Ram Sudhaker And Others vs D.D.C. And Others
2025 Latest Caselaw 5961 ALL

Allahabad High Court

Ram Sudhaker And Others vs D.D.C. And Others on 10 March, 2025

Author: Jaspreet Singh

Bench: Jaspreet Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2025:AHC-LKO:14286
 
Reserved
 
Court No. - 8
 

 
Case :- WRIT - B No. - 2831 of 1983
 

 
Petitioner :- Ram Sudhaker And Others
 
Respondent :- D.D.C. And Others
 
Counsel for Petitioner :- S.K.Gupta,H.S. Sahai,R.P.Pandey,U S Sahai
 
Counsel for Respondent :- K.P.Singh,C.S.C.,Jai Pal Singh
 

 
Hon'ble Jaspreet Singh,J.
 

1. Heard Sri U.S Sahai learned counsel for the petitioners, Sri Girish Kumar holding brief of Sri Jai Pal Singh learned counsel for the private respondent no.3 and learned Standing counsel for the State respondents.

2. The petitioners before this Court have laid a challenge to the judgment and order dated 19.01.1983 passed by the Deputy Director of Consolidation, Pratapgarh (hereinafter referred to as D.D.C) whereby two revisions, one preferred by respondent no.2 (now deceased and represented by his legal heirs) and the other revision filed by the petitioner no.1, which were clubbed were decided by a common judgment and as a consequence, the revision preferred by the respondent no.2 was allowed and the revision of the petitioner no.1 was dismissed.

3. During pendency of the instant writ petition the private respondent nos.2, 6, 9, 10 and 11 had died and their legal heirs have been brought on record. However, for the sake of convenience, this Court shall refer to the parties as they were impleaded in the writ petition itself.

4. In order to appreciate the controversy involved in the instant petition, certain facts leading up to this petition are being noticed hereinafter.

5. The dispute in question pertains to Khata no.213 which was recorded in the names of the petitioners as Sirdari. Even though at the time of commencement of the proceedings before the Consolidation Officer, disputes pertaining to the other khata nos.212, 117/1 and 27 was also raised by the respondent no.2 Nanhu who claimed rights in the said khata, while his parentage was disputed by the present petitioners. However, later in the stage of the litigation, the dispute was confined only to khata no.213 which has been escalated and is now before this Court in the instant writ petition.

6. As noticed above, khata no.213 was recorded as Sirdari khata in name of the petitioners and this was objected by the private respondent nos.2 to 5 who claimed rights on the basis of the co-tenancy.

7. It was the specific case of the petitioners that the land comprising of Khata no.213 was solely acquired by the father of the petitioners namely Santu. This was objected by Nanhu who stated that Gajodhar and Santu were his real brothers and the said plots were acquired with the joint efforts of all but since Santu was the elder brother hence his name was recorded in the revenue records though in a representative capacity. It was, thus, stated that upon death of Gajodhar, his rights were inherited by Nanhu as well hence, he had a claim of co-tenancy in the said khata no.213.

8. The petitioners objected to the claim of Nanhu on the specific plea that apart from the fact that khata no.213 was solely acquired by Sri Santu but additionally disputed the claim of Nanhu on the ground that Nanhu was the son of Budhai and not son of Durga. It was further stated by the petitioners that mother of Nanhu namely Sugandha was wife of Durga. Upon the death of Sri Durga, his widow Sugandha started residing with her sister namely Basanta who was the wife of Budhai. It was also stated that since Sugandha was residing with Basanta, she developed certain intimate relations with Budhai and from the said communion, Nanhu was born and he was son of Budhai. It was thus urged that for the aforesaid reasons, he could neither have any right on the basis of co-tenancy nor he was the son of Durga, accordingly, his claim be rejected.

9. The matter went to trial before the Consolidation Officer and after permitting the parties to lead evidence, it was held by the Consolidation Officer that Nanhu was the son of Durga and not son of Budhai, however, the Consolidation Officer found that the land of khata no.213 was not ancestral and to that extent the claim of Nanhu was rejected by means of the order dated 07.09.1977.

10. Being aggrieved, two appeals came to be filed before the Settlement Officer Consolidation, one filed by the petitioners relating to other khata nos.212, 117/1 and 27 whereas Nanhu filed the other appeal being aggrieved from being deprived of his right of co-tenancy in so far as the land of khata no.213 was concerned.

11. Both the appeals were decided by a common judgment dated 13.03.1980 and it was reiterated that Nanhu was the son of Durga and not Budhai and it also found that since the property comprising of khata no.213, at the time of second settlement, was recorded in the name of Durga, whereafter, in the khatauni relating to 1346 fasli, it was entered in the name of Santu alone and this entry continued to exist till the base year khatauni, hence, the fresh settlement had been made in favour of Santu. Consequently, the land of khata no.213 was not ancestral and in this view, both the appeals were dismissed.

12. Being aggrieved, Nanhu filed a revision for his right of co-tenancy which had been rejected. Whereas another revision was filed by the petitioner no.1 aggrieved by the order whereby Nanhu was held to be son of Durga. The revisional court by means of its judgment and order dated 19.01.1983 upheld the finding that Nanhu was the son of Durga and it also went ahead to reverse the findings of the S.O.C and the C.O and held that land of khata no.213 was ancestral and it also gave 1/3 share therein to Nanhu inter alia, with other khatas. It is in the aforesaid backdrop that the petitioners have filed the instant petition assailing the order of the D.D.C.

13. Sri U. S. Sahai learned counsel for the petitioners has submitted that three consolidation courts have erred in holding that Nanhu was son of Durga and the evidence led by the petitioners in this regard has not been properly appreciated.

14. It is further urged that khata no.213 was the Sirdari of Santu and it continued to be in his name and after the death of Santu, it came to be recorded only in the names of petitioners who are sons of Santu. Treating the land of the aforesaid khata to be ancestral is based on surmises as per the judgment of the D.D.C whereas in this regard, the findings returned by the C.O and affirmed by the S.O.C were based on material evidence and it was not open for the D.D.C to have reversed such findings ignoring the applicable law regarding claim of co-tenancy specially where the ingredients to claim co-tenancy were neither pleaded nor proved by either oral or documentary evidence and in such circumstances, the judgment rendered by the D.D.C Pratapgarh dated 19.01.1983 is erroneous and deserves to be set aside.

15. Sri Jaipal Singh learned counsel for the private respondent no.3 has urged that in so far as khata nos.212, 117/1 and 27 is concerned, it has already been affirmed that Nanhu was son of Durga, accordingly, the rights of Nanhu and now his successors has been affirmed and such findings were not challenged by any other co-sharers except the petitioners.

16. In the instant petition, the petitioners have confined their claim only in respect of khata no.213 and in this regard, it was urged that the name of Durga was duly recorded in the khatauni of the second settlement. It is not disputed that Durga is the common ancestor. It is urged that for the first time, the name of Santu came to be recorded alone in 1346 fasli year which would relate to (1939 C.E) and, thereafter, it continued to be recorded in the names of his two sons namely Ram Sudha and Ram Ajor (the petitioners herein) and in this context, it was necessary for the petitioners to prove that the land of khata nos.213 was settled afresh in favour of Santu. Since, it could not be established by the petitioners as to how and when they acquired the land of khata no.213, it would be clear that it would belong to the joint family wherein Nanhu being son of Durga would be entitled to his share the property being ancestral.

17. This aspect of the matter was not appropriately considered by the C.O and the S.O.C who had turned down the claim of Sri Nanhu and the same has been rectified by the D.D.C in his judgment dated 19.01.1983 and such finding cannot be termed to be perverse, accordingly, it is not amenable for correction in exercise of powers under Article 226 of the Constitution of India. Consequently, the petition deserves to be dismissed.

18. The Court has heard learned counsel for the parties and also perused the material on record.

19. The issue before the Court is confined to the claim of the petitioners relating to khata no.213 who claim it to be the exclusive property of Santu whereas the private respondent no.2 namely Nanhu claim the same as ancestral property.

20. An incidental question in so far as parentage of Nanhu is concerned, also needs to be examined, since, it has to be first determined whether Nanhu came into the line of succession in the family of Durga and if not then, then the issue as to whether Nanhu would get a right claiming the property to be ancestral looses its significance. In case, if it is held that Nanhu was son of Durga, then it can be examined as to whether the land of khata no.213 was ancestral and in this regard the ingredients required to prove a case for co-tenancy will have to be seen in order to adjudge the correctness of the decision of the D.D.C concerned.

21. In this regard, if the material available on record is examined, it would be found that the three consolidation courts have found unequivocally, Nanhu to be the son of Durga. As per undisputed facts, Durga was the common ancestor and he was married to Sugandha. Durga with Sugandha admittedly had two sons namely Santu and Gajodhar. The variance takes shape from this point onwards in as much as per the petitioners it is stated that after the death of Durga, Sugandha started living with her sister's husband namely Budhai. There is an alternate plea raised by the petitioners as at one place, it is stated that she had illicit relations with Bhudhai and Nanhu was born from the said communion whereas another plea had been raised that after the death of Durga, Sugandha started living with Budhai (husband of real sister Basanta) and as per local custom and ritual (ghar baithwa) and Nanhu was born from the said wedlock.

22. The three consolidation authorities have examined the statements of the witnesses including that of Ram Sudha, the petitioner wherein it has been stated that Durga had three sons namely Santu, Gajodhar and Nanhu. The consolidation authorities also taking note of the fact that in respect of the land of khata no.212, Nanhu has been shown as son of Durga and the other co-shares do not dispute this fact and Nanhu has also been given a right in the other khatas are concerned treating him to be son of Durga. While the aforesaid controversy was being adjudged in the trial before the Consolidation Officer and extract of the family register was also placed on record which indicated Nanhu to be son of Durga. At this stage, it will be relevant to notice that the petitioner had filed an extract of a family register which related to Gram Bhadauli indicating that one male child was born to Budhai, however, this family register filed by the petitioner could not be connected by any cogent evidence to arrive at a conclusion that this child which was born was Nanhu specially when Budhai with his wife Basanta also had sons who had inherited the property of Budhai.

23. The three consolidation courts also noticed that the discrepancies in the statement of Nanhu and his witnesses could not be treated with mathematical precision to cull out discrepancies so as to arrive at a conclusion that Nanhu was born after 7-8 years of the death of Durga to discredit the parentage of Nanhu. It is in this backdrop, examining the material on record, this Court finds that the three consolidation authorities have concurrently and rightly held Nanhu to be the son of Durga which also takes notice of the statement of petitioner no.1 as well as the other co-sharers who did not dispute or challenge the parentage of Nanhu or bring any such evidence either oral or documentary which could prove that Nanhu was son of Budhai and not Durga. It will not be out of place to mention here that since the parentage of Nanhu was challenged by the petitioners, it was their burden to have proved the same with cogent evidence, however, the same was not done hence the findings arrived at by the three consolidation authorities on the issue of parentage of Nanhu cannot be disputed and to that extent, the orders/judgments passed by the three consolidation authorities cannot be faulted.

24. Now, the issue as to whether the land of khata no.213 was ancestral or not, if considered would reveal that both the C.O and S.O.C held that the said land of khata no.213 belonged to Santu and was not ancestral whereas the D.D.C in his order dated 19.01.1983 held that since the land indicated in khata no.213 has been shown to be recorded in the name of Durga at the time of the second settlement, hence it would be treated to be ancestral and rights have been given to Nanhu on the aforesaid reason.

25. Before proceeding any further, it will be relevant to notice what are the ingredients as required in law to prove a claim of co-tenancy. This issue was considered by this Court in Ashok Kumar and Ors. vs. Deputy Director of Consolidation Barabanki and Ors. MANU/UP/0264/2025, wherein this Court had taken aid of the earlier decisions including the case of Jagdamba Singh v. Dy. Director of Consolidation, : 1985(83) ALJ 671; 1984 (2) LCD Page 398 [LB]. It will be apposite to reproduce the relevant paras of Ashok Kumar(supra) for better appraisal of the issue.

" 23. Before proceeding further to examine the correctness of the said reason as contained in the orders of the respective Consolidation Authorities, it will be relevant to ascertain, what are the essential ingredients which are required to be established in order to succeed in raising a plea of co-tenancy. In this regard, this Court in Lalta Prasad and Others Vs. Haunsla Prasad and others; (2021) 153 RD 643 after taking into consideration the earlier decisions on the aforesaid point including the case of Jagdamba Prasad (Supra) has held as under:-

61. At this stage, it will be relevant to note the decision of this Court in the case of Jagdamba Singh v. Dy. Director of Consolidation, reported in 1984 (2) LCD Page 398 [LB] wherein the ingredients for a claim of co-tenancy and ancestral has been considered very lucidly and the relevant Paragraphs 14, 15, 22 and 23 will be apposite to resolve this controversy.

"....14. It is fairly well settled that in order to entitle a party to claim co- tenancy rights in the holding on the ground of its being ancestral the unbroken identity of the holding has got to be established throughout the period. If the identity has changed of the holding the claim cannot succeed. This view has been expressed in several decisions of Board of Revenue and also of this Court in the cases noted below:-

(1) 1943 RD 567 (BR) Jodhia v. Bhikwa.

(2) 1942 RD 379 (BR) Hamid Ali v. Benares Bank.

(3) 1942 RD 401 (BR) Mohd. Yasin v. Mohd. Shafi.

(4) 1945 RD 122 (BR) Rajaram v. Narain Singh.

(5) 1969 RD 175 (BR) Abhai Narain v. Ram Manorath.

(6) 1973 RD 242 (BR) Aminuddin v. Kamuruddin.

(7) 1975 RD 195 (BR) Ram Narain v. Buddhu.

(8) 1963 RD 37 (BR) Mahadeo Singh v. Sunder Kewat.

(9) 1979 RD 125 (BR) Balwanti v. Bhaiya Ram.

(10) 1983 (1) Lucknow Civil Decision, 40 (HC) Jhagroo v. The Deputy Director of Consolidation.

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 diluvial 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.

* * * * * * * * * * *

22. Learned counsel for the opposite parties Sri. Hargun Charan, however, urged that even if the claim of the opposite parties 5 to 8 cannot be sustained on the ground that the disputed holding is ancestral, yet their claim is sustainable on the ground that the entire land of the disputed Khata No. 36 is joint family property and the name of Mata Dihal Singh was recorded in the representative capacity as he was head and Karta of the joint family. His further contention was that even if it be held that the holding in dispute consisting of 84 plots with an area of 44 bighas, 9 biswas, 14 biswansis was settled afresh by the landlord with Mata Dihal Singh, the same would be deemed to be joint family property as at the time of acquisition he was head and Karta of the family being elder brother. Learned counsel pointed out that the opposite parties 1 to 3 have recorded a finding to the effect that at the time of second settlement in the year 1301 F., both these brothers Mata Dihal Singh and Ram Baran Singh formed joint family and on the basis of this finding learned counsel urged that even if land of the disputed holding was acquired by Mata Dihal Singh, but the same would be treated to be joint family property and the opposite parties 5 to 8 would get half share in all the plots of the disputed holding-Khata No. 36.1 am unable to agree with this contention as well.

23. It is well settled that the creation of tenancy in respect of agricultural land is a matter of contract between the landlord and the tenant. Even in the joint Hindu family a member of the joint family could acquire land for himself and unless it is proved that the land was acquired by him in the representative capacity and for the benefit of the family, it cannot be held to be joint family land merely because it was acquired by him when he formed joint family with other members. Even a Karta of joint Hindu family can acquire land in his name for his own benefit and it cannot be treated to be joint family property merely because he happens to be Karta of the family at the time of the alleged acquisition of the property. It has to be positively proved that when the land was acquired by the Karta of the joint family he had acquired it in the representative capacity for the entire body of coparceners and it is treated as such by the members of the family.".

26. Noticing the aforesaid paragraphs which indicate that in order to claim to co-tenancy, it will be necessary for the party laying the said claim to establish that the land in question was recorded in the name of common ancestor and, thereafter, it has to be shown that the area, identity and the nature of the land has remained unchanged throughout and only after establishing the aforesaid can claim of co-tenancy succeed. In the instant case, if the aforesaid principles are applied, it would be found that the only document relied upon by the respondent relates to a Khatauni in the name of Durga relating to the second settlement which would be at the time when Oudh Rent Act, 1886 was in operations. There is another Khatauni which is of the year, 1346 fasli relating to (1939 C.E) which indicates that the land of Khata no.213 was recorded only in the name of Santu. At the given time i.e. 1346 fasli year, the U.P Tenancy Act of 1939 was in operation. Since then, the said khata continued to remain in the name of Santu till the base year khatauni when the consolidation operations commenced.

27. In the aforesaid backdrop, since the plea of co-tenancy was raised by Nanhu, it was his duty to have established by cogent evidence that the land of khata no.213 which was recorded erstwhile in the name of Durga, how, it came to be settled in a representative capacity in name of Santu alone. This is important for the reason that while the Oudh Rent Act, 1886 was in operation, a tenure holder did not have a heritable right. Later by an amendment, it was provided that upon the death of the tenure holder, his legal heirs would have a right only for a limited period of five years and in any case, the Zamindar always had a right to resettle the property with all or any one of the legal heirs of the deceased tenure holder or to any third party altogether. It is in this context that it becomes imperative for Nanhu to have shown that upon the death of Durga (it has not been indicated anywhere when Durga died) how the property was resettled. It was also to be shown by cogent evidence that the family of Santu, Gajodhar and Nanhu were living jointly. In absence of this crucial evidence, it cannot be said that if the property was recorded in the name of Durga while the Oudh Rent Act was in vogue then the heirs of Durga would inherit the property. There is no evidence on record which could be pointed out to indicate that the families of Santu, Gajodhar and Nanhu were joint in mess and affairs. It has also not been indicated as to whether the original plots comprising of khata no.213 which was shown in the name of Durga as it is, identically, came to be recorded in the name of Santu in the khatauni of 1346 fasli (1939 C.E). Apparently, it has also not been indicated that the original plot continued to maintain the same numbers, identity, in terms of area and nature, subject to certain deviations as permissible in law as explained in the decision of Ashok Kumar(supra).

28. On the contrary, if the record is perused, it would indicate that certain fresh plots were included which are different to the plots which were part of the khatauni of the second settlement which shows that there was difference in the plots and numbers and area which were in the khatauni of the 1346 fasli (1939).

29. This aspect of the matter has not been considered by the D.D.C while reversing the findings of the C.O and S.O.C on the aforesaid point.

30. This Court is of the clear view that both the C.O and the S.O.C while considering the issue of co-tenancy rightly returned a finding that land of khata no.213 was not ancestral. These findings have been upset by the D.D.C without applying the principles as laid down initially by this Court in the case of Jagdamba Singh v. Dy. Director Consolidation, 1985(83) ALJ 671 which has been followed even recently in Ashok Kumar(supra).

31. For the aforesaid reasons, the writ petition is partly allowed and the judgment of the D.D.C dated 19.01.1983 in so far as it affirms the findings holding Nanhu to be son of Durga is maintained and the decision of the D.D.C granting co-tenancy rights to Nanhu in respect to khata no.213 treating it to be ancestral is set aside. Consequences to follow. Costs are made easy.

Order Date :-10.03.2025

Harshita