Muneshar (Dead) By Lrs. and Others v. Deputy Director of Consolidation and Others
2011-03-18
S.S.CHAUHAN
body2011
DigiLaw.ai
Hon’ble S.S. Chauhan, J.—The present petition has been filed challenging the orders passed by the Deputy Director of Consolidation and the Settlement Officer Consolidation, contained in Annexure Nos.5 and 6 respectively to the petition. 2. The facts, in short, giving rise to the present petition are that the dispute was in respect of plot nos. 299, 300 and 302 between the petitioners and the private respondents. The said plots were recorded in the names of petitioners as well as Ram Lotan, Ram Komal, Nankoo, sons of Gur Charan in the basic year. Against this entry Ram Lotan, Ram Komal and Nankoo filed objections under Section 9 of the U.P. Consolidation of Holdings Act (for short ‘the Act’) praying therein that name of the petitioners may be expunged from all the three plots as the entry in their names was fictitious. It was also claimed by them that grove was planted on these plots by their ancestors. The claim was contested by the petitioners claiming therein to be co-sharers along with opposite parties no.3 and 4 and the father of opposite parties no.5 and 6. It was also alleged that the grove was very old and the trees planted by their ancestors were existing and they were coming in possession over half share since long. The necessary evidence was led before the Consolidation Officer and the Consolidation Officer came to the conclusion that the grove being entered and owned by both the parties and continued the entry as such, therefore, he maintained the basic year entry and the objection filed by the opposite parties no.3 to 6 has been rejected. Against this order, an appeal was preferred by the opposite parties no.3 to 6 before the Settlement Officer Consolidation, which was allowed by the Settlement Officer Consolidation vide order dated 6.2.1979. Feeling aggrieved with the aforesaid order, the petitioners filed revision before the Deputy Director of Consolidation and the Deputy Director of Consolidation dismissed the revision. Hence this writ petition. 3. Submission of learned counsel for the petitioners is that the Deputy Director of Consolidation has misdirected himself in not appreciating the evidence on record and more particularly the entry made in favour of the petitioners, which indicated the right perfected in their favour on the basis of certain proceedings, which were drawn in the nature of survey proceedings.
3. Submission of learned counsel for the petitioners is that the Deputy Director of Consolidation has misdirected himself in not appreciating the evidence on record and more particularly the entry made in favour of the petitioners, which indicated the right perfected in their favour on the basis of certain proceedings, which were drawn in the nature of survey proceedings. It has also been submitted that during survey if any dispute is raised, then the same is decided by the revenue authorities considering the claim of the parties. 4. Counsel for the private opposite parties, on the other hand, has submitted that the dispute as alleged has never arisen and in fact the Suit was filed by the zamindar, which was got withdrawn and thereafter the claim of the petitioners was to be considered. No such proceedings have commenced and neither any order has been passed, but rather the case was withdrawn by the landlord and as such no right will accrue in favour of the petitioners on the basis of the said withdrawal and they have to stand on their own evidence and footing and merely because some entry has been made in a separate sheet, which is not a revenue record, will not confer any right on the petitioners on the basis of the said entry. 5. I have heard learned counsel for the parties and perused the record. 6. For proper decision of the case the Court thought it proper and convenient to summon the record to appreciate the controversy in question. The record was summoned and after perusal of the record, the Court has come to the conclusion that the entry, which is the sole basis of the petitioners, is not an entry in accordance with law in any revenue record, but this is an entry on a paper additionally attached with the record. The said entry is not signed by any competent officer, so the claim of the petitioners that a right has accrued on the basis of the said entry is devoid of merit and is liable to be rejected.
The said entry is not signed by any competent officer, so the claim of the petitioners that a right has accrued on the basis of the said entry is devoid of merit and is liable to be rejected. It has also been argued by the counsel for the private respondents that the petitioners do not belong to the family of opposite parties no.3 to 6 and in 1337 Fasli name of Ram Sunder was added without any order of the competent authority and the said order will not confer any right in favour of the petitioners. The application contained in Annexure No.1 to the petition was dismissed in default on 24.1.1931, which has been annexed as Annexure CA-1 along with the counter affidavit. The application for compromise was dated 13.7.1930, whereas the alleged compromise entered between the parties was dated 10.7.1930. The original record also does not establish the claim of the petitioners as the said entry is not supported by any entry in the original record. It is an additional document, which has been annexed along with the record. 7. Counsel for the petitioners has placed reliance upon the decision of the Apex Court in the case of Ram Avadh and others v. Ram Das and others, 2009 (27) LCD 712 to rely upon the proposition that if the entry has been made in 1356 Fasli of Khasra or Khatauni and remains unchallenged, then the same is to be presumed as final and will confer all rights on the occupants. 8. The said proposition is not disputed had there been a proper entry in the Khasra or Khatauni, but here the entry, which has been made in respect of the petitioners is on an additional sheet of paper and it is neither contained in the regular record nor in the regular column. The said document has been found to be forged by the Settlement Officer Consolidation as well as by the Deputy Director of Consolidation and, therefore, the aforesaid proposition in absence of any entry in the proper record will not come to the rescue of the petitioners. 9. Counsel for the private respondents has relied upon the decisions rendered in the case of State of Himachal Pradesh v. Sh.
9. Counsel for the private respondents has relied upon the decisions rendered in the case of State of Himachal Pradesh v. Sh. Keshav Ram and others, JT 1996 (9) SC 208, Mushtaq Ahmad v. State of U.P. and others, 2007 (103) RD 64 and State of Maharashtra v. Ramdas Shrinivas Nayak and another, AIR 1982 SC 1249 . 10. In the case of Sh. Keshav Ram (supra) the Apex Court held as under: “In view of the rival contentions, the question that arises for consideration is whether the plaintiffs have been able to establish their title and the courts below were justified in declaring plaintiffs’ title. As has been stated earlier the only piece of evidence on which the courts below relied upon to decree the plaintiffs’ suit is the alleged order made by the Assistant Settlement Officer directing correction of the record of right. The order in question is not there on record but the plaintiffs relied upon the register where the correction appears to have been given effect to. The question, therefore, arises as to whether the entry in the settlement papers recording somebody’s name could create or extinguish title in favour of the person concerned ? It is to be seen that the disputed land originally stood recorded in the name of Raja Sahib of Keonthal and thereafter the State was recorded to be the owner of the land in the record of right prepared in the year 1549-50. In the absence of the very order of the Assistant Settlement Officer directing necessary correction to be made in favour of the plaintiffs, it is not possible to visualize on what basis the aforesaid direction had been made. But at any rate such an entry in the Revenues papers by no stretch of imagination can form the basis for declaration of title in favour the plaintiffs. To our query as to whether there is any other document on the basis of which the plaintiffs can claim title over the disputed land, the learned counsel for the plaintiffs-respondents could not point out any other document apart from the alleged correction made in the register pursuant to the order of the Assistant Settlement Officer. In our considered opinion, the courts below committed serious error of law in declaring plaintiffs’ title on the basis of the aforesaid order of correction and the consequential entry in the Revenue papers.
In our considered opinion, the courts below committed serious error of law in declaring plaintiffs’ title on the basis of the aforesaid order of correction and the consequential entry in the Revenue papers. In the circumstances the appeal is allowed and the judgment and decree passed in all the three forums are set aside. The plaintiffs’ suit stand dismissed. There will be no order as to costs.” 11. In the case of Mushtaq Ahmad (supra) this Court while dealing with the similar question held as under: “In view of the provisions of the revenue Act, the right, title shall accrue to a person as Bhumidhar and Sirdar on the basis of certain documents. It may be sale deed, will continuous entry of the name of the petitioner or on the basis of succession. The petitioner has not alleged in the petition that he got the property in dispute on the basis of succession, will, on execution of sale deed existence of long standing entry. In the affidavit dated 9.11.2000 filed by Niyaz Ahmad it has been alleged in para No.5 that “the deponent submits that the ex-intermediary i.e. Diera Estate had executed two lease deeds in favour of the petitioner on the basis of which objections were filed during the consolidation proceedings, which were allowed by the Consolidation Officer and Settlement Officer Consolidation, respectively, vide order dated 7.8.1985 and 15.11.1987 and the entry were corrected after expunging the name of Gaon Sabha.” It has not been alleged that after execution of the lease deed in favour of the petitioner by the ex-intermediary the entry was made of the name of petitioner in the revenue record prior to consolidation operation. There must be some substance to substantiate these averments that some ex-intermediary of Diera Estate executed lease deed. After abolition of Zamindari the name of the persons who were in possession appeared in the revenue record as bhumidhar or as Sirdar. But there is no entry of the name of petitioner in any revenue record after Zamindari Abolition and prior to the consolidation operation. Moreover, the copy of the objection filed before the consolidation authorities have also not been filed. Hence, mere assertion of para 5 is not sufficient to allege that lease deeds were executed by the Zamindar in favour of the petitioner.
Moreover, the copy of the objection filed before the consolidation authorities have also not been filed. Hence, mere assertion of para 5 is not sufficient to allege that lease deeds were executed by the Zamindar in favour of the petitioner. And on the basis of all circumstances only inference can be drawn that for the first time the name of the petitioner in the revenue record appeared on the basis of a fictitious entry made by the Lekhpal, the basis of the order dated 9.8.1985. Prior to this deed there was no existence of the entry of the name of the petitioner in the revenue record. And the property in dispute stand recorded in the name of Gaon Sabha as Pond, Forest, Banjar and drainage. And it is obvious from the circumstances that the petitioner with the connivance of Lekhpal procured this entry of his name without any basis. No such case was filed before the Consolidation Authorities as alleged in the order. If entry on the face of it, appears forged then no right will accrue in favour of the beneficiary. In view of these rulings, if the entries were procured by playing fraud, then no benefit can be given to such persons. And in the present case, it appears that the entries are fictitious obtained fraudulently by the petitioner with connivance of the Lekhpal. And it can be inferred that the petitioner has not come with clean hands and he himself is guilty for forgery. For the aforesaid reasons mentioned above, this Court has arrived at the concussion that the petitioner has not come with clean hands and as the act of the petitioner is fraudulent and he manipulated fictitious entry in his favour he has got no right to invoke the jurisdiction of this Court under Article 226 of the Constitution. There was no order of the Consolidation Officer or Settlement Officer Consolidation in existence to make the entry of the name of the petitioner in the revenue records over the property in dispute. Earlier to consolidation operation there was also no entry in the revenue records of the name of the petitioner. There was no basis for the consolidation authorities also to have passed the order for incorporating the name of the petitioner in the revenue records over the property in dispute.
Earlier to consolidation operation there was also no entry in the revenue records of the name of the petitioner. There was no basis for the consolidation authorities also to have passed the order for incorporating the name of the petitioner in the revenue records over the property in dispute. The petitioner never acquired this land either on the basis of lease deed executed by Ex-zamindar or by any other instrument. There appears no basis that how and on what basis the entry appeared in revenue record all of sudden. No such objection was filed before the Consolidation Officer and no appeal was also filed before the Settlement Officer of Consolidation. Hence, there was no question of passing any order in favour of the petitioner for making entry in the revenue records. When the entry on the face of it were forged, then the revenue authorities were justified to pass an order for expunging the name of the petitioner from the land of the Gaon Sabha under Section 33/39 of the Land Revenue Act. The petitioner is not entitled to any relief whatsoever and it is a clear cut case of forgery in the revenue record, so as to cause wrongful loss to the Gaon Sabha. The writ petition deserves to be dismissed and it will appropriate in the circumstances of the case to give a direction to the District Magistrate, Sultanpur to conduct an inquiry in the matter in order to ascertain the involvement and complicity of the official concerned and appropriate departmental and criminal action must be taken against them and the District Magistrate is also expected to initiate the proceedings for restoration of the property to Gaon Sabha as the petitioner himself is guilty for fraud hence, the petition deserves to be dismissed with fine of Rs.10,000/-.” 12. In the case of Ramdas Shrinivas Nayak (supra) similar question has been dealt by the apex Court and the relevant paragraphs of the judgment are as under: “When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submissions made by him in the High Court.
We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. “Judgments cannot be treated as mere counters in the game of litigation”.(Per Lord Atkinson in Somasundaran v. Subramanian, A.I.R 1926 P.C. 136). We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call the attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. (Per Lord Buckmaster in Madhusudan v. Chanderwati, A.I.R. 1917 P.C. 30). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment. So the judges’ record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the judge himself, but nowhere else.” 13. I have considered the aforesaid case laws and I am in full agreement with the same.
So the judges’ record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the judge himself, but nowhere else.” 13. I have considered the aforesaid case laws and I am in full agreement with the same. The petitioners have not established their right and both the courts below i.e Settlement Officer Consolidation and the Deputy Director of Consolidation have committed no illegality in rejecting the claim of the petitioners. 14. Petition is devoid of merit. It is accordingly dismissed. (Petition dismissed) _____________