Ram Lakhan v. Deputy Director of Consolidation, Basti
1983-03-10
K.P.SINGH
body1983
DigiLaw.ai
ORDER K.P. Singh, J. - By means of this writ petition the petitioners have prayed for quashing the judgments of the appellate authority and revisional court (Annexures II and IV attached with the writ petition). 2. The contesting opposite parties Dewatadin and others had claimed cotenancy right in Khatas in dispute on the basis of a gift deed dated 7-6-1928 executed by Smt. Mohara in favour of Ram Dihal who is grandfather of the contesting opposite party Dewata Din. The Consolidation Officer did not accept the claim of the contesting opposite parties as is evident from Annexure I attached with the writ petition. In appeal, the contesting opposite parties in the present writ petition partly succeeded as is evident from the judgment of the appellate authority dated 12-11-1969 (Annexure II). Aggrieved by the judgment of the appellate authority, both the parties preferred revision petitions which have been dealt with by the revisional court through the impugned judgment dated 20-7-1971. The petitioners have approached this Court under Article 226 of the Constitution against the judgment of the revisional Court. 3. The learned counsel for the petitioners has contended before me that the contesting opposite parties had confined their claim to Khatas Nos. 47 and 48 only before the Consolidation Officer, hence the appellate authority and the revisional Court have patently erred in recognising the claim of the contesting opposite parties in the present writ petition with regard to Khata No. 117. 4. Second contention raised on behalf of the petitioners is that only copy of the gift deed relied upon by the contesting opposite parties is on the record which has not been proved hence the higher consolidation authorities have patently erred in recognising the claim of the contesting opposite parties by placing reliance upon the gift deed. 5. Third contention raised on behalf of the petitioners is that under the provisions of S. 15 of the U. P. Z. A. and L. R. Act the petitioners acquired Sirdari right qua Khata No. 117 which is a new right, hence the appellate authority and the revisional Court have patently erred in recognising the co-tenancy right of the contesting opposite parties in the present writ petition. 6.
6. Fourth contention raised on behalf of the petitioner is that the provisions of S. 6 of Agra Tenancy Act and the provisions of S. 9 of the U. P. Tenancy Act are not similar, hence the rulings relating to the provisions of S. 9 of the U. P. Tenancy Act are inapplicable to the facts and circumstances of the present case. 7. Fifth contention raised on behalf of the petitioners is that the principle of possession of one co-tenant is the possession of the other co-tenant is inapplicable in the circumstances of the present case. 8. Last contention raised on behalf of the petitioners is that identity of the land in suit has not been established as coming from the time of the common ancestor, hence the impugned judgments deserve to be quashed. 9. The learned counsel for the contesting opposite parties has tried to refute the contentions raised on behalf of the petitioners and he has supported the impugned judgments. According to him the gift deed did make the donee as a sharer in Sir and Khudkasht land also, hence the conclusions arrived at by the appellate authority and the revisional Court cannot be characterised as illegal or perverse hence the impugned judgments are immune from being challenged in writ jurisdiction. 10. I have examined the contentions raised on behalf of the parties. No doubt in the judgment of the consolidation officer it has been mentioned that at the time of argument the counsel for the contesting opposite parties confined his submissions to khatas Nos. 47 and 48 in dispute but in appeal that statement has been challenged and it has been emphasised that the Consolidation Officer wrongly noted that statement. The appellate authority has examined the claims of the parties and according to it the plots constituting khatas Nos. 117 and 47 were Sir plots, hence the claim of the contesting opposite parties was recognised in the two Khatas. If in law the contesting opposite parties in the present writ petition are entitled to a share in Khata No. 117, they cannot be deprived of that share on the basis of an incorrect statement made before the Consolidation Officer.
117 and 47 were Sir plots, hence the claim of the contesting opposite parties was recognised in the two Khatas. If in law the contesting opposite parties in the present writ petition are entitled to a share in Khata No. 117, they cannot be deprived of that share on the basis of an incorrect statement made before the Consolidation Officer. Moreover, it is not apparent that the petitioners objected that the contesting opposite parties' claim could not be examined with regard to Khata No. 117 on the basis of the statement of the counsel before the Consolidation Officer and when the appellate authority has examined the claims of the parties .on merits, I am not prepared to agree with the contention of the learned counsel for the petitioners that the contesting opposite parties share could not be examined in Khata No. 117. Erroneous admission on question of law never binds a party. In the present case I find that on the findings recorded by the appellate authority and the revisional Court the claim of the contesting opposite parties in Khata No. 117, has been correctly determined and they cannot be deprived of their due share on the basis of a statement in the judgment of the Consolidation officer which has been challenged in appeal at the earliest occasion. 11. Second contention raised on behalf of the petitioners is devoid of any merits. In view of the amended provisions of S. 90 of the Evidence Act by the State of U. P. a certified copy of a registered document is a good piece of evidence and it is not disputed that the certified copy of the gift deed of the year 1928 is on the record which has rightly been accepted by the Consolidation Authority in the present case.
The ruling reported in AIR 1980 All 385 (FB) Ramjas v. Surendranath is the complete answer to the contentions raised on behalf of the petitioners that the gift deed being basis of the title of the contesting opposite parties could not be relied upon in view of the provisions of S. 90 of the Evidence Act as is applicable to the facts and circumstances of this case in the State of U. P. The document being more than 20 years old, its copy was admissible in evidence and due execution in respect thereof could be presumed in favour of the contesting opposite parties in the present writ petition. 12. In support of the third contention the learned counsel for the petitioners has invited my attention to the ruling reported in 1971 Rev Dec 264, Raghunath Singh v. Deputy Director of Consolidation, U. P. Lucknow and has contended that the petitioners being Sirdars of the plots constituting Khata No. 117, the claim of the contesting opposite parties could not be recognised. According to him the petitioners became Sirdars under S. 15 of the U. P. Z. A. and L. R. Act hence the opposite parties could not claim cotenancy right in the plots constituting Khata No. 117. In my opinion, the aforesaid ruling has no application to the facts and circumstances of the present case. By the gift deed of the year 1928 the contesting opposite parties became co-sharers in proprietary right as well as in Sir and Khudkasht of the donor, hence the aforesaid ruling relied upon by the petitioners is inapplicable to the facts and circumstances under consideration. In the present case there is a finding on the question of title that the donee's became sharers in Khatas Nos. 47 to 117, hence their claim has been rightly recognised by the appellate authority and the revisional, Court. The facts of the present case are more similar to the facts involved in the case reported in 1966 Rev Dec 94 Kishun Singh v. Beni Madho, hence the third contention raised on behalf of the petitioners also fails. 13.
47 to 117, hence their claim has been rightly recognised by the appellate authority and the revisional, Court. The facts of the present case are more similar to the facts involved in the case reported in 1966 Rev Dec 94 Kishun Singh v. Beni Madho, hence the third contention raised on behalf of the petitioners also fails. 13. A bare perusal of S. 6 of Agra Tenancy Act and the provisions of S. 9 of the U. P. Tenancy Act would indicate that those provisions are almost similar provisions and there is not much difference between the wording of those provisions so far as they are material for " the purposes of the present case. The argument of the learned counsel for the petitioners in this regard is only for the sake of argument. No doubt the gift deed of the year 1928 would be governed by the provisions of S. 6 of Agra Tenancy Act but the ruling based on the provisions of S. 9 of the U. P. Tenancy Act regarding transfer of proprietary right includes transfer of Sir and Khudkasht right if the document is gift deed or exchange deed would be applicable to the present gift deed also, hence I have no hesitation in rejecting the contention of the learned counsel for the petitioners on this point also. 14. The fifth contention raised on behalf of the petitioners is also without any merit. In the circumstances of the present case, the burden would be upon the petitioners to establish that they have perfected title to the disputed Khatas on the basis of adverse and hostile possession. By executing a gift deed in favour of the ancestor of the contesting opposite parties they acquired a share in the proprietary right as well as Sir and Khudkasht land, hence the possession of the petitioners would be on behalf of a co-sharer unless they succeed in proving ouster and hostile possession. To my mind the principle of possession of a co-sharer is on behalf of all the others has been rightly applied to the facts and circumstances of the present case. 15. The last contention raised on behalf of the petitioners does not appear to have been pressed before the appellate authority and the revisional Court.
To my mind the principle of possession of a co-sharer is on behalf of all the others has been rightly applied to the facts and circumstances of the present case. 15. The last contention raised on behalf of the petitioners does not appear to have been pressed before the appellate authority and the revisional Court. Moreover the attack of the learned counsel for the petitioners in this regard is in the realm of appraisal of the evidence on record and on.the materials on record, the contesting opposite parties have been given share only in those plots which stood in the name of the donor of the gift deed of the year 1928, hence no prejudice was occurred to the petitioners. It is also not the claim of the petitioners that after the execution of the gift deed the identity of the plots standing in the name of the donor had undergone some change due to some transaction, hence I am not prepared to characterise the impugned judgments as illegal or perverse in the present case. 16. Thus all the contentions raised on behalf of the petitioners fail and the writ petition, being devoid of merits, is hereby dismissed. Parties are directed to bear their own costs.