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2006 DIGILAW 228 (ALL)

GAURI SHANKAR v. DAYA SHANKAR

2006-01-24

KRISHNA MURARI

body2006
JUDGMENT Hon’ble Krishna Murari, J.—Heard Km. Merun Dey holding brief of Sri A.N. Bhargava, learned counsel for the petitioners and Sri Radhey Shyam, learned counsel appearing for the respondents. 2.The dispute relates to plot No. 606 which recorded in the basic year as “bhumidhari” of the petitioners. The pedigree of the litigating parties as set out in the judgment of the Consolidation Officer is as under : Har Dayal Lachhiman Bechai Behari Mst. Ramdei (daughter) Kashi Ram Padarath Gauri Shanker Chhotey Lal Jangali (Petitioner 1) (Petitioner 2) (Petitioner 3) 3. During consolidation operation an objection was filed by Harihar Nath the predecessor of respondent Nos. 1 to 7 alleging that the share of the petitioners in the plot in dispute was purchased in an auction sale dated 23.5.1945 held in pursuance to execution of the decree passed in civil suit No. 207 of 1944. Respondent No. 8 Vishwa Nath also joined in the said objection stating that he had purchased the share of Kashi from his son Kaloo by means of sale deed dated 17.11.1939 as such the name of the petitioners is liable to be expunged and their names should be recorded. Another objection was filed by respondent No. 9 Smt. Champa Devi claiming rights over an area 1-0-0 on the ground that she had purchased the said area of the plot in dispute from one Purshottam and as such, her name may be recorded in the revenue records. The case was contested by the petitioners alleging that plot in dispute belonged to their ancestor Har Dayal. After his death the land in dispute devolved upon his only son Lachhiman and after his death it devolved upon his two sons namely, Bechai and Behari. Kashi died issueless and his share devolved upon Ram Padarath as brother of the deceased. After death of Ram Padarath the property came to the petitioners. It was also pleaded that after death of Bechai his share devolved upon his daughter Mst. Ramdei who transferred the same to the petitioners by means of sale deed dated 18.7.1960 and in this manner the petitioners became “bhumidhar” of the entire plot in dispute. 4. The Consolidation Officer vide judgment dated 16.8.1969 rejected the objection of Champa Devi and Vishwa Nath based on the basis of the sale deed. The claim of respondent Nos. Ramdei who transferred the same to the petitioners by means of sale deed dated 18.7.1960 and in this manner the petitioners became “bhumidhar” of the entire plot in dispute. 4. The Consolidation Officer vide judgment dated 16.8.1969 rejected the objection of Champa Devi and Vishwa Nath based on the basis of the sale deed. The claim of respondent Nos. 1 to 6 based on the auction sale dated 23.5.1945 was upheld and their objection was allowed. 5. Against the judgment of the Consolidation Officer three appeals were filed. Respondent No. 8 Vishwa Nath filed an appeal against the order of the Consolidation Officer rejecting his claim based on the sale deed from Kaloo the alleged son of Kashi. Respondent No. 9 Smt. Champa Devi also filed appeal against the order of the Consolidation Officer. Appeal was also filed by the petitioners against the order of the Consolidation Officer allowing the claim of respondent Nos. 1 to 8 on the basis of the auction sale. The Assistant Consolidation Officer by order dated 24.10.1970 allowed the appeal filed by the petitioners. However, the appeal filed by respondent Nos. 8 and 9 were dismissed. 6. Against the appellate order, revisions were preferred. One revision was filed by respondent Nos. 1 to 7 and the other filed by respondent Nos. 8 and 9. 7. The Deputy Director of Consolidation vide impugned order dated 28.11.1974 dismissed the revision Nos. 11534 & 11497 filed by respondent No. 9 Smt. Champa Devi which has become final against her. The Deputy Director of Consolidation by the same judgment allowed the revision filed by respondent Nos. 1 to 7 and respondent No. 8 which has been challenged by the petitioners. 8. I have carefully perused the records of the writ petition. 9. In so far as the claim of respondent No. 8 Vishwa Nath, which was subject matter of revision No. 11533, was allowed by the Deputy Director of Consolidation. The claim was based on a sale deed dated 17.11.1939 alleged to have been executed by one Kaloo son of Kashi. The Consolidation Officer while rejecting the claim of respondent No. 8 has recorded a finding that name of Kaloo has never been recorded in the revenue records and even after death of Kashi the land in dispute came to be recorded in the name of Ram Padarath. The Consolidation Officer while rejecting the claim of respondent No. 8 has recorded a finding that name of Kaloo has never been recorded in the revenue records and even after death of Kashi the land in dispute came to be recorded in the name of Ram Padarath. The Consolidation Officer has further recorded a finding that respondent No. 8 Vishwa Nath has not only failed to prove Kaloo was son of Kashi but he has also failed to prove his possession over the land in dispute and also the sale deed. The same findings have been confirmed by the Settlement Officer Consolidation. The revisional Court has set aside the judgment of both the Consolidation Officer and Settlement Officer Consolidation only on the basis of some recital of the sale deed that Kaloo Pandey was mortgagee of the land in 1335 and 1341 fasli and after redemption of mortgage it was sold to Vishwa Nath. Except for recital of the said fact in the sale deed, there was no other document on record to establish the facts. Specific findings recorded by the Consolidation Officer and Settlement Officer Consolidation that respondent No. 8 Vishwa Nath failed to prove that Kaloo is the son of Kashi and also failed to prove his possession over the land, have not been set aside by the Deputy Director of Conslidation. Instead the Deputy Director of Consolidation has reappraised the evidence and substituted his own findings which are also not corroborated by any evidence on record. Thus the order of the Deputy Director of Consolidation allowing the revision No. 11533 filed by Vishwa Nath is not liable to be sustained and is hereby quashed. 10. In so far as the rights of respondent Nos. 1 to 7 based on auction sale held in the execution of a decree passed in a civil suit is concerned, the Consolidation Officer while allowing the objection recorded a finding that share of Ram Padarath was purchased by Harihar Nath the father of respondent Nos. 1 to 7 in the execution of a decree passed in the civil suit and the name of Ram Padarath was expunged and his name was recorded in 1354 fasli. The same entry was repeated in khatauni of 1356 and 1357 fasli. 11. 1 to 7 in the execution of a decree passed in the civil suit and the name of Ram Padarath was expunged and his name was recorded in 1354 fasli. The same entry was repeated in khatauni of 1356 and 1357 fasli. 11. In appeal the Settlement Officer Consolidation set aside the findings only on the ground that Harihar Nath had not obtained the “dakhalnama" after confirmation of sale and thus his possession does not stand proved. The Settlement Officer Consolidation illegally ignored the oral evidence of three witnesses adduced by the respondents who proved the possession. The findings of the Settlement Officer Consolidation was rightly set aside by the Deputy Director of Consolidation and revision No. 11532 filed by respondent Nos. 1 to 7 was rightly allowed. 12. In view of the aforesaid discussion, the impugned order of the Deputy Director of Consolidation passed in revision No. 11533 filed by respondent No. 8 Vishwa Nath is set aside and that of the Settlement Officer Consolidation in appeal No. 6252 is affirmed and writ petition stands allowed to that extent. However, the impugned order of the Deputy Director of Consolidation passed in revision No. 11534,11532 and 11497 is affirmed and the writ petition challenging the same stands dismissed. However, in the facts and circumstances, there shall be no order as to costs. Petition Allowed. ———