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1982 DIGILAW 1322 (ALL)

Brij Kishore v. D. D. C

1982-12-01

K.P.SINGH

body1982
JUDGMENT K.P. Singh, J. - The relationship between the contesting parties would be evident from the following pedigree:- 2. In the disputed Khatas the petitioner claimed ? share. The claim of the petitioner was contested by the respondent Rajdhar in the above pedigree and according to the, contesting opposite parties the share of the petitioners in the disputed land would be only 1/4 and not ?rd. 3. On January 13, 1975 the Consolidation Officer gave judgment for the petitioner (see Annexure `3' attached with the writ petition). Ultimately the revisional court remanded the case back to the Consolidation Officer through his judgment dated May 24, 1974 (Annexure 4). thereafter all the Consolidation authorities have given judgment against tire petitioner holding his share as th. Aggrieved by the judgment of the consolidation authorities the petitioner has approached this Court under Article 226 of the Consolidation. 4. It is note worthy that Jagannath in the pedigree mentioned above had 3 wives from one wife he had no issue, from the other he had a son named Rajdhur, father of the contesting opposite parties, and from the third wife be had two sons named Durga and Brij Kishore. 5. On the death of Jagmaatn it appears that by family arrangement half of the property was given to Rajdhar and 1/4 to the petitioner and the remaining share to Durga. The aforesaid arrangement has been taken note of in a mutation case in the years 1927-28. 6. The learned counsel for the petitioner has contended before me that the consolidation authorities have patently erred in relying upon the family arrangement mentioned in the mutation case which is not at all binding and relevant in a title suit. In this connection he has invited my attention to the ruling reported in, Bhurey v. Pir Bux and others, 1973 A.L.J. 312 Secondly it has been contended that any arrangement against the provisions of law and against the interest or the minor would be void and it would not affect the share of the petitioner in the circumstances of the present case. 7. The learned counsel for the con testing opposite parties has submitted in reply that the family arrangement would be binding upon the petitioner. 7. The learned counsel for the con testing opposite parties has submitted in reply that the family arrangement would be binding upon the petitioner. It has also been emphasised that in the circumstances of the present case the family arrangement was not avoided within the statutory period of limitation, hence the petitioner is stopped from challenging the same and the family arrangement being voidable would be binding upon the petitioner, in tins connection me learned counsel for the contesting opposite parties has placed reliance upon the rulings in Bengal and North Western Railway Co. v. Tupan Das, A.I.R. 1925 Pat. 384 K.P. Reshuva Rao and others v. Nathruvali and others, A.I.R. 1928 Mad 200 Ruknal Mulk Syed Abdul Wajid and others v. R. Vishwanaman, A.I.R. 1950 Mys. 33 and Manu Biswai and others v. Mst. Lata Btswalani ana others, A.I.R. 1965 Orissa 13. 8. It has also been stressed that a family arrangement which has lasted for about 50 years should not be disturbed in the exercise of powers under Article 225 of me Constitution by ibis Court. 9. I have examined the contentions raised on behalf of the parties. It is true chat an admission or compromise on the question of title in a mutation case is not relevant while deciding that question in a title suit. In the present case all the consolidation authorities have decided the claims of the parties by placing reliance upon the family arrangement mentioned in the munition case on the death of Jagannath hence they have committed an error in approaching the problem. 10. It is not quite correct to contend that if by a family arrangement a member gets lesser share than to what he is entitled, the arrangement would be void. In the present case the adult members of the family and the mother of the petitioner had agreed to the arrangement, hence it is to be examined whether the petitioner is bound by the arrangement in the circumstances of the present case, per pedigree it appears that the petitioner is entitled of l/3rd share in the disputed Khatas. In the present case the adult members of the family and the mother of the petitioner had agreed to the arrangement, hence it is to be examined whether the petitioner is bound by the arrangement in the circumstances of the present case, per pedigree it appears that the petitioner is entitled of l/3rd share in the disputed Khatas. But an arrangement has taken place allotting l/4th share to the petitioner as back as the year 1928 and it also appeared that through that arrangement the contesting opposite parties have got 40 bighas of land and the petitioner has got 18 bighas land whereas the petitioner's brother Mool Chand, opposite party no. 8 in the present writ petition has got 18 bighas. If by the aforesaid arrangement the parties have got separate possession over specified area, and the petitioner has failed to avoid the arrangement within a statutory period of limitation whether the petitioner would be bound by such an arrangement. In my opinion if the parties had been in separate possession over the specified area allotted to them according to the arrangement of 1982 and the petitioner has failed to claim his interest in the disputed property within the statutory period of a suit for recovery of possession he should be held as bound by the aforesaid arrangement. The consolidation authorities did not appear to have examined the claim of the petitioner from this angle. 11. The second contention of the learned counsel for the petitioner that he could bring a suit for challenging the aforesaid arrangement within the statutory period from the date of the knowledge about the family arrangement is accepted for the sake of arguments; even then the petitioner has failed to bring the competent suit challenging the aforesaid arrangement till now, hence he cannot succeed in attacking the impugned judgment if the arrangement is held as voidable. 12. In the present case it has been contended that the aforesaid family arrangement was entered into by the mother of the petitioner on his behalf and she was neither a coparcener nor Karta of the family hence the aforesaid arrangement was void in law and it needed no cancellation. 13. 12. In the present case it has been contended that the aforesaid family arrangement was entered into by the mother of the petitioner on his behalf and she was neither a coparcener nor Karta of the family hence the aforesaid arrangement was void in law and it needed no cancellation. 13. To me it appears that the mother of the petitioner acted illegally in reducing the area of the petitioner but the petitioner had a right to claim the remaining area from the descendants of Rajdhar within statutory period provided by law for suit for recovery of possession on attaining majority. Since the consolidation authorities appeared to have accepted the family arrangement as binding because the petitioner failed to challenge the family arrangement on attaining majority within the period of limitation provided for challenging the voidable document I think they have erred in applying the correct provisions of law. By the aforesaid family arrangement of the year 1928 it appears that the parties became separate and it was required of the petitioner to have claimed his remaining area within the statutory period of limitation. The ends of justice in the present case will be met if the revisional court is asked to re-examine the claim of the petitioner whether he had subsisting right to recover possession over the remaining area after attaining majority. 14. The learned counsel for the petitioner has placed reliance upon the rulings reported in Pratap Singh and another v. Sant Kumar and another, A.I.R. 1938 P.C. 181 Ujagar Singh and another v. State of Punjab, A.I.R. 1962 S.C. 350. Commissioner of Income Tax Madhya Pradesh Nagpur v. Seth Govindram Sugar Mills, A.I.R. 1966 S.C. 24. at p. 28 para 10 and has contended that the family arrangement of the year 1928 is void in law. According to him the petitioner's mother could not represent the interest of the minor in the circumstances of the present case, hence she could not enter into a compromise on behalf of the minor against his interest. In my opinion the contentions of the learned counsel for the petitioner have force. I think the aforesaid family arrangement should have been treated as void in the circumstances of the present case The consolidation authorities have not approached the problem from correct angle in this regard. 15. In my opinion the contentions of the learned counsel for the petitioner have force. I think the aforesaid family arrangement should have been treated as void in the circumstances of the present case The consolidation authorities have not approached the problem from correct angle in this regard. 15. In the result the writ petition succeeds and the impugned judgment of the revisional court dated 10-10-79 is hereby quashed and the revisional court is directed to re-examine the claim of the petitioner in the light of the observations made above and it should see whether the petitioner had subsisting right on the date when the Consolidation started in respect of the disputed land regarding his remaining area per legal share. Parties are directed to bear their own costs.