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2015 DIGILAW 1374 (ALL)

Ismail v. D. D. C.

2015-05-25

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Tripathi B.G. Bhai and Sri Shailesh Kumar Tripathi, for the petitioners and Sri R.K. Chitragupta, for respondents-2 and 3. 2. The writ petition has been filed against the order of Deputy Director of Consolidation dated 09.09.2003, allowing the revision of respondents-2 and 3 and setting aside the orders of Consolidation Officer dated 14.03.1995 and Settlement Officer Consolidation dated 16.11.1995, arising out of title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 3. The dispute relates to share of the parties, in basic consolidation year, khata 49 of village Kohdaura, pargana Naugarh, district Basti (at present Siddharth Nagar), which was recorded in the names of Sahib son of Umaro, Zikari son of Niyamat, Ismail, Yusuf sons of Jugul, Shakoor son of Sarfaraz, Ishaq son of Gafoor and Hasmati widow of Nasibdar. During partal, share of Sahib (now represented by respondents-2 and 3) was noted as 1/4 , Zikari (now represented by petitioners-6 and 7) as 1/4, Ismail, Yasuf (petitioners-1 and 2) as 1/8 each and Ishaq, Shakoor and Hasmati (petitioners-3, 4 and 5) as 1/12 each. Sahib filed an objection under Section 9 of the Act, claiming his 2/5 share in the land in dispute. Ismail, Yusuf filed an objection that their 1/8 share be kept jointly. Disputes were decided by Assistant Consolidation Officer in terms of Compromise, by order dated 21.11.1987. 4. Sahib filed an appeal (registered as Appeal No. 226) from the aforesaid order, challenging compromise. Sahib has stated that his share in khata in dispute was 1/2 but it has been illegally held as 1/4. Before the appellate Court, he filed khatauni jamabandi 1295 F, in which names of Niranjan, Nirahu sons of Ghirahu and Doman son of Husi, were recorded. Sahib claimed that Doman was having 1/2 share and he was grand son of Doman, while the petitioners belonged to the branch of Niranjan and Ghirahu, who together had 1/2 share. The appeal was heard by Assistant Settlement Officer Consolidation, who by order dated 10.01.1989 held that conciliation proceeding was signed by the parties and two members and Chairman of Consolidation Committee as such matter has been rightly decided by Assistant Consolidation Officer. On these findings the appeal was dismissed. Sahib filed a revision against the aforesaid order. The appeal was heard by Assistant Settlement Officer Consolidation, who by order dated 10.01.1989 held that conciliation proceeding was signed by the parties and two members and Chairman of Consolidation Committee as such matter has been rightly decided by Assistant Consolidation Officer. On these findings the appeal was dismissed. Sahib filed a revision against the aforesaid order. Chief Revenue Officer allowed the revision by order dated 08.10.1991, set aside orders 21.11.1987 and 10.01.1989 and remanded the matter to Consolidation Officer for trial of dispute on merit and decide afresh. 5. After remand, Sahib filed khatauni 1292 F and 1324 F and examined Salim, Shekh Osalab and Ram Charan. The petitioners filed khatauni 1359 F and CH Form-45 of previous consolidation and examined Ismail and Angad, witnesses. Consolidation Officer, after hearing the parties by order dated 14.03.1995 held that Sahib claimed his 2/3 share at the time of partal, 2/5 share in his objection and 1/2 share in appeal and thus raised different claims at different stages. Pedigree set but by Sahib was not proved. In previous consolidation, names of Umaro son of Doman, Niyamat son of Khusi, Dungur son of Rajjab, Shakoor, Gafoor sons of Sarfaraz and Hasmati widow of Nasibdar, were recorded, from which pedigree set up by the petitioners has been proved and share of Sahib would be 1/4. On these findings, he held share of Sahib as 1/4. Sahib filed an appeal (registered as Appeal No. 731) from the aforesaid order. The appeal was heard by Settlement Officer Consolidation , who by order dated 16.11.1995 affirmed the aforesaid findings and dismissed the appeal. 6. Sahib filed a revision (registered as Revision No. 104) against the aforesaid orders. The revision was heard by Deputy Director of Consolidation, who by impugned dated 09.09.2003 held that in khatauni 1292 F, names of Nirahu, Niranjan sons of Ghirau and Doman son of Husi were recorded. In khatauni 1324 F, names of Niranjan son of Ghirau, Sarfaraz son of Nirahu and Umaro son Doman were recorded. In khatauni 1359 F, names of Umaro son Doman, Niyamat son of Khusi, Dungur son of Rajjab, Shakoor and Gafoor sons of Sarfaraz and Hasmati widow of Nasibdar were recorded. In previous consolidation, names of Umaro son Doman, Niyamat son of Khusi, Dungur son of Rajjab, Shakoor and Gafoor sons of Sarfaraz and Hasmati widow of Nasibdar were recorded. In khatauni 1359 F, names of Umaro son Doman, Niyamat son of Khusi, Dungur son of Rajjab, Shakoor and Gafoor sons of Sarfaraz and Hasmati widow of Nasibdar were recorded. In previous consolidation, names of Umaro son Doman, Niyamat son of Khusi, Dungur son of Rajjab, Shakoor and Gafoor sons of Sarfaraz and Hasmati widow of Nasibdar were recorded. Thus pedigree set up by Sahib was proved. On these findings, he allowed the revision and set aside the orders of Consolidation Officer dated 14.03.1995 and Settlement Officer Consolidation dated 16.11.1995 and held share of Sahib as 1/2. Hence this writ petition has been filed. 7. The counsel for the petitioner submits that Sahib claimed his 2/3 share at the time of partal, 2/5 share in his objection and 1/2 share in appeal. Thus he raised different claims at different stages. Pedigree set but by Sahib was not proved. In previous consolidation, names of Umaro son of Doman, Niyamat son of Husi, Dungur son of Rajjab, Shakoor, Gafoor sons of Sarfaraz and Hasmati widow of Nasibdar, were recorded. From which it is proved that Doman, Husi, Rajjab and Sarfaraz belonged to one family and had 1/4 share each. This pedigree was fully tallied with previous consolidation record and 1359 F khatauni, while pedigree set up by the respondents was not proved. Deputy Director of Consolidation has illegally allowed the revision and set aside concurrent findings of fact recorded by two sub-ordinate authorities. The order of Deputy Director of Consolidation is illegal and liable to be set aside. 8. I have considered the arguments of the counsel for the parties and examined the record. In khatauni 1292 F, names of Nirahu, Niranjan sons of Ghirau and Doman son of Husi were recorded. On its basis, Sahib was claiming that 1/2 share belonged to Doman and remaining 1/2 share belonged to Nirahu, Niranjan. In khatauni 1324 F, in place of Doman, name of Umaro son Doman was recorded. Same entry continued in 1359 F and previous consolidation record. Sahib was son of Umaro. Thus claim of 1/2 share by Sahib was fully proved. In 1324 F, in place of Nirahu, Samaf (Sarfaraz) son of Nirahu was recorded. In khatauni 1359 F, names of Niyamat son of Khusi, Dungur son of Rajjab, Shakoor and Gafoor sons of Sarfaraz and Hasmati widow of Nasibdar were recorded. Sahib was son of Umaro. Thus claim of 1/2 share by Sahib was fully proved. In 1324 F, in place of Nirahu, Samaf (Sarfaraz) son of Nirahu was recorded. In khatauni 1359 F, names of Niyamat son of Khusi, Dungur son of Rajjab, Shakoor and Gafoor sons of Sarfaraz and Hasmati widow of Nasibdar were recorded. It is admitted by the petitioners that Ismail, Yusuf are sons of Dungur and Gafoor, Shakoor and Nasibdar were sons of Sarfaraj. According to the petitioners Niyamat was son of Husi but from khatauni 1292 F and 1324 F, it is proved that Doman was son of Husi. However, in 1359 F, Niyamat son of Khusi was noted. Thus it is not proved by the petitioners that who was Khusi and how name of Niyamat son of Khusi was recorded in 1359 F khatauni. Zikari son of Niyamat never entered into witness box to prove his pedigree. Statement of Angad, witness of the petitioners that Sarfaraz, Rajjab, Umaro and Khusi were real brothers, is false and against documentary evidence of record. Thus the pedigree set up by the petitioners in respect of Niyamat was not proved. But there is no dispute between the petitioners in respect of intere-se proportion of their share. Deputy Director of Consolidation has not committed any illegality in allowing the revision on merit and giving 1/2 share of Sahib. 9. So far as arguments that Sahib claimed different share at different stages, is concerned, it is well settlement issue relating to share is an issue of law and it has to be decided on the evidence and not on the basis of claim. Similarly, in previous consolidation, share of the parties have not been decided and land in dispute was jointly recorded in the names of both the parties. 10. In view of above, the writ petition has no merit and is dismissed.