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2014 DIGILAW 3167 (ALL)

PHOOLA DEVI v. DEPUTY DIRECTOR OF CONSOLIDATION

2014-10-16

BALA KRISHNA NARAYANA

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JUDGMENT Hon’ble Bala Krishna Narayana, J.—List has been revised. 2. None appears on behalf of the respondent/Gaon Sabha. 3. Heard learned counsel for the petitioner. 4. The petitioner has filed this writ petition with a prayer to quash the orders dated 29.7.1988 and 12.2.1987 passed by respondent Nos. 1 and 2 respectively (Annexure 2 and 3 to the writ petition.) 5. The dispute involved in the present writ petition pertains to plots of khata No. 71(carved out from old plot No. 55) situate in village Kandahiapur, District Bareilly (hereinafter referred to as the disputed khata). In the basic year the petitioner’s name was duly recorded over the disputed khata. One Chimanlal and two others filed an objection under Section 9A(2) of the U.P.C.H.Act before the Consolidation Officer claiming co-tenancy rights in the disputed khata alleging that Mansukh and Jhau, (father of the Chimanlal and other objectors) were co-tenants of the disputed khata and after the death of Mansukh, who had died issueless, their father Jhau had succeeded to his interest in the disputed khata by virtue of his being the co-sharer of the disputed khata on the date of his death and after the death of Jhao, the names of his sons Chimanlal and others were liable to be recorded as co-tenants of the disputed khata but the name of Nathu Lal, petitioner’s uncle was illegally recorded as so tenant of the disputed khata pursuant to the order of his succession recorded in column 6 of form PA-11 and the basic year entry existing in favour of the petitioner was liable to be modified. 6. Another objection was filed by one Sriram before the C.O. claiming that he had purchased the plots comprising in the disputed khata in a public auction which was held for recovering the outstanding dues against Nathu father of the petitioner. The petitioner contested the claims of the objectors and pleaded that after the death of Mansukh, the original tenure holder who had obtained bhumidhari sanad in respect of his 1/2 share in khata No. 55 from which the disputed khata was subsequently carved out and whereupon his share in the disputed khata No. 55 stood separated from that of the other co-tenant, Jhao grand father of Chimal Lal. After the death of Mansukh, who had died issueless, the name of his brother Nathu Lal, the petitioner’s uncle was dully recorded in the revenue records on the basis of succession, he being his sole legal heir. The Consolidation Officer Bareilly by his order dated 10.2.1987 (Annexure rejected the all objections filed before him by Chaimanlal and others and Sriram and maintained the basic year entry. The C.O. after considering the respective claims of the parties and the evidence adduced by them before him categorically held that Chimanlal and others had failed to prove by any cogent evidence that Mansukh and Jhau, (father of the Chimanlal and others) were co-tenants of the disputed khata on the date of the death of Mansukh and hence their claims that they were liable to be recorded co-tenant of the disputed plot was without any merit. The Consolidation Officer also did not find any merit in the objection of Sriram. Aggrieved from the order dated 10.2.1987 Chimanlal and others and Sriram filed two appeals under Section 11(1) of the C.H.Act before the SOC, Nainital Camp at Bareilly, respondent No. 2 which were numbered 1091 (Chimanlal v. Smt. Phoola Devi and others) and 1085 (Sriram v. Smt. Phoola Devi). Both the appeals were heard together by the respondent No. 2 and dismissed by him by his order dated 12.2.1987 (Annexure-3). The respondent No. 2 however while dismissing the appeals preferred before him by Chimanlal and others and Sriram, by his aforesaid order also ordered for expunging the name of the petitioner recorded in the basic year khatauni as bhumidhar of the disputed khata and directed the disputed khata to be recorded as Navin Parti after illegally holding that the petitioner had no valid title. 7. Against the order dated 12.2.1987 three revisions were preferred before the respondent No. 1, namely, revision No. 192/137 (Chimanlal v. Gaon Sabha), revision No. 202/1369 (Sriram v. Phoola Devi and others) and revision No. 200/1364 (Smt. Phoola Devi v. Chiman Lal). Respondent No. 1 rejected all the three revisions by his order dated 9.7.1988 (Annexure-4) and confirmed the order of the respondent No. 2 dated 12.2.1987. 8. Respondent No. 1 rejected all the three revisions by his order dated 9.7.1988 (Annexure-4) and confirmed the order of the respondent No. 2 dated 12.2.1987. 8. Learned counsel for the petitioner submitted that the respondent No. 2 committed a patent error of law in ordering for expunction of the name of the petitioner recorded in the basic year khatauni and for recording the disputed khata as Navin Pati while dismissing the two appeals preferred by Chiman Lal and others and Sriram before him against the order of the C.O. by which he had maintained the basic year entry and rejected the objections filed before him by Chiman Lal and others and Sriram, merely on the ground that the name of the petitioners’ uncle late Nathu had been illegally recorded as bhumidhar of the disputed khata after the death of the original tenant Mansukh by virtue of his being his heir and upon whom the interest of the deceased tenureholder in the disputed khata had devolved after his death, as the application moved by Nathu earlier under Section 34 of the U.P. L.R. Act for mutation of his name in the record of rights as bhumidhar in place of his deceased brother had been rejected. He next submitted that the respondent No. 2 while taking the view that once the application moved by Nathu for mutation of his name under Section 34 of the U.P.L.R.Act had been rejected, his name could not have been recorded in the record of rights in his place as his heir pursuant to the order of succession of his recorded in column 6 of From PA-11 is totally unsustainable in the eye of law in view of Section 40 A of the U.P.L.R. Act. He next submitted that Section 40(A) of the U.P.L.R. Act clearly provides that no order passed under Sections 33, 35, 39, 40, 41 and 54 shall bar any suit in a competent Court for relief on the basis of a right in a holding and hence the rejection of the application moved by the petitioner’s father under Section 34 of the U.P.L.R.Act under Section 35 of the aforesaid Act did not in any manner effect his right to get his name recorded as bhumidhar of the disputed khata after the death his brother Mansukh, as his undisputed heir. He lastly submitted that the failure of the respondent No. 1 to rectify the error committed by the respondent No. 2, while dismissing the revision preferred by the petitioner before him against the order of the respondent No. 2 and confirming that of the respondent No. 2, has vitiated the order of the respondent No. 1 also. 9. None has appeared on behalf of the respondent/Gaon Sabha to oppose the writ petition. 10. After having heard, learned counsel for the petitioner and perused the impugned orders as well as other material brought on record, I find that there is force in the submissions of the learned counsel for the petitioner and the same are liable to be accepted. 11. There is no dispute about the fact that the petitioner is the niece of the original tenure holder Mansukh. Perusal of the material on record shows that Mansukh and Jhau were not the co-sharers of the disputed khata at the time of death of Mansukh and his khata had stood separated from that of Jhau pursuant to the judgment and decree dated 5.2.1968 passed by Judicial officer and late Mansukh had obtained bhumidhar sanad in respect of his share in the disputed khata (old khata No. 55) which had fallen into his share, by depositing twenty times revenue. After the death of Mansukh, the name of his brother Nathu, real uncle of the petitioner was recorded as his heir and legal representative. The Consolidation Officer had rightly maintained the basic year entry in respect of the disputed khata but the SOC by his order dated 12.2.1987, upon a wholly erroneous premise that the name of the petitioner’s uncle Nathu Lal through whom the petitioner was claiming herself to be the sole tenant of the disputed khata itself could not have been recorded pursuant to the order of his succession recorded in column-6 of Form P.A.-11 after the death of Mansukh as the application moved by the petitioner’s uncle Nathulal under Section 34 of the U.P.L.R. Act for mutation of his name as the bhumidhar of the disputed khata had been rejected under Section 35 of the U.P.L.R. Act. The respondent No. 2 clearly failed to consider Section 40A of U.P.L.R. Act, which unequivocally stipulates that no order passed under Sections 35 and 54 shall bar any suit in a competent Court for the relief on the basis of right in holdings. The respondent No. 2 clearly failed to consider Section 40A of U.P.L.R. Act, which unequivocally stipulates that no order passed under Sections 35 and 54 shall bar any suit in a competent Court for the relief on the basis of right in holdings. Respondent No. 1 also fell into the same error and rejected the revision preferred by the petitioner before him against the order of the respondent No. 2. I have no hesitation in holding that the respondent No. 2 as well as respondent No. 1 both erred in law in holding that since none of the parties including the petitioner had failed to prove that they have any valid title to the khata in dispute, entry existing in her favour in the basic year khatauni was illegal and liable to be expunged and disputed khata which stood vested in Gaon Sabha was liable to be recorded as Navin Parti, although the petitioner had proved by cogent evidence that Mansukh had obtained bhumidhari sanad in respect of the disputed khata by depositing 20 times revenue and he had died leaving behind Nathu Lal his younger brother as his sole heir and legal representative whose name was duly recorded in the record of rights in place of deceased Mansukh pursuant to the order of his succession recorded in column-6 of Form P.A.-11 and after his death the name of the petitioner was recorded in the khatauni by virtue of her being his niece, his sole heir and legal representative and the dismissal of the mutation application moved by late Nathu under Section 34 of the U.P.L.R. Act prior to his name being the recorded in the record of rights pursuant to recording of his succession in column-6 of Form P.A.-11 would not in any manner invalidate the entry made in favour of late Nathu Lal in the record of rights after the death of Mansukh and the subsequent entry existing in favour of the petitioner in the basic year as proceedings under Sections 34 and 35 of the U.P.L.R.Act are summary in nature. 12. In view of the above, the writ petition succeeds and is allowed. The impugned orders dated 29.7.1988 and 12.2.1987 passed by respondent Nos. 1 and 2 respectively are quashed only to the extent same they be direct for expunging the petitioner’s name recorded in the basic year khatauni and for recording the same as Navin Parti. 12. In view of the above, the writ petition succeeds and is allowed. The impugned orders dated 29.7.1988 and 12.2.1987 passed by respondent Nos. 1 and 2 respectively are quashed only to the extent same they be direct for expunging the petitioner’s name recorded in the basic year khatauni and for recording the same as Navin Parti. The order passed by C.O. dated 10.2.1987 is restored. 13. There shall however be no order as to costs.