Sukhari v. Deputy Director of Consolidation — 1986 DIGILAW 248 (ALL)

JUDGMENT B.L. Yadav, J. - This petition Under Article 226 of the Constitution of India is directed against the orders passed by the Consolidation authorities. 2. The plots in dispute are Kati Nos. 5, 62 and 202 of village Baniapur and Khata Nos. 31, 41 and 42 of village Jam in Baniapur. In proceedings u/s 9A(2) of the U.P. Consolidation of Holdings Act, (for short the Act), an objection was filed by the Petitioners claiming 11/12 share on the basis of a compromise dated 27.05.1944 entered in to in a mutation case and it was alleged that that order became final and they were entitled to that share. 3. The case of the Petitioner was contested by the contesting Respondents 4 to 11, who alleged that the Petitioners were not entitled to 11/12 share rather they were entitled to a share according to the pedigree. The consolidation authorities rejected the claim of the Petitioners in respect of these Kats mainly on the ground that the compromise dated 27.4.1944 in a mud anion proceeding was not admissible as it was not in respect of a title suit but only in respect of correction of papers or mutation proceedings. 4. The learned Counsel for the Petitioners urged that the compromise dated 27.05.1944 in the mutation proceeding was admissible in evidence but the consolidation authorities erred in rejecting it. Reliance was placed on Algoo v. Dr. Director of Consolidation 1979 AWC 299 (OB), Raipati v. Dr. Director of Consolidation 1979 AWC 302 (DB) and Kale and Others Vs. Deputy Director of Consolidation and Others, AIR 1976 SC 807 . It was further urged that even though in place of Hard, his wife has placed her thumb impression but as the compromise was in the nature of family settlement, it was sufficient Compliance and there was no illegality. Even family settlement need not be registered. 5. Learned Counsel for the contesting Respondents on the other hand urged that the compromise in respect of share or title in the motion proceeding cannot be entered into or in any case it must have been registered other .vise it was inadmissible in evidence and not binding on the parities. He placed reliance on Chandra Bhang Daft Ram Pandey v. Jadish Daft Ram Pandey. 1962 ALJ 404. He placed reliance on Chandra Bhang Daft Ram Pandey v. Jadish Daft Ram Pandey. 1962 ALJ 404. It was further urged that on behalf of Hard his wife Smt. anomaly has put her thumb impression, hence the compromise was not binding on the contesting Respondents. 6. Now there are two points which fall for consideration. First is as to whether the compromise in mutation proceedings was admissible and the second is that even when in place of Hard his wife Smt. Son kali has put her thumb impression, can that still be treated to be on behalf of the husband. 7. As regards the first point suffice it to say that the scope of enquiry by the mutation authorities is possession and the entries are ordered to be made in favor of the person who is found to be in possession. The procedure for making an application for mutation has been provided u/s 34 of U.P. Land Revenue Act and in case the succession or transfer is disputed, the application is' to be disposed of in accordance with Section 40. The mutation proceedings arc fiscal in nature. They are just to facilitate payment of rent or revenue to State by the vendee, done or heir after death of predecessor in interest. The actual effect and the scope of enquiry is as to whom the State has to look for payment of land revenue. These proceedings are decided with reference to possession and may be decided on merits after contest or may be decided exporter or on the basis of compromise as the circumstances of the case are. In case in future some dispute arises as to who was found in possession when the compromise was arrived at and in whose name the order for mutation was passed, the compromise in mutation proceedings would certainly be admissible, but as stated only within the scope of mutation proceedings. Similar view has been taken in two Division Bench cases of this Court in Algoo v. Deputy Director of Consolidation (Supra) and Rasputin v. Deputy Director of Consolidation (Supra). 8. In Chandra Bhang Daft Ram Pandey v. Jadish Daft Ram Pandey, (Supra), it was held that where the compromise was not registered, it was inadmissible in evidence and not binding on the parties. In the instant case compromise was in respect of mutation proceedings and it was in the nature of family settlement. 8. In Chandra Bhang Daft Ram Pandey v. Jadish Daft Ram Pandey, (Supra), it was held that where the compromise was not registered, it was inadmissible in evidence and not binding on the parties. In the instant case compromise was in respect of mutation proceedings and it was in the nature of family settlement. It was admissible to indicate the possession of the particular party on the date of compromise as incorporated in the order. This case (Chandra Bhang Daft Ram Pandey (Supra)) would be of no assistance to the contesting Respondents. As held by this Court in Algoo v. Deputy Director of Consolidation, (Supra), the consolidation authorities must take into account the admission made in a compromise filed before the revenue court in mutation proceedings. Similar view was taken in another Division Bench case reported in Rasputin v. D.D.C. (Supra). 9. In Kale v. D.D.C. (Supra) it was held that if the parties were of the same family and if any compromise or memo of the same was prepared even though it was not registered, but it was admissible and can be looked into to prove the contents of the same or in any case it can be used for collateral purposes, particularly for the purposes of showing the nature and character of J possession of a particular party or both parties. I am accordingly of the view: that the compromise dated 27.5.1944 in the mutation proceeding was admissible. It goes without saying that the admissibility of evidence is a question of law | whereas credibility is a question of fact. In the instant case the compromise was not considered by the Deputy Director of Consolidation. 10. As regards the point that what would be the effect of compromise in fact in place of Hard his wife has put her thumb impression. As the matter is being remanded, I leave it to the Deputy Director of Consolidation to decide this point in the light of evidence under the facts and circumstances of the case. 11. In view of the discussions made above it is clear that the compromise dated 27.5.1944 was admissible in evidence and it must have been considered and given due weight age by the Deputy Director of Consolidation along with other evidence on record. The orders passed by the Settlement Officer (Consolidation) and the Dr. Director of Consolidation deserves to be quashed. 12. The orders passed by the Settlement Officer (Consolidation) and the Dr. Director of Consolidation deserves to be quashed. 12. Tin the result, the petition succeeds and is allowed. The orders passed by the Consolidation authorities are hereby quashed and the case is remanded back to the provisional court to decide it afresh in accordance with law and in the light of observations made above. The case has dragged on for too long. What is, however, important now is expedition. I, however, refrain from making any order as to costs.