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2015 DIGILAW 1787 (ALL)

Ram Raj v. D. D. C.

2015-07-07

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra, J. 1. Heard Sri Anil Bhushan for the petitioner and Sri Rakesh Tripathi for the contesting respondents. The writ petition arises out of an objection under section 9-A(2) of the UP Consolidation of Holdings Act (the Act), and pertains to three plots, namely plot Nos. 1281 (area .63 decimal), 308 (area .5 decimal) and 314 (area .31 decimal), all of khata No. 77, of village Lobhgejar, District Jaunpur. In the basic year, plot No. 308 was recorded in the name of Shiv Charan, father of petitioners 3 to 6; plot No. 314 was recorded in the names of the petitioners 3 to 7, while plot No. 1291 and a portion of plot No. 314 were recorded in the name of Baij Nath, father of petitioners 1 and 2. 2. The contesting respondents filed an objection under section 9-A(2), claiming on the basis of a registered gift-deed executed on 2.6.1926 by Baij Nath, father of petitioners 1 and 2, in favour of their father. 3. The petitioner contested the claim denying the execution of the gift-deed. It was further claimed that in any case the said gift-deed was never acted upon as the same was never incorporated in the revenue records. Babu Nandan, the alleged donee, was never in possession. It was on account of this fact that Baij Nath executed a sale-deed of plot No. 308 in favour of petitioners 3 to 7. He, however, continued in possession over the remaining land of plot Nos. 1281 and 314 and, thereafter, the petitioners are in possession thereof. Subsequent to the sale-deed executed by Baij Nath regarding plot No. 308, the vendees were duly mutated. The entries continued without any objection for well over 50 years and, therefore, there was no reason for disturbing the same. 4. The Consolidation Officer (the CO) by his order dated 9.10.1969 allowed the objection of the contesting respondents in part. It was allowed with regard to plot Nos. 1281 and 314. It was, however, rejected as regards plot No. 308. Both the parties filed their respective revisions against the appellate order, and the revisional court remanded the matter back. Consequent to the order of remand for decision afresh, the Settlement Officer, Consolidation (the SOC), by his order dated 2.6.1978, dismissed the appeal filed by the respondents and allowed that of the petitioner, thereby rejecting the objection under section 9-A(2). Both the parties filed their respective revisions against the appellate order, and the revisional court remanded the matter back. Consequent to the order of remand for decision afresh, the Settlement Officer, Consolidation (the SOC), by his order dated 2.6.1978, dismissed the appeal filed by the respondents and allowed that of the petitioner, thereby rejecting the objection under section 9-A(2). The consequential revision filed by the contesting respondents was allowed by the impugned order dated 3.2.1981, hence the instant writ petition. 5. Sri Anil Bhushan has submitted that the alleged gift-deed dated 2.6.1926 was not in accordance with law. In any case, this gift-deed, even if executed lawfully, was never acted upon. The respondents, or their father, the alleged donee, never took any steps for well over 50 years to get their names recorded on the land on the basis of the alleged gift-deed and, therefore, the very basis of their claim is extremely doubtful. In any case, there is no evidence to show that this gift-deed was accepted as required by section 123 of the Transfer of Property Act. Even otherwise, it is clear that the gift-deed was never acted upon because the donee, Baij Nath, executed sale-deeds on 10.11.1955 and 12.12.1952 in favour of Shiv Charan and the petitioners 3 to 7. The vendors were put in possession and their names were also mutated, to which no objection was ever raised for well over 50 years. 6. In the alternative, it is also submitted that Baij Nath had no right to execute the gift-deed of the entire property since the same was ancestral and was Sir and Khudkasth land, wherein the son of Baij Nath, born prior to the abolition of the Zamindari, had a share from his birth. 7. Learned Counsel for the respondents has supported the impugned order. He has further submitted that Baij Nath did not sell his entire share and it has been so held by the CO. His next submission is that the SOC decided against the respondents, placing reliance upon the statement of Lalman, on a misreading thereof, misread because Lalman had categorically stated that he was in possession over the land which was the subject-matter of the gift-deed. 8. I have considered the submissions made by the learned Counsel for the parties and have perused the record. Both the SOC and the Dy. 8. I have considered the submissions made by the learned Counsel for the parties and have perused the record. Both the SOC and the Dy. Director of Consolidation (the DDC)-have recorded that the gift-deed of 1926, executed in the name of Babu Nandan, the father of the respondents, was a registered document was filed by the respondents. The respondents had placed reliance upon the judgment reported in ILR 16 Alld. 185, as also other judgments, wherein it has been held that in case a registered gift-deed was produced from proper custody, it would be deemed that the gift had been duly accepted. 9. It is not disputed that it was the contesting respondents who had produced the registered gift-deed, said to have been executed in favour of their father, Babu Nandan. The only reason given by the SOC for not accepting this settled legal position was that it had not been proved by the respondents as to how they came into possession of this registered document. The DDC has considered this reasoning of the appellate authority and held that the reasoning was incorrect and that the authorities cited were liable to be accepted, and, on its basis, held that not only the gift-deed was liable to be accepted since it was a registered document more than 20 years old, but also that the gift and therefore did not require formal proof, stood duly accepted as required under section 123 of TPA, as it was produced and/or from the custody of the heirs of the donee. 10. I find no illegality in the aforesaid findings returned by the DDC and, therefore, the submission of the learned counsel for the petitioner, that the gift-deed was never proved and/or that the acceptance of the gift-deed was not proved, cannot be accepted. 11. The Revisional Court has also considered the submission, which has also been made before me, that since the gift-deed was never incorporated in the revenue records, and no mutation was made on its basis, the same could not be relied upon. Relying upon the relevant case-law, namely, Sumitra Devi Smt. v. Jaipal and another, 1957 RD 122 wherein it has been held that even if mutation was not ordered but a gift-deed stood proved, non-mutation would not affect the rights of the donee. The DDC has repelled the argument raised. Relying upon the relevant case-law, namely, Sumitra Devi Smt. v. Jaipal and another, 1957 RD 122 wherein it has been held that even if mutation was not ordered but a gift-deed stood proved, non-mutation would not affect the rights of the donee. The DDC has repelled the argument raised. Learned Counsel for the petitioner has not been able to point out any illegality in this finding also, and, therefore, even this submission lacks force. Once the gift-executed in 1926 is accepted to be a genuine transaction, the DDC was right in holding that the donor, after its acceptance by the donee, had no right, title or interest left in plot No. 308, which he is stated to have sold to Shiv Charan. He has, therefore, rightly upheld the claim of the contesting respondents to plot No. 308 also, which claim had been negatived by the CO. 12. Besides, the order of the DDC has been passed for cogent reasons and on an appreciation of the evidence on record, and it cannot, by any stretch of imagination, be said that the findings returned by the Revisional Court were such which a prudent man could not have arrived at. Further, it is not the case of the petitioner that the impugned order suffers from the vice of perversity. No such ground has been taken in the writ petition. Since the revisional order has been passed upon the due appreciation of evidence available on record, and after setting aside the recorded findings retuned by the SOC and the findings so returned are not perverse, the writ petition is found to be devoid of merits. It is accordingly dismissed. ……………….