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2014 DIGILAW 1295 (ALL)

Trilok v. D. D. C.

2014-04-22

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri M.D. Singh Shekhar, Senior Advocate assisted by Sri. V.K. Singh, for the petitioners and Sri R.N. Singh, Senior Advocate assisted by Sri Ajay Kumar Singh, for the contesting respondents. The writ petition has been filed for quashing the orders of Consolidation Officer dated 26.7.2013, Settlement Officer Consolidation dated 21.11.2013 and Deputy Director of Consolidation dated 16.1.2014, arising out of title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the 'Act'). 2. The dispute relates to properties of khatas 106, 115-Ba, 167-Da, 267, 268, 327 and 329 of village Chandauli, pargana Majhwar district Chandauli. In basic consolidation records, the land in dispute were recorded in the names of Trilok, Lok Nath sons of Shiv Prasad and Bindheswari son of Kaushal. Trilok and Lok Nath (now represented by the petitioners) filed separate objections (registered as Case Nos. 7892, 7898, 8017, 8340, 8553 and 8554) under section 9A(2) of the Act, for recording their names as the heirs of Bindeshwari. The Consolidation Officer by his orders dated 22.1.1970 passed in Case No. 7892 and 7898, 28.1.1970 passed in Case No. 8340, 18.2.1970 passed in Case No. 8553, 20.2.1970 passed in Case No. 8017 and 1.5.1970 passed in Case No. 8554 allowed the objections of the petitioners and recorded their names as the heirs of Bindheswari. 3. Smt. Mangala (now represented by respondent-4) filed five separate appeals from the aforesaid orders on 30.1.1990 along with delay condonation applications. Settlement Officer Consolidation by order dated 4.4.1991 condoned the delay in filing the appeals. The petitioners filed revisions against the order dated 4.4.1991, which was dismissed by order dated 2.5.2000. The petitioners filed Writ B No. 24826 of 2000 from the aforesaid order which was dismissed by this Court by order dated 22.5.2000. Thereafter the appeals were heard by Assistant Settlement Officer Consolidation, who by order dated 4.4.2003 allowed the appeals and remanded the matter to Consolidation Officer for framing issues, recording evidence of the parties and decide the cases on merit. 4. Smt. Mangala claimed herself to be daughter of Bindheshwari, who died on 10.1.1961 and stated that after death of Bindheswari, she had inherited his 1/2 share in the land in dispute. The petitioners contested the case on the ground that Bindheshwari was unmarried. Smt. Managla was not his daughter. 4. Smt. Mangala claimed herself to be daughter of Bindheshwari, who died on 10.1.1961 and stated that after death of Bindheswari, she had inherited his 1/2 share in the land in dispute. The petitioners contested the case on the ground that Bindheshwari was unmarried. Smt. Managla was not his daughter. After death of Bindeshwari, his share was inherited by them, who were sons of the brother of Bindheshwari. Before the Consolidation Officer, apart from documentary evidence, Smt. Mangala examined herself and one witness namely Shambhu Sharan Tiwari son of Lalji Tiwari, resident of village Kawar, tahsil and district Bhabhuwa (Bihar). The petitioners apart from documentary evidence examined Lok Nath Tiwari, Sahdev Tiwari and Kapil Dev Tiwari as witnesses. The case was heard by Consolidation Officer, who by order dated 26.7.2013 held that copy of Kutumb Register as produced by Smt. Mangala of village Chandauli, block Kesavpur Madai, tahsil Chandauli, district Varanasi shows that her name was mentioned in it as daughter of Bindeshwari, which is fully corroborated with her oral statement. The report on the copy Kutumb Register filed by the petitioners relating to house No. 24 of village Keshavpur, Kapil Dev Tiwari in his statement admitted that there were two villages, namely Keshavpur and Keshavpur Madai. Village Keshavpur Madai was brought under municipal limits of Chandauli municipality. As such on the basis of report on the copy Kutumb Register filed by the petitioners, Copy of Kutumb Register filed by Smt. Mangala was not proved to be forged document. Copy of certificate issued by Smt. Dulari, Mukhiya, was not a copy of public document and was not admissible in evidence. Apart from it, the conduct of the parties that Trilok Tiwari signed the sale-deed dated 13.11.1980 executed by Ram Rup Yadav in favour of Smt. Mangala of the land of Chandauli and sale-deed dated 1.2.1986 executed by Ram Briksh in favour of Virendra Tiwari of the land of village Amerh, district Rohtas as witness shows that Smt. Mangala was his cousin sister. On these findings it was held that Smt. Mangala was daughter of Bindheshwari as she died in the meantime and Virendra Tiwari was substituted as her heir as such his name was directed to be recorded over the land in dispute as an heir of Bindeshwari. 5. The petitioners filed an appeal (registered as Appeal No. 229 of 2013-14) from the aforesaid order. 5. The petitioners filed an appeal (registered as Appeal No. 229 of 2013-14) from the aforesaid order. The appeal was heard by Settlement Officer Consolidation, who by order dated 21.11.2013, held that Smt. Mangala in her statement has stated that Smt. Pyari was his mother, who was married to Bindheswari. The petitioners cross-examined Smt. Mangala and suggested her that her mother Smt. Pyari was married to Ram Autar Tiwari of village Kawar district Bhabhua and she was daughter of Ram Autar Tiwari and came along with her mother to the house of Bindeshwari as after becoming widow, Smt. Pyari began to live with Bindeshwari as his kept. Smt. Mangala denied these allegations and stated that she was born in the house of Bindeshwari Tiwari at Chandauli. From this suggestion, an inference was drawn that the petitioners could not deny the fact that Smt. Mangala was living with Bindeshwari as his daughter. Burden was upon the petitioners to prove that Smt. Mangala was daughter of Ram Autar Tiwari but they failed to prove it. Singing of the sale-deed of the year 1986 at district Rohtas as witness by Trilok shows that they were in close relation. The petitioners have filed various private documents, which were not admissible in evidence. On these findings it was held that Consolidation Officer rightly found Smt. Mangala was daughter of Bindheswari and the appeal was dismissed. 6. The petitioners filed a revision (registered as Revision No. 1539) from the aforesaid order. The revision was heard by Deputy Director of Consolidation, who by order dated 16.1.2014 held that as according to the statement of Smt. Mangala, Smt Pyari died in 1945-46 as such her name was rightly not recorded in Kutumb Register of the year 1960. The report on the copy Kutumb Register filed by the petitioners relating to house No. 24 of village Keshavpur, Kapil Dev Tiwari in his statement admitted that there were two villages, namely Keshavpur and Keshavpur Madai. Village Keshavpur Madai was brought under municipal limits of Chandauli municipality. As such on the basis of copy Kutumb Register filed by the petitioners, Copy of Kutumb Register filed by Smt. Mangala was not proved to be forged document. Village Keshavpur Madai was brought under municipal limits of Chandauli municipality. As such on the basis of copy Kutumb Register filed by the petitioners, Copy of Kutumb Register filed by Smt. Mangala was not proved to be forged document. The petitioners tried to say that Kutumb Register filed by Smt. Mangala only names of five persons were recorded and the names of other family members were not recorded but they could not adduce any evidence to show that Trilok was married in the year 1960. Certified copy of Kutumb Register was admissible in evidence without any formal proof. Singing of the sale-deed of the year 1986 at district Rohtas as witness by Trilok shows that they were in close relation. On these findings revision was dismissed. Hence this writ petition has been filed. 7. The Counsel for the petitioners submitted that the petitioners obtained sale-deed dated 20.7.1953 and 23.2.1963, from their own income. The consolidation authorities have illegally gave 1/2 share to Smt. Mangala in these land also. There is no evidence to prove that Smt. Pyari was ever married to Bindeshwari, as such, question of Smt. Mangala being daughter of Smt. Bindeshwari does not arise. Copy of Kutumb Register produced by Smt. Mangala was a forged document inasmuch as her age was shown as 24 years in it and in 1960, it was not possible that a Brahmin daughter to remain unmarried up to the age of 24 years. Trilok was elder to Lok Nath although the name of wife of Lok Nath was mentioned in it but the name of wife of Trilok was not mentioned in it. Bindeshwari was eldest but the name of Trilok was shown as head of the family. The petitioners, on the photostat copy of the Kutumb Register filed by Smt. Mangala took information regarding its genuineness on which a report was made that in house No. 24 family of Babu Lal son of Paltu Ram has been mentioned. Apart from this document, there was no other document to prove that Smt. Mangala was daughter of Bindeshwari. Bindeshwari died on 10.1.1961. Smt. Mangala for the first tune filed the appeals on 30.1.1990. She never filed any application for mutation of her name earlier. From this fact itself it was proved that she was an imposter. Apart from this document, there was no other document to prove that Smt. Mangala was daughter of Bindeshwari. Bindeshwari died on 10.1.1961. Smt. Mangala for the first tune filed the appeals on 30.1.1990. She never filed any application for mutation of her name earlier. From this fact itself it was proved that she was an imposter. From the sale-deed dated 13.11.1980, it is proved that she for the first time came to Chandauli and purchased land for raising construction over it and after raising constructions, she began to reside in it as such her name came to be recorded in the Municipal Record as well as Electoral Roll. Prior to 1980, she had no connection with Chandauli. Her witness Shambhu Sharan Tiwari was also resident of village Kawar, district Bhabhua. 8. I have considered the arguments of the Counsel for the parties and examined the record. Oral evidence of Smt. Mangala was admissible under section 50 of the Evidence Act, 1872, in relation to her parentage. She has fully proved her parentage. The petitioners cross examined Smt. Mangala and suggested her that her mother Smt. Pyari was married to Ram Autar Tiwari of village Kawar district Bhabhua and she was daughter of Ram Autar Tiwari and came along with her mother to the house of Bindeshwari as after becoming widow, Smt. Pyari had began to live with Bindeshwari as his kept. Smt. Mangala denied these allegations and stated that she was born in the house of Bindeshwari Tiwari at Chandauli. From this suggestion, an inference was drawn that the petitioners could not deny the fact that Smt. Mangala was living with Bindeshwari. As the petitioners took the case that Smt. Pyari was married to Ram Autar Tiwari burden was upon the petitioners to prove that Smt. Mangala was daughter of Ram Autar Tiwari but they failed to prove it. 9. Further conduct of the parties were also found relevant to prove their near relation. Trilok signed two sale-deeds 13.11.1980 executed by Ram Rup Yadav in favour of Smt. Mangala of the land of Chandauli and sale-deed dated 1.2.1986 executed by Ram Briksh in favour of Virendra Tiwari. Trilok in his statement has stated that on the asking of Ram Rup Yadav, he had signed as witness but he could not give any explanation of signing the sale-deed dated 1.2.1986, in respect of the property of district Rohtas. Trilok in his statement has stated that on the asking of Ram Rup Yadav, he had signed as witness but he could not give any explanation of signing the sale-deed dated 1.2.1986, in respect of the property of district Rohtas. On these grounds also inference regarding near relation was drawn. The reasons given by the consolidation authorities are the valid reasons. 10. The evidences filed by the petitioners are not the certified copies of Public Documents but the certificates issued by the individual persons and were not admissible in evidence. On the basis of alleged report of Gram Vikas Adhikari, the petitioners tried to disprove the certified copy of Kutumb Register of Smt. Mangala but the petitioners did not file any application for summoning the original Kutumb Register. On the basis of statement of Kapil Dev Tiwari, witness of the petitioners, the consolidation authorities found that there were two villages, namely Keshavpur and Keshavpur Madai. Village Keshavpur Madai was brought under municipal limits of Chandauli municipality. As such on the basis of report of the copy Kutumb Register filed by the petitioners, copy of Kutumb Register filed by Smt. Mangala was not proved to be forged document. 11. Supreme Court in Sawarn Singh v. State of Punjab , AIR 1976 SC 232 , held that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. Same view was taken in Shamshad Ahmad v. Tilak Raj Bajaj, (2008) 9 SCC 1 . 12. So far as the arguments of the Counsel for the petitioners that the consolidation authorities have given 1/2 share to respondent-4 in the land acquired by the petitioners through sale-deed dated 20.7.1953 and 23.2.1963, from their own income, is concerned. Deputy Director of Consolidation found that dispute was in respect of khatas 106, 115-Ba, 167-Da, 267, 327 and 329. The petitioners have not stated that in which khata the land obtained by them through sale-deeds dated 20.7.1953 and 23.2.1963 were recorded. The arguments in this respect has been raised without any substantive pleading and evidence in support of it. As such, the arguments in this respect cannot be examined. The petitioners have not stated that in which khata the land obtained by them through sale-deeds dated 20.7.1953 and 23.2.1963 were recorded. The arguments in this respect has been raised without any substantive pleading and evidence in support of it. As such, the arguments in this respect cannot be examined. So far as the arguments that Smt. Mangala raised claim after about 30 years of the death of Bindeshwari, is concerned, delay in filing the appeals has already been condoned and writ petition filed by the petitioners has been dismissed. In the case of co-tenancy, no right can accrue due to delay. As such delay committed by Smt. Mangala in filing her claim was not fatal. In view of the aforesaid discussion, the writ petition has no merit and is dismissed.