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2004 DIGILAW 2201 (ALL)

JAHURI (D) THROUGH L. RS. v. JHAPSU

2004-11-04

KRISHNA MURARI

body2004
JUDGMENT : Krishna Murari, J. By means of this writ petition the petitioners have challenged the judgment and order passed by respondent Nos. 8 and 9 Additional Consolidation Officer and Deputy Director of Consolidation, Sultanpur. The writ petition ought to have been heard by Lucknow Bench of this Court since district Sultanpur falls within the territorial jurisdiction of Lucknow Bench. However, vide order dated 17.7.1980 passed under Clause 14 of the U. P. High Court (Amalgamation) Act, 1948 by the then Hon'ble Chief Justice, the case was transferred to Allahabad for hearing and disposal. 2. The dispute relates to khata No. 144 situate in village Alapur Tahsil Kadipur, District Sultanpur. In the basic year name of the petitioner No. 1 was recorded over the said khata. Two objections were filed u/s 9A (2) of the U. P. Consolidation of Holdings Act (for short 'the Act'), One objection was filed by opposite party Nos. 1 to 3 and the other was filed jointly by opposite party Nos. 1 to 7. Co-tenancy rights were claimed by the respondents in the khata in dispute on the ground that land in dispute was acquired by one Moti son of Jiguri who was common ancestor of the parties. After death of Moti, the name of Budhi Ram was recorded in representative capacity as he was the eldest surviving member of the family. After the death of Budhi Ram, the name of Jahuri was again recorded in representative capacity. The case was contested by petitioner No. 1 denying the co-tenancy rights claimed by the contesting respondents. It was alleged that 3-10-0 area of land was acquired by Budhi Ram, his father and the rest was acquired by him. 3. Two different pedigrees were set up by the contesting respondents in two sets of objections. The Deputy Director of Consolidation after considering the averments made in two sets of objections came to the conclusion that on a consideration of the entire objection the contradiction in the two pedigrees cited in two objections disappeared and he accepted the following pedigree : Moti Pudi Budhi Ram Dukhi Jahuri Behari Jorai Dasoo (petitioner-1) (petitioner-2) (petitioner-3) Sukaee Lallo Teemal Budont Jhapsu Chaitoo Kodaie 4. The Consolidation Officer vide order dated 12.4.1972 allowed the claim of the opposite parties in respect of plot Nos. 16, 275, 274, 276, 321, 772/1, 772/2 and 772/3. The Consolidation Officer vide order dated 12.4.1972 allowed the claim of the opposite parties in respect of plot Nos. 16, 275, 274, 276, 321, 772/1, 772/2 and 772/3. With regard to rest of the plots of the khata, the objection was rejected. With regard to the aforesaid eight plots the Consolidation Officer recorded a finding that they were acquired by common ancestor Moti and after his death, the name of Jahuri was recorded in representative capacity and as such the respondents have co-tenancy rights in the said plots. The petitioners preferred two appeals. The Settlement Officer Consolidation vide order dated 4.4.1973 allowed both the appeals. It was held by the Settlement Officer Consolidation that rights of the parties was governed by Oudh Rent Act under which tenancy was not heritable as such there was no question of inheritance from Moti. He further held that the property in dispute was not ancestral and the identity had changed. Aggrieved the respondents filed revisions which have been allowed by the Deputy Director of Consolidation vide order dated 21.12.1974 against which the present writ petition has been preferred. 5. I have heard Sri V. K. S. Chaudhary, senior advocate assisted by Sri Jitendra Ojha appearing for the petitioners and Sri Dinesh Pathak appearing for the respondents. 6. Learned counsel for the petitioner has vehemently urged that the Consolidation Officer and the Deputy Director of Consolidation have erred in law in holding the opposite party Nos. 1 to 8 as co-tenure holder in respect of the eight plots of the disputed khata. It has further been contended that neither the khata in dispute nor the eight plots of the said khata in which co-tenancy rights have been given to the contesting opposite parties can be treated to be ancestral holding coming down from the time of common ancestor Moti. It was pointed out that perusal of record of second settlement shows that old plots corresponding to plot Nos. 16, 274, 275, 26, 321 and 272 of third settlement were recorded in the name of Moti as statutory tenant. In third settlement plot Nos. 16, 275 and 276 came to be recorded in the name of Jahuri with 11 years period as statutory tenant. Plot Nos. 274, 321, 322 and 772 were recorded in the name of Jahuri along with five new plots with a period of cultivation of three years. In third settlement plot Nos. 16, 275 and 276 came to be recorded in the name of Jahuri with 11 years period as statutory tenant. Plot Nos. 274, 321, 322 and 772 were recorded in the name of Jahuri along with five new plots with a period of cultivation of three years. He thus urged that the land which initially belonged to Moti did not come down in identical form and the identity broke in between the second and third settlement and it was a fresh settlement in favour of Jahuri. Learned counsel for the petitioner further urged that the Consolidation Officer and the Deputy Director of Consolidation erred in picking up certain plots from the holding in dispute which were initially recorded in the name of Moti and wrongly gave co-tenancy right to respondent Nos. 1 to 7 treating it to be ancestral property. It was contended that in order to uphold the claim of cotenancy right it had to be established that disputed holding had come down in identical form from the time of common ancestor and there was no break in tenancy. 7. In reply it has been contended by the learned counsel for the respondents that co-tenancy right has rightly been given over eight plots which were found to be ancestral and over which the name of petitioner No. 1 was recorded in representative capacity. It was further urged that there is no evidence regarding fresh settlement in favour of Jahuri as such the Consolidation Officer and the Deputy Director of Consolidation have committed no illegality in holding the contesting respondents as co-tenants. It was next urged that even if the claim of the contesting respondents cannot be sustained on the ground that the disputed holding is ancestral yet their claim is sustainable on the ground that the said plots coming down from the time of common ancestor Moti was a joint family property and name of Jahuri and his father were recorded in representative capacity. 8. The khata in dispute is situate in Sultanpur where during the relevant time Oudh Rent Act was applicable. Section 3(18) of the Oudh Rent Act defines 'statutory tenant' as under : "3 (18). "Statutory tenant" means a tenant to whom Section 36 or Section 37 applies. 8. The khata in dispute is situate in Sultanpur where during the relevant time Oudh Rent Act was applicable. Section 3(18) of the Oudh Rent Act defines 'statutory tenant' as under : "3 (18). "Statutory tenant" means a tenant to whom Section 36 or Section 37 applies. Explanation.--A person who succeeds as an heir of a statutory tenant u/s 38 shall not be deemed to be a statutory tenant unless he has obtained a patta from the landlord or has remained in occupation of the holding for three years after the expiration of the period for which he is entitled to retain occupation of the holding u/s 48 : Provided that when a holding is held by two or more co-tenants, no person who succeeds as an heir of any such co-tenant u/s 48 shall be deemed to be a statutory tenant of the holding unless he has obtained a patta from the landlord, or has remained in occupation of the holding for three years after the expiration of the period for which the heir or the last surviving co-tenant is entitled to retain occupation of the holding u/s 48." 9. Section 48 of the Act deals with the rights of the heir of statutory tenant. Section 48 (1) of the Act relevant for the purpose reads as under : "48 (1). When a statutory tenant dies, his heir shall be entitled to retain occupation of the holding at the rent payable by the deceased for a period of five years from the date of the tenant's death, and to receive compensation under the provisions of this Act for improvements, if any, made on the holding by his predecessor in interest, but shall not be entitled to a renewal of the tenancy." 10. Thus u/s 48 of the Act, the heirs of statutory tenant were entitled to retain occupation of the holding on the rent payable by the deceased tenant for a period of five years from the date of death of the statutory tenant and were also entitled to receive compensation for improvements, if any, made by their predecessor in interest. But they were not entitled to renewal of tenancy. It was open to the landlord to settle the land afresh either with the heirs of the deceased tenant or with any one of them or even a stranger after expiry of five years. 11. But they were not entitled to renewal of tenancy. It was open to the landlord to settle the land afresh either with the heirs of the deceased tenant or with any one of them or even a stranger after expiry of five years. 11. From the definition of a statutory tenant it is clear that if a fresh settlement was not made by the landlord and the heir continued to remain in occupation of the holding for a period of three years beyond the period of five years for which he was entitled to retain possession after the death of his predecessor in interest, then such heir acquires the status of a statutory tenant. In other words, if a fresh settlement was not made by the landlord and the heir of a deceased statutory tenant continued to remain in occupation of the holding for a period of eights years after the death of his predecessor in interest, he became statutory tenant. The view taken by me finds support from a decision of Oudh Chief Court in the case of Jagmohan Ahir v. Ram Kishen Misir 1936 RD 400, wherein it was observed as under : "The heir of a statutory tenant is entitled to retain possession of the holding as a tenant for five years. After the expiration of five years the landlord may eject him u/s 53 (3), Oudh Rent Act at any time within a period of three years. If the landlord does not eject him during the period of three years then the heir acquires the status of a statutory tenant. Even during the three years, during which the heir is liable to ejectment u/s 53 (2), Oudh Rent Act, he is not a trespasser liable to ejectment by a civil court but can be ejected only in accordance with the provisions of Oudh Rent Act." 12. Now it is to be considered whether the holding which initially belonged to common ancestor Moti continued in identical form with his descendants. The settlement entries demonstrate corresponding plots of plot Nos. 16, 74, 275, 276, 321 and 272 of third settlement were recorded in the name of Moti in the second settlement along with four other plots in two khatas namely, 57 and 71. In the third settlement three plot Nos. The settlement entries demonstrate corresponding plots of plot Nos. 16, 74, 275, 276, 321 and 272 of third settlement were recorded in the name of Moti in the second settlement along with four other plots in two khatas namely, 57 and 71. In the third settlement three plot Nos. 16, 275 and 276 came to be recorded in the name of Jahuri with a cultivation period of eleven years. Plot Nos. 274, 321 322 and 772 came to be recorded in his name along with five other plots with a period of cultivation of three years. But for four plots all other plots standing in the name of Moti came to be recorded in the name of Jahuri in the third settlement, Four plots standing in the name of Moti were left out and five new plots were included in the khata of Jahuri. It is apparent that four plots belonging to Moti were apparently settled with some stranger and five new plots were settled with Juhari. Thus it cannot be said that the land which belonged to Moti continued in identical form in the hands of his sons after his death. 13. In order to entitle a party to claim co-tenancy rights in the holding on the ground of it being ancestral, the unbroken identity of the holding through out the period has to be established. If the identity of the holding is changed the claim cannot succeed. The only exception is where as a result of survey made during settlement the area of some plots may increase or decrease or some plots are eliminated for some explained reasons from the holding such as alluvial and deluvial action of the river etc. The slight change in the holding for the aforesaid and like reasons would not operate to destroy the identity of the holding. Thus where the disputed holding has not come down intact in the identical form and only some plots of the holding belonging to common ancestor are found included in the disputed holding, it would not make it ancestral so as to give a share in it to the claimants on that ground nor it would be permissible to pick up those plots and declare them to be ancestral property and declare a share of the claimants in those plots. 14. 14. In this view of the matter, neither the disputed holding nor any portion thereof could be held ancestral coming down from the time of common ancestor Moti as it has not come down in the identical form. The findings of the Consolidation Officer and the Deputy Director of Consolidation that plots which were recorded in the name of Moti continued in the name of Jahuri as ancestral property cannot be sustained. The Consolidation Officer and the Deputy Director of Consolidation both committed an illegality by picking up certain plots from the khata in dispute and declaring them co-tenancy of respondent Nos. 1 to 7 on the ground that they were ancestral. 15. Now coming to the last submission of the learned counsel for the respondents that if the disputed holding is not ancestral their claim for co-tenancy rights is sustainable on the ground that the same is a joint family property and the name of Budhi Ram and thereafter, Jahuri was recorded in representative capacity, I am unable to agree with this contention. It is well-settled that unless it is proved that the property was acquired by karta in representative capacity and for the benefit of the family and out of joint family funds, it cannot be held to be a joint family property merely on the ground that it was acquired by the karta when he formed a joint family with other members. 16. The Deputy Director of Consolidation has based his finding that plots in dispute were joint family property on the basis of constructive possession which is altogether an erroneous view. Mere possession much less constructive possession over certain plots would alone be not sufficient to establish that the land was acquired by recorded tenant in representative capacity. It has to be established by cogent evidence that the land was, as a matter of fact, acquired by person recorded as karta for the benefit of all the co-parceners and was always treated as joint family property. 17. In the present case, there is no evidence on record to establish that the plots in any manner were joint family property. The findings of the Deputy Director of Consolidation in this regard is based on surmises and conjectures. Thus the impugned order passed by the Consolidation Officer and the Deputy Director of Consolidation cannot be sustained and deserves to be quashed. 18. The findings of the Deputy Director of Consolidation in this regard is based on surmises and conjectures. Thus the impugned order passed by the Consolidation Officer and the Deputy Director of Consolidation cannot be sustained and deserves to be quashed. 18. In the result, the writ petition succeeds and is allowed. The impugned orders dated 12.4.1972 and 21.12.1974 passed by the Additional Consolidation Officer and the Deputy Director of Consolidation, Sultanpur respectively are hereby quashed and that of the Settlement Officer Consolidation dated 4.4.1973 is affirmed, 19. However, in the facts and circumstances of the case there shall be no order as to costs.