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1980 DIGILAW 310 (ALL)

Gaya Charan v. Raj Kumar

1980-03-06

H.N.AGARWAL

body1980
JUDGMENT H.N. Agarwal, Member. - This is a second appeal against the judgment and decree dated 20.1.1971 passed by Sri V.N. Tripathi, Additional Commissioner, Lucknow Division, in appeal No. 520 of 1969-70, arising out of original suit no. 258/27/70 under section 176 of the U.P. Z.A. & L.R. Act. 2. I have heard the learned counsel for the parties, and have gone through the record. 3. The plaintiff-respondents, Raj Kumar, Ramesh Kumar and Jagdish Kumar sons of Mahabir, had filed a suit under section 176 of the U.P. Z.A. & L.R. Act, claiming their share to be in the joint holding, Gaya Charan, defendant-appellant, contested the suit, by alleging that the share of the plaintiff-respondents was no but ?. The courts below have decreed the suit of the plaintiff-respondents for share. This order has been challenged in the second appeal. 4. The grounds taken in the second appeal are firstly that in the Khatauni 1356, 1359 and 1362 Fasli, the name of Gaya Charan along with Bhairon has been mentioned specifying Gaya Charan's half share; and it shall be presumed that the land in dispute was acquired by Bhairon and Gaya Charan; secondly that in chakbandi proceedings no body Challenged the said entries and any objection relating to said entries is now barred by section 27 and 49 of the U.P. Consolidation of Holdings Act; thirdly that the courts below had no jurisdiction to go behind the entries after the consolidation operation took place in the village; fourthly that the findings of the courts below are based on surmises and conjectures and lastly that there is presumption in favour of the entries and very strong evidence is required to rebut this presumption. 5. It is undisputed that consolidation of holdings has taken place in the village and in C.H. Form 45, which reflects the final adjudication of title, Sheo Darshan, Mahabair and Mahabali sons of Bhairon with half share and Gaya Charan son of Gaya Prasad with half share are recorded as co-sirdars of the land in suit. The plaintiff-respondents, Raj Kumar, Ramesh Kumar and Jagdish Kumar are the sons of Mahabir. Thus, according to C.H. Form 45, Gaya Charan had share and Sheo Darshan, Mahabir and Mahabali had jointly the others half share thus, the three sons of Mahabir would have ? share in the holding. The plaintiff-respondents, Raj Kumar, Ramesh Kumar and Jagdish Kumar are the sons of Mahabir. Thus, according to C.H. Form 45, Gaya Charan had share and Sheo Darshan, Mahabir and Mahabali had jointly the others half share thus, the three sons of Mahabir would have ? share in the holding. It is an accepted principle of law that adjudication of title done by the consolidation authorities is final and the revenue court has no jurisdiction to go behind such adjudication. 6. As regards the question whether consolidation authorities can also determine the specific shares of individual tenure-holder in a joint holding the learned counsel for the appellant has invited attentions to the provisions of section 8 of the U.P. C.H. Act which provides:- "Upon the revision of the maps under section 7, the District Deputy Director of Consolidation shall, subject to the provisions hereinafter contained, and in such manner as may be prescribed, cause to be- (iv) determined the shares of individual tenure holders in joint holdings for the purpose of affecting partition to ensure proper consolidation". 7. Section 9 of the Act further provides: "Upon the preparation of the records and statements mentioned in Section 8 and 8A, the Assistant Consolidation Officer shall- (a) correct the clerical mistakes, if any, and send or cause to send, to the tenure holders concerned and other persons interested, notice containing relevant extracts from the current annual register and such other records as may be prescribed showing- (iii) specific shares of individual tenure holders in joint holdings for the purpose of effecting partitions, where necessary, to ensure proper consolidation". It is thus quite clear that the consolidation authorities have the jurisdiction to determine the specific shares of individual tenure holders in a joint holding and once this has been done and no objection has been filed, the adjudication of titles as well as of the shares becomes final. The courts below have thus no jurisdiction to go behind the entries after the consolidation operation has taken place and to give a large sharer to the plaintiff-respondents than was recorded in C.H. Form 45. 8. The learned counsel for the appellant has further invited reference to the extracts from the Khatauni 1356, 1359 and 1362 Fasli. The courts below have thus no jurisdiction to go behind the entries after the consolidation operation has taken place and to give a large sharer to the plaintiff-respondents than was recorded in C.H. Form 45. 8. The learned counsel for the appellant has further invited reference to the extracts from the Khatauni 1356, 1359 and 1362 Fasli. In 1356 and 1359 F. Shoe Darashan, Mahabir and Mahabali sons of Bhairon with half share and Gaya Charan son of Gaya Prasad with half share are recorded as hereditary tenants of the land in suit. Similar is that entry in 1362 F with the difference that they are now entered as Sirdars in view of the change in nomenclature. The courts below have misread the provisions of the Land Records Manual in disbelieving these entries. They have referred to the provisions of paras 81 and 123 of the Land Records Manual. Para 81 of the Land Records Manual reads as follows:- "Entry of Specific Interests in Joint Tenants' Holding (Column 5) Lekhpals are prohibited from entering in the khasra any specification of the separate interests of joint tenants holding except that of a permanent tenure holder or a fixed rate tenant." Para 33(i) of the Land Records Manual reads as follows:- "Method of Preparation. The khatauni shall be prepared from the khatauni of the previous year, incorporating all changes, which the khasra and khewat show to be required. All such changes shall be shown in red ink." The trial court has made the following incorrect statement. "Para 123 of the same Manual prescribes that khatauni shall be prepared according to khasra". The courts below have failed to grasp the basis difference between khasra and khatauni. Khasra is a record of the spot and not of title Khatauni is on the other hand record of title. Thus, the Land Records Manual does not provide that the khatauni shall be prepared according to the khasra. On the other hand, the Manual prescribes that khatauni shall be prepared from the khatauni of the previous year incorporating all changes which the khasra and khewat show to be required. Para 81 has deliberately prohibited the lekhpal from making any entry in the khasra specifying separate interest of joint tenants as this may be a dangerous weapon in the hands of lekhpal. Para 81 has deliberately prohibited the lekhpal from making any entry in the khasra specifying separate interest of joint tenants as this may be a dangerous weapon in the hands of lekhpal. There is, however, no such prohibition as regards the khatauni in which adjudication of title based upon the orders of competent authorities or court is recorded. Thus, there is absolutely no prohibition in the khatauni regarding the mention of specific shares of individual tenure holders in a joint holding. There is also presumption of correctness of long standing entries of the khatauni under the provisions of the U.P. Land Revenue Act. Thus, the fact that the shares of individual tenure holders have been recorded unchallenged since 1366 fasli in the khatauni indicates that these shares have been correctly recorded. 9. Again, burden of the proving that their share was in the joint holding was no the plaintiff-respondents and they have failed to discharge this burden. According to the plaint, the land is ancestral and has come down from the common ancestor Bhairon, who had four sons Sheo Darshan, Mahabir, Ram Prasad and Mahabali. The plaintiff-respondents themselves are the sons of Mahabir, whereas the defendant-appellant is the son of Ram Prasad. But, it is significant to note that there is not a single extract from the revenue record to show that the entire land in dispute was ever recorded in the name of Bhairon. There is an extract from Khatauni 1332 F in which Bhairon is recorded as a tenant of four plots nos. 4, 5, 21 and 22 where as the remaining plots were recorded in the name of one Laxman. There is, however, not a single extract to show that all the plots were ever in the tenancy of either Bhairon or Laxman or jointly in their names. The case of the defendant-appellant is that Bhairon and Laxmna were ejected from the plots by the zamindar and thereafter a tenancy for all the plots was granted afresh by the zamindar in the names of Bhairon and his son Gaya Prasad each having share in the tenancy. This plea of the defendant-appellant is certainly borne out from the entries. There is certainly no provision of law which prohibits a father and a son from acquiring joint tenancy of the land. This plea of the defendant-appellant is certainly borne out from the entries. There is certainly no provision of law which prohibits a father and a son from acquiring joint tenancy of the land. Where such a thing happens, the remaining sons of the same father inherit only the share of the father, but not from the share of the son, who had joined the joint tenancy. The extracts from Khatauni 1356F onwards show this state of affairs. Thus, Gaya Prasad and after his death his son Gaya Charan got share in the joint holding, where the remaining 3 sons of Bharion got only share jointly. If any party was aggrieved by this state of affairs, he should not have remained quiet for so many years since 1356F. Now, this dispute of shares has been given the seal of finally by the consolidation authorities and it is not open to the revenue court to challenge it. The courts below have been guided not by evidence but by surmises and conjectures in assuming that the entries tenancy came down the common ancestor and that the entries to the contrary in the revenue records are erroneous. The findings of the courts below are thus perverse and cannot be sustained. 10. As a result of the above discussion, I hereby allow the second appeal and set aside the order of the trial court for determination of the shares of the parties afresh and for division of the holdings in the light of the adjudication done by the consolidation authorities.