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2013 DIGILAW 2209 (ALL)

Rameshwar v. Deputy Director of Consolidation, Pratapgarh

2013-09-03

SIBGHAT ULLAH KHAN

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JUDGMENT Sibghat Ullah Khan, J.: - Heard Sri A.R. Khan, learned counsel for petitioners and Sri Nirmal Tewari, learned counsel for contesting respondents. 2. In the basic year when consolidation in the area in question started agricultural land in dispute comprised in khata No.158 was entered in the name of Lal Raghuraj Pratap Singh, respondent No.4 in this writ petition since deceased and survived by legal representatives and his wife Shanti Devi. Lal Raghuraj Pratap Singh was son of Dewan Bhagwati Pratap Singh. Petitioners filed objections to the effect that they were in possession, hence their names must be entered in the revenue records over plot No.467/5, area 1 bigha 2 biswas 10 biswansis. In respect of other sub-plots of plot No.467, other persons filed objections contending inter alia that some of the other sub-plots were abadi. 3. Petitioners' objections were rejected by C.O. Dhhakwa Patti, District Pratapgarh through order dated 10.02.1973 passed in Case No.3736/1405. S.O.C., Dhhakwa Patti, Pratapgarh dismissed the appeal on 24.01.1974. Against the said order, petitioners filed Revision No.11589/9110 (or 9100), Rameshwar Vs. Lal Raghuraj Pratap Singh. D.D.C., Pratapgarh dismissed the revision on 03.01.1977, hence this writ petition. 4. The D.D.C. has observed that the petitioners in their objections had not based their claim on any patta executed by the Zamindar, i.e. Smt. Birja Kumari mother of respondent No.4, however, when the case proceeded before the C.O., petitioners came forward with the plea that a patta had been executed in their favour by Birja Kumari on 27.02.1950, which was attested by Supervisor Kanoongo on 21.08.1950 as per Section 57 of U.P. Tenancy Act, 1939. The C.O. decided the following points in favour of the petitioners: (i) Patta was not hit by the provisions of Section 8 of U.P.Z.A. & L.R. Act according to which certain pattas executed after 08.08.1946 were to be treated as void as the said section relates only to grazing, gathering of produce from land, collection of forest produce and fisheries pattas and not tenancy pattas. S.O.C. and D.C.C. did not disturb this finding. Learned counsel for contesting respondents has questioned this finding. However, I do not agree with him. The said section did not prohibit tenancy pattas as argued by learned counsel for petitioners. (ii) Patta contains the signatures of the Zamindar Smt. Birja Kumari. 5. S.O.C. and D.C.C. did not disturb this finding. Learned counsel for contesting respondents has questioned this finding. However, I do not agree with him. The said section did not prohibit tenancy pattas as argued by learned counsel for petitioners. (ii) Patta contains the signatures of the Zamindar Smt. Birja Kumari. 5. However, the claim of the petitioners was rejected by the C.O. on the ground that the names of the petitioners were never entered in the revenue records on the basis of the patta. Petitioners themselves admitted that in 1957 their mutation application had been rejected by Tehsildar. Petitioners had filed copy of khatauni of 1370 and 1372 Fasli, in which names of the petitioners were entered in Warg-9 since 1368 Fasli. All the courts below held that the entry was wrong as no khasra to support the same was filed. In any case, if patta had been executed then petitioners' name would not have been entered in Warg-9, instead of that their names should have been entered as sirdar/ bhoomidhar. Subsequent khataunis also were not filed. It was also mentioned that no proceedings were ever initiated for getting the name of the petitioners entered in the revenue records (except mutation application filed after seven years which was also rejected) and no explanation for the said lapse was given. After rejection of mutation application, no declaratory suit under Section 229-B of U.P.Z.A. & L.R. Act was filed. Annexure-1 to the writ petition is copy of an application allegedly given by petitioners to Gram Pradhan for a direction to patwari to enter petitioners' names in revenue records. No date of filing is given in Annexure-I, however in para-7 of the writ petition, it is mentioned that it was given on 21.11.1969. First of all, there is no provision under which Pradhan can direct the patwari to enter a particular land in anyone's name. Secondly, in the said application it was not mentioned that there was any patta in favour of the petitioner. 6. If Supervisor Kanoongo had in fact attested the patta, then surely petitioners name would have been entered in the revenue records. Even though the Consolidation Officer recorded the finding that patta contained the signatures of Birja Kumari, however no finding was recorded that it was attested by patwari on 21.08.1950. 7. 6. If Supervisor Kanoongo had in fact attested the patta, then surely petitioners name would have been entered in the revenue records. Even though the Consolidation Officer recorded the finding that patta contained the signatures of Birja Kumari, however no finding was recorded that it was attested by patwari on 21.08.1950. 7. The alleged attestation (Annexure-II to the writ petition) is quoted below: "This patta was presented before me by Mr. Mahabir Mukhtar Aam of Dewan Bhagwati Pratap Singh Taluqedar Ranaganj who is personally known to me. I have satisfied myself of his identity acquainted with. Sd. Supervisor Kanoongo 21-08-50" It also contains signatures of Mahabir Prasad and K.N. Lal patwari. 8. Sections 56 and 57 of U.P. Tenancy Act, 1939 and Section 23 (without proviso) of Registration Act are quoted below: "56. Registration of leases.-A lease for a period exceeding one year or from year to year shall be made by a registered instrument only. 57. Attestation in lieu of registration.-(1) When, under provisions of this Act or the Indian Registration Act, 1908, or any other enactment for the time being in force any lease, counterpart, grant, or agreement is required to be made by registered instrument, and such lease, counterpart, grant or agreement,- (a) is with respect to land held by a grove-holder as such, or to land let or granted for the purpose of planting a grove, or (b) relates to a tenancy, and stipulates for rent not exceeding one hundred rupees annually, the parties to such lease, counterpart, grant or agreement may, in lieu of registering the same, obtain the attestation thereto of a revenue Court or of a Revenue Officer, not inferior in rank to a Qanungo or such other person as the State Government may, by general or special order in this behalf, appoint and subject to such conditions, if any, as the State government may, by rules made under this act, direct. (2) Such Court, officer or other person shall, after satisfying himself as to the identity of the parties and their acquaintance with the, and assent to the terms of the lease, counterpart, agent or agreement, make, sign, and date an endorsement thereon to the effect that he has so satisfied himself. (2) Such Court, officer or other person shall, after satisfying himself as to the identity of the parties and their acquaintance with the, and assent to the terms of the lease, counterpart, agent or agreement, make, sign, and date an endorsement thereon to the effect that he has so satisfied himself. (3) No such instrument shall be accepted for attestation under this section, unless presented within the period prescribed for presentation for registration under Part IV of the Indian Registration Act, 1908. 23. Time for presenting documents.- Subject to the provisions contained in sections 24, 25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution: " 9. In para-6 of the writ petition as well as in all the impugned judgments date of patta is mentioned as 27.02.1950. Annexure-II is typed copy of the patta in which date has wrongly been typed as 02.07.1950. The alleged patta having been presented for attestation after four month, without any explanation of delay, could not be attested. The attestation is therefore meaningless. S.O.C. also rightly held that alleged attestation falls short of the requirement of Sections 57(2) supra. 10. In my opinion, the C.O. was not correct in holding that patta was executed by Smt. Birjaa Kumari. The revisional court rightly held that the execution of patta was highly doubtful and suspicious and due execution had not been proved. The C.O. rightly held that as petitioners' names were not entered in the revenue record after the execution of alleged patta, hence no relief could be granted. In view of this finding, no finding should have been recorded by him that patta bore the signatures of Smt. Birjaa Kumari. 11. The argument of learned counsel for petitioners that regarding abadi land, consolidation courts have got no jurisdiction and the land in dispute is abadi cannot be permitted to be raised by the petitioners as they themselves invited the jurisdiction of the consolidation courts and after judgment on merit against them, they cannot turn around. 12. Learned counsel for petitioners has cited several authorities to contend that strict principles of pleadings do not apply to the proceedings under Consolidation Act. There cannot be any dispute with this proposition. 12. Learned counsel for petitioners has cited several authorities to contend that strict principles of pleadings do not apply to the proceedings under Consolidation Act. There cannot be any dispute with this proposition. C.O. and S.O.C. based their judgments on the ground that if in 1950 patta had been executed in petitioners' favour their names would have been there in the revenue records. The main basis of the judgments of the courts below was absence of any effort made by petitioners to get their names entered in the revenue records. However, if in the objections and in their application earlier filed before Pradhan no mention was made of the patta then it was a relevant circumstance to be taken into consideration as was done by the D.D.C. 13. Reliance upon Sections 90 and 90-A(2) of Evidence Act by learned counsel for petitioners is utterly misplaced. The said sections do not grant liberty of double fraud; one of forging a document and the other of antidating the same to twenty or thirty years. There is no requirement that attestation must bear the signatures of patwari. However the attestation bears the signatures of patwari K.N. Lal, who appeared as petitioners witness. He signed the forged attestation only for attempting to prove that by his oral evidence. Accordingly, the attestation was clearly forged. 14. Accordingly, I do not find any error in the findings recorded in the judgments of the courts below particularly of the D.C.C. Writ Petition is therefore dismissed.