another Versus A.D.M.(finance) Azamgarh And others
(iv) 2022 (11) ADJ 229 Ram Kumar Verus state of Uttar Pradesh and others.
7. I have considered the argument advanced by learned Counsel for the parties & perused the records.
8. There is no dispute about the fact that objection under Section-9A (2) of U.P.C.H. Act filed by respondent Sukkal as well as father of respondent Nos. 5 and 6 has been allowed by Consolidation Officer vide order dated 14.3.2000 for expunging the name of recorded tenure holders & recording. the names of respondent No. 4 5 & 6 as bhumidhar of the disputed khata Nos-87, 47, 63, 25,43 68 & 73 as well as objection filed by Algoo was rejected. There is also no dispute about the fact that appeal /revision filed against the order of Consolidation Officer were dismissed under impugned appellate / revisional orders dated 19.2.2004/ 27.12.2005.
9. The point for determination in the instant petition is as to whether predecessor of petitioners can be treated as tenure holder of the Khata in dispute on the basis of the order dated 27.7.1957 alleged to be passed in correction drive Scheme as well as compromise decree alleged to be passed on 12.7.1976/27.8.1976 in suit under section 176 of UP.Z.A. & L.R. Act
10. In order to examine the point of determination as mentioned above the entry of khatauni of 1359 fasli of the disputed Khata will be relevant which is annexed as annexure No. C.A. 1 to the counter affidavit in which is the name of Raghu Nath son of Sadhu is recorded in class-8 category. In khatauni of 1360-61 Fasli which is annexed as Annexure No. C.A.2 to the counter affidavit, Raghu Nath son of Sadhu alone was recorded in class-2 category and the same was the position in 1362 fasli Khatauni which is annexed as annexure No.C.A.3 to the counter affidavit. In the Khatauni of 1363-65 fasli which is annexed as annexure No.4 to the writ petition the reference of order dated 27.07.1957 has come in the remark column for recording the names of Molai son of Jhoori, Tulsi son of Janki, Gaya son of Sadhu alongwith Raghu Nath son of Sadhu.
11. From the entry before date of vesting and after date of vesting, it is well established that Raghu Nath son of Sadhu of father of respondent No.4 was recorded tenure holder of the Khata in dispute in exclusive manner as such nobody else can be recorded as co-tenure holder unless there is any adjudication by any court for recording their names in respect to the khata in dispute. So for as order dated 27.7.1957 is concern, copy of the order dated 27.7.1957 has not been annexed along with instant writ petition before this Court or before Consolidation authorities rather there is incomplete reference of the same in the remark column of the khatauni of 1363-65 fasli as such no reliance can be placed upon the order dated 27.07.1957. The Consolidation Officer, Settlement Officer Consolidation and Deputy Director of Consolidation have found that order alleged to be passed on 27.07.1957 is fraudulent, as such predecessor of petitioners cannot be recorded as co-tenure holders of the khata in dispute.
12. So for as proceeding under Section 176 of U.P.Z.A.& L. R. Act and compromise decree alleged to be passed on 12.7.1976/27.8.1976 is concern, respondent Nos.4 and father of respondent Nos. 5 and 6 had totally denied about the compromise alleged to take place in the proceeding under Section-176 of U.P.Z.A & L.R. Act, the expert report submitted before Consolidation Officer about the compromise in the proceeding under Section-176 of U.P.Z.A. & L.R. Act demonstrate that the same is fraudulent accordingly the second basis of the petitioners for maintaining the basic year entry in which predecessor of petitioners were recorded has also gone.
13. It is also material that there was no entry in the name of Dukhi or Sadhu who were common ancestor of Raghu Nath & Gaya as such descendant of Gaya are not entitled to be recorded as co-tenure holder of the khata in dispute. From the evidence on record, it is established that Tulsi son of Janki and Molai son of Jhoori are not not members of the family of Sadhu son of Dukhi as such claim of co-tenure holder set up by descendant of Tulsi & Molai can not be accepted. It is also material that Molai Son of Jhoori was dhobi by caste and Raghu Nath was Lohar by caste as such Molai son of Jhoori cannot become co-tenure holder of the khata in dispute along with Raghu Nath son of Sadhu.
14. It is well settled principle of law that fraudulent long standing entry can be expunged in proper manner. In the instant case the Consolidation authorities in the proceeding under Section 9-A (2) of U.P.C.H. Act have found that basic year entry of the processor of the petitioners were the result of fraud & collusion as such the same has been expunged after affording opportunity of hearing to the parties and considering the entire evidence on record.
15. The Consolidation officer, Settlement Officer of Consolidation & Deputy Director of Consolidation have rightly exercised their jurisdiction while deciding the dispute under Section 9-A (2) of U.P.C.H. Act for recording the name of respondent Nos. 4, 5 & 6 exclusively over the Khata in dispute and expunging the names of petitioners/ predecessor of petitioners.
16.The point of determination as framed is answered against the petitioners that petitioners' predecessor/ petitioners cannot be rerecorded as co-tenure of the khata in dispute on the basis of fraudulent proceeding alleged to take place under Section 176 of U.P.Z.A.& L.R. Act as well as order dated 27.07.1957 alleged to be passed in correction drive Scheme.
17. No interference is required against the concurrent judgment passed by all the three Consolidation authorities in the tile proceedings under Section 9-A(2) of U.P.C.H.Act.
18. Writ petition stands dismissed.
19. No order as to costs.
Order Date :- 03.07.2024
PS*
