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2015 DIGILAW 164 (ALL)

Lallan v. Dy. Director of Consolidation

2015-01-23

ANJANI KUMAR MISHRA

body2015
JUDGMENT Anjani Kumar Mishra, J. 1. Heard Sri S.C. Verma, learned counsel for the petitioner and Sri Sunil Kumar Singh, who has filed caveat on behalf of respondent No. 4, sole contesting respondent in the writ petition. 2. The petition has been filed challenging the order dated 22.8.2014 passed by the Deputy Director of Consolidation in Revision No. 734 of 2014. 3. The dispute in the petition pertains to chak No. 112, which was carved out in the name of Jangi. The petitioner, who is the son of Jangi, filed an objection under section 12 of the U.P. Consolidation of Holdings Act for mutation in the place of Jangi on the ground that he was the son and that his brother Akaju had died when he was only 7 or 8 years in age. The Assistant Consolidation Officer by his order dated 28.12.2009 allowed the objection on the basis of a compromise entered into between the petitioner Lallan and the members of the Consolidation Committee. 4. Against the compromise order, the respondent No. 4 filed an appeal, which was four years beyond time and was registered as Appeal No. 2540/2325 of 2013. This appeal was filed on the ground that the appellant-respondent No. 4 was the widow of Akaju and, therefore, entitled to half share in the land in dispute. 5. The appeal was contested by the petitioner on the ground that the respondent No. 4 was not the widow of Akaju. The marriage between Akaju and the respondent No. 4 Sheela took place in 1981 when both were minors. The marriage was therefore void having been solemnized after coming into force of the Hindu Marriage Act. No Saptapadi or custom of child marriage was proved. It was lastly contended that the child marriage would be complete only after 'Gauna', which never took place. 6. The Settlement Officer, Consolidation allowed the appeal on 10.3.2014 holding the share of respondent No. 4 to be 1/2 in the disputed land. The order passed by the Settlement Officer, Consolidation was affirmed when the revision filed by the petitioner was dismissed on 22.8.2014. Hence this writ petition challenging the revisional and appellate orders. 7. Sri S.C. Verma, learned counsel for the petitioner has submitted that Akaju, the second son of Jangi and alleged husband of respondent No. 4, died when he was only 7 or 8 years in age. Hence this writ petition challenging the revisional and appellate orders. 7. Sri S.C. Verma, learned counsel for the petitioner has submitted that Akaju, the second son of Jangi and alleged husband of respondent No. 4, died when he was only 7 or 8 years in age. He has submitted that the marriage was void. He has further submitted that the marriage would have been complete only after the 'Gauna' ceremony was held. No 'Gauna' ever took place and the respondent No. 4 never resided with the family of her alleged husband. Even today, she is residing with her father. He has next submitted that there is no evidence on record to show the existence of any custom of child marriage. He has lastly submitted that there is no finding regarding the sufficiency of cause shown for the delay in filing the appeal and, therefore, the delay in filing the appeal had been wrongly condoned. 8. Learned counsel for the petitioner has placed reliance upon the judgments reported in LAWS (P & H)-1962-9-9, Kunta Devi v. Siri Ram Kalu Ram and : 1999 Law Suit (Cal) 32, Joyita Saha v. Rajesh Kumar Pandey, wherein it has been held that Saptapadi is a very essential rite and further that it is required to be proved that the basic and essential ceremonies had been performed before any marriage can be held to be a valid marriage. 9. Initially on 17.9.2014, after hearing the learned counsel for the petitioner, the matter had been adjourned to enable the learned counsel to produce material to show that a child marriage between persons belonging to the scheduled castes, which admittedly is a custom amongst them, would be deemed to be a marriage only after it is proved to have been consummated or at least after 'Gauna' ceremony was held. 10. In this regard, a supplementary affidavit was filed on behalf of petitioner stating therein that the respondent No. 4 is a trans gender. Since she is not a woman there is no question of any marriage with Akaju. In support of this contention, the affidavits of brother and sister of respondent No. 4 have been annexed with the supplementary affidavit. 11. It would be relevant to notice that the sister of respondent No. 4 Sheela happens to be the wife of the petitioner Lallan. In support of this contention, the affidavits of brother and sister of respondent No. 4 have been annexed with the supplementary affidavit. 11. It would be relevant to notice that the sister of respondent No. 4 Sheela happens to be the wife of the petitioner Lallan. It is therefore clear that both the sons of Jangi were married to two sisters. 12. Learned counsel for the respondent on the other hand has supported the impugned orders. He has submitted that the factum of marriage between the Akaju and the respondent No. 4, Sheela, is admitted by the petitioner and, therefore, the orders impugned have been rightly passed and the writ petition merits summary dismissal. 13. I have considered the submissions made by learned counsel for the parties and have perused the record. 14. The Settlement Officer, Consolidation while allowing the appeal has recorded that admittedly Sheela was the widow of Akaju. She has submitted an affidavit that she never remarried. Further relying upon the other evidence on record, it has been recorded that the family register extract, available on record, records the names of Akaju and his wife Sheela as residents of House No. 19, Village Alipur. 15. The Deputy Director of Consolidation has affirmed the order of the Settlement Officer, Consolidation. He has recorded that the petitioner claims to be member of the scheduled castes (Harijans) and also claims existence of a custom of child marriage. He has also relied upon the provisions of Hindu Marriage Act and, therefore, has taken contradictory stands. However relying primarily upon the admission of the petitioner in the court below that a child marriage of Akaju and the respondent No. 4 took place, he has dismissed the revision. 16. Even before this Court, the primary contention of learned counsel for the petitioner is that a child marriage would be complete only after 'Gauna' ceremony. 17. As already noticed hereinabove, despite time having been granted for the same, the petitioner has not been able to produce any material in support of his contention. 18. Since the marriage has been admitted, even if it is a child marriage, in my considered opinion, the respondent has a right in the land in dispute especially in view of the finding that she has not remarried. 19. 18. Since the marriage has been admitted, even if it is a child marriage, in my considered opinion, the respondent has a right in the land in dispute especially in view of the finding that she has not remarried. 19. As regards the submission and allegation of learned counsel for the petitioner that the respondent No. 4 is an eunuch , for which reliance has been placed on the notary affidavits of the brother and sister of respondent No. 4, it would suffice to state that this point has not been raised before the courts below and, therefore, the impugned orders cannot be faulted with on this ground. An altogether new plea which is purely factual in nature is being raised for the first time in a writ petition and evidence in support of such plea has been filed in the form of affidavits. 20. In my considered opinion, it is not open for the petitioner to challenge the impugned orders by raising an altogether new plea, which is purely factual in nature, for the first time before the writ court and the impugned orders cannot be interfered with on the basis of such new plea. 21. Reliance upon the judgments in the case of Kunta Devi and Joyita Saha (supra) is also not justified, inasmuch as both the courts below have recorded categorical findings that the factum of marriage between Akaju and the respondent No. 4 was admitted to the parties. In this connection, it would also be relevant to refer to the memo of revision. In ground No. 10 in the memo of revision, it has been stated that earlier there was a custom of child marriages amongst members of the scheduled castes and even if such marriage had taken place when the persons married were 3 or 4 years in age and a couple of years thereafter the husband expired and if no 'Gauna' ever took place, the said minors cannot be called husband and wife and such a child marriage would confer no right or title upon the minors. 22. It is therefore clear that the factum of marriage is not in dispute and, therefore, reliance upon the authority referred to above to canvass the claim that Saptapadi or other essential ceremonies for a valid marriage were necessarily required to be proved, cannot be accepted. 22. It is therefore clear that the factum of marriage is not in dispute and, therefore, reliance upon the authority referred to above to canvass the claim that Saptapadi or other essential ceremonies for a valid marriage were necessarily required to be proved, cannot be accepted. It is settled law that a fact admitted between the parties does not require formal proof thereof. 23. The two courts below have recorded categorical findings that marriage between Akaju and the respondent No. 4 is admitted and there is evidence available to the effect that respondent No. 4 never remarried after the death of Akaju and for these reasons the orders impugned call for no interference. 24. The writ petition is devoid of merits and is accordingly dismissed.