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1970 DIGILAW 239 (ALL)

Mewaram v. Shankar

1970-07-08

S.N.SINGH

body1970
JUDGMENT S. N. Singh, J. - This petition under Article 226 of the Constitution arises out of consolidation proceedings. 2. In order to appreciate the facts of this case, it is necessary to give the following pedigree-: 3. Certain facts are admitted in this case. The property in dispute originally belonged to the four brothers Lochan, Kashi, Himanchal and Hulla and the descendants of the four sons of Bhagga. Kashi had a share in the property in dispute. It is also not disputed that this Kashi executed a gift deed in respect of his properties in favour of his daughter's son Makka. It appears that during the life time of Kashi, Makka came in possession over the properties in dispute. Makka claimed to be in possession as a co-tenant whereas the opposite parties contested that he was not in possession and even if he was in possession, he was in possession as a licensee. He could not be a co-tenant. Hulla shown in the above pedigree died but it is not known when he died. There are descendants of only three branches of Lochan, Kashi and Himanchal. Opposite parties Nos. 1 and 2 are the sons of Makka, who was the daughter's son of Kashi. 4. During consolidation proceedings, it appears that the property in dispute was entered in the names of the petitioners, but in the Chittha partal, the name of Makka was introduced as in possession. Objections were filed under Section 9 of the Consolidation of Holdings Act by Makka, Sri Ram, Mewa Ram, Hori Lal and others. Makka claimed to be a co-tenant to the extent of one-third of the property in dispute. Sri Ram also claimed to be a co-sharer of one-third in the khata in dispute. The other persons contested the claim of Makka and claimed that they were the co-tenants to the exclusion of Makka. They also stated their shares in their objections. This is to be noted here that although there was reference of Makka in the objection of Mewa Ram, but there was no mention about Makka in the objection of Sri Ram. All these objection were taken up to together by the Consolidation Officer, who considered the documentary and oral evidence of the parties on the record and came to the conclusion that Makka had no share and he decided the case in favour of the petitioners. All these objection were taken up to together by the Consolidation Officer, who considered the documentary and oral evidence of the parties on the record and came to the conclusion that Makka had no share and he decided the case in favour of the petitioners. This judgment of the Consolidation Officer was upheld in appeal by the Settlement Officer (Consolidation) . A revision was preferred before the Deputy Director of Consolidation, who, after considering the entire oral and documentary evidence, came to the conclusion that the property in dispute, which is the share of Kashi, shown in the above pedigree, was in possession of Makka from the life time of Kashi. He found as a fact that Makka started his occupation of the plots during the life time of Kashi and continued in possession ever since then. He believed the oral evidence of the contesting opposite parties and relying upon other documentary evidence gave this finding about possession of Makka. Having arrived at this conclusion, the Deputy Director came to the conclusion that on account of this long possession of Makka, he acquired title as sirdar over the plot in dispute. The Deputy Director also relied on an admission made by Sri Ram and Hori Lal during the course of the consolidation where in Sri Ram and Hori Lal had admitted the claim of Makka. He also relied on the circumstances that the claim of Makka was not disputed by Sri Ram, whom in the ordinary course, would have inherited the property of Kashi through his grand- father-Lochan. Having arrived at this conclusion, he allowed the revision and held that the contesting opposite parties had become sirdars by prescription. 5. Aggrieved with the decision of the Deputy Director the petitioners have filed the present writ petition. Sri V. K. S. Chaudhary, learned counsel for the petitioners, has argued this writ petition at very great length as if this was a first appeal. I have given anxious consideration of the arguments of the learned counsel, but he has not been able to persuade me to take a different view than taken by the Deputy Director of Consolidation. Sri V. K. S. Chaudhary, learned counsel for the petitioners, has argued this writ petition at very great length as if this was a first appeal. I have given anxious consideration of the arguments of the learned counsel, but he has not been able to persuade me to take a different view than taken by the Deputy Director of Consolidation. It is contended by Sri Chaudhary that the finding of the Deputy Director of Consolidation is vitiated in law inasmuch as the Deputy Director has wrongly said that Sri Ram did not contest the claim of Makka which is relied on by the several documents and the assertions made by the learned counsel who appeared for Sri Ram. It is also asserted that the finding about possession is vitiated inasmuch as the admission of Mewa Ram which has been relied on by the Deputy Director is not in this proceeding. It is not necessary to deal at length with all these points. Suffice it to say that the finding of the Deputy Director is sufficiently supported by the admission of Sri Ram and Hori Lal and also by the statement made by Mewa Ram in litigation under Section 171 of the U. P. Tenancy Act. This is not for this court to reassess the evidence again when the Deputy Director has taken into consideration the evidence on the record. It is not possible for this Court under Article 226 of the Constitution to take a different view on question of fact. Mr. Chaudhary submitted that this Court should hold that the document containing admission is a forged document inasmuch as this document saw the light of the day only in the court of the Deputy Director of Consolidation and it had not been referred to by the Consolidation Officer, Settlement Officer (Consolidation) or by any party at any stage. It has been further argued that the Deputy Director has not applied his mind at all about the genuineness or otherwise of this document and according to the learned counsel, there is intrinsic evidence on the record to show that this document is a forged one and it was placed on the record later on. It has been further argued that the Deputy Director has not applied his mind at all about the genuineness or otherwise of this document and according to the learned counsel, there is intrinsic evidence on the record to show that this document is a forged one and it was placed on the record later on. None of these submissions of the learned counsel appeals to me nor I have been persuaded to hold that the finding of the Deputy Director, for the reasons given by the learned counsel, is vitiated in law. The findings of the Deputy Director, in my opinion, are well supported by the oral evidence and by other evidence, excluding the evidence referred to by the learned counsel. The most important circumstance in the case is that when Sri Ram, who would legally be entitled to the property of Kashi through his grand-father Lochan filed a written statement, he did not say a word about Makka and claimed only one-third share in the holding which was possible only when Kashi's share came to be in possession of Makka. Mewa Ram specifically contested the claim of Makka. It is argued before me that Sri Ram did contest, but I have own doubts about it. The Deputy Director did not accept the contention of the petitioner that Sri Ram contested the claim of Makka at any stage. I see no reason to differ from that view. Sri V. K. S. Chaudhary has not been able to explain the fact as to how Sri Ram claimed one-third. On the finding of fact recorded by the Deputy Director that Makka, and, thereafter, his sons continued in possession from the time of Kashi claiming as a co-tenure holder of this property for more than several twelve years they must be deemed in law to have acquired a right of a co-tenant. The proposition that co-tenancy can be acquired by adverse possession admits of no doubt in my mind. If a person continues to be in possession for beyond the prescribed period, he, in law, can acquire co-tenure-holder's right by adverse possessions. The present is a case where- in the property of the maternal-grand-father came in possession of the daughter's son who asserting himself as a co-tenure-holder remained in possession for more than twelve years to the knowledge of all concerned. In such circumstance he did acquire co-tenure-holders right by prescription. The present is a case where- in the property of the maternal-grand-father came in possession of the daughter's son who asserting himself as a co-tenure-holder remained in possession for more than twelve years to the knowledge of all concerned. In such circumstance he did acquire co-tenure-holders right by prescription. This view of mine finds support from the cases of Babaji Daso Deshnande v. Jivaji Yeshwant Dash pande, A.I.R. 1950 Bombay 333 and Bhagan Ram v. State of U. P. 1967 R.D. 396. 6. Sri Chaudhary urged that since Makka claimed to be a co-tenant in view of Section 33 of U. P. Tenancy Act unless he was a co-tenant from the very inception or he was admitted to co-tenancy by other co-tenants with the consent in writing of the Zamindar he could not be accepted a co-tenant. This is a stale argument. This Court has variously held that co-tenancy can also be acquired apart from Section 33 of the U. P. Tenancy Act. This Section 33 is not exhaustive. Co-tenancy can be acquired by acquiescence and estoppel, vide Dudh Nath Kori v. Smt. Dhamrajja. 1964 R.D. 324. I have already expressed the opinion that co-tenancy can also be acquired by prescription and in the present case the Deputy Director's finding would mean that the co-tenancy has been acquired by the contesting opposite parties by adverse possession and not in any other way. 7. The decision of the Deputy Director, in my opinion does complete justice between the parties. It is not such a case wherein some injustice has been done to the petitioners requiring any sympathetic consideration. Substantial justice having been done, I am not inclined to interfere on the legal and technical arguments raised in this case. No ground for interference has been made out. The petition, accordingly, fail and is hereby dismissed with costs.