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2014 DIGILAW 3797 (ALL)

Banshidhar v. Ram Gopal

2014-12-19

RAM SURAT RAM (MAURYA)

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JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Rakesh Kumar Mishra, for the petitioners, Sri A.K. Srivastav, holding brief of Sri N.K. Mishra, for the respondents. The writ petition has been filed against the orders of Tahsildar dated 22.9.2006, Sub-Divisional Officer, dated 27.6.2007 and Commissioner dated 14.6.2009, passed in mutation proceeding under section 34 of U.P. Land Revenue Act, 1901 (hereinafter referred to as the 'Act'). 2. The names of the fathers of petitioners-1 to 3 and respondents-1 to 3 were same namely Bhagauna alias Bhagwandas, with same parentage, caste and address. Both were having land in village Chandauli. In khatauni 1309F-1314F, khata 298 [consisting plots 59 (area 0.337 hectare) and 917 (area 0.639 hectare) total area 0.976 hectare] and khata 299 [consisting plot 1088 (area 1.251 hectare)] of village Chandauli, pargana Charkhari district Mahoba were recorded in the name of Bhagauna alias Bhagwandas. Admittedly father of the petitioners died in the year 2003. Revenue Inspector mutated, names of the petitioners over khata 298 on the basis of report on PA-11-A on 11.1.2005. 3. The petitioners filed an application (registered as Case No. 357) under section 34 of the Act, on 1.8.2005 for mutation of their names over khata 299. Father of respondents-1 to 3 filed another application on 6.9.2005 (registered as Case No. 397) stating therein that in village there was another Bhagauna alias Bhagwandas, who was owner of khata 299. After his death, Revenue Inspector has wrongly mutated the names of the petitioners on khata 298, which was his property. He prayed for deleting the names of the petitioners from khata 298. Both the cases were consolidated by order dated 14.10.2005 and tried by Tahsildar. In the meantime, father of respondents-1 to 3 also died on 17.4.2006 and in his place, names of the respondents-1 to 4 were substituted. Apart from documentary evidence, the petitioners examined Banshidhar, Jamuna and Ram Phal as witnesses. The respondents examined Ram Bishal and Daya Ram as witnesses. Tahsildar, by order dated 22.9.2006, held that the petitioners filed mutation application for recording their names over khata 299 for which the respondents have no objection as such the names of the petitioners were liable to be mutated over khata 299. The respondents examined Ram Bishal and Daya Ram as witnesses. Tahsildar, by order dated 22.9.2006, held that the petitioners filed mutation application for recording their names over khata 299 for which the respondents have no objection as such the names of the petitioners were liable to be mutated over khata 299. In khata 309 of the khatauni 1375 F-1377 F, plots 1357 (area 0.50 acre), 1358 (area 0.65 acre) and 2110 (area 0.90 acre) total area 2.05 acre, were recorded in the name of Bhagauna alias Bhagwandas while in khata 34 in khatauni 1373 F plot 2193/1 (area 4.00 acre) was recorded in the name of Bhagauna alias Bhagwandas. Thus plot 2193/1 belonged to another Bhagauna alias Bhagwandas. But in Jotbahi produced by the petitioners, which was issued on 17.11.1970 corresponding to 1378 F-1380 F, all the aforesaid four plots were mentioned. Thereafter, during consolidation both Bhagauna alias Bhagwandas entered into compromise before Assistant Consolidation Officer in Case No. 3044 on 31.12.1992 and agreed for separation of plots 1357 (area 0.50 acre), 1358 (area 0.65 acre) and 2110 (area 0.90 acre) from plot 2193/1 (area 4.00 acre), on the basis of which the case was decided on 31.12.1992. In this compromise one Bhagauna alias Bhagwandas made his signatures and other marked his thumb impressions. Chak 274 was carved out from three plots 1357, 1358 and 2110 of which new numbers 59 (area 0.337 acre) and 917 (0.639 acre) total area 0.976 were allotted which are recorded in khata 298 while chak 275 was carved out from plot 2193/1, of which new plot 1088 (area 1.251 acre) was allotted, which is recorded in khata 299. An agreement to sell dated 7.1.1993 was executed by Bhagauna alias Bhagwandas in respect of plots 1357 (area 0.50 acre) and 1358 (area 0.65 acre) which was signed. It is admitted to the petitioners that father of the respondents was literate and used to sign. It is also admitted to Banshidhar and his witness Ram Phal that the respondents were in possession of the land of khata 298. Both the parties have filed receipts of land revenue and irrigation dues. So far as mutation of mortgage deed on khata 299 is concerned it is admitted to the respondents that loan was taken by their father but inadvertently mortgage was mutated over khata 299, which was later on deleted on 4.6.2006. Both the parties have filed receipts of land revenue and irrigation dues. So far as mutation of mortgage deed on khata 299 is concerned it is admitted to the respondents that loan was taken by their father but inadvertently mortgage was mutated over khata 299, which was later on deleted on 4.6.2006. On these findings, the case of the petitioners that they were owner of both the khatas was not accepted and it was held that the respondents were owner of khata 298. Accordingly names of the petitioners were directed to be mutated over khata 299 and the names of the respondents were directed to be mutated over khata 298. The petitioners filed an appeal (registered as Appeal No. 1 of 2006-07) from the aforesaid order which was dismissed by Sub-Divisional Officer by order dated 27.6.2007. The petitioners filed a revision (registered as Revision No. 269 of 2006-07) which was dismissed by the Commissioner by order dated 19.6.2009. Hence this writ petition has been filed. 4. The Counsel for the petitioners submitted that in the application filed by the father of the respondents, no pleading was raised in respect of compromise before Assistant Consolidation Officer and order passed on it. Alleged order of Assistant Consolidation Officer dated 31.12.1992 in Case No. 3044 is a forged and fabricated order. It has never seen the light of day till the death of the father of the petitioners. Revenue Courts have illegally relied upon it. Entry of Revenue Inspector dated 11.1.2005 on the basis of PA-11-A was genuine entry it was not liable to be deleted. Land of both the khatas were recorded in Jotbahi of the father of the petitioners issued on 11.10.1970, on which photograph of their father was affixed and was admitted by Ram Bishal. In consolidation no objection was filed by father of the respondents and his claim was barred under section 49 of U.P. Consolidation of Holdings Act, 1953. Statement of the witnesses have been misread and misinterpreted. He submits that impugned orders are illegal and are liable to be set aside. 5. I have considered the arguments of the Counsel for the parties and examined the record. Statement of the witnesses have been misread and misinterpreted. He submits that impugned orders are illegal and are liable to be set aside. 5. I have considered the arguments of the Counsel for the parties and examined the record. The arguments of the Counsel for the petitioners that father of the respondents did not file any objection during consolidation and his claim was barred under section 49 of U.P. Consolidation of Holdings Act, 1953 is not liable to be accepted. Admittedly plots 1357, 1358, 2110 and 2193/1 were recorded in Jotbati of the year 1970 in the name of the father of the petitioners. In consolidation two chaks were carved out from these four plots. Chak 274 was carved out from plots 1357, 1358 and 2110 of which new numbers 59 (area 0.337 acre) and 917 (0.639 acre) total area 0.976 was allotted which are recorded in khata 298 while chak 275 was carved out from plot 2193/1, of which new plot 1088 (area 1.251 acre) was allotted, which is recorded in khata 299. The land of both khatas 298 and 299 were recorded in the name of Bhagauna alias Bhagwandas which was common name of the father of the petitioners and the respondents both. Thus it is proved that during consolidation one chak is allotted to one Bhagauna alias Bhagwandas and other chak was allotted in the name of other Bhagauna alias Bhagwandas. As one chak was recorded in the name of Bhagauna alias Bhagwandas as such claim of the father of the respondents cannot be said to be barred under section 49 of U.P. Consolidation of Holdings Act, 1953 as according to them chak 274 belonged to them of which new khata 298 was made. 6. Banshidhar and Ram Phal in their statements admitted possession of the respondents over the land of khata 298. However, they have stated that the respondents took forcible possession during pendency of the litigation. But no report either before the Revenue Court or before police was made in respect of forcible possession. Thus findings of the possession of the respondents recorded by the Revenue Court does not suffer from any illegality. If the land of khata 298 did not belong to the respondents then no question of their possession arises at all. 7. But no report either before the Revenue Court or before police was made in respect of forcible possession. Thus findings of the possession of the respondents recorded by the Revenue Court does not suffer from any illegality. If the land of khata 298 did not belong to the respondents then no question of their possession arises at all. 7. In paragraph 7 of the Supplementary Affidavit, it has been admitted that father of the respondents was literate and used to make signatures. Tahsildar found that Bhagauna alias Bhagwandas executed an agreement to sell dated 7.1.1993 in respect of 1357 (area 0.50 acre) and 1358 (area 0.65 acre) which was signed. These old plots came to be recorded in khata 298 after consolidation. If the land in dispute did not belong to the father of the respondents then no such agreement to sell could have been executed. 8. So far as mutation of mortgage over khata 299 is concerned, admittedly land of khata 299 does not belong to the respondents and father of the respondents took loan from the Bank. Tahsildar found that due to confusion of the similar names of both the persons mutation was recorded over khata 299, which was later on deleted. Valid reason is given by Tahsildar in this respect as even according to the petitioners also land of khata 299 belonged to them. 9. The arguments that there being no pleadings in respect of compromise before Assistant Consolidation Officer and order passed on it as such no reliance can be placed on it and alleged order of Assistant Consolidation Officer dated 31.12.1992 in Case No. 3044 is a forged and fabricated order is also not accepted. Main issue between the parties was as to whether land of both khatas were land of the father of the petitioners or land of khata 298 was of the father of the respondents. Thus both the parties adduced evidence for proving their case. Revenue Courts relied upon the evidence of the respondents which was fully corroborated with the fact that during consolidation two separate chaks were carved out and father of the respondents executed an agreement to sell in respect of the land of one chak. The Courts below have not committed any illegality in relying upon the order of Assistant Consolidation Officer, which was a public document. The petitioners failed to prove that it was a fabricated document. The Courts below have not committed any illegality in relying upon the order of Assistant Consolidation Officer, which was a public document. The petitioners failed to prove that it was a fabricated document. The parties can adduce evidence to prove/disprove a fact in issue. Findings of the facts concurrently recorded by the Courts below do not suffer from any illegality and no interference is required by this Court in exercise of writ jurisdiction. In view of the aforesaid discussions, the writ petition has no merit and is dismissed.