Sheo Charan v. Tota Ram — 1969 DIGILAW 416 (ALL)

JUDGMENT M. H. Beg, J. - This writ petition is directed against the decisions of the Deputy Director of Consolidation dated 14th April, 1963, and the Settlement Officer dated 21st December, 1963, interfering with the Consolidation Officer's decision. The Consolidation Officer had maintained the entries in the basic year showing the petitioner, who died during the pendency of the writ petition and is now represented by his sons, as a co-tenant with Tota Ram and Rain Chancier and Ram Singh, opposite parties Nos. 1, 2 and 3, sons of Hargyan in circumstances detailed below. 2. Plots Nos. 93, 99, 100, 127 and 400 were the subject-matter of a lease taken in 1913 from the zamindar by two brothers, Hargyan and Bhagwana, for seven years. Before this lease expired, another lease was granted by the zamindar, in 1917, ostensibly only in favour of Hargyan and Sheo Charan, petitioner, which was in respect of the five plots mentioned above and of plots Nos. 118, 131 and 132. In the new lease, the share of the petitioner was shown as 23rd and that of Hargyan was shown as 1I3rd in the whole of the expanded holding. Entries were made in the revenue records in accordance with the second lease evidenced by a Patta dated 17th January, 1917, and also by a Qabuliyat of the same date which was registered. These entries had come down consistently since 1917, through a settlement of 1325 Fasli, until after the abolition of zamindari when the plots in dispute were entered as the joint sirdari plots of the petitioner and the contesting opposite parties. An application was made under Section 134 of the U. P. Z. A. and L. R. Act (hereinafter referred to as 'the Act') , alter that Act had come into force, by one or more of the recorded joint sirdars. It is not clear whether the petitioner or the contesting opposite parties made that application. The petitioner alleged that he contributed 2I3rd of ten times the land revenue which was to be deposited for the bhumidhari sanad or certificate under Section 137 of the Act and that 1I3rd was contributed by the contesting opposite parties. On the other hand, the contesting opposite parties had set up die case that they had paid the whole amount although they did not deny that the name of the petitioner was also shown in the bhumidhari sanad. On the other hand, the contesting opposite parties had set up die case that they had paid the whole amount although they did not deny that the name of the petitioner was also shown in the bhumidhari sanad. On the opposite parties' stand, they must have themselves applied admitting the petitioner's rights as a joint sirdar. Thus, even if they had applied and could have paid the whole amount, they had admitted the right of the petitioner as co-sirdar in all the plots in dispute. 3. The contesting opposite parties denied that the petitioner had any share in any of the plots in dispute. Their case was that the petitioner was a 'Patraul', employed in the Irrigation Department, who had considerable influence with the zamindar and that he managed to get his name surreptitiously recorded in the fresh lease which was granted in 1917. The contesting opposite parties had, therefore, objected to the entry of the name of the petitioner over the plots in dispute in consolidation proceedings on the ground that it was fictitious and incorrect. They set up the case, in paragraph 2 of their objections before the Consolidation Officer, that in plots Nos. 93, 99, 100, 127, 400, which were the subject-matter of the lease of 1913, the rights of Bhagwana had not been extinguished when the lease of 1917 was executed. But, inconsistently with this plea, they had also taken up the case that, for the lease of the new plots Nos. 118, 131 and 132, in 1917, Hargyan was acting as 'Kartakhandan' on behalf of Bhagwana also. If Hargyan and Bhagwana were both acting through Hargyan singly for taking a fresh lease, it necessarily implied surrender of rights under the first lease of 1913 by both. The only question that had, in these circumstances, to be decided was whether the petitioner's name was fraudulently inserted not only m the Patta but also in the Qabuliat, which was registered and in subsequent revenue records. 4. The Consolidation Officer held that the contesting opposite parties' claim that they came to know from C. H. Form 9 that the name of the petitioner was also entered in revenue records, although he had no share, was not believable. 4. The Consolidation Officer held that the contesting opposite parties' claim that they came to know from C. H. Form 9 that the name of the petitioner was also entered in revenue records, although he had no share, was not believable. He relied upon the long standing entries in revenue records, and, after examining the evidence of the witnesses produced by the contesting opposite parties, held that they had said nothing which could possibly show fraud in the execution of the Patta as well as of the registered Qabuliat of 1917. He also held that no question of superimposition arose if the landlord entered into a new contract with both tenants of 1913 so that new plots and a new tenant were added. The Consolidation Officer accepted the case of the contesting opposite parties that Hargyan represented Bhagwana also. In other words, he dealt with the case on the footing that the previous tenancy was extinguished, as laid down in Section 83 sub-sec. (3) of the North Western Provinces Tenancy Act, 1901. It may be mentioned here that the contesting opposite parties had taken up the alternative case of an ouster of the petitioner as well. This also amounted to an admission ,of an initial co-tenancy. The Consolidation Officer, while observing that the land revenue receipts and the irrigation slips were only in the names of the contesting opposite parties, held that the petitioner's rights were not extinguished by ouster although he did not uphold the claim of the petitioner that he was also actually in receipt of income from the plots. Neither the Settlement Officer nor the Deputy Director had dealt with or found any ouster of the petitioner. A co-sharer or co-tenant is not ousted if he is merely kept out of benefits unless such exclusion is in assertion of a denial of his rights brought to his knowledge. 5. The Settlement Officer held that the lease of 1917 was not legal as Bhagwana had not surrendered his rights so that there was, in his opinion, a superimposition of a tenancy over a pre-existing tenancy. He also went on to hold that the petitioner was a Patraul who was disabled from entering into a contract of tenancy. 5. The Settlement Officer held that the lease of 1917 was not legal as Bhagwana had not surrendered his rights so that there was, in his opinion, a superimposition of a tenancy over a pre-existing tenancy. He also went on to hold that the petitioner was a Patraul who was disabled from entering into a contract of tenancy. So far as the latter finding is concerned, it has been rightly contended by learned counsel for the petitioner that the mere fact that the petitioner was a Patraul, employed in the Irrigation Department, could not invalidate the lease of 1917 although it may have exposed the petitioner to some departmental action if the land in dispute was within the petitioner's circle. 6. The Deputy Director, on a revision application under Section 48 of the U. P. Consolidation of Holdings Act, held that the lease of 17-1-1917, was not legal because Bhagwana was not a party to it. Nevertheless, relying upon the entries in revenue records and the bhumidhari sanad, the Deputy Director held that the petitioner had acquired bhumidhari rights in plots Nos. 118, 131. and 132, which were added in the lease of 1917. He, therefore, partly allowed the revision application by giving a 2I3rd share to the petitioner in three numbers only added by the lease of 1917. 7. It is clear from the judgment of the Consolidation Officer as well as the Deputy Director that the petitioner had taken up the case of estoppel. This case was accepted by the Consolidation Officer who did not, however, mention the term "estoppel'. On the other hand, the Deputy Director, while holding that the failure of the contesting opposite parties to take any action meant that the existing entries were correct, rather arbitrarily denied the petitioner the rights in the plots which were the subject-matter of the lease of 1913. The Deputy Director also proceeded on the assumption that the lease of 1917 was necessarily void and amounted to a superimposition of a new tenancy on a pre-existing tenancy. 8. The finding of the Deputy Director with regard to superimposition was apparently based upon the terms of the Patta and the Qabuliat. The Deputy Director also proceeded on the assumption that the lease of 1917 was necessarily void and amounted to a superimposition of a new tenancy on a pre-existing tenancy. 8. The finding of the Deputy Director with regard to superimposition was apparently based upon the terms of the Patta and the Qabuliat. It has been contended on behalf of the petitioner that even if the Karta of the family takes a lease without mentioning that he is the karta and that he is taking it in that capacity, the lease must be deemed to be on behalf of and for the benefit of the whole family as was held by the Consolidation Officer. Reliance was placed upon certain old authorities of the Board of Revenue for that proposition. They are James Henry v. Hari Dass, 7 R.D. 475; Ram Lal v. Tribeni Kuer, 9 R.D. 59 and Vishnath Singh v. Budhuwa, 9 R.D. 211. In these cases, the decisions of the Board of Revenue seem to be based upon the assumption that a member of a joint Hindu family, even if he is shown singly as a party to a lease, necessarily acquires it for the benefit of the whole family and not for himself. This is contrary to the well established rule that a member of a joint Hindu family can acquire separate tenancy rights. And, the provisions of Sections 91 and 92 of the Evidence Act apply to written leases. It is not necessary for me to decide whether, upon the facts of those particular cases, the decisions were correct or not. If the Patta and the Qabuliat had left out Bhagwana, and, on the face of these documents, only Hargyan was shown as the tenant, from the family of the contesting opposite parties, the finding could very well be given that Bhagwana had not acquired any tenancy rights under the lease of 1917. It did not, however, follow from this finding that Bhagwana had a subsisting right when the lease of 1917 was executed. A surrender, in terms of Section 83 (3) of the North Western Provinces Tenancy Act, 1901, could have been the subject-matter of a separate agreement not mentioned in the Patta or Qabuliat. It could also be inferred from circumstances including the silence of Bhagwana. A surrender, in terms of Section 83 (3) of the North Western Provinces Tenancy Act, 1901, could have been the subject-matter of a separate agreement not mentioned in the Patta or Qabuliat. It could also be inferred from circumstances including the silence of Bhagwana. It could not, therefore, be said that a lease executed on 17th January, 1917, in favour of Hargyan and Sheo Charan only, was necessarily void. It is difficult, when the transaction is so old, for parties to adduce evidence to show what actually took place so long ago. So far as I can see, there is no evidence, apart from the lease of 1917, the subsequent entries in revenue records, the silence of Bhagwana, and his failure to take any steps. Therefore, the lease of 17-1-1917 could not be presumed to be void. If the question was to be decided according to presumptions only, the complete silence of Bhagwana was more consistent with a surrender of his rights by him even if it is held that he had no rights under the lease of 1917. 9. If the lease of 1917 was not void but only voidable, the proper procedure for the contesting opposite parties, in order to avoid its effect, was to get it set aside or rectified. The contesting opposite parties did not want to give up the benefit under the lease. They evidently wanted only the name of Sheo Charan to be eliminated from it. Their case was that the terms of the lease incorrectly represented facts in so far as Sheo Charan was wrongly included as a lessee. If this was the correct position, the proper remedy for the opposite parties was to file a suit contemplated by Section 26 of the Specific Relief Act for the rectification of the Patta and the Qabuliat within time. No such suit was filed at any time. The entries were also consistently made in revenue records, even though a settlement intervened, in accordance with the Patta and the Qabuliat. It is well known that settlement entries are made after notice to the parties. It was, therefore, too late for the contesting opposite parties to turn round and say that the Patta and the Qabuliat should be, in effect, rectified by the consolidation authorities. The Consolidation authorities have no power to rectify instruments. They can only ignore documents evidencing void transactions. It was, therefore, too late for the contesting opposite parties to turn round and say that the Patta and the Qabuliat should be, in effect, rectified by the consolidation authorities. The Consolidation authorities have no power to rectify instruments. They can only ignore documents evidencing void transactions. Even regular civil and revenue courts cannot ignore the effect of merely voidable instruments which are neither rectified nor cancelled within time. If the lease of 1917 was wholly fictitious and void, because of fraud, it could be ignored. But, that was not the finding of the Settlement Officer and the Deputy Director who held it to be illegal only on the ground that Bhagwana was not a party to it. Such a finding was not enough, in my opinion, to make the lease void. It was only voidable if it could be avoided at all, at the instance of Bhagwana who took no action. 10. Another question which has been argued on behalf of the petitioner, which was also raised before the consolidation authorities but not gone into properly, was the effect of the proceedings under Section 134 of the Act. As the question had been raised before the consolidation authorities and the necessary evidence was before them, the petitioner was allowed to amend the petition by specifically basing his claim of estoppel on the proceedings which took place under Section 134 of the Act. Proceedings under Section 134 are quasi-judicial in nature. They begin by an application, made under Rule 116 of the Rules framed under the Act, which has to show the necessary particulars of the right claimed. It has to be accompanied by a treasury challan showing deposit of ten times the land revenue prescribed by Section 134 of the Act. The Assistant Collector has to carefully scrutinise the application, in accordance with Rule 118, examine the applicant on oath, and he can take other evidence. He has to make a memorandum of the evidence taken. In every case where the holding is joint, Rule 122 requires this fact to be mentioned in the application which must also indicate which co-sirdars have joined in the application and their respective shares in the holding. Those who have not joined in the application have also to be shown. He has to make a memorandum of the evidence taken. In every case where the holding is joint, Rule 122 requires this fact to be mentioned in the application which must also indicate which co-sirdars have joined in the application and their respective shares in the holding. Those who have not joined in the application have also to be shown. The Assistant Collector concerned is required by Rule 123 of the Rules framed under the Act, to send a notice to all those co-sirdars who have not joined in the application. In other words, the petitioner as well as the contesting opposite parties must have either joined in the application or must have had notice of the proceedings. There is no assertion by the contesting opposite parties that that they denied the right of the petitioner as co-sirdar in these proceedings. All this ought to have been considered by the consolidation authorities. If the contesting opposite parties had actually admitted that the petitioner was a co-sirdar of all the plots in dispute, as they presumably did, it is certainly a very strong piece of evidence against them. It has been held in N. B. G. Balajiwale v. G. V. Gosavi, A.I.R. 1960 S.C. 100 that an admission is the best evidence that an opposing party can rely upon, though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous". In the instant case, the admission, which could be presumed, was set up as part of an estoppel by conduct. In any case, the elements of an estoppel by record, as indicated by this court in Sita v. State, A.I.R. 1969 Alld. 343 at page 351 (F.B) could also be held to be present here. The consolidation authorities could not create fresh rights by ignoring, all that had taken place in the past. 11. It was contended on behalf of the contesting opposite parties than: neither the doctrine of res judicata nor of estoppel would be available to the petitioner by merely producing a Bhumidhari Sanad. The consolidation authorities could not create fresh rights by ignoring, all that had taken place in the past. 11. It was contended on behalf of the contesting opposite parties than: neither the doctrine of res judicata nor of estoppel would be available to the petitioner by merely producing a Bhumidhari Sanad. Reliance was placed upon the decision of a Division Bench in Ragho Ram v. Ram Swarup, 1968 R.D. 133 where it was held, with regard to applications under Section 3-B of the Agricultural Tenants (Acquisition of Privileges) Act, 1949, that a person who had no right to 'make an application could not acquire rights merely because of a Sanad granted under that Act. The case is distinguishable on facts. 12. It is true that the provisions of the Act of 1949 are the precursors of the provisions of Sections 134 to 137-A of the Act. Nevertheless, the provisions of Sections 134 to 137-A of the Act under consideration seem to advance the matter a little further. It is clear that the grant of a certificate under Section 137 (1) has the effect of a declaration of bhumidhari rights under Section 137 (2) of the Act. Several cases were cited to show the elate from which the person in whose favour the declaration is made or certificate granted could assert those rights. They are : Abdul Latif v. Abdul Hakim, 1967 R.D. 72; Anis Ahmad v. State of U. P., 1967 R.D. 75 and Bankey Singh v. Dharann Deo Singh, 1967 R.D. 114. These authorities atleast show that the declaration contained in the certificate has a strong evidentiary value. It is strong enough for the person holding the certificate to act as a bhumidhar capable of making transfers. 13. It will also be seen that Section 137-A of the Act requires a special procedure for cancellation of the certificate once granted. The grant can only be revoked under the conditions specified in Section 137-A. Section 331 of the Act prevents any court, other than that mentioned in column 4 of Schedule II, from taking any cognizance of any suit, application, or proceeding mentioned in column 3 thereof. I find that an application under Section 134 is mentioned in Schedule II at serial No. 6. I find that an application under Section 134 is mentioned in Schedule II at serial No. 6. A period of limitation is also provided for it in Appendix III to the Rules at serial No. 11-A. This period is three years from the date when the applicant first knew of the grant of the certificate. The obvious intention of the Act and the Rules framed thereunder was that the certificate would be treated as at least Prima facie evidence of the bhumidhari rights of the holder. Rights declared by it cannot be defeated unless and until it is either duly cancelled or could be shown to be no certificate at all in the eye of law. One can conceive of circumstances in which the certificate may be void or no certificate in the eye of law, but where a specific procedure, such as the one mentioned above, is laid down for cancellation of a certificate, I do not find it possible to hold that the effect of the Bhumidhari Sanad could be ignored. 14. The consolidation authorities are courts of special but limited jurisdiction. They are empowered to decide matters finally which fall within the scope of their jurisdiction. But, in exercising that jurisdiction, they cannot ignore pieces of evidence which may result from other legally valid proceedings. These pieces of evidence must be given, by the consolidation authorities themselves, the effect which the statute under which they come into existence is meant to confer upon them. 15. Incidentally, I may also mention that there was a judgment of a Civil judge in the instant case where, in a partition suit between the parties, it had been held that the petitioner had not lost his rights under the lease of 1917. It is true that a second appeal against it was pending in this court when the consolidation proceedings started. Under the law as it stands now the suit abated. But, the judgment of the Civil judge had evidentiary value for the consolidation authorities. Reasons for coming to a different conclusion should be cogent and reasonable after the matter has been elaborately tried by a Civil or Revenue Court. 16. Under the law as it stands now the suit abated. But, the judgment of the Civil judge had evidentiary value for the consolidation authorities. Reasons for coming to a different conclusion should be cogent and reasonable after the matter has been elaborately tried by a Civil or Revenue Court. 16. In the instant case, I find that not only the entries including a settlement entry, but the bhumidhari sanad and its legal effect, not to mention the judgment of the Civil judge, were not given any importance whatsoever by the Deputy Director and the Settlement Officer. Indeed, the decision of the Deputy Director is patently inconsistent inasmuch as, although, the entries in the revenue records are held to be correct, yet, the petitioner was held to have no right with regard to the five plots covered by the earlier lease of 1913. This in itself was an error apparent on the face of the record. I am unable to find any part of the judgment of the Deputy Director which can be said to be consistent with the finding that the existing entries were correct. But, if the entries were correct, ::s the Deputy Director found them to be, the petitioner had a right in all the plots in dispute. 17. Learned counsel for the contesting opposite parties tried to interpret ti. 2 Deputy Director's finding by contending that its effect must be confined to the three new plots included in the lease of 1917. I am unable to construe the finding of the Deputy Director in this restrictive fashion. His finding was given as follows "Their not having taken any action would certainly mean that the entries as they stood were taken as correct and now they are bound by the subsequent tries made in the papers." The most that can be said is that the Deputy Director had entries in mind which were made as a result of the grant of Bhumidhari Sanad. But, these entries related to all the plots. There is nothing in the judgment of the Deputy Director to confine this finding to three plots only. This ground was enough for holding that there is an error apparent on the face of the judgment of the Deputy Director. But, I have also dealt with other matters arising from the judgments of consolidation authorities as they were raised and argued before me. 18. This ground was enough for holding that there is an error apparent on the face of the judgment of the Deputy Director. But, I have also dealt with other matters arising from the judgments of consolidation authorities as they were raised and argued before me. 18. In the result, I quash the orders of the Deputy Director dated 14-4-1963 and of the Settlement Officer dated 21-12-1963, and restore the orders passed by the Consolidation Officer. The petitioners are entitled to their costs.