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2015 DIGILAW 1460 (ALL)

Mahendra v. D. D. C.

2015-05-29

ANJANI KUMAR MISHRA

body2015
JUDGMENT Anjani Kumar Mishra, J. 1. Heard Sri Arun Kumar learned Counsel for the petitioner and Sri H.S.N. Tripathi for the contesting respondents. This writ petition arises out of proceedings under section 9-A(2) of the U.P. Consolidation of Holdings Act and seeks quashing of the orders passed by the three consolidation Courts namely the Consolidation Officer, Settlement Officer Consolidation and the Deputy Director of Consolidation. 2. The dispute in the writ petition pertains to Khatas No. 9 and 46 of village Tappa Dandopur, Tehsil Padrauna, District Deoria. Khata No. 9 was recorded jointly in the name of Amrit the predecessor in interest of the petitioner and Jamuna the predecessor in interest of the respondent No. 4 while Khata No. 46 was recorded in the name of Jamuna alone in the basic year. 3. Respondent No. 4 Smt. Marachhi filed an objection claiming the share of Jamuna in the aforementioned two khatas on the basis of gift deed dated 4.8.1969. The second objection was filed by Amrit claiming to be the exclusive owner of the two khatas being the heir of Jamuna. He also contested the claim of the respondent No. 4 on the ground that no gift deed has been executed by Jamuna. 4. The petitioner claims to be the successor of Amrit on the basis of a Will executed by Amrit, who died during the pendency of the proceedings before the Settlement Officer Consolidation. 5. The Consolidation Officer by his order dated 17.7.1987 allowed the objection filed by the respondent No. 4 while dismissing the objection of Amrit and the appeal was dismissed by the Settlement Officer Consolidation by the order dated 30.12.1987. The consequential revision filed by the petitioner was also dismissed by the Deputy Director of Consolidation on 14.8.1989. Two other revisions, one filed by Ramdei claiming to be the widow of Amrit and another revision by Anari, respondent No. 5 claiming to be the daughter of Amrit were also rejected by the impugned order. However, Ramdei and Anari aforesaid have not preferred any writ petition. 6. The following pedigree is stated to be admitted between the parties Ramdhan Das SukhramLakhan alias Ram LakhanChikhuri MuneshwarDurgaJamuna 7. The contention of learned Counsel for the petitioner is that Lakhan died first and his share was inherited by his three sons namely Muneshwar, Durga and Jamuna. However, Ramdei and Anari aforesaid have not preferred any writ petition. 6. The following pedigree is stated to be admitted between the parties Ramdhan Das SukhramLakhan alias Ram LakhanChikhuri MuneshwarDurgaJamuna 7. The contention of learned Counsel for the petitioner is that Lakhan died first and his share was inherited by his three sons namely Muneshwar, Durga and Jamuna. Muneshwar and Durga died issueless and therefore, the 1/3 share of Lakhan devolved upon Jamuna. The next to die was Chikhuri, who was succeeded by his widow Mst. Munna. When Mst. Munna died, Sukhram was alive and he inherited the 1/3 share of Chikhuri. On the death of Sukhram, hit son Amrit became owner of 2/3 share of the khatas in question. Thereafter, Jamuna is said to have mortgage his 1/3 share, which was redeemed by Amrit who therefore became exclusive owner of the khatas in question. 8. Learned Counsel for the respondents have refuted the submissions made by learned Counsel for the petitioner. He has placed relevant portions of the impugned orders and has submitted that they suffer from no illegality and are liable to be affirmed. It has further been submitted that the writ petition is wholly devoid of merits and deserves to be dismissed. 9. From the submissions made by learned Counsel for the parties three issues arises for determination. The first issue is as to whether Jamuna had executed any gift deed in favour of respondent No. 4. The second issue is regarding the question of alleged mortgage deed said to have been executed by Jamuna which is later alleged to have been redeemed by Amrit. The third issue regarding forged sale is also raised. 10. I have considered the submissions made by learned Counsel for the parties and have perused the record. 11. As regards, the question of gift deed said to have been executed by Jamuna in favour of respondent No. 4, Smt. Marachhi, the Courts below have relied upon the admission made by Jamuna in a suit filed for cancellation of this sale-deed. In this suit Jamuna appeared and admitted the same sale made by him. Although the suit ultimately abated on the start of consolidation operations yet, the Courts below have accepted the gift deed on the basis of the categorical admission of Jamuna, before the Civil Court. In this suit Jamuna appeared and admitted the same sale made by him. Although the suit ultimately abated on the start of consolidation operations yet, the Courts below have accepted the gift deed on the basis of the categorical admission of Jamuna, before the Civil Court. At this juncture, learned Counsel for the petitioner submits that although the gift deed has been accepted by the Courts below yet, the Civil Court has not determined the share of the parties and therefore this aspect is required to be considered as to the extent of the gift deed and its effect on the shares of the parties. 12. On the question of shares of the parties learned Counsel for the petitioner has submitted as has already been noticed above. This contention regarding succession has been discarded by the Courts below on the finding that it was Amrit who was recorded over the khatas in question and that the name of Sukhram was not found in the revenue records after the death of Chikhuri. On this basis it has been inferred that Chikhuri died after Sukhram and therefore, there is no question of Sukhram having inherited 1/3 share on Chikhuri's death, being his brother. It is also to be noted that the case of Sukhram succeeding to the share of Chikhuri, cannot be accepted because on the death of Chikhuri, his widow was recorded. 13. All allegations of mortgage by Jamuna has been discarded by the Court below on the ground that the same does not find any mention in any of the revenue records. 14. Additionally, learned Counsel for the petitioner has submitted that it has come on record that the 1/9 share of Durga was sold to Bhagwat Tiwari and therefore, the share of the contesting respondents would be reduced by 1/9 and the parties would not get 1/2 share each as has been held by the Courts below. Even, this argument of learned Counsel for the petitioner has to be rejected. 15. Perusal of the order of Deputy Director of Consolidation shows that the Deputy Director of Consolidation has recorded a categorical finding that after the sale and mortgage etc. the shares of Muneshwar and Jamuna has ceased to exist in the disputed property. This finding has been recorded after appreciating the evidence available on record and I don't find any illegality therein. the shares of Muneshwar and Jamuna has ceased to exist in the disputed property. This finding has been recorded after appreciating the evidence available on record and I don't find any illegality therein. Even the case law relied upon by the petitioner has been rightly distinguished by the Deputy Director of Consolidation. 16. In view of the discussion aforesaid, I find no merit in the submissions made by learned Counsel for the petitioner. The findings returned by the three Courts below are neither perverse nor suffer from any illegality. The writ petition is therefore, devoid of merits and is accordingly dismissed. ………………