Kamla Kant Singh vs Deputy Director Of Consolidation
2021 Latest Caselaw 4705 UK

  IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

             Writ Petition (M/S) 140 of 2004

Kamla Kant Singh S/o Late Kedar Singh,
R/o Village Anandpur, Tehsil -Kichha,
District - Udham Singh Nagar
                                         .................Petitioner

                           -versus-

1. Deputy Director of Consolidation, Udham Singh Nagar
2. Settlement Officer, Consolidation, Udham Singh Nagar
3. Consolidation Officer, Kichha, District Udham Singh Nagar
4. Divakar Singh S/o Late Sri Srikant Singh
   R/o LIG 181/16 Avas Vikas, Rudrapur, Dist-U.S.Nagar
5. Raj Kishore Singh S/o Late Sri Srikant Singh
   R/o Village & Post Devdeeh, District Ballia (U.P.)
6. Naval Kishore Singh S/o Late Sri Srikant Singh
   R/o Quarter No. E Rajeshwari Nagar Gilat Bazar, Varanasi
   (U.P.)
7. Prabhakar Singh S/o Late Sri Srikant Singh
8. Sudhakar Singh S/o Late Sri Srikant Singh
   Boht residents of Flat No. 6/3 K Block Sector-13
   R.K.Puram, New Delhi.


                                            ..........Respondents


     Date of hearing and Judgement : 24.11.2021


Advocates appeared in the case:-

For Appellant       :   Mr. Nand Gopal Singh, learned
counsel for the petitioner.


For Respondents    : Mr. R.C.Arya and Mr. Suyash Pant,
learned Standing Counsels for the State.
                                   -2-




Sri S.K.Mishra, J.

1. Heard Mr. Nand Gopal Singh, learned counsel for the petitioner. None appears for the private respondent though Mr. J.S.Bisht has filed vakalatnama on their behalf. Mr. Suyash Pant, learned Standing Counsel for the State. It has been informed by Mr. R.C.Arya that Mr. J.S.Bisht has become Standing Counsel for the State of Uttarakhand.

2. In this writ application, the petitioner assails that judgement and order by the Deputy Director of Consolidation on 15.01.2004, thereby allowing the Revision Application filed by the private respondents setting aside the order passed by the Settlement Officer Consolidation in Appeal Case No. 1655 of 1996-97 dated 17.04.1997 and restored the order passed by the learned Consolidation Officer in an Case No. 2178/2258/2274/2527 dated 31.01.1996.

3. The facts of the case are as follows:

I. The petitioner's father Late Kedar Singh were four brothers. They were members of Hindu Joint Family. They were member of a Hindu Joint Family. In a Civil proceeding before the Civil Judge, Khulia on 20.01.1969 decreed that all the immovable properties and movable properties which situate State of U.P. and Bengal joint property of the family should be partitioned in four equal shares for each brother.

II. On 10.01.1981, the Tehsildar Kichha passed an order of mutation on the basis of the aforesaid decree.

Father of the petitioner filed a suit for partition on 01.01.1996 before the SDM against all other members

of the joint Hindu family, which was contested. The learned S.D.M., Rudrapur passed a decree for partition for of the joint Hindu Family. Accordingly, names of members of the joint Hindu Family were recorded separately in the revenue records.

III. The petitioner purchased the land in question through a registered sale-deed in 1972 from one Mangal Sen Gupta, in Village Anandpur. The petitioner was in service since 1965. This piece of land was never claimed as a part of joint family property by any members of the joint family except the contesting respondents. Moreover, the name of the petitioner was recorded in the basic year khasra and khatauni before initiation of the Consolidation Proceedings.

IV. After initiation of the Consolidation Proceedings, father of the respondents, namely, Shri Kant Singh filed an objection dated 15.02.1995 before the ACO claiming 1/4 share in the land in question. The application was dismissed in default on 28.06.1995. Thereafter, the objector filed a restoration application which was allowed on 22.06.1995.

V. The Consolidation Officer to whom the case was transferred passed an order ex parte on 31.01.1995 without giving any notice or any opportunity of hearing of to the petitioner and declared that the father of the respondents, namely, Shri Kant Singh has 1/4 share on the land in question, allegedly, without any material on record.

VI. The petitioner filed an Appeal before the Settlement Officer, Consolidation, after hearing the parties, the appellate authority passed a judgment dated 17.04.1997 setting aside the order passed by the learned Consolidation Officer and held that the land in question is not a Joint Hindu Family and it is an exclusive and self-acquired property of the petitioner.

VII. The respondents filed a Revision which was registered as Revision Memo No.52 of 1976. Finally, learned Deputy Director of Consolidation allowed the Revision and set aside the judgments of the Appellate authority and confirmed the order passed by the learned Consolidation Officer who has held that the respondents' ¼ share of the property.

4. Learned counsel for the petitioner submits that the order passed by the Consolidation Officer is bad and require to be quashed on the ground that it was not passed after affording a reasonable opportunity of hearing to the petitioner. It is also stated that the learned Consolidation Officer has not even issued notice to the petitioner.

5. None appears for the private respondents.

6. Learned Standing Counsel Mr. Suyash Pant submits that the only grievance of the petitioner is regarding the observations made in the impugned judgement, which reads as follows:

pwafd iapcVokjk 06-09-1968 rnqijkUr iapcVokjs ds vk/kkj ij nhokuh okn la[;k [email protected] fMØh fnukad 20-01-1969 ds vk/kkj ij mRrj izns"k o caxky esa leLr lEifRr tks fd la;qDr ifjokj }kjk

vftZr gksuk o pkjksa HkkbZ;ksa dk [email protected] va"k gksuk Lohdkj dh x;h gS] ds vuqlkj gh fookfnr Hkwfe dk Ø; ewY; fnukad 08-04-1967 dks izkIr djus dk mYys[k foØ; i= fnukad 04-03-1972 esa fn;k x;k gS ftlls Li"V gS fd fookfnr Hkwfe la;qDr ifjokjksa ds iz;klksa ls iapcVokjk fnukad 06-09-1968 ls iwoZ Ø; dh xbZ gSA voj U;k;ky;ksa dh i=kofy;ksa dks voyksdu djus ij Li'V gks tkrk gS fuxjkuhdrkZx.k ds firk Jh dkar flag iq= Jh n;k izlkn flag }kjk lgk;d pdcanh vf/kdkjh ds le{k izLrqr vkifRr fnukad 15-02-1995 esa mYysf[kr dj dgk x;k gS fd fookfnr Hkwfe ij mldk ikfjokfjd caVokjsa ds vk/kkj ij [email protected] va"k dk gd o fgLlk gSA rnuqlkj og ekSds ij dkfct gSA vius [email protected] ds leFkZu esa vius c;ku pdcanh vf/kdkjh U;k;ky; esa fnukad 19-01-1996 dks ifjf{kr djk;s x;s gS ftlds fojks/k esa mRRkjnkrk deyk dkar flag }kjk dksbZ Hkh vkifRr izLrqr ugha dh xbZ vkSj uk gh Jh dkar flag ds }kjk ifjf{kr c;kuksa dk iwfrZijh{k.k gh djk;k x;k gSA ftlls fookfnr Hkwfe ij fuxjkuhdrkZx.k dk [email protected] va"k fl/n~ gksrk gSA vihyh; U;k;ky;

}kjk pdcanh vf/kdkjh ds vkns"k fnukad 31-01-96 dks fujLr dj =qfV dh xbZ gS ftl dkj.k fuxjkuh Lohdkj fd;s tkus ;ksX; gSA

The aforesaid paragraph translated by us is as follows:

"As per the settlement of partition arrived at by the panch on 06.09.1998 and, thereafter, on the basis of the orders passed in a Civil Suit No. 57 of 1968 dated 20.01.1969, all the properties in Uttar Pradesh and Bengal were held to be joint family property wherein in all the brothers had 1/4th interest /share. Hence, the land in dispute which was purchased on 08.04.1967 registered on 04.03.1972, it is clear that the land in question is a joint family property as it is prior to 06.09.1968."

The learned Deputy Director of Consolidation committed an error on record in holding that only

because the judgment in the Civil Suit was passed after the purchase of the land by the petitioner it shall be held to be joint Hindu Family property. It is settled principle of law that if a piece of property is purchased by an individual member of a co-parcenary or Hindu Joint Family, then also there is no presumption the property is purchased out of the joint family nucleolus. The onus of proving that such property was purchased in the name of an individual member of a joint family or the co-parcenary is on the party who claimed it to be joint family property and for such plea can be satisfied or discharged by proper pleading and evidence in the defect. In this case, there is singular lack of pleading and evidence. It is not the case of the private respondents that the family had sufficient joint nucleolus for acquisition of further property in the name of one of the co-parceners. Moreover, it appears that the petitioner though a member of the co- parcenary had purchased the land in his own name and that he was working as Lecturer in a college so the natural presumption is that the property acquired in the name of the petitioner is separate and exclusive property and not part of the joint Hindu Family or the co-parcenary. Hence, the order passed by the Deputy Director of Consolidation reversing the judgment passed by the learned Settlement Officer, Consolidation in the appeal appears to be erroneous. Moreover, it is also apparent from the record that the learned Consolidation Officer never issued a notice to the petitioner to file any show cause nor he afforded a reasonable opportunity of hearing to the petitioner.

7. In that view of the matter, it appears that the writ application is meritorious one and, therefore, the orders passed by the learned Deputy Director of Consolidation should be set aside.

8. Accordingly, the writ application is allowed. The judgment and order dated 15.01.2004 passed by the Deputy Director of Consolidation and Consolidation Officer dated 31.01.1996 are quashed and set aside. The order passed by the Settlement Officer Consolidation in Appeal Case No. 1655 of 1996-97 dated 17.04.1997, therefore, is hereby restored. The land in question shall be recorded exclusively in the name of the petitioner as it is his exclusive and separate property.

9. There shall be no order as to the costs.

(S.K.Mishra) Judge

KKS