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1983 DIGILAW 731 (ALL)

Ram Rati v. Deputy Director of Consolidation, Gonda

1983-09-28

S.SAGHIR AHMAD

body1983
JUDGMENT S. Saghir Ahmad, J. - This is a petition under Article 226 of the Constitution of India. 2. The dispute relates to Khata No. 170 and 172 of village Shahpur Tappa Bank, Pargana and Tehsil Utraula, District Gonda. Khata No. 170 was recorded in the basic year in the names of Raja Bux Singh and his two brothers, Bhagwati Singh and Deep Narain Singh, who are opposite parties 3 and 4 in this petition. Khata No. 172 was recorded in the name of Raja Bux Singh alone. Raja Bux Singh died on 10574 after 'Partal' of the village. The petitioner filed objections under Section 9(2) of the U.P. Consolidation of Holdings Act (briefly called the 'Act') claiming sirdari rights to the extent of l/3rd share in Khata No. 170 and sole sirdari rights in Khata No. 172 in her capacity as the widow of Raja Bux Singh. The claim of the petitioner was resisted by opposite parties 3 and 4 who alleged that the petitioner was not the widow of Raja Bux Singh. They, on the contrary, claimed that they were entitled to succeed Raja Bux Singh in their capacity as his real brothers. 3. The case was disposed of by the Consolidation Officer by his judgment and order dated 30675. He dismissed the claim of Bhagwati Singh and Deep Narain Singh (opposite parties 3 and 4) with the findings that the petitioner was the widow of Raja Bux Singh and she was entitled to be mutated in Khata No. 170 to the extent of l/3rd share. The opposite parties 3 and 4 then filed an appeal which was allowed by the Settlement Officer (Consolidation) by his judgment and order dated 26276 (Annexure No. 6). The revision which was thereafter filed by the petitioner was dismissed by the Deputy Director of Consolidation on 20977 vide Annexure 7. 4. The petitioner has now filed the present petition. 5. It is stated in the petition that the petitioner, in support of her claim that she was the widow of Raja Bux Singh, had filed a large number of documents including certified copies of electoral rolls for the year 1965, 1968, 1969, 1970, 1971 and 1973, relating to village Shahpur Tappa Bank, certificate dated 2375 of the Pradhan of the Gaon Sabha concerned and land revenue receipts. The petitioner also examined herself as a witness and produced Devi Bux Singh (uncle of Raja Bux Singh and opposite parties 3 and 4). There was thus unimpeachable documentary and oral evidence on record to indicate that the petitioner was the widow of Raja Bux Singh but the Settlement Officer (Consolidation) and the Deputy Director have misread the evidence and have come to n erroneous conclusion, it is also stated that the document purporting to be an extract of Kutumb Register which was filed by the opposite parties 3 and 4 was inadmissible in evidence and, therefore, the Settlement Officer (Consolidation) and the Deputy Director were not justified in placing reliance on that document. 6. The opposite parties 3 and 4 have contested the petition. They have filed counter affidavit in which it has been stated that the petitioner was the widow of one Mahadeo Singh and not of Raja Bux Singh. It is also stated that Inder Singh was her son. The opposite parties 3 and 4 have filed a large number of documents before the consolidation authorities to indicate that Inder Singh was the son of Mahadeo Smgh and the petitioner was his mother. It is stated that the Settlement Officer (Consolidation) and the Deputy Director, on a consideration of the oral and documentary evidence on record, came to the conclusion that the petitioner was not the widow of Raja Bux Singh. This finding being finding of fact, cannot be assailed or challenged in the writ petition. They have disputed the assertion of the petitioner that certain documents filed by them were inadmissible in evidence. 7. Learned counsel for the petitioner has contended that the finding of fact recorded by Settlement Officer (Consolidation) and the Deputy Director are perverse and, therefore, it is open to the petitioner to challenge those findings even in a writ petition. He has also contended that the aforesaid findings also stand vitiated by reason of the fact that Settlement Officer (Consolidation) and the Deputy Director of Consolidation have taken into consideration certain documents which were clearly inadmissible in evidence. 8. He has also contended that the aforesaid findings also stand vitiated by reason of the fact that Settlement Officer (Consolidation) and the Deputy Director of Consolidation have taken into consideration certain documents which were clearly inadmissible in evidence. 8. Learned counsel for opposite parties 3 and 4 has pointed out that the opposite parties 3 and 4, who had been contending from the very beginning that the petitioner was the widow of Mahadeo Singh and not Raja Bux Singh, had led evidence to indicate that Inder Singh had been doing pairvi of the case on behalf of the petitioner, before the consolidation authorities and that the objections which were filed on behalf of the petitioner before the Assistant Consolidation Officer, had been signed by Inder Singh. There was, also, evidence on record that Inder Singh, alongwith the Pradhan of village, had been attending consolidation courts on the dates of hearing. Then, there were other documents being certified copies of Parivar/Kutumb Register in which Inder, Singh was recorded as the son of Mahadeo Singh. The opposite parties 3 and 4 had also filed certified copy of the registered sale deed dated 24767 which was executed by Inder Singh, in which he had described himself as son of Mahadeo Singh. Certified copy of extract of Khatauni for the year 135 of. in which Inder Singh was described as son of Mahadeo Singh was also filed. It is, therefore, contended by the learned counsel for opposite parties 3 and 4 that there was sufficient evidence on record to indicate that the petitioner was the widow of Mahadeo Singh and that she was the mother of Inder Singh. Even if, therefore, the extracts of Parivar/Kutumb Register were excluded from consideration, the impugned judgments can still be sustained on the basis of other evidence on record. 9. The above findings of fact, as stated earlier, are being assailed on behalf of the petitioner on the ground that (i) electoral roll entry in respect of the petitioner, in which she was described as the wife of Raja Bux Singh, could not be discarded on the ground that the entry in respect of Inder Singh was incorrect. 9. The above findings of fact, as stated earlier, are being assailed on behalf of the petitioner on the ground that (i) electoral roll entry in respect of the petitioner, in which she was described as the wife of Raja Bux Singh, could not be discarded on the ground that the entry in respect of Inder Singh was incorrect. The petitioner was recorded as the wife of Raja Bux Singh in those electoral rolls even during the life time of Raja Bux Singh and as such it could not be said that a fictitious entry was made in the electoral rolls, to falsely indicate that the petitioner was the wife of Raja Bux Singh and (ii) the extract of Kutumb/Parivar Register, on the basis of which finding has been recorded by the opposite parties I and 2 that the petitioner was the widow of Mahadeo Singh and mother of Inder Singh, were inadmissible in evidence, as those copies did not bear the necessary certificate required by section 109 of the U.P. Panchayat Raj Act 10. The certified copies of the electoral rolls, which were filed by the petitioner before the consolidation authorities, related to the year 1965, 1968, 1969, 1970, 1971 and 1973. In these documents the petitioner has been shown as the wife of Raja Bux Singh. These documents have been taken into consideration by the Settlement Officer (Consolidation) and the Deputy Director but they have not placed reliance on them as the entry with respect to Inder Singh, who had been described as son of Raja Bux Singh, was found by them to be erroneous. The Settlement Officer (Consolidation), during the course of judgment, had observed that the electoral rolls do not constitute positive proof of relationship. This observation, according to the learned counsel for tire petitioner, was erroneous. He has placed reliance upon a decision of this court in the case of Shiv Raj Singh v. Civil Judge, Sitapur, 1977 Lucknow Law Journal 208 in which it has been laid down that there is sanctity attached to the electoral rolls and unless there was any contrary piece of evidence, the finality and sanctity that is attached to the electoral rolls cannot be brushed aside. 11. 11. A perusal of the judgment passed by the Settlement Officer (Consolidation) and the Deputy Director would indicate that the electoral rolls nave not been acted upon on the ground that the entry in respect of Inder Singh was obviously incorrect and, therefore, the presumption attaching to the correctness of the electoral rolls' entry would not be available in the instant case. 12. The electoral rolls are prepared in the course of official duty under the provision of the Representation of People Act, read with the Rules framed thereunder. There is a presumption that the entries in the electoral rolls are correct, unless the contrary is proved. This presumption is available in respect of each individual entry. If one particular entry in respect of one person of a family is found to be wrong, it would not mean that the entries relating to other members of that family are also wrong. 13. A copy of the electoral roll in the instant case has been filed as Annexure I to the Writ Petition. The family of Raja Bux Singh has been mentioned at Serial No. 189, 190 and 191. The entry ax SI. No. 189 relates to Raja Bux Singh, entry at SI. No. 190 relates to Ram Rati, wife of Raja Bux Singh and the entry at SI. No. 191 relates to Inder Singh, son of Raja Bux Singh. The Settlement Officer (Consolidation) and the Deputy Director have found that the entry relating to Inder Singh was wrong, as Inder Singh was the son of Mahadeo Singh and not of Raja Bux Singh. If this entry is to be excluded on the ground that it was incorrect, it would not mean that other entries relating to Raja Bux Singh and Smt. Ram Rati should also be excluded. Since the entries relating to Raja Bux Singh and Smt. Ram Rati have not been shown to be erroneous, they could not be excluded from consideration, particularly when the said electoral roll pertained to the year prior to the death of Raja Bux Singh. Raja Bux Singh, admittedly, had died on 10.5.74 and the electoral rolls, of which the copies have been filed in the instant case, pertain to the year 1965, 1968, 1969, 1970, 1971 and 1973. 14. Raja Bux Singh, admittedly, had died on 10.5.74 and the electoral rolls, of which the copies have been filed in the instant case, pertain to the year 1965, 1968, 1969, 1970, 1971 and 1973. 14. The admissibility of the extract of Kutumb/Parivar Register has been questioned on behalf of the petitioner on the ground that the copies which were filed before the consolidation authorities, did not bear the certificate contemplated by section 109A of U.P. Panchayat Raj Act. Section 109A of Panchayat Raj Act is as follows: 109A. A copy of any entry in a register in the possession of a Gaon Sabha or of any document made or executed by an officer thereof shall, if duly certified by the Pradhan of the Gaon Sabha or other person, authorised by the Pradhan in writing in this behalf, be received as prima facie evidence of the existence of the entry or document and shall be admitted as evidence of the matters and transaction therein recorded in every case, where and to the same extent as the original entry or document would, if produced, have been admissible to prove such matters. 15. Annexure 4 to the writ petition is the copy of the extract of the family register. Serial No. 4 of this extract pertains to Inder Singh, while SI. No. 11 pertains to Mst. Sonra alias Ram Rati. It has been stated by the learned counsel for the petitioner that although opposite parties 3 and 4, themselves, had stated before the consolidation authorities that the petitioner's alias was Dropadi, the entry in the extract of the family register reads as Mst. Sonra alias Ram Rati and, therefore, it could not be said that this entry related to the petitioner. Apart from this,.the fact remains that the document annexure 4 does not contain any certificate in terms of section 109A of the U.P. Panchayat Raj Act. The Settlement Officer (Consolidation) and the Deputy Director, before placing reliance on his document, should have scrutinised the document to find out whether it did bear the certificate contemplated by section 109A of the U.P. Panchayat Raj Act and if the document did not bear the certificate, whether it was at all admissible in evidence without any further proof. The document could not have been blindly acted upon by the Settlement Officer (Consolidation) or the Deputy Director of Consolidation. 16. The document could not have been blindly acted upon by the Settlement Officer (Consolidation) or the Deputy Director of Consolidation. 16. The learned counsel for opposite parties 3 and 4 has stated that it has been established at the trial that the objections filed by the petitioner bore the signatures of Inder Singh and Inder Singh had been doing the Pairvi on behalf of the petitioner and he had also been attending the consolidation courts one very date of hearing and, therefore, opposite parties 1 and 2 were justified in coming to the conclusion that the petitioner was the mother of Inder Singh and not the widow of Raja Bux Singh, particularly as there was other evidence on record which pointed to the same conclusion. This submission is based on the Ignorance of the vital fact that opposite parties 1 and 2 had wrongly excluded the entry relating to the petitioner in the electoral rolls and they had also relied upon the extract of Kutumb register blindly without scrutinising whether the copy was issued in accordance with the provisions of Section 109A of the U.P. Panchayat Raj Act and was, therefore, liable to be admitted in evidence without any further proof. This argument also doss hot take notice of the fact that Devi Bux Singh, who was the uncle of petitioner's husband and also the uncle of opposite parties 3 and 4, had admitted in his statement that the petitioner was the widow of Raja Bux Singh, It is also significant to note that although opposite parties 1 and 2 have held, on the basis of the entries in the electoral rolls, that the petitioner had been living with Raja Bux Singh, they have failed to find out the capacity in which the petitioner was living with Raja Bux Singh or what at all was the occasion for the petitioner to live with Raja Bux Singh, if she was not his wife. 17. In view of the above discussion, the judgment and orders passed by opposite parties 1 and 2 cannot be sustained. 18. The writ petition is allowed. Judgment and order dated 26.2.76 and 20.9.77 which have been passed by the Settlement Officer (Consolidation) and the Deputy Director of Consolidation respectively and which are contained in Annexure 6 and 7 are hereby quashed. 18. The writ petition is allowed. Judgment and order dated 26.2.76 and 20.9.77 which have been passed by the Settlement Officer (Consolidation) and the Deputy Director of Consolidation respectively and which are contained in Annexure 6 and 7 are hereby quashed. The case is remanded to the Settlement Officer (Consolidation), who will restore the appeal to its original number and decide it afresh in accordance with law and in the light of the observations made above. The petitioner shall be entitled to her costs. (Petition allowed)