Kamla Singh And Others vs Ram Surat Singh And Others
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Allahabad High Court

Kamla Singh And Others vs Ram Surat Singh And Others on 9 May, 2024

Author: Manish Kumar

Bench: Manish Kumar

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2024:AHC-LKO:35764
 
Court No. - 18
 

 
Case :- WRIT - B No. - 1803 of 1982
 

 
Petitioner :- Kamla Singh And Others
 
Respondent :- Ram Surat Singh And Others
 
Counsel for Petitioner :- Mohd.Abid Ali,Atiya Abid,Mohammad Abid Ali
 
Counsel for Respondent :- C.S.C,A.S.Chaudhary,Prabhakar Vardhan Chaudha
 

 
Hon'ble Manish Kumar,J.
 

1. Heard learned counsel for the petitioners, learned Standing Counsel for the State and Sri Prabhakar Vardhan Choudhary, learned counsel for the private respondents.

2. During the pendency of the present writ petition, after the demise of petitioner no. 2, his legal heirs/representatives have already been substituted as 2/1 & 2/2 (hereinafter referred as 'petitioners'). Similarly after the demise of respondent nos. 2 & 4, their legal heirs have been substituted as 2/1 to 2/3 & 4/1 to 4/3 respectively (hereinafter referred as 'respondents').

3. The present writ petition has been preferred against the impugned revisional order dated 16.01.1982 passed by the Deputy Director of Consolidation in Revision No. 925 (in re: Ram Parshad and Ors. vs. Lalji and Ors.) and the impugned appellate order dated 15.12.1978 passed by the Assistant Settlement Officer, Consolidation, Faizabad in Appeal No. 11176 (in re: Lalji and Ors. vs. Ram Parshad and Ors.) and with a further prayer to direct the respondent nos. 5 & 6 to decide the case in accordance with law.

4. Learned counsel for the petitioners has submitted that the dispute in the present case relates to Gata No. 574 of Khata no. 4 area 16 biswa and at present the dispute is confined to 11 biswa situated in village Sati, Pargana Birhar, Tehsil Tanda, District Faizabad (now Ambedkarnagar), which is a grove. The said village came under the consolidation proceedings and objections under Section 9A(2) of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act, 1953) were filed by the respondent no. 1 & 2 and the grandfather of respondent nos. 3 & 4, claiming themselves as co-tenant in the said land on the basis of succession being ancestral property.

5. It is further submitted that after the family settlement, the total area had been divided amongst the petitioners and the respondents and after the family settlement, everyone was in possession of their respective shares. The names of the petitioners had been entered in the khatauni after the U.P.Z.A. & L.R. Act, 1950 (hereinafter referred to as the Act, 1950) came into force and thereafter in the khatauni of basic fasli year i.e. at the time of consolidation of the village.

6. It is further submitted that the respondents had already given their share to one Ramashray and this fact may be seen from their objections filed against Ramashray under Section 9A(2) of the Act, 1953, the copies have already been enclosed along with the writ petition, wherein the respondents had admitted their share in the grove.

7. It is further submitted that the Consolidation Officer considering all these aspects had rightly rejected the objections of the respondents and their ancestors and passed an order dated 05.07.1977 in favour of the petitioners, on the basis of family settlement in pursuance of which parties were in possession over their respective shares.

8. The respondents preferred an appeal which was decided in their favour by judgment and order dated 15.12.1978. Against the appellate order, the petitioners had preferred the revision which was dismissed/rejected by impugned judgment and order dated 16.01.1982 passed by the Deputy Director of Consolidation.

9. It is further submitted that the revisional court had given a specific finding that the respondents had given their share in favour of Ramashray under an agreement but still gave a finding that it does not mean that respondents had given up their claim in the grove area 11 biswa entered in the name of the petitioners without any basis. The revisional court had also given a finding that it would be treated that the respondents had share in both the land as the name of the respondents were entered prior to the coming into force of the Act, 1950. The family settlement has also not accepted in the findings but without assigning any reason, simply observing that it does not agree for the same.

10. On the other hand, Sri Chaudhary, learned counsel for the respondents has submitted that the petitioners had not mentioned/filed the pedigree which is relevant for determining the shares between the parties.

11. It is further submitted that prior to coming into force of the Act, 1950, the names of the petitioners and the respondents were entered in the records as co-tenure holders on Gata No. 574 area 1 bigha 16 biswa but it is noticeable that later on the name of the petitioners have been entered alone on 11 biswa.

12. It is further submitted that there is no such settlement on the basis of which it has been alleged that the parties are in their possession of their respective shares.

13. On being asked from learned counsel for the respondents that was there any entry of the respondents in grove area 1 bigha 6 biswa, he has replied that there was entry in the name of the respondents alone also in some part of the land.

14. After hearing learned counsel for the parties and going through the record of the case, the dispute which is now to be decided is only for 11 biswa, as admitted between both the parties. The respondents are claiming their rights/share on 11 biswa which is entered in the name of the petitioners in the khatauni. On the basis of entry in khatauni of all the parties, the petitioners and the respondents as co-tenants prior to coming into force of the Act, 1950 and the counsel for the respondents have submitted that there was no such settlement between the parties as alleged by the petitioners.

15. On being asked from counsel for the respondents that if there was no settlement as alleged by the petitioner then how the respondents had given their share in Gata No. 574 in favour of one Ramashray, learned counsel for the respondents has failed to reply the said query of the Court. The next query put by this Court to learned counsel for the respondents is as to whether on Gata no. 574, area 1 bigha 6 biswa, the grove is entered in their name or not, he has very fairly submitted that in some part of 1 bigha 6 biswa of Gata No. 574, the names of the respondents have been entered in which the names of the petitioners are not there. After the reply of learned counsel for the respondents, it is clear that there was a settlement which was relied by the petitioners and on the basis of the same, the parties are in possession of their respective shares.

16. The fact of family settlement resulting in different share of the tenure holders and their possession over their respective share also finds support and and is evident by admission of respondent- Lalji in the agreement dated 22.01.1977 with Ramashray, stating therein that he is transferring his share in favour of Ramashray. The question of shares of the parties will arise only if there is a family settlement and partition/division of property. It is also evident from the affidavit filed by the respondents in the proceedings under Section 9A(2) of the Act, 1953 that they are in possession of their share.

17. The revisional court has though observed that the respondents had given their share to Ramashray but did not accept the case of petitioners about family settlement by merely observing that it does not agree with that. Except this observation, it has not given any reason for this finding. Such a finding has no rationale.

18. The revisional court again erred in observing that though respondents had given the share to Ramashray but it would not mean that the respondents had given up their rights in share of the petitioners over which they are duly recorded. It has again been wrongly assumed that the respondent will have share over both the properties i.e. which is in the share of the respondents as well as which is in the name of petitioners. Such a presumption is erroneous and against the fact and circumstances on the record.

19. Again the learned revisional court has erred in giving a finding that there is no documentary evidence on the record to show that respondents were not in possession over the land in dispute, it was rather for the respondents to give evidence to show that they were in possession over the disputed land/grove recorded in favour of the petitioners. The petitioners were not required to lead any negative evidence and inference drawn on this basis that the respondents had accepted the sole right of the petitioners is not correct.

20. In view of the facts, circumstances and the discussion made hereinabove, the writ petition is allowed.

21. The impugned revisional order dated 16.01.1982 passed by the Deputy Director of Consolidation in Revision No. 925 and the impugned appellate order dated 15.12.1978 passed by the Assistant Settlement Officer, Consolidation, Faizabad in Appeal No. 11176 are hereby quashed.

Order Date :- 9.5.2024

Nitesh