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2015 DIGILAW 1295 (ALL)

Parasu Etc. v. D. D. C.

2015-05-19

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra, J. 1. Heard learned Counsel for the petitioner and Shri Bharat Singh holding brief of Shri Neeraj Tripathi for the respondent No. 4. The writ petition arises out of an objection under section 9-A(2) of the Consolidation of Holdings Act filed by respondent No. 4 and is directed against the orders dated 14.2.1986, 31.10.1979 and 19.10.1971 passed by the respondent Nos. 1, 2 and 3, respectively. 2. Initially the dispute was with regard to several khatas, namely, 142, 271, 143, 144 and 270 regarding land situated in village Dhanauti Kalan, District Deoria. 3. In the basic year record the khata Nos. 142 and 271 were recorded solely in the name of petitioner, Amarapal. The khata No. 143 was jointly recorded in the name of Amarpal and Umashankar, contesting respondent No. 4 and khata Nos. 144 and 270 were recorded in the name of respondent No. 4, Umashankar and Smt. Piyari. 4. An objection under section9-A(2) was filed by the respondent No. 4, Umashankar claiming exclusive title of all the plots of the aforesaid khatas in question. 5. As regards the other objections, the same are not relevant for the purposes of the instant writ petition and therefore the same are not being alluded to. 6. The case of the objector Uma Shanker was that the property in question was admittedly recorded in the name of Janakraji Kuwari, who was the widow of Thapsi Sahi and she had one and half share therein. The other half belongs to the objector since he was from the other branch of the same family. It was therefore the case of the objector that since Janakraji died issueless, he being co-tenure holder inherited her share and became the exclusive owner of the khatas in question. 7. The petitioner on the other hand claimed to be the daughter's son of Janakraji and the claim was also based on a gift deed said to have been executed by Janakraji on 29.4.1954. It is not in dispute that this gift deed was a registered document. 8. The Consolidation Officer (in short the CO) by his order dated 19.10.1977 accepted the gift deed. He further recorded that the khatas in question consisted of 28 plots, 19 whereof were bhumidhari plots and the remaining 4 plots were sirdari plots. He therefore held that no gift deed as regards the 9 sirdari plots could have been executed. 8. The Consolidation Officer (in short the CO) by his order dated 19.10.1977 accepted the gift deed. He further recorded that the khatas in question consisted of 28 plots, 19 whereof were bhumidhari plots and the remaining 4 plots were sirdari plots. He therefore held that no gift deed as regards the 9 sirdari plots could have been executed. The claim of the petitioner based on the gift deed was therefore accepted regarding the 19 bhumidhari plots. 9. The respondent No. 4 filed an appeal before the Settlement Officer, Consolidation (in short the SOC) who, by his order dated 13.10.1979, allowed the appeal and directed that the name of the petitioner be expunged that of the respondent No. 4 be recorded. This order has been affirmed in revision by the Deputy Director of Consolidation (in short the DDC) vide order dated 14.2.1986. Hence this writ petition. 10. It has been submitted by the learned Counsel for the petitioner that both the SOC and the DDC recorded findings, accepting the registered gift deed in his favour. The SOC recorded that the document in question was a registered one, had been proved by the marginal witnesses and that the gift deed was valid only as regards 19 bhumidaris plots and not as regards the 9 sirdari plots. It was also recorded that the gift deed mentions the entire area of the plots, yet the petitioner is only entitled to half share in these khatas, which was the shared of the donor therein. 11. The SOC further recorded that the contention of the respondent the that the petitioner was not son of Piyari but the son of her sister, was of no consequence in view of the gift deed in his favour. 12. Learned Counsel for the petitioner therefore submits that the petitioner was entitled to be held the owner of the half share of Janakraji since the gift deed in his favour stood proved and yet the Courts below have directed that the name of the petitioner be expunged from the khatas in question. This was not possible once the gift deed itself stood proved to be in accordance with the law. 13. This was not possible once the gift deed itself stood proved to be in accordance with the law. 13. The sole question, therefore, for consideration is whether the appeal could have been allowed and the order of the CO, set aside, one the Courts below accepted the gift deed to the extent of the donors 1/2 share in the 19 bhumidhari plots, which were subject-matter of the gift. 14. Learned Counsel for the respondent was called upon to address the Court on this issue. 15. Learned Counsel for the respondent No. 4 has tried to justify the impugned order but has not been able to point out as to why the Courts below after holding the gift deed executed by Janakraji in favour of the petitioner to be valid, failed to grant relief to the petitioner. It appears, also on the basis of the finding recorded by the appellate and revisional Courts that the order passed by the CO as regards the claim of the petitioner based on the registered gift deed was required to be affirmed. Therefore, the CO had rightly decided that the petitioner, Amarpal was entitled to the share of Janakraji as regards the 19 bhumadharis plots mentioned in the registered gift deed. The CO was also justified in railing that as regards 9 sirdari plots, the gift deed was to be discarded as no gift deed would have been executed regarding sirdari plots. 16. Accordingly and for reasons given above, I allow the writ petition No. 9825 of 1986 and set aside the orders dated 14.2.1986 and 13.10.1979 passed by the DDC and the SOC and affirm the order passed by the CO. 17. The connected writ petition No. 6904 of 1986 is for all practical purposes, a consequential writ petition. 18. It appears that during the pendency of the above noted litigation, the subject in writ petition No. 9825 of 1986 Amarpal the petitioner therein executed a sale-deed in favour of the petitioners in this writ petition No. 6904 of 1986. 19. On the basis of the said sale deed, the vendee-petitioners applied for mutation under section 12 of the Consolidation of Holdings Act which application was allowed and the purchaser was ordered to be mutated. Subsequently this order was set aside on an appeal filed by Umashankar which order was affirmed in revision. 19. On the basis of the said sale deed, the vendee-petitioners applied for mutation under section 12 of the Consolidation of Holdings Act which application was allowed and the purchaser was ordered to be mutated. Subsequently this order was set aside on an appeal filed by Umashankar which order was affirmed in revision. This petition is therefore directed against the appellate and revisional orders refusing mutation on the basis of the registered sale deed executed by the Amarpal. 20. Since the leading writ petition has already been allowed and the order passed by the CO therein has been affirmed whereby Amarpal, the vendor of the petitioner in the instant writ petition has been held to be the owner of 18 bhumidharis plots in question and petitioner's herein claim on the basis of a registered sale-deed of certain area of the same plots, this writ petition is also liable to be allowed. 21. Accordingly the orders passed by the SOC dated 30.12.1980 and the DDC dated 14.2.1986 are set aside. Both these writ petitions are accordingly allowed. ………………