Sukhdeo v. Deputy Director of Consolidation, Azamgarh
1987-12-11
K.P.SINGH
body1987
DigiLaw.ai
JUDGMENT K.P. Singh, J. - There are three khatas in dispute in the present writ petition namely khatas Nos. 68, 68-A and 5. It is not disputed before me that originally katwaroo, Shiv Dayal and Kanhai, were co-tenure holders of the disputed khatas. No doubt in the year 1950 a dispute had arisen and in that dispute a compromise was arrived at, which mentioned that on the death of Katwaroo, the heirs of Kanhai and Shiv Dayal would take the property in dispute half and half. It appears that Shiv Dayal has executed sale deed in favour of petitioners in this writ petition. During the consolidation operation opposite party No. 2 Chhabboo had claimed right in the disputed khatas. The claim of opposite party No. 2 was not accepted by the Consolidation Officer and the Settlement Officer (Consolidation) qua khatas Nos. 68 and 68-A. The objection filed by the petitioners qua khata No. 5 was allowed by the Consolidation Officer and the judgment of the Consolidation Officer was confirmed in appeal, but in revision both the judgments have been disturbed. Aggrieved by the judgment of the revisional court petitioners have approached this court under Article 226 of the Constitution. 2. The main grievance of the petitioners before me is that the revisional court has wrongly given ? share to opposite party No. 2 in the disputed khatas. According to the learned counsel for the petitioners the sale deeds executed by Shiv Dayal were upheld and opposite party No. 2 could not succeed before the civil court, yet the revisional court has patently erred in brushing aside the sale deeds and the decision of the civil court in granting ? share to opposite party No. 2 namely Chhabboo. It has also been emphasised before me that since the parties had arrived at a compromise and had agreed to take the share of one co-tenure holder as half and half, the aforesaid compromise should be held as binding upon the parties concerned. The first two courts have correctly negatived the claim of opposite party No. 2, but the revisional court has patently erred in granting share to the contesting opposite party No. 2. 3. The learned counsel for the contesting opposite party has tried to support the impugned judgment.
The first two courts have correctly negatived the claim of opposite party No. 2, but the revisional court has patently erred in granting share to the contesting opposite party No. 2. 3. The learned counsel for the contesting opposite party has tried to support the impugned judgment. According to him on the death of a co-tenure-holder named Khatwaroo the other co-tenure holder Shiv Dayal was a preferential heir and he would get ?rd share in the khatas in dispute ; therefore, the revisional court has correctly determined that ?th share would go to the contesting opposite party. It has been emphasised that any settlement against the law would not be binding upon the persons who have entered into compromise without knowing their legal claims. It has also been emphasised that the compromise relied upon by the first two courts was invalid when the cause of action had not arisen and any compromise about a future event would not be a legally valid compromise. 4. I have considered the contentions raised on behalf of the parties and I have gone through the judgments of the consolidation authorities. It is well known that any compromise or admission in ignorance of legal right would not be binding upon the persons concerned. The aggrieved person by a compromise can demonstrate that the compromise was bad as it was against the provisions of law and in ignorance of the correct legal position. The perusal of the impugned judgment of the revisional court indicates that the revisional court has recognised the legal right of the tenure-holders on the death of one co-tenure holder named Khatwaroo. The finding recorded by the revisional court qua khata No. 68-A appears to me quite justified in law. 5. Before me the learned counsel for the petitioners has read the sale deeds executed by Sheo Dayal in favour of petitioners Nos. 1 and 2 which mentioned half share of Sheo Dayal in disputed khata No. 68-A. From the materials produced by the learned counsel for the petitioners it appears that Sheo Dayal had not bhumidhari right qua half share only in the disputed khata.
1 and 2 which mentioned half share of Sheo Dayal in disputed khata No. 68-A. From the materials produced by the learned counsel for the petitioners it appears that Sheo Dayal had not bhumidhari right qua half share only in the disputed khata. If in law the aforesaid co-tenure-holder Sheo Dayal gets ?rd share in the property on the death of Katwaroo a co-tenure holder, when he executed the sale-deed and had transferred his share mentioning as half in the disputed khata the law will take its own course and the transferee would not get more than what had been transferred to them. Viewing from this angle I do not find any patent error in the impugned judgment of the revisional court qua khata No. 68-A. In that khata opposite party No, 2 Chhabboo being adopted son of Sheo Dayal would get ? share in the facts and circumstances of the case. 6. As regards the findings recorded by the revisional court qua khata No. 5 it appears that the revisional court has not examined the sale deed executed by Sheo Dayal and the revisional court has proceeded on the assumption that the sale deed had transferred only the alleged half share belonging to Sheo Dayal. Since the judgment of the revisional Court is not very clear and categorical regarding the sale deed concerning khata No. 5 I think that the determining of share qua khata No. 5 by the revisional court suffers from the patent error of law. 7. As regards khata No. 68 of its plots claimed by opposite party No. 2 the first two courts had negatived the claim of opposite party No. 2 on the finding that the opposite party No. 2 had failed to establish his claim regarding adverse possession. The revisional court does not appear to have examined the claim of opposite party No. 2 qua khata No. 68 or its plots. Therefore, the impugned judgment cannot be sustained as there is no reason on what ground the findings recorded by the first two courts were not accepted by the revisional court and a share has been allotted to opposite party No. 2 Chhabboo. The judgment of the revisional court appears to me patently erroneous in awarding a share to opposite party No. 2 in khata No. 68 without referring to the pleadings and evidence on record.
The judgment of the revisional court appears to me patently erroneous in awarding a share to opposite party No. 2 in khata No. 68 without referring to the pleadings and evidence on record. Since the impugned judgment of the revisional court is bad in law qua khatas No. 5 and 68 in dispute it deserves to be quashed qua two khatas Nos. 5 and 68. 8. For the foregoing discussions the writ petition deserves to be allowed in part. The impugned judgment of the revisional court dated 22-9-1975 is hereby quashed qua khatas Nos. 5 and 68 wherein ? share has been allotted to opposite party No. 2 Chhabboo. The revisional court is directed to re-examine the claims of the parties in the light of the pleadings and evidence on record qua khatas Nos, 5 and 68. Parties are directed to bear their own costs.