Amar Nath And Others vs D.D.C. And Others
2024 Latest Caselaw 16742 ALL

Allahabad High Court

Amar Nath And Others vs D.D.C. And Others on 13 May, 2024

Author: Manish Kumar

Bench: Manish Kumar

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2024:AHC-LKO:36568
 
Court No. - 18
 

 
Case :- WRIT - B No. - 3670 of 1988
 

 
Petitioner :- Amar Nath And Others
 
Respondent :- D.D.C. And Others
 
Counsel for Petitioner :- S.C.Misra,A.S.Chaudhary,P V Chaudhary
 
Counsel for Respondent :- C.S.C.,A.P.Misra,Mohd.Naseerullah,Narendra Gupta,Param Shanker,Umesh Singh,V.B.Verma
 

 
Hon'ble Manish Kumar,J.
 

1. Heard Sri P. V. Chaudhary, learned counsel for the petitioners, Sri Hemant Kumar Pandey, learned Standing Counsel for the State and Sri Narendra Gupta, learned counsel for the private respondents.

2. During the pendency of the present writ petition, the respondent no. 3, 4, 5 & 6 had died and their legal heirs/representatives have been substituted (hereinafter referred to as the respondents)

3. The present writ petition has been preferred against the impugned appellate order dated 18.08.1993 as well as impugned revisional order dated 14.01.1988.

4. The petitioners are sons of Ram Charitra, who was the son of Jai Karan and Jaikaran was the third son of Gajadhar hence, petitioners are great grandson of Gajadhar whereas respondent no. 3 is the son of Ram Adhin, who was the second son of Gajadhar, respondent no. 4 was the son of Ram Kumar, who was the third son of Ram Adhin and respondent nos. 5 & 6 were the daughters of Saliq Ram, who was the first son of Ram Adhin, as such respondent no. 3 was the grand son of Gajadhar whereas respondent nos. 4, 5 and 6 were great grandson/great granddaughters of Gajadhar.

5. Learned counsel for the petitioners has submitted that the dispute is with regard to different Gata numbers in Khata no. 226 that is Gata Nos. 1003/2, 1788, 1258/1, 1280/1392, 1123, 915/1, 923/2, 1000/1, 1299/2, 1245/1 & 1283 total area about 12 Bighas. The Gata numbers were in the original tenancy of the great grandfather of the petitioners namely Gajadhar.

6. It is further submitted that in the year 1974-75, the village had come under consolidation. The names of the petitioners were entered in C.H. Form 2A as per Rule 21 of the U.P. Consolidation of Holdings Rules, 1954 (hereinafter referred to as the Rules, 1954) after the test and verification of the annual register as prescribed under the Rules on field to field partal of all the plots.

7. It is further submitted that when the names of the petitioners were not found in subsequent documents, the petitioners filed objections under Section 9A(2) of the U.P. Consolidation Act, 1953 (hereinafter referred to as the Act, 1953), which was decided in favour of the petitioners by the Consolidation Officer by order dated 12.01.1982.

8. It is further submitted that against the order dated 12.01.1982, the respondents had preferred an appeal before the Settlement Officer Consolidation which was allowed by the judgment and order dated 18.08.1983. Against the appellate order, the petitioners had approached the revisional authority by filing a revision which was dismissed by impugned judgment and order dated 14.01.1988, hence, the present writ petition has been preferred.

9. It is further submitted that the appellate court and the revisional court had failed to appreciate that the names of the petitioners were in the C.H. Form 2A at the time of partal but accepted the contention of the respondents that the land in dispute is the self acquired property of Ram Adhin, the predecessor of the respondents and not the ancestral property of Gajadhar, the great grandfather of the petitioners. Hence the impugned judgments/orders passed by the appellate court and the revisional court are liable to be quashed.

10. On the other hand, learned Standing Counsel and Sri Narendra Gupta, learned counsel for the respondents have submitted that the Gata numbers as mentioned above were entered in the name of Gajadhar in Ziman 5 i.e. no one has any hereditary right on such property.

11. It is further submitted that the land on which the present petitioners are claiming their rights are Gata no. 46, 93, 119 & 24 total area about 3 bighas in Khata no. 226 which is entered in the name of Ram Adhin as it was acquired by Ram Adhin, the father of respondent no. 3 and grandfather of the rest of the respondents.

12. It is further submitted that the identity of the holding has been changed and it cannot be said that it is an ancestral property for claiming the co-tenancy in the same.

13. After hearing learned counsel for the parties and going through the record of the case, the admitted position between the parties is the pedigree. It is also not disputed between the parties that the petitioners and the respondents are descendants of Gajadhar.

14. Learned counsel for the petitioners is unable to dispute this fact that the Gata numbers of khata no. 226 which have already been mentioned in the preceeding paragraph was entered in the name of Gajadhar as Zeman 5 and the entry under Zeman 5, no person can claim any hereditary rights.

15. On being asked a specific query from the learned counsel for the petitioners that the Gata numbers which were entered in the name of Gajadhar and the Gata numbers on which the name of Ram Adhin was entered are the same or not, he has very fairly replied that the Gata numbers are different.

16. On being put to another query from learned counsel for the petitioners that whether the area of the land is the same or not, he has very fairly stated that he cannot dispute this fact also that the area of holding of Gajadhar was about 12 bighas whereas the area of holding of Ram Adhin was about 3 bighas.

17. The other query which was put by this Court to the learned counsel for the petitioners that is it not the change of identity of holdings, he has very fairly submitted that even it cannot be disputed that the identity of the holding has been changed drastically.

18. The basis of the claim of the petitioners are on the basis of Form C.H. 2 whereas thereafter Form C.H. 4 is to be prepared under Rule 22 of the Rules, 1954, which deals with the list of mistakes and disputes mentioned in Rules 19, 20 and 21 shall be prepared in C.H. Form 4 in two parts. Part I shall contain clerical mistakes and Part II shall contain other mistakes and disputes discovered during the test and verification of the annual register and in the course of the field-to-field partal referred to in Rules 19 and 21. Details of shares claimed in joint holding shall also be recorded in Part II of C.H. Form 4.

19. On being asked a specific query from the learned counsel for the petitioners whether the names of the petitioners were recorded in C.H. Form 4, he has replied that after C.H. Form 2, the names of the petitioners were not recorded either in any form or any other documents issued from time to time in the consolidation proceedings and they had also not disputed or objected on the same.

20. This Court in the case of Jagdamba Singh and others Vs. Dy. Director of Consolidation and others reported in 1984 (2) LCD Page 398 has held that in order to uphold the claim of co-tenancy right on the ground of being a common ancestor, it must be established by the claimant that the holdings has come down intact and in identical form. In the preceding paragraph, learned counsel for the petitioners has himself accepted that the identity of holdings has been changed drastically, thus, petitioners cannot claim their rights on the land whose identity has been changed drastically. The relevant paragraph of the said judgment is reproduced hereinbelow:-

"15. In all the aforesaid decisions it has been consistently held that in order to uphold the claim of co-tenancy rights on the ground of land being ancestral, it is essential that the entire land of the holding of the common ancestor must have come down in the identical form an it must have remained unchanged and intact. It would, however, be correct to say that where as a result of survey made during settlements, the area of some plots might have decreased or increased or that some plot or plots are eliminated for some explained reason from the holding in question viz. having fallen in the bed of river due to the alluvial and deluvial action of the river or by the construction of the canal etc., then in such event it cannot be said that there is break in the identity of the holding in dispute. The slight change like elimination of certain plot or the increase or decrease in the area of certain plots, for the aforesaid reasons shown, would not operate to destroy the identity of the holding coming down in identical form in the family from the time of common ancestor. But in order to uphold the claim of co-tenancy rights on the ground of land being ancestral it must be established by the claimant that the holding has come down intact and in identical form that it has not been sub-divided or resettled with one or some of the heirs or with the strangers. Thus, where the disputed holding has not come intact in the identical form and only some of the plots of the holding belonging to common ancestor are found included as in the present disputed holding it would not make it ancestral holding so as to give a share in it to the claimants on that ground nor it would be permissible to pick up those plots from the holding and declare them to be ancestral property and give a share in those plots to the claimant."

21. In view of the facts, circumstances and the discussion made hereinabove, the property cannot be said to be an ancestral property as claimed by the petitioners, as such no interference is called for in the impugned appellate order as well as in the revisional order.

22. In the result, the writ petition is devoid of merits and is accordingly dismissed.

Order Date :- 13.5.2024

Nitesh