Allahabad High Court

Sita Ram vs D.D.C. And Os on 5 August, 2025

Author: Alok Mathur

Bench: Alok Mathur





HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:45506
 
Court No. - 5
 

 
Case :- WRIT - B No. - 3833 of 1983
 

 
Petitioner :- Sita Ram
 
Respondent :- D.D.C. And Os
 
Counsel for Petitioner :- K.P. Singh,Jai Pal Singh,Sharad Nandan Ojha
 
Counsel for Respondent :- C.S.C.,Gopesh Tripathi,Mohammad Tauseef Siddiqui,R.S. Tripathi,S.C. Kashish
 

 
Hon'ble Alok Mathur,J.

1. Heard Shri Sharad Nandan Ojha, learned counsel for the petitioner, learned Standing Counsel on behalf of the State respondents and Mr. Mohammad Tauseef Siddiqui, learned counsel on behalf of respondent no.2.

2. By means of the present writ petition, the petitioner has challenged the order dated 07/01/1983 passed by the Deputy Director of Consolidation, Pratapgarh whereby he has allowed the revision preferred at the behest of respondent no.2.

3. The facts in brief, as stated by the petitioner, are that the disputed property was initially recorded in the name of Purai, who is said to have two sons, namely, Sita Ram and Sukhai. Sukhai has pre deceased Purai and therefore in the basic year the property was recorded in the name of Sita Ram. It has further been stated that Khatauni verification, objections were filed by one Kaushaliya, daughter of Sukhai, and objections were also filed by Smt. Jagdei, respondent no.2. Kaushaliya had claimed herself to be the daughter of Sukhai,while Smt. Jagdei had claimed her name to be mutated on the basis that she was the widow of Sukhai. Smt. Kaushaliya did not pursue the matter before the Consolidation Officer and accordingly her application was dismissed for want of prosecution. The objections filed by Smt. Jagdei were duly considered by the Consolidation Officer. The claim of Smt. Jagdei was rejected on the ground that Purai had died during fasli 1356 - 1359 which is 1949 to 1952 and in the said period, the UP Tenancy Act, 1939 was in operation. According to the UP Tenancy Act, 1935, the aspect of succession was governed by Section 35. The order of succession did not include the daughter-in-law and hence, application of Smt. Jagdei was rejected. Accordingly, the claim of Sita Ram was found to be consistent and he was held to be entitled to succeed to the entire property of Purai. An appeal was preferred before the Settlement Officer of Consolidation. The Settlement Officer of Consolidation again looked into the matter and concurred with the findings recorded by the Consolidation Officer and held that at the time when Purai died, the U.P. Tenancy Act was in operation, according to which, the daughter-in-law was not included in the list of heirs as per section 35, and therefore, he held that Smt. Jagdei would not succeed to the property of Purai, and held that Sita Ram was alone entitled to the property of Purai and accordingly, rejected the appeal.

4. Subsequently, the order of the Settlement Officer of Consolidation dated 31/12/1975 was assailed before the Deputy Director of Consolidation in revisional proceedings. The Deputy Director of Consolidation has allowed the revision and set aside the order of the Settlement Officer of Consolidation as well as the Consolidation Officer. The Deputy Director of Consolidation considered the case of Smti Jagdei, where in the revisional proceedings, she has stated for the first time that during lifetime of Purai, a partition had taken place, where half of the property was partitioned between Sita Ram and Sukhai. So, once the property stood partitioned during the lifetime of Purai, then Smt. Jagdei being the widow of Sukhai was liable to succeed to the said property. On the same fact, claim was made on the grounds of adverse possession claiming Smt. Jagdei is entitled to the half portion of the property. It is noticed that neither with regard to the partition nor with regard to the adverse possession, any evidence was filed or considered by the Deputy Director of Consolidation, and merely after recording the said facts, he has set aside the judgment of the Settlement Officer of Consideration as well as of the Consolidation Officer and allotted the revision.

5. Learned counsel for the petitioner while assailing the impugned order has submitted that the Deputy Director of Consolidation, while exercising the power under Section 48 of the Consolidation of Holdings Act, was entitled to revise the order passed by the authorities below, and in case the orders were perverse or contrary material on record, he could have interfered with the said orders. But in the present case, he has allowed the revision on the basis of totally fresh facts and evidence, which was never placed before him, and therefore, has committed manifest error of jurisdiction. Apart from which, the order is illegal, arbitrary, and perverse.

6. It was stated that a bare perusal of the order itself indicates that there is no material to indicate that partition has been effected by Purai or that Smt. Jagdei was in adverse possession of the said property. He has submitted that with regard to the possession, a clear finding was returned by the settlement by the Settlement Officer of Consolidation that Smt. Jagdei has never been in possession of property inasmuch as in case this fact was correct, then it would have reflected in the revenue records, this aspect of the matter would have certainly been recorded in the appropriate khasra. The Deputy Director of Consolidation has chosen to ignore the findings recorded by the Settlement Officer of Consolidation and returned a finding contrary, without setting aside the findings returned by the Settlement Officer of Consolidation. Accordingly, it is on the aforesaid grounds that the order of the Deputy Director of Consolidation has been assailed before this court in the present writ petition.

7. After hearing rival contentions of the parties and perusal of the record, I find that the Consolidation Officer has duly considered the objections filed by Smt. Jagdei. The disputed land initially belonged to Purai, who had two sons, namely, Sukhai and Sita Ram. There is no dispute that Sukhai has pre-deceased Purai and Smt. Jagdei being a widow of Sukhai had claimed to succeed half of the share of the property of Purai. The Consolidation Officer and the Settlement Officer of Consolidation have returned a concurrent finding that during the period Purai had died, the UP Tenancy Act was in operation, and as per Section 35 of the said fact Act, the daughter-in-law does not find place in the order of succession, and therefore she could not have succeeded to the property of Purai and accordingly, held that the entire share of Purai would vest in Sita Ram, who is surviving son. I further finds that the Deputy Director of Consolidation has considered all new facts, including the fact of partition, and considered the aspect of adverse possession.

8. A bare perusal of his order indicates that no evidence was led before him so as to enable him returned findings with regard to the partition and adverse possession. In order to return a finding in favor of respondent no.2. There had to be some cogent evidence filed before the Consolidation Officer or the Settlement Officer of Consideration, but no such evidence is available in the orders passed by the two authorities. There is no mention of partition or adverse possession in the orders of the Consolidation Officer or the Settlement Officer of Consolidation leading to irribitable fact that these aspects of the matter, were never placed before and was raised for the first time in revision before the Deputy Director of Consolidation.

9. This Court is of the considered view that the Deputy Director of Consolidation has fallen into error and in returning a finding with regard to facts which were neither placed before the Consolidation Officer or before the Settlement Officer of Consolidation, and accordingly, I have no hesitation to hold with the finding that clearly contrary to record and arbitrary. I further find that concurrent finding of facts have been returned by the Consolidation Officer and the Settlement Officer of Consolidation and no error in the said findings could be pointed out by the counsel for the respondent in the present case.

10. Accordingly, for the reasons above, the petition is allowed. Order order dated 07/01/1983 passed by the Deputy Director of Consolidation, Pratapgarh is quashed.

[Alok Mathur,J.]

Order Date :- 5.8.2025