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2002 DIGILAW 1642 (ALL)

BHAIRO v. ASSTT DIRECTOR OF CONSOLIDATION DEORIA

2002-11-01

R.H.ZAIDI

body2002
R. H. ZAIDI, J. Heard learned Counsel for the parties. 2. By means of this petition filed under Article 226 of the Constitution of India, petitioners pray for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 2-5-1981 passed by respondent No. 1 allowing the revision filed by the Respondent Nos. 2, 3 and 4, hereinafter referred to as the contesting respondents. 3. The relevant facts giving rise to the present petition, in brief, are that khata Nos. 85-A, 85-B and 110 of village Tilauli, District Deoria, hereinafter referred to as the land in dispute, were recorded in the name of the petitioners in the basic year. Radha Kishun, father of contesting respondents, filed an objection against the basic year entry and prayed for expunction of the same. It was pleaded that originally the land was the sir and khudkasht of Ram Jatan, who executed a gift-deed dated 9-6-1931 in favour of the objector (father of Respondent Nos. 2, 3 and 4) and one Thakur. The validity of the said gift deed was challenged by the petitioners in Original Suit No. 306 of 1932, which was filed for cancellation of the said gift deed and declaration in the Civil Court. The said suit was ultimately decided in terms of a compromise decree dated 18-11-1932. In the said suit, the land in dispute was held to be the sir and khudkasht of Radha Kishun, father of contesting respondents. After the enforcement of the U. P. Zamindari Abolition and Land Reforms Act, Radha Kishun became bhumidhar of the land in dispute. Ram Jatan is stated to have executed some sale deed after the aforesaid decree, which was void ab-initio as he had no right to execute the same. The validity of the gift deed was also upheld in Suit No. 672 of 1938. The contesting respondents have been in cultivative possession of the land in dispute and the petitioners or their father had no concern with the same. The basic year entry of the name of Sita Ram and Bhairo was, thus, liable to be expunged. The objection filed by the father of the contesting respondents was contested by the petitioners. They have pleaded that the gift deed dated 9-6-1931 was fraudulent and illegal. The basic year entry of the name of Sita Ram and Bhairo was, thus, liable to be expunged. The objection filed by the father of the contesting respondents was contested by the petitioners. They have pleaded that the gift deed dated 9-6-1931 was fraudulent and illegal. Ram Jatan on 1-10-1964 executed a sale-deed in favour of Sita Ram and Bhairo in respect of the land in dispute, on the basis of which they were in possession over the same. It was also pleaded that the compromise decree, referred to above, did not affect the rights of Ram Jatan in the suits and that in the suits, referred to above, the rights of parties were not decided. It was also urged that the petitioners were bona-fide purchasers for value without notice. The objection filed by the father of the contesting respondents was, thus, liable to be dismissed. 4. On the basis of the aforesaid objection, two cases were registered by the Consolidation Officer. The Consolidation Officer framed necessary issues in the cases. Parties in support of their cases, produced evidence, oral and documentary. The Consolidation Officer after going through the evidence on the record dismissed the objection filed by Radha Kishun by his judgment and order dated 13-6-1976. It would not be out of place to state that during the pendency of the case before the Consolidation Officer, Radha Kishun died and in his place his sons, contesting respondent Nos. 2 to 4 were substituted. The contesting respondents, thereafter, challenging the validity of the order of the Consolidation Officer, filed appeals before the Settlement Officer Consolidation. The Settlement Officer Consolidation after hearing the parties also dismissed the appeals by his judgment and order dated 21-9-1977. The contesting respondents, thereafter filed revisions under Section 48 of the U. P. Consolidation of Holdings Act, for short the Act, which ultimately came to the file of the Assistant Director of Consolidation, Deoria, the Respondent No. 1. The Respondent No. 1 reversed the findings recorded by the authorities below and relying upon the compromise decree, referred to above, allowed the revisions by his judgment and order dated 2-5-1981, except two plots in respect of which the case was remanded to the Consolidation Officer for decision afresh, hence the present petition. 5. The Respondent No. 1 reversed the findings recorded by the authorities below and relying upon the compromise decree, referred to above, allowed the revisions by his judgment and order dated 2-5-1981, except two plots in respect of which the case was remanded to the Consolidation Officer for decision afresh, hence the present petition. 5. Learned Counsel for the petitioners vehemently urged that the petitioners have been in possession of the land in dispute continuously and contesting respondents have got no concern with the same. It was also urged that the gift deed referred to and relied by the respondents was void and the same was, therefore, liable to be ignored. The view taken to the contrary by the respondent No. 1 relying upon the compromise decree and deciding the case on the basis of the same was manifestly erroneous and illegal. The impugned order was, therefore, liable to be quashed. 6. On the other hand, learned Counsel appearing for the respondents supported the validity of the orders passed by the Respondent No. 1. It was urged that the order passed by the Respondent No. 1 is concluded by findings of fact, which are based on relevant evidence on the record. The Respondent No. 1, according to him, was right in relying upon the compromise decree and deciding the case on the basis of the same. It was also submitted that the compromise decree was passed validly as in the Civil Court validity of the gift deed was not challenged by the petitioners. On the other hand, they entered into a compromise with contesting respondents. Therefore, they are now stopped from challenging the validity of the gift deed on any ground. 7. I have considered the submissions made by the learned Counsel for the parties and also carefully gone through the record of the case. 8. Admittedly, Ram Jatan was the sir and Khudkasht holder of the land in dispute, who executed gift deed dated 9-6-1931 in favour of Radha Kishun and another. The validity of the said gift deed was challenged by filing Original Suit No. 306 of 1932 for cancellation and declaration by the petitioners on the ground that the land in dispute after execution of the said gift deed, was transferred in their favour on 1-10-1964 by Ram Jatan. The validity of the said gift deed was challenged by filing Original Suit No. 306 of 1932 for cancellation and declaration by the petitioners on the ground that the land in dispute after execution of the said gift deed, was transferred in their favour on 1-10-1964 by Ram Jatan. Radha Kishun in the said suit pleaded that after execution of the gift deed, Ram Jatan had no right to execute the said sale-deed. The sale-deed was, thus, void ab-initio and on the basis of the same, the petitioners did not get any right in the land in dispute. The petitioners did not have the courage to contest the said suit. They therefore, entered into a compromise and the said suit was ultimately decided in terms of a compromise entered into between the parties on 18-11-1932. The validity of the said gift-deed was also upheld in a subsequent Suit No. 672 of 1938. It is well settled in law that the compromise decree operates as estoppel by conduct. The petitioners were, thus, estopped from taking pleas to the contrary. The Consolidation Officer and the Settlement Officer Consolidation apparently acted illegally in deciding the cases discarding the compromise decree which was passed in accordance with law. The Respondent No. 1 was, thus, right in holding that the compromise decree was binding upon the parties and that contesting respondents, after the enforcement of the Zamindari Abolition Act, became bhumidhar of the land in dispute, except in respect of two plots which were not covered by the said decree. He was also right in holding that after execution of gift deed, the validity of which was ultimately not challenged in the aforesaid civil suit, Ram Jatan had no right to execute the sale deed in favour of the petitioners and on the basis of the sale deed executed subsequently, the petitioners did not get any right in the land in dispute. So far as the question of possession over the land in dispute is concerned, the Settlement Officer Consolidation did not record any finding on the question of possession. The Assistant Director of Consolidation specifically held that after the parties entered into compromise, the contesting respondents remained in possession of the land in dispute on the basis of the compromise. So far as the question of possession over the land in dispute is concerned, the Settlement Officer Consolidation did not record any finding on the question of possession. The Assistant Director of Consolidation specifically held that after the parties entered into compromise, the contesting respondents remained in possession of the land in dispute on the basis of the compromise. Otherwise also, the question of possession was not relevant for the purpose of the present case inasmuch as the petitioners never claimed adverse possession and mere possession does not confer title. Thus, even assuming without admitting that the petitioners were in possession over the land in dispute, they cannot acquire any right in the land. Thus, the submissions made by learned Counsel for the petitioners, to the contrary, cannot be accepted. 9. Learned Counsel for the petitioners cited and placed reliance in support of his submission on the decision of Pulavarthi Venkata Subba Rao and others v. Valluri Jagannadha Rao, reported in A. I. R. 1967 SC 591. In the said decision, Honble Supreme Court has taken the view that the compromise decree does not operate as res judicata but it operates as an estoppel by conduct between the parties, the learned Counsel for the respondents did not contend that the compromise decree operates as res- judicata. His contention was that it operates as estoppel by conduct, therefore, the said decision does not support the case of the petitioners in any manner. Reliance was also placed on the decision of Sonia Bhatia v. State of U. P. and others, reported in AIR 1981 SC 1274 . In the said decision, it was ruled by the Apex Court that the absence of consideration in any form is a must in cases of gift. In the present case, the validity of the compromise decree was challenged and suit was filed for cancellation of the gift deed, referred to above, by the petitioners, who ultimately entered into a compromise and on the basis of the same, the compromise decree was passed. The petitioners are, thus, bound by the said decree. The case of Sonia Bhatia (supra) is distinguishable on facts and has got no application in the present case. So far as the decisions in the cases of Gaya Din v. Hanuman Prasad, reported in J. T. 2000 (Suppl. The petitioners are, thus, bound by the said decree. The case of Sonia Bhatia (supra) is distinguishable on facts and has got no application in the present case. So far as the decisions in the cases of Gaya Din v. Hanuman Prasad, reported in J. T. 2000 (Suppl. 3) S. C. 199 and Ram Karan Shukla v. Deputy Director of Consolidation, Fatehpur, reported in 2001 (92) R. D. 695, are concerned, they are also distinguishable on facts inasmuch as the Respondent No. 1 has recorded cogent reasons for reversing the findings recorded by the Settlement Officer Consolidation and rightly held that the compromise decree, referred to above, was binding upon the petitioners and clearly held that the order passed by the Settlement Officer Consolidation was incorrect and illegal, as he has illegally discarded the compromise decree, referred to above. Therefore, the order passed by Respondent No. 1 is well within the fore-corners of Section 48 of the Act. The aforesaid cases, therefore, have got no application in the present case. 10. In view of the aforesaid discussions, the present petition has got no force and is liable to be dismissed. The writ petition fails and is hereby dismissed but without any order as to costs. Petition dismissed. .