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2005 DIGILAW 2612 (ALL)

Buddhi Ram and Ram Kishun v. U. P. Sanchalak

2005-12-23

KRISHNA MURARI

body2005
JUDGMENT : KRISHNA MURARI, J. 1. Heard Sri T.N. Tiwari, learned counsel for the petitions and Sri Namwar Singh, learned counsel for contesting respondents. 2. Before the consolidation authorities, the dispute between the parties was with regard to plot no. 177/229-A, 177/229-B, 177, 178 and 220. In the basic year the said plots were recorded in the name or Ram Deo, the father of the present petitioners. Respondent nos. 4 to 12 filed objection u/s 9A(2) of the U.P. Consolidation of Holdings Act (for short 'the Act') claiming co-tenancy rights on the basis that the plots were ancestral and they are entitled to share therein according to the pedigree. The pedigree of the parties as set out in the judgment of the Consolidation Officer is as under: Gurdayal Ganga Prasad Tulsi Raghu Nath Ram Deo Sukh Nandan Bhagwan Budhi Ram (Petitioner) Ram Kishan (Petitioner) Panna (R-9) Shree Ram (R-10) Sobhnanth (R-11) Jawahir (R-12) Latur (R-4) Markendey (R-5) Harihar (R-6) Rajendra (R-7) Matru (R-8) 3. The Consolidation Officer vide order dated 4.2.1974 allowed the objection with regard to khata nos. 177/229-A, 177/229-B, 177 & 220 and respondent nos. 4 to 8 and 9 to 12 were held to be co-sharer along with petitioners. The claim of respondents with regard to plot no. 178 was dismissed. Both the parties filed appeals. The Settlement Officer Consolidation vide order dated 23.11.1974 allowed the appeal filed in respect of plot nos. 177 and 220, while the appeal filed by the respondents was dismissed. The revisions were filed by both the parties. The Deputy director of Consolidation vide order dated 22.2.1979 set aside the order of the Settlement Officer Consolidation and upheld the order passed by the Consolidation Officer. 4. Sri T.N. Tiwari, learned counsel appearing for the petitioners urged that respondents had filed objection only with regard to plot nos. 177/229-A and 177/229-B hence their claim for co-tenancy could not be considered for other plots in view of the bar created by Section 11A of the Act. 5. In reply is has been submitted by learned counsel for the respondents that objections were filed with regard to all plots. My attention has been drawn to the findings recorded by the Consolidation Officer that respondents have filed objections with regard to all the plots. 5. In reply is has been submitted by learned counsel for the respondents that objections were filed with regard to all plots. My attention has been drawn to the findings recorded by the Consolidation Officer that respondents have filed objections with regard to all the plots. A perusal of the order of the Consolidation Officer also goes to show that an issue with regard to co-tenancy of respondents was framed with respect to all the plots and accordingly, evidence was led by the parties. 6. However, presuming that respondents did not file any objection with regard to some of the plots even then the bar created by Section 11A would not come into play. From a conjoint reading of Section 9, 9A & 11, it is evident that even in cases where no objection has been filed, the Assistant Consolidation Officer can make an inquiry and refer the dispute to the Consolidation Officer who shall then proceed to decide the same in accordance with the procedure prescribed by rules framed under the Act. Further the bar created by Section 11A, as a matter fact, acts as a rule of estopple and res-judicata in subsequent stage of consolidation proceedings in case on objections is filed at the stage of Sections 9. In the present case, the bar created by Section 11A is being sought to be raised at the stage of Section 9 and 9A and not at any subsequent stage hence the same is inapplicable. The view taken by me finds support from a decision of a learned Single Judge in the case of Beni Prasad and Ors. v. Deputy Director of Consolidation and Ors. 1986 All.L.J. 999. Moreover, in the present case a clear finding has been recorded by the Consolidation Officer that the petitioners had filed objections with regard to other plots as well and the same was referred by the Assistant Consolidation Officer. In either case, the technical objection raised by the petitioners regarding jurisdiction of the Consolidation Officer is devoid of merits and is liable to be rejected. 7. It has next been contended on behalf of the petitioners that in respect of plot nos. 220 and 177, the Settlement Officer Consolidation recorded a finding that the said plots did not come down in identical form. 7. It has next been contended on behalf of the petitioners that in respect of plot nos. 220 and 177, the Settlement Officer Consolidation recorded a finding that the said plots did not come down in identical form. he found that there is no entry of the name of Gopal or his heir after 1309 fasli and in 1334 fasli there is an entry of the name of Ram Deo (father of the petitioners) with duration of tenancy as ten years which went to show that there was fresh settlement in favour or Ram Deo. It has been urged that since that land did not come down in identical form and there has been variation in duration of tenancy the Settlement Officer Consolidation rightly held that there was fresh settlement and Deputy Director of Consolidation has wrongly and illegally held that variation in duration of tenancy does not mean that the land has not come down in identical form. 8. In reply it has been urged by learned counsel for the respondents that that same area of plot nos. 177 and 220 is recorded in the basic year which stood in the name of Gopla in 1307, 1308 and 1309 fasli. Subsequently, his name disappeared from the record without any order of the competent authority thought the plots maintained their identity. Slight variation in the duration of tenancy, in the absence of any positive case that old tenancy changed and a fresh tenancy was created cannot be taken to be an evidence of any fresh settlement. Reliance in support of the contention has been placed on the judgment of this Court in the case of Beni Prasad (Supra). 9. In the aforesaid case, the learned Single Judge has taken a view that if the name of the recorded tenure-holder disappears abruptly without any order of any authority or court and the plots maintain their identity in that case slight variation is area, rental or duration of tenancy cannot be taken to bee an evidence of creation of new or different tenancy unless a positive case is set up that old tenancy has changed and a fresh was created and some other independent evidence is led to prove the same. 10. In the present case, no such plea has been taken. 10. In the present case, no such plea has been taken. In the absence of any positive case set up by the petitioner that the old tenancy came to an end and a fresh tenancy was created, slight variation in duration of tenancy alone cannot establish creation of different or fresh tenancy. Further it is undisputed that name of Gopal, the common ancestor of the parties continued till 1309 fasli but thereafter, it disappeard without any order of any authority or court. The plots came down in identical form except for variation in duration of tenancy which does not establish that old tenancy came to an end and a fresh tenancy was created in the name of Ram Deo the father of the petitioner. 11. In view of the above, the second argument advanced by learned counsel for the petitioners has also no force and is liable to be rejected. 12. In the result, the writ petition fails and is, accordingly, dismissed. 13. However, in the facts and circumstances, I do not make any order as to costs.