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1981 DIGILAW 438 (ALL)

Triveni Prasad v. Deputy Director of Consolidation, Pratapgarh

1981-05-12

A.N.VERMA

body1981
ORDER A.N.Verma, J. - This petition is concerned with the dispute between the petitioners and the respondents in regard to certain agricultural plots comprised in five Khatas, namely, Khatas Nos. 2, 11, 13, 17 and 18. In the basis year, Khata No. 2 was recorded exclusively in the names of respondents Nos. 4, 5 and 6, while the remaining Khatas were recorded in the names of the petitioners and respondents Nos. 4, 5 and 6 in addition to some other respondents mentioned in paragraph 3 of the writ petition. 2. In order to appreciate the controversy involved in this petition, it would be useful to have the pedigree of the parties extracted here :- 3. The petitioners filed an objection under Section 9-A (2) of the U.P. Consolidation of Holdings Act in which they prayed for expansion of the names of respondents Nos. 4, 5 and 6 from the Khatas in dispute. The case pleaded in the objection was that after the death of Sangam Lal, Shrimati Lakhpati (respondent No. 8 herein) made an application for mutation of her name in the Khewat. This application was contested by Mathura Prasad, the father of the first three petitioners. 4. In the mutation case started upon the application of Shrimati Lakhpati, a compromise was entered into between the parties under which it was agreed that so long as Shrimati Lakhpati was alive, she would be in possession and management of the properties as proprietor, over which the mutation was sought, but that she would not have the right to transfer the properties. After her death, Mathura Prasad would become the proprietor of the properties. Shrimati Lakhpati was thus under the compromise entitled only to remain in possession as licensee. However, contrary to the aforesaid compromise. Shrimati Lakhpati had illegally gifted the properties in favour of respondents Nos. 4, 5 and 6 who had acting upon that gift unlawfully got their names entered in the records. The names of the said respondents were, therefore, liable to be expunged. Alternatively, it was prayed in the objection that the name of Shrimati Lakhpati be entered in place of the said respondents as a licensee. 5. This objection was contested by respondents Nos. 4, 5 and 6, who asserted that no such compromise had taken place. The names of the said respondents were, therefore, liable to be expunged. Alternatively, it was prayed in the objection that the name of Shrimati Lakhpati be entered in place of the said respondents as a licensee. 5. This objection was contested by respondents Nos. 4, 5 and 6, who asserted that no such compromise had taken place. Alternatively, it was stated by the said respondents that even if such a compromise did take place in the mutation proceedings, the same did not affect the rights of Shrimati Lakhpati to transfer the land in dispute to them inasmuch as under the U.P. Zamindari Abolition & Land Reforms Act she had become a bhumidhar without any limitations on her right to transfer the land in dispute. The Consolidation Officer dismissed the objection of the petitioners. 6. Aggrieved, the petitioners filed appeals before the Settlement Officer (Consolidation). The said appeals were allowed. The Settlement Officer (Consolidation) held that Shrimati Lakhpati had only a limited interest in the land in dispute and having regard to the terms of the compromise, she would be deemed to be holding the property in lieu of maintenance. Consequently, she could, at best, become only an assami, having no right of transfer. The transfer made by her in favour of the aforesaid respondents was, therefore, null and void. The result was that the names of the said respondents were ordered to be expunged from the records. 7. Aggrieved by the aforesaid order, the respondents Nos. 4, 5 and 6 filed revisions under Section 48 of the U.P. Consolidation of Holdings Act. These revisions have been allowed by the Deputy Director of Consolidation primarily on two grounds: "First, he held that the petitioners failed to prove that the compromise, which was the sole basis of their claim, related to the plots in dispute, except Khata No. 2. The Deputy Director of Consolidation held that the compromise was in respect of Khata No. 1, and that only Khata No. 2 had been proved to have formed part of Khata Khewat No. 1. Inasmuch as the remaining Khatas were not established by any evidence to relate to Khata Khewat No. 1, the compromise set up by the petitioners could be of no avail to them in regard to these Khatas. Inasmuch as the remaining Khatas were not established by any evidence to relate to Khata Khewat No. 1, the compromise set up by the petitioners could be of no avail to them in regard to these Khatas. Second, inasmuch as the compromise made no provision as to what would happen, if Mathura Prasad predeceased Shrimati Lakhraji, the fetters placed on the rights of Shrimati Lakhpati disappeared in view of the admitted fact that Mathura Prasad had predeceased Shrimati Lakhpati. 7. Various other legal objections were raised on behalf, of the donees of Shrimati Lakhpati against the claim of the petitioners before the Deputy Director of Consolidation, but the Deputy Director of Consolidation preferred to dismiss the claim of the petitioners only on the aforesaid two grounds, leaving other objection unanswered. 8. Learned counsel for the petitioners first submitted that the Deputy Director of Consolidation committed a patent error of law in entering into the question whether the compromise in question related to all the Khatas in dispute. It was urged that inasmuch as no such objection was raised before the first two courts by the contesting respondents, the Deputy Director of Consolidation ought not to have embarked upon an enquiry whether or not all the Khatas in dispute were the subject matter of the compromise. 9. Counsel for the contesting respondents, on the other hand, contended that inasmuch as the petitioners were the objection, and, therefore, in the position analogous to a plaintiff in a suit, the burden to prove that the compromise relied on by them barred the rights of the contesting respondents was on the petitioners. It was, therefore, incumbent on the petitioners not only to prove that the compromise had been entered into between Mathura Prasad and Shrimati Lakhpati as alleged by them but also that it pertained to all the plots in dispute. 10. Having heard learned counsel for the parties, I find no substance in the above submission of the learned counsel for the petitioners. The petitioners as objectors were in the position of plaintiffs. If, therefore, the petitioners founded their claim upon the compromise, which was admittedly in respect of proprietary rights in Khata Khewat No. 1, it was incumbent upon them to bring on record evidence connecting the specific Khatas now forming subject matter of the dispute with that Khata Khewat. The petitioners as objectors were in the position of plaintiffs. If, therefore, the petitioners founded their claim upon the compromise, which was admittedly in respect of proprietary rights in Khata Khewat No. 1, it was incumbent upon them to bring on record evidence connecting the specific Khatas now forming subject matter of the dispute with that Khata Khewat. There was no presumption that the Khatas in dispute were comprised in Khata Khewat No. 1. I also do not agree that it was for the respondents to allege that the plots in dispute did not form part of Khata Khewat No. 1. Under the circumstances, the Deputy Director of Consolidation cannot be said to have been in error in enquiring whether there was any evidence on the record indicating that the specific Khatas and plots now in dispute were comprised in Khata Khewat No. 1. The first point, therefore, fails. 11. As an ancillary point to the above argument, it was also submitted that the petitioners made an attempt to file certain papers before the Deputy Director of Consolidation with a view to connecting the compromise with the Khatas in dispute but the Deputy Director all Consolidation did not afford any opportunity to the petitioners to do so. This point too has no merits. The contesting respondents have controverted the aforesaid allegations of the petitioners in their counter-affidavit. The respondents assert that no such attempt or request was made by the petitioners before the Deputy Director of Consolidation, nor was any leave granted to them by the Deputy Director of Consolidation to adduce further evidence at the close of the arguments in the revision as alleged by the petitioners. I have perused the affidavits filed by the parties on this controversy. I have no reason to prefer the version of the petitioners to that given on behalf of the contesting respondents. The allegation of the petitioners, therefore, that they were not given opportunity by the Deputy Director of Consolidation to adduce evidence on the point remains unsubstantiated. 12. The next argument advanced in support of the petition was that the Deputy Director of Consolidation did not interpret the compromise correctly. It was urged that the conclusion of the Deputy Director of Consolidation that Shrimati Lakhpati became the absolute owner of the properties under the compromise in view of the fact that Mathura Prasad had predeceased Shrimati Lakhpati, is manifestly erroneous. It was urged that the conclusion of the Deputy Director of Consolidation that Shrimati Lakhpati became the absolute owner of the properties under the compromise in view of the fact that Mathura Prasad had predeceased Shrimati Lakhpati, is manifestly erroneous. I find no substance in this submission either. It is correct that the compromise on which the petitioners founded their claim makes no provision for the contingency of Mathura Prasad predeceasing Shrimati Lakhpati. The compromise merely provided that after the death of Shrimati Lakhpati, Mathura Prasad would become the absolute owner, the proprietor of the properties comprised in Khata Khewat No. 1. As admittedly Mathura Prasad predeceased Shrimati Lakhpati, the compromise could not be of any assistance to the petitioners. 13. In any case, apart from this difficulty, there is a more fundamental obstacle in the way of the petitioners. In Rajendra Prasad v. Joint Director of Consolidation, Faizabad (1966 RD 92), a Division Bench of this Court ruled that a compromise entered into between the parties prior to the coming into force of U.P. Zamindari Abolition & Land Reforms Act where under a Hindu widow was debarred from transferring the properties in question could not legally deal with the bhumidhari rights which were conferred upon her by operation of law, namely, the U.P. Zamindari Abolition and Land Reforms Act. It was held that on the abolition of Zamindari fresh rights and tenures were conferred on parties and such new rights could not be governed by the terms of any compromise. The facts of the present case are in pari materia with the facts of the aforesaid Division Bench decision. Shrimati Lakhpati, therefore, became a bhumidhar of the plots in dispute even though under the compromise she did not have the right to transfer the same. It, therefore, follows that she was competent to make a gift of her rights in the Khatas in dispute to the aforesaid respondents. Admittedly, the transfer took place after the abolition of Zamindari. 14. A similar view was expressed by Satish Chandra, J. (as he then was) in the case of Jamuna v. Deputy Director of Consolidation (1968 RD 391). In this case also it was held that Bhumidhari rights created by the U.P. Zamindari Abolition & Land Reforms Act were new rights. Admittedly, the transfer took place after the abolition of Zamindari. 14. A similar view was expressed by Satish Chandra, J. (as he then was) in the case of Jamuna v. Deputy Director of Consolidation (1968 RD 391). In this case also it was held that Bhumidhari rights created by the U.P. Zamindari Abolition & Land Reforms Act were new rights. Special rights were conferred on intermediaries by operation of law and these rights were not fettered by any restrictions which might have been placed on the intermediaries under some instrument executed before the coming into force of the Zamindari Abolition & Land Reforms Act. Following the aforesaid decisions, I hold that Shrimati Lakhpati became bhumidhar of the Khatas in dispute, as a result of the U.P. Zamindari Abolition & Land Reforms Act by virtue of being the sir and Khudkasht holder of the Khatas in dispute entitling her to transfer the same, and that fetters placed upon her right under the compromise could not affect her right of transfer. 15. Learned counsel for the petitioners tried to wriggle out of the aforesaid legal position by submitting that inasmuch as Smt. Lakhpati had been given the plots in dispute only in lieu of maintenance under the compromise, she could at best become only an assami thereof under Section 11 of the U.P. Zamindari Abolition & Land Reforms Act. 16. The first objection to this line of argument is that the petitioners did not plead at any prior stage that the properties which were the subject matter of the compromise were given to Shrimati Lakhpati in lieu of maintenance. Secondly, Section 11 of the Act would have been attracted only if specific sir or khudkasht plots had been allotted to her by the sir or Khudkasht-holder thereof in lieu of maintenance allowance while the sir and Khudkasht rights continuing to vest in the persons giving those plots. That is not the case here. In my view, Section 11 envisages a case where sir and khudkasht plots are given to a person in lieu of maintenance by the sir and khudkasht holder thereof with the sir and khudkasht rights remaining with the person who has given the plots in lieu of maintenance. In the present case, as is evident from the terms of the compromise, the position is not so. In the present case, as is evident from the terms of the compromise, the position is not so. For Shrimati Lakhpati was herself to be the sir and khudkashti holder entitled to enjoy and manage the same as a proprietor thereof subject only to the restrictions upon her right to transfer. Section 11 could, therefore, have no application. 17. The above discussion disposes of all the points urged in support of this petition. 18. In the result, the petition falls and is dismissed. There will be no order as to costs.