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2015 DIGILAW 163 (ALL)

Sukhdei v. D. D. C.

2015-01-23

ANJANI KUMAR MISHRA

body2015
JUDGMENT Anjani Kumar Mishra, J. 1. Heard Sri B. Ram, learned counsel for the petitioners and Sri Bal Mukund Singh, who has filed caveat on behalf of respondent No. 5. 2. The petition is directed against the orders dated 13.2.2014 and 27.7.2005 passed by the Deputy Director of Consolidation and the Settlement Officer, Consolidation, Ghazipur, arising out of an objection under section 9A-2 of the U.P. Consolidation of Holdings Act. 3. The dispute in the writ petition relates to Khata Nos. 164 and 183 of the Village Gadaipur, Pargana Bahariyabad, District Ghazipur. In the basic year record, Khata No. 164 was recorded in the name of Brijpal and Dharmraj while Khata No. 183 was recorded in the name of Mewati wife of Ram Vijay and Radhika wife of Ram Singar. 4. Two separate objections under section 9A-2 were filed. The first objection was filed by Pukar and Baldev sons of Chatura while the second objection was filed by Dilip son of Vishwanath. The Consolidation Officer by his order dated 5.3.2003 dismissed the objections. The order of the Consolidation Officer was challenged by Dilip and others by means of Appeal No. 1261 under section11(1) of the Act. The Settlement Officer, Consolidation on 27.7.2005 allowed the appeal and granted the appellants co-tenancy to the extent of 1/3rd. It was further provided that the remaining 2/3rd land belonged to Mantorna and her vendees. 5. Against the appellate order, three revisions were filed. The first revision was filed by Pukar and Baldev, the second revision was filed by Krishna Nand and others while the third revision was filed by Sukhdei and others, who are the petitioners in the writ petition. The Deputy Director of Consolidation by his order dated 13.2.2014 allowed the revision filed by Pukar and others and granted them 1/3rd share in the land in question. The revision filed by Krishna Nand and others was dismissed while the revision filed by Sukhdei and others (petitioners) was partly allowed holding that the purchasers of Mantorna were entitled only to her 1/3rd share in the disputed land. It therefore follows that any sale deed executed by Mantorna in excess of her 1/3rd share in the disputed land has not been recognized. 6. It therefore follows that any sale deed executed by Mantorna in excess of her 1/3rd share in the disputed land has not been recognized. 6. The petitioners claim on the basis of a sale deed dated 15.4.1985 executed in their favour by Brijpal and Dharmraj sons of Shivnath, who had earlier purchased the same by means of a sale deed dated 13.6.1968, executed by Mantorna. 7. From the facts noticed above, it is clear that the dispute between the parties was one of shares and the petitioners are aggrieved as the sale deed in their favour is in excess of Mantorna's 1/3rd share in the land in question. 8. It is the contention of learned counsel for the petitioner that the total land consisted of two parts. As regards the larger part, the same was purchased by Mahavir in 1912 while the smaller part was leased out by the Zamindar in favour of Doodhnath and was therefore his sole acquisition. He has therefore contended that the courts below have wrongly granted share to the respondents in this leased land, which was the sole acquisition of Doodhnath. Mantorna is admittedly the daughter-in-law of Doodhnath and her name had been mutated over the land, which was the sole acquisition of Doodhnath and she executed sale deeds which are valid documents. The contesting respondents have no share in this property and, therefore, the impugned orders which recognise the sale deeds executed by her only to the extent of her 1/3rd share cannot be sustained. 9. Learned counsel for the respondents has on the other hand supported the impugned orders. He has submitted that the writ petition is devoid of merits and is liable to be dismissed. 10. I have considered the rival submissions made by learned counsel for the parties and have perused the record. 11. The courts below while passing the impugned order have relied upon the judgment of the civil court passed in a partition suit in 1938. Along with writ petition, the order on the review application filed for review of this judgment of the civil court has been annexed. Perusal of this order indicates that in the suit, the sale deed in favour of Mahavir as also the Istamrari Patta in favour of Doodhnath executed in the year 1912 have been considered and both these documents have been held to be part of the same transaction. Perusal of this order indicates that in the suit, the sale deed in favour of Mahavir as also the Istamrari Patta in favour of Doodhnath executed in the year 1912 have been considered and both these documents have been held to be part of the same transaction. The Court while rejecting the review application has recorded that the two documents were executed simultaneously and are part of the same transaction because the stamp papers used for these two documents are numbered consecutively, were purchased from the same stamp vendor and also because the marginal witnesses in the two documents are identical. It has further been observed that a sale deed was executed of the Zamindari land while land which was sir and which could not have been sold, had been transferred by means of the Istamrari Patta for consideration. 12. It therefore clearly emerges that the entire land was held to be joint and the acquisition of a joint Hindu family. Further all the three sons of a common ancestor, namely, Mahavir, Arjun and Daroga (Doodhnath, the father-in-law of Mantorna was son of Daroga) have each being held to be entitled to 1/3rd share in the property in question and accordingly the shares appear to have been partitioned. 13. On the basis of this judgment and decree which has become final between the parties and in view of the finding recorded therein that the acquisition by means of the sale deed as also by means of the Istamrari Patta was the acquisition of a joint Hindu family, the courts below have rightly held the share of Mantorna to be only 1/3rd and have discarded the sale deed executed by her which are in access of her 1/3rd share in the disputed Khatas. 14. I find no error or illegality in either the approach or the reasoning given in the impugned orders. 15. Learned counsel for the petitioners has filed a photostat copy of the decree in the civil suit decided in 1938, which is in Urdu. Along with this photostat copy, a Hindi translation thereof has also been filed. 16. A counter affidavit has been filed on behalf of learned counsel for the caveator-respondent. In paragraph 4 of this counter affidavit, it has been averred that the copy of the decree filed on behalf of petitioners is an incomplete copy. Along with this photostat copy, a Hindi translation thereof has also been filed. 16. A counter affidavit has been filed on behalf of learned counsel for the caveator-respondent. In paragraph 4 of this counter affidavit, it has been averred that the copy of the decree filed on behalf of petitioners is an incomplete copy. Along with this counter affidavit, the judgment in Suit No. 5 of 1938 has been annexed. This judgment appears to be the preliminary decree in the aforesaid suit for partition. The Issue No. 1 framed in this suit was 'whether the plaintiff and the defendants are not members of a joint Hindu family and a separation has been taken place about 25 years ago'. This issue was decided against the defendants on the ground that the defendants had failed to prove the alleged separation. The finding therefore was that the property in question in the suit was joint Hindu family property. 17. Perusal of the order passed on the review application reveals that the Istamrari Patta in favour of Doodhnath was not brought on record of the partition suit. It appears to be the basis of the review application. The review application was dismissed holding that the Istamrari Patta and the sale deed of 1912 were part of the same transaction as has already been noticed hereinabove. 18. The orders passed by the two courts below are therefore in consonance with the order passed on the review application insofar as they hold that Mantorna had 1/3rd share only. The findings of the two courts below that any sale deed executed by the said Mantorna in access of her 1/3rd share in the dispute property is liable to be ignored, therefore cannot be faulted with. 19. The only other contention raised by learned counsel for the petitioner is that the claim raised before the consolidation authorities were barred by section 49. The Consolidation Officer had dismissed the objection holding it to be barred by section 49 on the ground that no objection had been raised during the first round of consolidation operations. This aspect has been considered by the Settlement Officer, Consolidation, who has held that the objections were not barred by section 49 of the U.P. Consolidation of Holdings Act relying upon orders of proceedings during the first round of consolidation operations, filed at the appellate stage. Such documents were not filed before the consolidation court. This aspect has been considered by the Settlement Officer, Consolidation, who has held that the objections were not barred by section 49 of the U.P. Consolidation of Holdings Act relying upon orders of proceedings during the first round of consolidation operations, filed at the appellate stage. Such documents were not filed before the consolidation court. Therefore the submission of learned counsel for the petitioners that the objections wherefrom the instant writ petition arises were barred by section 49 of the U.P. Consolidation of Holdings Act also cannot be accepted. 20. Accordingly and for the reasons given above, I find no ground to interfere with the impugned orders. 21. The writ petition is devoid of merits and is accordingly dismissed.