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Allahabad High Court · body

2008 DIGILAW 1700 (ALL)

MAGGOO v. DEPUTY DIRECTOR OF CONSOLIDATION

2008-08-20

KRISHNA MURARI

body2008
KRISHNA MURARI, J. Heard Shri R. P. Ram for the petitioner and Shri Bimlendra Rai holding brief of Shri A. K. Rai for the contesting respondents. 2. Dispute relates to Plot No. 1073/1 area 0. 395 and 1095/1 area 0. 27 acres. In the basic year, the petitioner was recorded as sole sirdar of plots in dispute. During consolidation operations, respondent Nos. 2 to 4 filed an objection claiming co-tenancy rights on the basis that the plots were an cestral acquisition and, hence, they are en titled to be recorded as cosirdar. The ob jection was contested by the petitioner, inter alia, on the ground that one Bishwanath Singh was the sir-holder of the plots in dis pute and he settled the same with the peti tioner as sikmi tenant. It was pleaded that prior to the settlement with the petitioner, father of the petitioner, namely, Siri was the sikmi tenant, who was ejected and thereafter the said plots came to be settled with the petitioner. It was also pleaded that petitioner being sikmi of the sir, became adivasi and later on sirdar under section 20 of the U. P. Zamindari Abolition & Land Reforms Act. In the alternative, it was pleaded that peti tioner being recorded as an occupant in 1356-F and being in actual cultivatory pos session in 1359-F, became adivasi. 3. Consolidation Officer vide order dated 12. 2. 1976 allowed the objection filed by respondent Nos. 2 to 4 and held them to be co-tenants along with the petitioner. Appeal filed by the petitioner was allowed by the Assistant Settlement Officer Consolidation against which respondent Nos. 2 to 4 went up in revision. Deputy Director of Consolidation vide impugned order dated 15. 5. 1979 allowed the same. Aggrieved, the petitioner has approached this Court. 4. It has been urged by the learned Counsel for the petitioner that after eject ment of Siri, the father of the petitioner and the contesting respondents, fresh settle ment was made by sir-holder in petitioners favour and as such the contesting respon dents could not be held to be co-tenants along with him nor the acquisition can be said to be by the common ancestor. It has further been pleaded that the identity of the holding and the area with the duration having changed, the holding cannot be held to be ancestral so as to give co-tenancy rights to the respondent Nos. It has further been pleaded that the identity of the holding and the area with the duration having changed, the holding cannot be held to be ancestral so as to give co-tenancy rights to the respondent Nos. 2 to 4. 5. In reply, it has been contended that there is neither any evidence on record nor any finding has been recorded that Siri, fa ther of the parties were ever ejected from the land in dispute during his life time. It has further been pleaded that acquisition being by a common ancestor and the name of the petitioner came to be recorded in represen tative capacity, and as such, the contesting respondents have rightly been declared co-tenants along with the petitioner. 6. I have considered the arguments advanced on behalf of the learned Counsel for the parties and perused the record. 7. Consolidation Officer allowed the claim of contesting respondent Nos. 2 to 4 on the ground that in 1333 and 1334 F, Siri the father of the parties was recorded as sikmi tenant of the land in dispute and since the kutumb register indicates that the family was in the state of jointness and the petitioner was karta khandan, as such after the death of Siri, his name came to be re corded in representative capacity. The re ceipts of lagan in the name of the petitioner was not relied upon by the Consolidation Officer only on the ground that since the petitioner was karta khandan and his name was recorded in representative capacity, as such the receipts were issued in his name. 8. Settlement Officer Consolidation after analysing the evidence came to the finding that there is absolutely no evidence on record which may go to indicate that land was jointly acquired and since the fa ther of the parties was recorded as sikmi tenant, as such it cannot be said to be an ancestral acquisition as the settlement of sikmi rights were made on year to year ba sis. He has further held that the name of the petitioner came to be recorded in 1336-F which went to show that after the death of Siri, the Zamindar made a fresh settlement in favour of the petitioner as sikmi tenant which continued till the date of vesting and thereafter he became adivasi and thereafter sirdar. He has further held that the name of the petitioner came to be recorded in 1336-F which went to show that after the death of Siri, the Zamindar made a fresh settlement in favour of the petitioner as sikmi tenant which continued till the date of vesting and thereafter he became adivasi and thereafter sirdar. Deputy Director of Consolidation also found that the land in dispute came to be settled with the petitioner as sikmi in 1336- F, but he set aside; the finding of the Settlement Officer Consolidation only on the ground that since at that time, the fam ily was living in the state of jointness and the petitioner being the eldest, his name was recorded over the land in dispute. As a matter of fact, the entire finding of the Deputy Director of Consolidation is based on the presumption that since the family was in the state of jointness, the name of the petitioner was recorded in representa tive capacity, as such the respondents are entitled as co- tenants. 9. All the Consolidation Courts have recorded a finding that the name of the petitioner came to be recorded sikmi tenant over the land in dispute in 1336-F. It is also undisputed that his name continued as such till the date of vesting. It is also undisputed that in 1333 and 1334-F, Siri the father of the parties was recorded as sikmi tenant. The fact that name of the petitioner was came to be recorded as sikmi tenant in 1336-F is clearly indicative of the fact that it was a fresh settlement in favour of the pe titioner by the Zamindar, inasmuch as sikmi rights were settled on yearly basis and since the sikmi rights were not inherit able, thus, it cannot be presumed that name of the petitioner came to be recorded in representative capacity being the eldest and karta of the family. 10. In view of the aforesaid facts and circumstances, the Settlement Officer Consolidation has rightly held that a fresh set tlement was made in favour of the petitioner in 1336-F by the then Zamindar which continued till the date of vesting and as such respondent Nos. 2 to 4 cannot have any right on the ground that the plots in dispute were ancestral acquisition. 2 to 4 cannot have any right on the ground that the plots in dispute were ancestral acquisition. How ever, Deputy Director of Consolidation committed a manifest error of law in pre suming that the name of the petitioner came to be recorded in representative ca pacity being the eldest of the family ille gally, ignoring the fact that settlement in favour of the father of the parties was sikmi, which was done year to year basis and the said rights were not inheritable. 11. In view of the aforesaid facts and discussions, the impugned order passed by the Deputy Director of Consolidation dated 15. 5. 1979 is not liable to be sustained and is hereby quashed and that of the Settlement Officer Consolidation affirmed. 12. The writ petition stands allowed. However, there shall be no order as to costs. Petitions Allowed. .