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2015 DIGILAW 1462 (ALL)

Roshan Jahan Begum v. D. D. C.

2015-05-29

ANJANI KUMAR MISHRA

body2015
JUDGMENT Anjani Kumar Mishra, J. 1. Heard Shri C.K. Rai, learned Counsel for the petitioners and Shri Amresh Singh for the Gaon Sabha. The writ petition arises out of an objection under section 9-A(2) of the U.P. Consolidation of Holdings Act filed by the petitioners regarding khata No. 20 situated in Village Vahansar, District and Pargana Bareilly. 2. This land was recorded in the name of one Kesar Jahan Begam. Kesar Jahan Begam is said to be the sister of the petitioners mother and she is alleged to have executed an oral gift deed of her land in favour of the petitioners. This claim has been negatived by all the three Courts below, holding that the oral gift deed in favour of the petitioners were not proved. The consolidation authorities further held that Kesar Jahan Begam died heirless and, therefore, directed that the property be recorded in the name of the Gaon Sabha. 3. It also appears from the record that certain other objections were filed claiming on the basis of adverse possession. These objections were dismissed by the Consolidation Officer and the order does not appear to have been challenged any further. 4. Learned Counsel for the petitioner has submitted that a suit under section 229-B of the U.P. Zamindari Abolition & Land Reforms Act was filed by the petitioners claiming on the basis of the alleged oral gift. This suit was dismissed by the Trial Court. The petitioners thereafter filed an appeal wherein they were ordered to be recorded over the land in question on the basis of a compromise said to have been entered into between the parties thereto. Admittedly the suit and appeal were not contested by the State and Gaon Sabha. They were also not signatories to the compromise. However, since this compromise order was not implemented in the revenue records, the petitioners were forced to file an objection under section 9-A(2) on the start of consolidation operations. It is, therefore, the contention of the learned Counsel that the compromise decree passed by the revenue Court, not having been challenged by any party, has attained finality and, therefore, the objection of the petitioners was liable to be accepted. It is, therefore, the contention of the learned Counsel that the compromise decree passed by the revenue Court, not having been challenged by any party, has attained finality and, therefore, the objection of the petitioners was liable to be accepted. He has further submitted that in the proceedings before the consolidation authorities, the brothers of Kesar Jahan Begam appeared and accepted the gift deed in favour of the petitioners and yet the consolidation authorities have not accepted the said gift deed which could have been proved only by oral evidence. No documentary evidence can exist showing an oral gift deed. The alternative submission made by the learned Counsel for the petitioners is that the brothers of Kesar Jahan Begam, the recorded tenure holder had appeared in the proceedings and deposed in favour of the petitioners and it is, therefore, established on record that Kesar Jahan Begam did leave behind next of kin and, therefore, also the impugned orders insofar as it vests the property, in question, in the Gaon Sabha on the ground that Kesar Jahan Begam had died heirless, cannot be sustained. 5. Learned Counsel for the Gaon Sabha has supported the impugned orders and he has stated that the oral gift deed set up by the petitioners was not proved and, therefore, the petitioners are not entitled to any relief. Insofar as the alternative argument of the learned Counsel for the petitioners is concerned, he has submitted that since no heir of Kesar Jahan Begam came forward to claim the land in question, even this alternative argument cannot be accepted and the property must necessarily vest in the Gaon Sabha. 6. I have considered the submissions made by the learned Counsel for the parties and have perused the record. 7. As the first submission of the learned Counsel for the petitioners that the compromise decree passed by the revenue recorded would operate as res judicata is concerned, it would suffice to state that the claim of the petitioners before the consolidation Courts was not exclusively based upon this compromise decree. They have also set up the oral gift deed in their favour. This oral gift deed has not been accepted by the Courts below for cogent reasons. The oral gift has been discarded on account of the various discrepancies noticed in the oral testimonies of the witnesses produced to establish the same. 8. They have also set up the oral gift deed in their favour. This oral gift deed has not been accepted by the Courts below for cogent reasons. The oral gift has been discarded on account of the various discrepancies noticed in the oral testimonies of the witnesses produced to establish the same. 8. On the question of the compromise decree operating as res judicata on the issue of an oral gift having been made in favour of' the petitioners, it would be relevant to note that this decree was passed on the basis of a compromise and some of the objectors were not signatories thereto and, therefore, the same would not bind them. This is the reason why the compromise decree was not accepted by the Consolidation Officer. Even otherwise the decree was passed on the basis of a compromise and there was no adjudication on as to whether any oral gift deed, was in fact, executed by Kesar Jahan Begam in favour of the petitioners and for this reason also the said compromise decree would not bind the consolidation Courts while considering the claim based on such oral gift. 9. However, the alternative submission made by the learned Counsel for the petitioners appears to have force. Property recorded in the name of any person would, on the death of that person, necessarily vest in the Gaon Sabha if the recorded tenure-holder has not left any heir. This does not appear to be the situation in the case at hand. It has come on record that the brothers of Kesar Jahan Begam appeared in the proceedings and deposed, admitting the alleged oral gift deed. Even if the brothers of the Kesar Jahan Begam did not set up their separate claim, they may be entitled to a share in the property of their sister. The question of share is a question of law and, therefore, in case, on an examination of the material available on record, the Courts come to a conclusion that a person is entitled to a share in the property in question, it is bound to grant such share, even if person has not set up a claim thereto. Moreover, in such circumstances, it cannot be held that the tenure-holder had died heirless and for this reason alone, the impugned orders insofar as they direct the property in question to vest in the Gaon Sabha cannot be sustained. Moreover, in such circumstances, it cannot be held that the tenure-holder had died heirless and for this reason alone, the impugned orders insofar as they direct the property in question to vest in the Gaon Sabha cannot be sustained. 10. It would further be relevant to note that the Courts below have not specifically adverted to this aspect of the matter, which, in my considered opinion, was absolutely crucial and was necessarily required to be dealt with. 11. It appears from the record that Kesar Jahan Begam was bhumidhar of the land in question. On her death the issue of succession to her agricultural property would be governed either by under section 175 or 174 of the U.P. Zamindari 'Abolition & Land Reforms Act. However sufficient material is not available on record to determine as to which of the two sections namely, 172 or 174 would be applicable in the instant case. But since this aspect is required to be considered, it appears fit and proper that the matter be remanded back to the Deputy Director of Consolidation for passing a fresh order after adverting to this aspect of the matter also. 12. Accordingly the writ petition is allowed. The order dated 7.5.1985 passed by the Deputy Director of Consolidation Camp Bareilly is set aside and the matter is remanded back for a fresh decision in the light of observations made above. Since the matter is an old one, it is expected that respondent No. 1 will proceed with the matter expeditiously and decide the revision preferably within a period of six months from the date of production of this order before him. However in the facts and circumstances of the case, there is no order as to costs. ………………