Kursum v. Deputy Director of Consolidation and Others
2010-05-25
YOGENDRA KUMAR SANGAL
body2010
DigiLaw.ai
Yogendra Kumar Sangal, J.;- This writ petition has been filed by the petitioner to issue a writ, order or direction in the nature of certiorari quashing the orders passed by opposite party No. 1 and 2 as contained in Annexure-2 and 4 respectively of the writ petition. Heard learned counsel for the petitioner, learned standing counsel for the respondent No. 1 and 2 and none present for the respondent No. 3 and 4 and perused the record. During the pendency of the petition, sole petitioner and Respondents No. 2 and 3 have died. Their heirs were also substituted. Counter affidavit and rejoinder affidavit were already exchanged between the parties. Dispute relates to Khata No. 2 situated in village Gurjar Pergna, Tehsil Amethi, District Sultanpur which was recorded in the name of the petitioner Smt. Kursum in the basic year in record. The land of this khata was purchased by her husband named Abdul Rehman in the year 1963 from Shahadat who was recorded tenure holder of the same. It was pleaded by her that Abdul Rehman (her husband) was living separately from his two brothers namely Suleman and Gulab sons of Sahabdeen. After purchase of the land, her husband solely remain in the possession of the land in dispute and after his death, petitioner (now deceased) came into possession. Consolidation proceedings were started in the village. Two brothers of her husband namely Suleman and Gulab Khan respondents No. 3 and 4 filed two separate objections. Suleman claimed that he along with Abdul Rehman purchased the land in dispute and he is having half share in it. Respondent No. 4 Gulab raised objections that all the three brothers have purchased the land in dispute and as Abdul Rehman was youngest among them so his name was got entered in the sale-deed in representative capacity out of love and affection. Petitioner submitted reply saying that objections raised by the respondent No. 3 and 4 are false. Land was purchased by Abdul Rehman from his own money and her jewellery was also sold for the purpose. It was also brought on record by her that immediately after the purchase wife of Shahadut had also filed suit for cancellatioin of the sale-deed No. 236/1964 in the Civil Court but the same was dismissed on 29.01.1966. Respondent No. 3 and 4 were not party in that suit.
It was also brought on record by her that immediately after the purchase wife of Shahadut had also filed suit for cancellatioin of the sale-deed No. 236/1964 in the Civil Court but the same was dismissed on 29.01.1966. Respondent No. 3 and 4 were not party in that suit. She had also mentioned that Khata No. 99 was in the name of Shekhawat uncle of Abdul Rehman. He died issueless. Name of the respondents No. 3 and 4 was entered in revenue record after the death of Shekhawat. Only when she raised objections for entering her name, than her name was entered in that Khata. She had also mentioned that Abdul Rehman was an educated person and by his tuition income and from money collected after selling her jewellery the property in dispute was purchased. Oral and documentary evidence was produced before the consolidation officer by the parties. One man Bahadur Singh village Pradhan has stated on oath in favour of the petitioner. The consolidation officer held that respondent No. 3 and 4 are co-tenure holder as they are real brother of Abdul Rehman and they lived in the same house. He allowed their objections and ordered for entering their name as co-sharer in the land of Khata No. 2. The aforesaid order was challenged by the petitioner in appeal before the learned Settlement Officer of Consolidation (for short, "S.O.C."). After considering the aspect of the case, learned S.O.C. has allowed her appeal and order of Consolidation Officer was set aside. Aggrieved by this order of learned S.O.C., revision was filed by the respondent No. 3 and 4 before the learned Deputy Director of Consolidation (for short, "D.D.C.") which was allowed by the learned D.D.C., hence this petition has been filed. Learned counsel for the petitioner argued that respondent No. 3 Suleman in his objection before the Consolidation Officer earlier claimed that he and Abdul Rehman have purchased the land in dispute and they both are owner in equal share in the land, but later on, under the conspiracy of the respondent No. 4, he has changed his version and started to say that all the three have purchased the land in dispute from the joint family fund. Learned counsel further argued that this shows that at different time respondent No. 3 has taken two different cases which shows that he has not come with clean hands since beginning.
Learned counsel further argued that this shows that at different time respondent No. 3 has taken two different cases which shows that he has not come with clean hands since beginning. This argument of the learned counsel for the petitioner has not without force in the facts and circumstances of the case. Undisputedly, sale-deed was in favour of the husband of the petitioner. She had given details how her husband managed money to purchase the land in dispute. What was the joint family fund between the three brothers to purchase the land in dispute, no details of that fund are given on behalf of the respondents. Village Pradhan had also stated oath statement in support of the case of the petitioner. Why the Village Pradhan is stating on oath against the respondents No. 3 and 4 before the Consolidation Officer, it is also not clear from the order passed by the Consolidation Officer as well as from the impugned order passed by learned D.D.C. Learned D.D.C. has relied the concept of joint family between three brothers on the basis of copy of Parivar Register filed in the matter. By this Parivar Register only this can be taken correct that three brothers were living in one house but by this Parivar Register it cannot be presumed and taken correct that they were doing joint business and their family was joint. In 1978 RD 51 Balacharan & Ors. vs. State of U.P. and 2005 (99) RD 680 Ramdeen Kori vs. D.D.C., this Court held that there would be a presumption of jointness of the family in Hindu but there can be no presumption that a property standing in the name of member of joint Hindu family is also a joint family property. A member of joint family may acquire property out of his own earnings and make get it separate from the family. If respondents No. 3 and 4 came before the Court saying that property in dispute was purchased by joint family fund and it was their joint property, it was the duty of the respondents No. 3 and 4 to adduce reliable evidence to support their this case. Burden lies on them to establish this on record.
If respondents No. 3 and 4 came before the Court saying that property in dispute was purchased by joint family fund and it was their joint property, it was the duty of the respondents No. 3 and 4 to adduce reliable evidence to support their this case. Burden lies on them to establish this on record. From the record, it reveals that immediately after the purchase of the property in dispute a civil suit was filed by the wife of Shahadat and in that case respondents No. 3 and 4 were not joined as party. Why at that time they have not made efforts to get joined them in that suit, it is also not sufficiently explained on their behalf. It is admitted case of the respondents No. 3 and 4 that Abdul Rehman was the youngest amongst three brothers. It is always seen that the eldest brother's name are generally recorded in representative capacity in the sale-deeds and revenue records, but it is rarely seen that name of youngest brother is recorded in representative capacity in a deed of purchase of the property. Land of Khata No. 99 was recorded in the name of uncle of the three brothers. It was not a case of any one amongst the three brothers that after the death of their uncle Shekhawat, he was solely entitled for this property. As all the three brothers were at equal footing for deceased and for unknown reason name of Abdul Rehman was not recorded after the death of Shekhawat in the revenue record along with two brothers respondents No. 3 and 4, by her own efforts, if petitioner got recorded her name in the revenue record as a widow of Abdul Rehman, there is no wrong in her this action. Learned counsel for the respondents argued that concept of joint family and joint family property is not there amongst Muslim, it is only there in Hindus and parties to the case are Muslim. He further argued that respondents No. 3 and 4 are not entitled for any relief, on this law amongst Hindus which is prevalent in the Hindus only. Learned counsel for the petitioner argued that only on the basis of the copy of Parivar Register and oral evidence learned C.O. and D.D.C. held that there was joint family of three brothers and the property was purchased by joint family fund.
Learned counsel for the petitioner argued that only on the basis of the copy of Parivar Register and oral evidence learned C.O. and D.D.C. held that there was joint family of three brothers and the property was purchased by joint family fund. What was the joint family business at that time, it is not clear from the findings either of learned Consolidation Officer or of learned Deputy Director of Consolidation. Petitioner had given details as to how her husband arranged money for the purchase of the property. As per her version, her husband was an educated person and by tuition, he used to earn money. Her jewellery was also sold by the husband for purchase of this property. What is the illegality, unnaturality and impropriety in not accepting her this case, it is also not clear from the order of learned Consolidation Officer and learned Deputy Director of Consolidation. Giving detailed and sufficient reasons, learned S.O.C. held that land of Khata No. 2 was purchased by Abdul Rehman by his own money. Findings of the fact of first appellate court was there in favour of the petitioner. It is established law that revisional court should not interfere in findings of fact recorded by the fact findings court i.e. superior appellate court of Consolidation Officer. It is established law that if a land is entered in revenue record in a name of a person and sale-deed also supports that the same was purchased by him, the burden of proving that the land was a joint family property and the name of recorded person was in representative capacity lies heavily on the claimant. Entry in Kutumb Register cannot be made basis to show that this property was purchased by all the three brothers by joint family fund. This all shows that from the record, it is clear and established that disputed property was self-acquired property of Abdul Rehman (petitioner's husband) which was purchased by him through sale-deed in the year 1963. Opposite parties failed to establish that joint family fund was used for purchasing this land. It is also not established on the record that custom amongst Hindus was being followed in their family. In the facts and circumstances, order passed by learned D.D.C. respondent No. 1 cannot be held legal, valid and proper.
Opposite parties failed to establish that joint family fund was used for purchasing this land. It is also not established on the record that custom amongst Hindus was being followed in their family. In the facts and circumstances, order passed by learned D.D.C. respondent No. 1 cannot be held legal, valid and proper. He has not exercised his jurisdiction properly by entering in the findings of the fact by re-appreciating the evidence on record, hence the same is liable to be quashed. Accordingly, writ petition is hereby allowed. Impugned order passed by respondent No. 1 learned D.D.C. is hereby set aside and order passed by learned S.O.C. is restored. Parties shall bear their own costs.