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2015 DIGILAW 1340 (ALL)

Moti v. Dy. Director of Consolidation, Varanasi

2015-05-22

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT : Ram Surat Ram (Maurya), J. Heard Sri Ram Niwas Singh, for the petitioner and Sri Namwar Singh, for respondents-4 to 8 and Sri A.K. Singh, for respondent-16. 2. The writ petition has been filed against the orders of Consolidation Officer dated 14.08.2012, Settlement Officer Consolidation dated 12.11.2013 and Deputy Director of Consolidation dated 31.03.2015 passed in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 3. The dispute relates to land of basic consolidation year khata 154 (consisting plots 299, 309, 312, 314, 315, 317, 318 and 319) (total area 2.73 acre) of village Parmanandpur, pargana Shivpur, district Varanasi. In basic consolation year, khata in dispute was recorded in the names of Moti (the petitioner), Shyam Lal, Ram Lal, Shiv Murat, Dashrath, Punwasi sons of Bulli (now respondents-4 to 8). Initially the matter was compromised before Assistant Consolidation Officer, between the recorded tenure holders and their share in the disputed land was decided, by order dated 01.04.1994. The petitioner filed an appeal from the aforesaid order, which was dismissed, by order dated 19.07.1996. Then the petitioner filed a revision, which was allowed by Deputy Director of Consolidation by order dated 17.01.1998 and order of Assistant Consolidation Officer dated 01.04.1994 was set aside and the matter was remanded to Consolidation Officer for deciding the case afresh on merit after giving opportunity of hearing to the parties. 4. After remand, the petitioner filed an objection for deleting names of Shyam Lal, Ram Lal, Shiv Murat, Dashrath, Punwasi sons of Bulli from khata in dispute. According to the petitioner, the land in dispute was his ancestral property of the time of Bachcha @ Sikhari, who had one son Lakshman. Laskman had two sons Munni Lal and Gajadhar. Munni Lal had one son Muse, the father of the petitioner. Gajadhar had one son Babu Nandan, who died issueless and his share was inherited by his mother Smt. Gangi and she was inherited by Muse. Ram Lal and others (Respondents-2nd Set) filed their counter objection and contested the matter and claimed that land in dispute was ancestral property in which they had ½ share. It has been stated by Respondents-2nd Set that Bachcha alias Sikhari had two sons Lakshman and Devi Dayal. Lakshan had two sons Munni Lal and Gajadhar. Munni Lal had two sons Muse and Kalika. The petitioner was son of Muse. It has been stated by Respondents-2nd Set that Bachcha alias Sikhari had two sons Lakshman and Devi Dayal. Lakshan had two sons Munni Lal and Gajadhar. Munni Lal had two sons Muse and Kalika. The petitioner was son of Muse. Birjoo and Chandrabali (respondents-9 and 10) are sons of Kalika. Gajadhar son of Lakshman had two sons Babu Nandan and Ayodhya. Respondents-11 to 22 are their descendants. Devi Dayal had one son Mahadev. Bulli (father of Shyam Lal and others) was son of Mahadev. Another objection was filed by Babu Nandan and others, Respondents-3rd Set who claimed that their branch together with the petitioner had ½ share while remaining ½ share belonged to Respondent 2nd Set. According to them Gajadhar had two sons namely Babu Nandan and Ayodhya. Ayodhya is now represented by respondent-17 to 22. Babu Nandan had two sons Subhash (respondent-16) and Lalji (now represented by respondents-11 to 15). 5. Consolidation Officer consolidated the objections and tried together. Apart from documentary evidence, the petitioner examined himself Moti and one Nihore of the village. Respondents-2nd Set apart from documentary evidence, examined Punwasi (respondent-6) and Gulab. Respondents-3rd Set apart from documentary evidence examined Amar Nath (respondent-17) and Lal Chandra. Consolation Officer, by order dated 14.08.2012 held that Bachcha @ Sikhari had two sons Lakshman and Devi Dayal, which was admitted by Moti in his cross examination. Branch of Devi Dayal was recorded over the land in dispute since 1334 F. However claim of Respondents-3rd Set was not found to be proved. On these findings, objection of Moti, for deleting names of respondents-2nd Set was dismissed. Objection of Respondents-3rd Set was also dismissed. Share of the petitioner was held as 1/2 and remaining ½ share was of Respondents-2nd Set. 6. The petitioner filed an appeal (registered as Appeal No. 681/1141/1357) and Respondents-3rd Set filed an appeal (registered as Appeal No. 683/1143/1359) from the aforesaid order. Both the appeals were consolidated and decided by order of Settlement Officer Consolidation, who by dated 12.11.2013, held that Gajadhar son of Lakshman had two sons Babu Nandan and Ayodhya but after death of Gajadhar their names were not recorded in the khatauni. Joint possession of Respondents-3rd Set has been admitted by Punwasi and his witness Gulab. Both the appeals were consolidated and decided by order of Settlement Officer Consolidation, who by dated 12.11.2013, held that Gajadhar son of Lakshman had two sons Babu Nandan and Ayodhya but after death of Gajadhar their names were not recorded in the khatauni. Joint possession of Respondents-3rd Set has been admitted by Punwasi and his witness Gulab. In death certificate of Lalji, his father's name was mentioned as Babu Nandan as such it was proved that Babu Nandan was not issueless but names of his sons were not mutated in revenue record. On these findings, the appeal of the petitioner was dismissed and the appeal of Respondents-3rd Set was allowed and it has been held that the petitioner had ¼ share and remaining ¼ share belonged Respondents-3rd Set. 7. The petitioner filed a revision (registered as Revision No. 1082/1548) from the aforesaid order. Deputy Director of Consolidation, by order dated 31.03.2015 held that so far as claim of Respondents-2nd Set is concerned their names were recorded continuously in the revenue records since 1334 F. The petitioner and Respondents-2nd Set jointly executed mortgage deeds dated 27.03.1980 and 05.08.1980, in which title and possession of Respondents-2nd Set was admitted. Long Standing entry of their names was not liable to be deleted. From death certificates of Lalji Patel, in which his father's name was noted as Babu Nandan, it was proved that Banu Nandan was not issueless as stated by the petitioner. From death certificate of Vishwanath Patel, it was proved that his father's name of Ayodhya. From certificate of Pradhan it was proved that they belonged to family of the petitioner. On these findings he dismissed the revision. Hence this writ petition has been filed. 8. The counsel for the petitioner submitted that in basic consolidation records, names of Respondents-2nd Set were wrongly recorded over the land in dispute while names of Respondents-3rd Set were not recorded. The land in dispute was ancestral property of the petitioner, of the time of Laksman son of Bachha alias Sikhari, whose name was alone recorded in 1291 F, 1308 F. However in 1334 F, names of Munni Lal, Gajadhar sons of Lakshman and Mahadeo son of Devi Dayal was recorded. Name of Mahadeo was wrongly recorded without any basis. Gajadhar had one son Babu Nandan, who died issueless and was inherited by his mother Smt. Gangi. Name of Mahadeo was wrongly recorded without any basis. Gajadhar had one son Babu Nandan, who died issueless and was inherited by his mother Smt. Gangi. After death of Smt. Gangi, her share was inherited by Muse, father of the petitioner. Burden of proof was upon the respondents, to prove the pedigree and also joint acquisition of the land in dispute. Consolidation authorities have wrongly shifted burden of proof upon the petitioner. In order to prove the pedigree, the respondents could not adduce any evidence to prove that Devi Dayal was son of Bachcha alias Sikhari. There is no documentary evidence to prove that Babu Nandan and Ayodhya were sons of Gajadhar son of Lakshman. On the other hand, from khatauni 1356 F and 1359 F, it was proved that after death of Gajadhar, name of Smt. Gangi was recorded in the revenue record, which shows that Babu Nandan died issueless and Gajadhar had no other issue. Before Settlement Officer Consolidation, the petitioner filed several documentary evidence, which have been totally ignored by Settlement Officer Consolidation and Deputy Director of Consolidation. Deputy Director of Consolidation, being last court of fact, was duty bound to consider entire oral and documentary evidence on record and record an independent findings on various issues but he had failed to refer even a single evidence on record. Thus judgments have been passed without application of mind. The petitioner has stated that Babu Nandan and Ayodhya sons Gajadhar son of Shiv Pal, were different persons of the village and they owned separate property in their names, for which khataunis were also filed but these documents have not been considered. There was another khata, in which also, the respondents claimed co-tenancy but Deputy Director of Consolidation by order dated 29.04.2009 did not accept the claim of the respondents. This judgment has been ignored on the ground of pendency of writ petition against it. Impugned orders are illegal and liable to be set aside. 9. I have considered the arguments of the counsel for the parties and examined the record. So far as claim of Respondents-2nd Set is concerned, according to them Bachcha alias Sikhari had two sons Lakshman and Devi Dayal. Lakshan had two sons Munni Lal and Gajadhar. Munni Lal had two sons Muse and Kalika. The petitioner was son of Muse. Birjoo and Chandrabali (respondents-9 and 10) are sons of Kalika. So far as claim of Respondents-2nd Set is concerned, according to them Bachcha alias Sikhari had two sons Lakshman and Devi Dayal. Lakshan had two sons Munni Lal and Gajadhar. Munni Lal had two sons Muse and Kalika. The petitioner was son of Muse. Birjoo and Chandrabali (respondents-9 and 10) are sons of Kalika. Gajadhar son of Lakshman had two sons Babu Nandan and Ayodhya. Respondents-11 to 22 are their descendants. Devi Dayal had one son Mahadev. Bulli (father of Shyam Lal and others) was son of Mahadev. They filed khatauni 1334 F to show that name of Mahadev was recorded along with Munni Lal over the land in dispute, being co-sharer in it. Their names were continuously recorded over the land in dispute. The petitioner along with Respondents-2nd Set executed mortgage deeds dated 27.03.1980 and 05.08.1980, in which title and possession of Respondents-2nd Set was admitted. Punwasi (respondent-6) was examined, who proved his pedigree. Statement of Punwasi was admissible in evidence under Section 50 of Evidence Act, 1872, which was also corroborated from revenue record. As such findings of facts recorded by consolidation authorities in respect of title and possession of Respondents-2nd Set do not suffer from any illegalities. 10. Respondents-3rd Set, claimed that Gajadhar had two sons namely Babu Nandan and Ayodhya. Ayodhya is (now represented by respondent-17 to 22). Babu Nandan had two sons Subhash (respondent-16) and Lalji (now represented by respondents-11 to 15). They examined Amar Nath (respondent-17) to prove their pedigree. Their pedigree was admitted by Punwasi (respondent-6) in his statement. Moti, in his cross examination admitted that Respondents-3rd Set were in possession over ¼ share of the disputed property. Once the petitioner admitted their possession over ¼ share of the disputed property, their evidence relating to proof of pedigree stood corroborated with the statement of the petitioner. Admission of Punwasi, who was a co-sharers, is also relevant can be relied upon. Settlement Officer Consolidation found that pedigree as set up by Respondents-3rd Set was proved. Only on the basis of name of Smt. Gangi being recorded in revenue record, the petitioner is saying that Babu Nandan son of Gajadhar died issueless and Babu Nandan and Ayodhya sons of Gajadhar were different persons but he has clearly admitted possession of Respondents-3rd Set, over ¼ share of the disputed property. Only on the basis of name of Smt. Gangi being recorded in revenue record, the petitioner is saying that Babu Nandan son of Gajadhar died issueless and Babu Nandan and Ayodhya sons of Gajadhar were different persons but he has clearly admitted possession of Respondents-3rd Set, over ¼ share of the disputed property. It has not been proved that name of Babu Nandan was ever recorded over khata in dispute after death of Gajadhar thus the case set up by the petitioner that after death of Babu Nandan, his share was inherited by Smt. Gangi has not been proved. If they were different persons of the village, no question of their possession over ¼ share of the disputed property would have been. So far as khatauni filed by the petitioner are concerned, some abadi plots of small area, were separately recorded in their names. Only for this reason it cannot be said that they were different persons. A member of joint family can own separate property. On its basis his share in joint family property cannot be denied. 11. So far as arguments of the counsel for the petitioner that certificate issued by Pradhan or Corporator were not admissible in evidence but it were illegally relied upon, is concerned, it is stated that apart from certificates above noted, there were other evidence on record. As stated above, statement of Amar Nath and Punwasi were admissible under Section 50 of Evidence Act, 1872. Death Certificate of Lalji showing his father's name was Babu Nandan falsified the case of the petitioner that Babu Nandan died issueless 100 years ago. Merely for the reason that while considering various evidence, consolidation authorities have relied upon some inadmissible evidence along with admissible evidence, this Court will not be justified to set aside findings of facts, in exercise of writ jurisdiction. 12. So far as order of Deputy Director of Consolidation dated 29.04.2009 is concerned, in this judgment pedigree of the parties was not decided. In this case, respondents-2nd Set took plea that tenancy of Smt. Bhagwani widow of Bachcha was extinguished and resettled with Rakshpal son of Bhairo Brahman (an out sider) and they were sub-tenant of Rakshpal, which has been disbelieved on the ground fixed rate tenancy of a widow could not be extinguished. This judgment was not relevant for deciding present controversy, which was in respect of pedigree of the parties. 13. This judgment was not relevant for deciding present controversy, which was in respect of pedigree of the parties. 13. A list of documents filed before Settlement Officer Consolidation has been filed by the petitioner as Annexure-13 to the writ petition, which is in respect of separate holdings of Respondents-3rd Set. On the basis of self acquired property, share in joint family property could not be denied. Thus these documents are not material evidence to disprove the case of Respondents-3rd Set. By the impugned orders, co-sharers have been given their share in joint family property. There is no ground for interfering with the orders of consolidation authorities on technicalities as the petitioner himself had admitted joint possession of the respondents. 14. In view of the aforesaid discussions, the writ petition has no merit and is dismissed. Petition Dismissed.