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Allahabad High Court · body

2014 DIGILAW 1006 (ALL)

Shiva Nath v. D. D. C. , Varanasi

2014-03-28

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri C.K. Rai and Sri Lal Babu Lal and for the petitioners and Sri M.N. Singh, for the respondents. 2. The writ petitions have been field against the orders of Consolidation Officer dated 12.07.1999, Assistant Settlement Officer Consolidation dated 17.09.2001 and Deputy Director of Consolidation dated 19.03.2002 passed in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 3. The dispute relates to the land of khata no.8 of village Sagahat pargana Dehat Amanat, district Varanasi. Khata 8 consists of plots. 2, 106, 122, 130, 131,134, 199, 204, 286, 287 and 323 (total area 6.59 acres). The dispute further relates to land of khata 6 and 39 of village Meerapur, pargana Dehat Amanat, district Varanasi. These khatas consisted of plots 63/2, 64/2, 80/1, 81/3, 84, 97, 101, 108, 112 and 174, (total area 2-17-15 bigha). In basic consolidation record khatas in dispute were recorded in the names Kalawati wife of Munshi Lal. Following objections were filed by the different parties in the land in dispute. (a) One Jangaliram filed an objection claiming to be co-sharer in the land in dispute. He claimed that the land in dispute belonged to Ganesh and after his death, it was inherited by his two sons Bhaggu and Ayodhya. The share of Ayodhya was inherited by Kalawati while the share of Bhaggu was inherited by his daughter Ahilya, who was mother of Jangaliram. After the order of the Consolidation Officer, rejecting the claim of Jangaliram, he did not file any appeal and the order of the Consolidation Officer has become final against him. (b) The other objection was filed by Salik and Ram Adhar (respondents-7 and 8). They claimed their right over plots 2, 199 and 286 of village Saghat. It has been stated by Salik and Ram Adhar that Ayodhya surrendered these three plots in favour of Zamindar in the year 1945 and thereafter Zamindar executed a lease deed dated 07.05.1950 of these plots in their favour and on the basis of that lease deed they became sirdar of the land in dispute. The claims of Salik and Ram Adhar were ultimately rejected by Deputy Director of Consolidation and they have also not file any writ petition as such the order of the Deputy Director of Consolidation has become final against them. The claims of Salik and Ram Adhar were ultimately rejected by Deputy Director of Consolidation and they have also not file any writ petition as such the order of the Deputy Director of Consolidation has become final against them. (c) Shivnath and Achhaiber, the petitioners also filed an objection claiming co-tenancy of 1/3 share in the land in dispute. It has been stated by the petitioners that the land in dispute was initially the property of Sukkal and Lattan sons of Churaman and after their death it was inherited by six sons of Sukhal, namely Munni, Mahesh, Sommar, Ganesh, Gopi and Moti but Ganesh was Karta of the family as such his name alone came to be recorded in the revenue records in the representative capacity. Out of six sons, two sons, namely, Munni and Mahesh died issueless and were inherited by his remaining brothers. Branch of Ganesh was inherited by Ayodhya and after his death by his daughter Smt. Kalawati. They belonged to branch of Moti as such they have 1/3 share in it. (d) One Sunder also filed an objection, claiming his right by way of adverse possession over plot 102. One Bhola filed objection claiming adverse possession over plots 194, 212 and 286. These objections were dismissed by Consolidation Officer and they did not challenge the order of Consolidation Officer. 4. All the aforesaid objections were consolidated and tried by the Consolidation Officer. Before the Consolidation Officer apart from documentary evidence, Balli, Ram Adhar, Harpat, Shivnath, Bihari and Munshi were examined as witnesses. The Consolidation Officer by order dated 12.07.1999 held that the alleged surrender deed dated 09.07.1945 is void inasmuch as on the date of surrender by Ayodhya, Ganesh was alive and Ayodhya had no right to surrender the land in dispute. He further found that due to execution of the alleged patta dated 07.02.1950 in favour of Salik and Ram Adhar over three plots claimed by them was not proved nor the patta was ever acted upon. The names of Salik and Ram Adhar were recorded for the first time by the order of Supervisor Kanoongo dated 11.09.1959 although at that time Supervisor Kanoongo had no right to make any entry in the khatauni as such the objection of Salik and Ram Adhar has no merit and is not liable to be accepted. The names of Salik and Ram Adhar were recorded for the first time by the order of Supervisor Kanoongo dated 11.09.1959 although at that time Supervisor Kanoongo had no right to make any entry in the khatauni as such the objection of Salik and Ram Adhar has no merit and is not liable to be accepted. He further found that so far as the claim of co-tenancy of Jangaliram is concerned, Jangaliram himself claimed to be son of Ahilya, who was daughter of Bageshwari. Bageshwari filed a civil suit for claiming co-tenancy in the land in dispute which was decided against her by the judgment dated 13.12.1963 and the judgment and decree dated 13.12.1963 has not been challenged any further and became final as such claim of Jangaliram is barred by res judicata and his objection was also dismissed. He further found that claim of adverse possession by Sunder and Bhola were not proved. In respect of co-tenancy of Shivnath and Achhaiber, it was found that one of the branches of the sons of Sukkhal, namely, Jittu grandson of Sommar did not file any objection claiming co-tenancy in the land in dispute. Similarly, the branch of Gopi also did not file any objection. The land of village Sagahat was recorded in the name of Sukkhal son of Churaman in 1291 F as well as 1309 F but in 1334 F, it was recorded in the name of Ganesh alone with the period of cultivation of 12 years and same entry continued till 1356 F and 1359 F with the different period of cultivation. Smt. Kalawati filed a lease deed dated 27.10.1914 and claimed that the land in dispute was settled with Ganesh alone by the Zamindar and since then it was recorded in his name and he was in exclusive possession over it and his other brothers have no share in it. So far as the land of village Meerapur is concerned, only two plots were recorded in the name of Sukkhal in1291 F. These two plots along with six other plots came to be recorded in the name of Ganesh in 1334 F with different period of cultivation which shows that the land in dispute was settled afresh with Ganesh along with other plots. Therefore, the identity as well as area and period of cultivation all has been changed. Therefore, the identity as well as area and period of cultivation all has been changed. Shivnath, Achhaiber, Balli, Kedar, could not prove their joint possession over the land in dispute. On these finding all the objections were dismissed by order dated 12.7.1999. 5. Shivnath and Achhaiber filed Appeal No. 875, Salik and Ram Adhar filed Appeal No. 891 and Balli and Kedar filed Appeal No. 896 from the aforesaid order of the Consolidation Officer. The aforesaid appeals were consolidated and decided by the Assistant Settlement Officer, Consolidation by judgment dated 17.09.2001. Assistant Settlement Officer, Consolidation confirmed the findings of Consolidation Officer so far as it was against Shivnath, Achhaiber, Balli and Kedar. However, he relying upon the lease deed dated 07.02.1950 found that Ayodhya had surrendered the land in dispute and thereafter Zamindar granted fresh patta dated 07.02.1950 of plots 2, 199 and 286 to Salik and Ram Adhar. Accordingly, they have become bhumidhar of three plots. On these findings the appeal of Salik and Ram Adhar (respondents 7 and 8) was allowed and appeals of Shivnath, Achaiber, Balli and Kedar were dismissed by judgment and order dated 07.09.2001. 6. Kalawati filed Revision No.729/958, Balli and Kedar filed Revision No. 731/960 and Shivnath and Achhaiber filed Revision No.738/967 against the order of Assistant Settlement Officer, Consolidation. All the revisions were consolidated and decided by Deputy Director of Consolidation by judgment dated 19.03.2002. Deputy Director of Consolidation found that Ganesh died on 11.09.1948 as such during the life time of Ganesh, Ayodhya had no right or interest in the land in dispute as such the alleged surrender deed dated 09.07.1945 is void. As the land in dispute was never surrendered by the tenure holder Ganesh as such patta dated 07.02.1950 executed by Zamindar in favour of Salik and Ram Adhar is a void document and on its basis the names of Salik and Ram Adhar were not mutated in the revenue record. Their names were recorded for the first time in Column 9 of khatauni by the order of Supervisor Kanoongo dated 11.09.1959 although at that time, he had no jurisdiction to record the name of any person in khatauni as such title of Salik and Ram Adhar over plots 2, 199 and 286 of village Sagahat was not proved. Their names were recorded for the first time in Column 9 of khatauni by the order of Supervisor Kanoongo dated 11.09.1959 although at that time, he had no jurisdiction to record the name of any person in khatauni as such title of Salik and Ram Adhar over plots 2, 199 and 286 of village Sagahat was not proved. He further found that Shivnath, in his statement, has admitted that Zamindar made a fresh settlement in favour of Ganesh and he further admitted that Sukkhal was ejected from the land in dispute due to non payment of arrears of rent and fresh settlement was made in favour of Ganesh after the death of Sukkhal. A Hindi translation of patta dated 27.10.1914 along with original patta was filed by Kalawati which proved that the land in dispute was settled with Ganesh alone by Zamindar. The name of Ganesh alone was recorded over the land in dispute, with a different period of cultivation on the basis of patta as such his brothers have no share in it. After the death of Ganesh, the name of Devkali and thereafter the name of Kalawati was recorded but the brothers of Ganesh never claimed any right over it till the village was placed under consolidation i.e. notification under Section 9 of the Act was issued in the year 1992. Similarly, he found that the identity of the land in dispute, period of cultivation and area of the land of village Meerapur has been changed. The land in dispute came to be recorded as non-occupancy tenancy of village Meerapur in the name of Ganesh in 1334 fasli with different period of cultivation. Thus, ancestral property was not come in the same form to be recorded in the name of Ganesh and in such circumstances co-tenancy right cannot be awarded to the other brothers of Ganesh. On these findings, the revisions filed by Shivnath, Achhaiber, Balli and Kedar were dismissed and the revision filed by Smt. Kalawati was allowed. Hence these writ petitions have been filed by Shivnath, Achhaiber, Balli and Kedar. 7. The counsel for the petitioners submitted that it was proved that the land in dispute was recorded in the name of Sukkhal in 1291 fasli and 1307 fasli. After death of Sukkhal, Ganesh was Karta of the joint family. Hence these writ petitions have been filed by Shivnath, Achhaiber, Balli and Kedar. 7. The counsel for the petitioners submitted that it was proved that the land in dispute was recorded in the name of Sukkhal in 1291 fasli and 1307 fasli. After death of Sukkhal, Ganesh was Karta of the joint family. Apart from joint family property there is no separate source of earning of Ganesh as such the land in dispute was acquired by Ganesh from joint family funds as such all the brothers of Ganesh have share in it. According to the pedigree Ganesh has 1/3 share and branch of Moti, namely, Shivnath and Achhaiber together have 1/3 share, branch of Gopi, namely Balli and Kedar together have 1/3 share. The courts below has illegally held that it was self acquired property of Ganesh. He relied upon the judgments of this Court in Ram Chandra Dubey Vs. Deputy Director of Consolidation, Deoria, 1978 RD 1 and Shyam Lal and others Vs. Assistant Director of Consolidation, Gonda, 2007(102) RD 311 in which it has been held that existence of joint Hindu Family being not disputed, the property acquired during the jointness of the family is the property of joint Hindu Family and belonged to all the members of the family. 8. In reply to the aforesaid arguments the counsel for the respondents submitted that it is incorrect to say that jointness of the family, at the time when the land in dispute was acquired by Ganesh in the year 1914 was admitted. From the patta dated 27.10.1914 it is proved that Sukkhal was ejected by Zamindar from the land in dispute due to non payment of rent. Thereafter the property in dispute was afresh settled with Ganesh. There is nothing on the record to prove that there was any joint family fund as such the presumption regarding jointness of the property cannot be raised. Ganesh was not the eldest amongst his brothers and the allegation that Ganesh was Karta of the family was not correct. Ganesh acquired the property in dispute from his own earning as such the other brothers have no share in it. One of the branches, namely, Jittu of the branch of Sommer did not claim co-tenancy in the land in dispute. Ganesh acquired the property in dispute from his own earning as such the other brothers have no share in it. One of the branches, namely, Jittu of the branch of Sommer did not claim co-tenancy in the land in dispute. Earlier mother of Balli and Kedar, namely, Bageshwari filed a civil suit impersonating her to be widow of Bhaggu but her suit was dismissed by the judgment dated 13.12.1963 which was not challenged by her thereafter. It was in the knowledge of the petitioners that the land in dispute was exclusively recorded in the name of Kalawati and she alone was in possession on it at least after the date of vesting but no suit was ever filed till consolidation was started in the village i.e. in the year 1992. In such circumstances, all the consolidation authorities have concurrently held that the land in dispute was self acquired property of Ganesh and the finding of fact recorded in this respect is not liable to be interfered by this Court. 9. I have considered the arguments of the counsel for the parties and examined the record. 10. The pedigree as given in the order of the Consolidation Officer is admitted to the parties. Shivnath in his statement admitted that amongst the sons of Sukkhal, Munni was eldest, thereafter Mahesh, thereafter Sommer and thereafter Ganesh. Thus, number amongst brothers of Ganesh was at 4th number. A perusal of the patta dated 27.10.1914 shows that Sukkhal was ejected by Zamindar due to non payment of rent. The petitioners could not adduce any evidence to show that there was joint family fund or the joint family had sufficient property or earning from which the family was able to acquire property. In the absence of joint family fund, the property acquired by Ganesh out of his own earning cannot be held to be joint family property of all the brothers. The Consolidation Officer also noticed that Jittu who belonged to the branch of Sommer did not claim co-tenancy in the land in dispute. 11. The consolidation authorities recorded findings that Smt. Bageshwari, mother of Balli and Kedar, filed a civil suit in the year 1963 and impersonating herself to be widow of Bhaggu son of Ganesh, claimed co-tenancy in the land in dispute. 11. The consolidation authorities recorded findings that Smt. Bageshwari, mother of Balli and Kedar, filed a civil suit in the year 1963 and impersonating herself to be widow of Bhaggu son of Ganesh, claimed co-tenancy in the land in dispute. This fact that the land in dispute was exclusively recorded in the name of Kalawati daughter of Ayodhya was well within the knowledge of all the co-sharers and they did not claim any right in it for such a long time. Balli and Kedar firstly tried to get co-tenancy through Smt. Bageshwari by impersonating her as the widow of Bhaggu but her suit was dismissed by the civil court by judgment dated 13.12.1963 and this judgment was not challenged thereafter. From 1963 till 1992 no further suit has been filed by any of the branches claiming co-tenancy. Thus, claim of co-tenancy in the land in dispute cannot be accepted. 12. Supreme Court in Shrinivas Krishnarao Kango Vs. Narayan Devji Kango, AIR 1954 SC 379 held that proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. Therefore, so far as the proposition of law is concerned, the initial burden is on the person who claims that it was joint family property but after initial discharge of the burden, it shifts to the party who claims that the property has been purchased by him through his own source and not from the joint family nucleus. 13. Supreme Court in Rukhmabai Vs. Lala Laxminarayan, AIR 1960 SC 335 held that there is a presumption in Hindu law that a family is joint. But there is no presumption that any property, whether movable or immovable, held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But there is no presumption that any property, whether movable or immovable, held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property." Supreme Court in Achuthan Nair Vs. Chinnamu Amma, AIR 1966 SC 411 held that under Hindu law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well-settled proposition of law." 14. Supreme Court in Surendra Kumar Vs. Phoolchand (1996) 2 SCC 491 held that it is no doubt, true that there is no presumption that a family because it is joint possessed joint property and therefore the person alleging the property to be joint has to establish that the family was possessed of some property with the income of which the property could have been acquired. But such a presumption is a presumption of fact which can be rebutted. But where it is established or admitted that the family which possessed joint property which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was the joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family." 15. Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade, (2007) 1 SCC 521 and Makhan Singh v. Kulwant Singh, AIR 2007 SC 1808 , held that on survey of the aforesaid decisions what emerges is that there is no presumption of a joint Hindu family but on the evidence if it is established that the property was joint Hindu family property and the other properties were acquired out of that nucleus, if the initial burden is discharged by the person who claims joint Hindu family, then the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property by cogent and necessary evidence. K.V. Narayanaswami Iyer Vs. K.V. Ramakrishna Iyer AIR 1965 SC 289 and D.S. Lakshmaiah Vs. L. Balasubramaniyam, AIR 2003 SC 3800 , held that there was no presumption in law that a property purchased in the name of a member of a family had ipso facto the character of joint Hindu family property unless it could be shown that the family possessed a nucleus for the purchase of the same. Similarly there could be no presumption that if the property purchased by a father fell to his son by inheritance it was deemed to be in his position as a karta of a Hindu undivided family. 16. It has been further found that identity of properties which were recorded in the name of Sukkhal was not remained unbroken. Sukkhal was recorded as occupancy tenant of plots 2, 122, 130, 134, 199, 204, 286 and 287 (total area 8-1-5 bigha) of village Saghat and plot 323 (area 1-12-0 bigha) was recorded in the name of Luttar. Basic consolidation year Khata 8 of village Saghat consists of plots. 2, 106, 122, 130, 131,134, 199, 204, 286, 287 and 323 (total area 6.59 acres). Basic consolidation year khata 6 and 39 of village Meerapur, consist plots 63/2, 64/2, 80/1, 81/3, 84, 97, 101, 108, 112 and 174, (total area 2-17-15 bigha). So far as the property of village Meerapur is concerned, it was found that earlier two plots were recorded in the name of Sukkhal in 1291 F. In 1307 F plots 63/2, 64/2, 80/1, 80/3, 84, 108 (total area 2-17-15 bigha) was recorded as non-occupancy tenancy of Sukkhal. So far as the property of village Meerapur is concerned, it was found that earlier two plots were recorded in the name of Sukkhal in 1291 F. In 1307 F plots 63/2, 64/2, 80/1, 80/3, 84, 108 (total area 2-17-15 bigha) was recorded as non-occupancy tenancy of Sukkhal. However, in the year 1334 fasli 10 plots came to be recorded in the name of Ganesh and area was also substantially changed. Thus, the identity of land in dispute was also changed and co-tenancy cannot be claimed after such a long time. This Court in Jagdamba Singh Vs. Deputy Director of Consolidation, 1985 All LJ 671, held that in order to uphold the claim of co-tenancy rights on the ground of land being ancestral it must be established by the claimant that the holding has come down intact and in identical form that it has not been sub-divided or resettled with one or some of the heirs or with the strangers. Thus, where the disputed holding has not come intact in the identical form and only some of the plots of the holding belonging to common ancestor are found included as in the present disputed holding it would not make it ancestral holding so as to give a share in it to the claimants on that ground nor it would be permissible to pick up those plots from the holding and declare them to be ancestral property and give a share in those plots to the claimant. 17. In view of the aforesaid discussion, findings of fact concurrently recorded by three consolidation authorities that Sukkhal (common ancestor) was ejected by the Zamindar for non-payment of rent and thereafter the property in dispute was settled by the Zamindar in favour of Ganesh, whose name alone was recorded in the khatauni 1334 F with different period of cultivation. The petitioners could not prove that joint family had sufficient nucleus to acquire the property. There was no evidence that Ganesh was karta of the family. Shivnath admitted that partition took place during life time of his father. As such joint acquisition could not be proved. The writ petitions have no merit and are dismissed.