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2014 DIGILAW 3777 (ALL)

Panna Lal v. D. D. C.

2014-12-18

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Anil Kumar Aditya, for the petitioners-review applicants. The writ petition was filed against the orders of Settlement Officer Consolidation, dated 30.11.2012 and Deputy Director of Consolidation dated 22.6.2013, in title proceedings of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). After hearing the parties, writ petition was dismissal by judgment dated 24.7.2013. Now the petitioners have filed this application for review of the judgment. 2. The dispute relates to plots 663 (area 0.90 acre) and 664 (area 0.15 acre) of village Khanawan, pargana Dehat Amanat, district Varanasi, which were recorded in basic consolidation year khata 71 in the names of Naurangi widow Daya Ram and Nikhiddi son of Kharpattu. During partal, the petitioners and Lallu and Bahadur sons of Raja claimed co-tenancy in the land in dispute as such a dispute has been noted in this respect in CH Form-5. Nikhiddi (respondent-3) filed an objection under section 9 of the Act, stating therein that the land in dispute were jointly acquired by Kharpattu son of Devan and Ganesh son of Sewan from the then zamindar on patta on 19.8.1948. Their names were also recorded in the khatauni 1356-F, 1360-F and 1362-F. After death of Ganesh, name of his daughter Smt Naurangi was mutated and after death of Kharpattu, name of his son Nikhiddi was mutated. They alone remained in possession over the land in dispute. The petitioners and Lallu and Bahadur sons of Raja were not the co-sharers in the land in dispute. 3. The case was tried by Consolidation Officer. The petitioners examined Panna, Bahadur and Anil Kumar son of Uma Shanakar. They also filed a copy of sale-deed dated 13.5.1964, showing that the petitioners and Kharpattu had jointly purchased the land as they were living as the members of Joint Hindu Family. They also filed khataunies of khatas 9, 41, 88 and 190 of the village, in order to show that they were jointly recorded over the various khatas. Respondents examined Paras Nath and Smt. Naurangi and filed original patta dated 19.8.1948 and khatauni 1356-F and 1360-F. The Consolidation Officer, by his order dated 17.12.2009 held that in khatauni 1359-F name of Basantu was also recorded over the land in dispute along with the names of Ganesh and Kharpattu with period of cultivation of 4 years. Respondents examined Paras Nath and Smt. Naurangi and filed original patta dated 19.8.1948 and khatauni 1356-F and 1360-F. The Consolidation Officer, by his order dated 17.12.2009 held that in khatauni 1359-F name of Basantu was also recorded over the land in dispute along with the names of Ganesh and Kharpattu with period of cultivation of 4 years. Smt. Naurangi, in her statement had admitted possession of Panna over the land in dispute. From the sale-deed dated 13.5.1964 and khataunis of khatas 9, 41, 88 and 190, it was proved that family of the petitioners and Kharpattu and Ganesh were living jointly. Accordingly it was held that as the land in dispute was acquired during jointness of the family as such all the branches have share in it. On these finding he directed for recording the names of the petitioners jointly over 1/4th share of the land in dispute. Nikhiddi filed an application for recall of the order dated 17.12.2009, which was dismissed by order dated 20.6.2012. 4. Nikhiddi and Smt. Naurangi filed two time barred appeals from the orders dated 17.12.2009 and 20.6.2012, along with delay condonation application. Both the appeals were consolidated and heard by Settlement Officer Consolidation, who by order dated 30.11.2012, held that land in dispute was acquired by Kharpattu son of Devan and Ganesh son of Sewan from the then zamindar through patta dated 19.8.1948. Their names were also recorded in the khatauni 1356-F as hereditary tenant. In khatauni 1360-F and basic year names of Ganesh and Kharpattu alone were recorded. Thus it is proved that land in dispute was not an ancestral property but self acquired property of Ganesh and Kharpattu alone and other members of the family will have no share in it. On these findings the appeals were allowed and orders of Consolidation Officer were set aside and basic year entry was maintained. The petitioners filed a revision against the aforesaid order. The revision was heard by Deputy Director of Consolidation, who by order dated 22.6.2013 held that khatauni 1359-F filed by the petitioners was a forged document and no reliance can be placed on it. The petitioners could not adduce any evidence to prove their possession over the land in dispute. On these findings the revision of the petitioners was dismissed. Hence this writ petition was filed, which was dismissed by order dated 24.7.2013. Now the petitioners have filed this review application. The petitioners could not adduce any evidence to prove their possession over the land in dispute. On these findings the revision of the petitioners was dismissed. Hence this writ petition was filed, which was dismissed by order dated 24.7.2013. Now the petitioners have filed this review application. 5. The Counsel for the petitioners submitted that from the mass of documents, the petitioners proved that family of Ganesh, Raja, Kharpattu and Basantu remained joint up to 1964. Land in dispute was acquired during jointness of the family, in the names of Kharpattu as representative of his branch and Ganesh as representative of his branch as they were elders in their branch. Smt. Naurangi in her statement has admitted Panna being through out in possession of the land in dispute. Smt. Naurangi neither filed recall application nor appeals from the orders of Consolidation Officer but by committing forgery the appeals were filed in her name also. Smt. Naurangi filed an affidavit denying filing of the appeals. During consolidation, the parties settled their dispute, which was accepted by Assistant Consolidation Officer. Consolidation Officer, specifically relied upon the admission of Smt. Naurangi but it has been illegally ignored by Settlement Officer Consolidation and Deputy Director of Consolidation. Impugned orders are illegal and liable to be set aside but the writ petition was dismissed. 6. I have considered the arguments of the Counsel for the review applicants and examined the record. It is well settlement that there is no prohibition for a member of joint Hindu family from acquiring property separately. Supreme Court in Achuthan Nair v. Chinnammu Amma AIR 1966 SC 410, 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. This is a well-settled proposition of law. In G. Narayana Raju v. G. Chamraju (1968) 3 SCR 464 , it was held that it is well established that there is no presumption under Hindu law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate. The question therefore whether the business was begun or carried on with the assistance of joint family property or joint family funds or as a family business is a question of fact. 7. In this case, theory of acquisition in the name of karta of the family does not arise as the patta was granted in the names of two members of the family. Thus the burden was upon the petitioners to prove that the land in dispute was acquired from joint family fund. The petitioner could not adduce any evidence that the land in dispute was acquired from joint family fund. The petitioners in order to prove joint acquisition got the name of Basantu inserted in khatauni 1359-F, which has been held as a fabricated documents as there was nothing on record to show that Basantu was ever in possession of the land in dispute in 1359-F and his name was neither recorded prior to 1359-F or thereafter. Findings of fact in this respect recorded by Deputy Director of Consolidation does not suffer from any illegality. 8. Sole basis of the petitioners is the alleged admission of Smt. Naurangi in her statement. In her statement, Smt. Naurangi has stated that the land in dispute was jointly acquired by Ganesh and Kharpattu, which was cultivated by them. Now she and Panna were cultivating. She had not stated about possession of Nikhiddi or Lallu and Bahadur although Nikhiddi was admittedly co-sharer. No reliance can be placed on her statement. The petitioners are claiming share in the 1/2 share of Nikhiddi as such any admission of Smt. Naurangi was not binding upon Nikhiddi. Now she and Panna were cultivating. She had not stated about possession of Nikhiddi or Lallu and Bahadur although Nikhiddi was admittedly co-sharer. No reliance can be placed on her statement. The petitioners are claiming share in the 1/2 share of Nikhiddi as such any admission of Smt. Naurangi was not binding upon Nikhiddi. Similarly even if it is taken that Smt. Naurangi had not filed appeal then also, the petitioners will not get any benefit as benefit will go to Lallu and Bahadur, who had not challenged the order of Appellate Court. Statement of Smt. Naurangi was not corroborated by any other evidence to prove possession of Panna. Thus it has been rightly ignored by respondents-1 and 2. 9. So far as alleged settlement is concerned, the petitioners have not placed reliance on any such settlement before the consolidation authorities. Such a plea cannot be entertained in the writ petition. In view of the aforesaid discussions, there is no ground to review the judgment dated 24.7.2013. The review application has no merit and is dismissed.