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2015 DIGILAW 2935 (ALL)

Zahruddin v. State of U. P.

2015-09-16

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Pradeep Verma, for the petitioner and Sri Gajendra Pratap, Senior Advocate, assisted by Sri Arvind Kumar Kushwaha, for respondent-3. 2. This writ petition has been filed against the order of Deputy Director of Consolidation dated 14.07.2014, passed in proceeding under Section 9-A (2) of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 3. The dispute pertains to the land recorded in basic consolidation year khata 141 (consisting of plots 16/684 (area 0-1-0 bigha), 17 (area 1-13-0 bigha), 25-kha (area 0-5-0 bigha), 34 (area 0-2-0 bigha), 146 (area 0-5-0 bigha), 148-kha (area 0-3-0 bigha), 149 (area 0-3-0 bigha), 160 (area 1-0-0 bigha), 161-kha (area 0-11-0 bigha), 162 (area 1-0-0 bigha), 212-kha (area 1-16-0 bigha), 220-kha (area 0-2-0 bigha), 222 (area 0-3-0 bigha), 223 (area 0-3-0 bigha), 224 (area 0-3-0 bigha), 230-ka (area 0-2-0 bigha), 321-kha (area 0-14-0 bigha), 328-cha (area 0-4-0 bigha), 329 (area 6-3-0 bigha), 340-ka (area 0-10-0 bigha), 368-ka (area 6-2-0 bigha), 371 (area 0-8-0 bigha), 386 (area 1-4-0 bigha), 400-ka (area 0-11-0 bigha), 436-ga (area 0-5-0 bigha), 437-kha (area 0-2-0 bigha), 443-k (area 0-10-0 bigha), 444-kha (area 0-10-0 bigha), total 28 plots (area 24-15-0 bigha), of village Raipura, tahsil Robertsganj, district Sonebhadra, which were recorded in basic consolidation year in the name of Smt. Gangi, widow of Ram Surat. During partal following disputes amongst other were noted in CH Form-4: - (i) Smt. Parwati daughter of Mewa (respondent-3) claimed for recording her name and deleting the name of Smt. Gangi from the khata in dispute. (ii) Shiv Shankar (respondent-7) claimed for recording his name over plots 160 (area 1-0-0 bigha), 161 (area 0-11-0 bigha) on the basis of sale deed executed by Ram Surat in his favour. (iii) Smt. Amarawati claimed for recording her name over plots 371 (area 0-8-0 bigha), 386 (area 1-4-0 bigha), 436-ga (area 0-5-0 bigha), 443-k (area 0-10-0 bigha) on the basis of sale deed executed by Ram Surat in her favour. (iv) Zahruddin (the petitioner) claimed for recording his name over plot 212 (area 1-16-0 bigha) on the basis of sale deed executed by Ram Surat in his favour. Various other disputes were also noted in respect of different plots of khata 141 in CH Form-4 but its reference are not relevant. Assistant Consolidation Officer referred the disputes to Consolidation Officer for decision and issued notices to the parties. Various other disputes were also noted in respect of different plots of khata 141 in CH Form-4 but its reference are not relevant. Assistant Consolidation Officer referred the disputes to Consolidation Officer for decision and issued notices to the parties. Subsequently Smt. Gangi filed various objections on 28.08.1991 under Section 9 (2) of the Act for rejecting the claims of various persons as noted in CH Form-4. Amarawati filed an objection on 20.08.1991, claiming that Smt. Gangi executed two sale deeds 17.02.1989 and 13.07.1996 of the land in dispute in her favour as such her name be recorded over the khata in dispute. During pendency of the cases, before Consolidation Officer, Smt. Gangi died in August 1998 and in her place, Amarawati was substituted as her legal representative by order dated 11.08.1999. Smt. Parwati (respondent-3) and Nanki filed an objection on 21.08.1991 under Section 9 (2) of the Act, for recording their names over the land in dispute. Smt. Nanki died in January 1996 and in her place Banarasi was substituted on 12.03.1996. Zahruddin (the petitioner) and Shiv Shankar also filed their separate objections under Section 9 (2) of the Act. 4. All the cases were consolidated and tried by Consolidation Officer. Consolidation Officer issued notices to the parties on 30.10.1991, fixing 11.11.1991. The cases were adjourned on 11.11.1991, 19.11.1991, 29.11.1991, 10.12.1991, 13.12.1991. On 18.12.1991, the parties took time for filing compromise and 20.12.1991 was fixed. On 20.12.1991, none of the parties or their counsel appeared and Consolidation Officer decided all the cases exparte. Thereafter, Parwati filed an application dated 20.12.1991 for recall of the order , which was allowed on 20.12.1991. On the application the word "swikrit" has been written. On the order sheet "Restoration application filed by Parwati is allowed. Put up on 30.12.1991 for evidence of the plaintiff" has been written. Amarawati put appearance before Consolidation Officer 12.03.1992. From the order sheet of Consolidation Officer, it appears that Amarawati attended the court on the date fixed in the case up to 12.12.2002. On 24.12.2002, statement of Parwati was recorded and on 05.05.2003, statement of her witness, Hanuman was recorded. On 26.10.2004, Amarawati was given last opportunity to adduce her evidence. On 25.09.2006, order dated 13.12.1991 passed in Case Nos. 1333 and 1334 were recalled and these cases were also consolidated with Case No. 124 and 04.11.2006 was fixed for framing issues. 5. On 24.12.2002, statement of Parwati was recorded and on 05.05.2003, statement of her witness, Hanuman was recorded. On 26.10.2004, Amarawati was given last opportunity to adduce her evidence. On 25.09.2006, order dated 13.12.1991 passed in Case Nos. 1333 and 1334 were recalled and these cases were also consolidated with Case No. 124 and 04.11.2006 was fixed for framing issues. 5. It appears that Amarawati challenged the order dated 25.09.2006 in Appeal No. 195 of 2006-07 and thereafter absented from the Court of Consolidation Officer, who framed issues on 15.10.2007, exparte. Appeal No. 195 of 2006-07 was dismissed on 26.07.2007. Revision No. 43/73 of 2007-08 filed by Amarawati against the aforesaid order was dismissed in default on 04.03.2008. Thereafter, Consolidation Officer again issued notices to Amarawati and others on 26.04.2008. In spite of service, Amarawati did not appear before the Consolidation Officer. On 08.12.2008, the counsel for Parwati stated that evidence of Parwati had already been recorded and that may be treated evidence on her behalf. The Consolidation Officer fixed a date for arguments. On 10.05.2010, Consolidation Officer again held service on the parties was sufficient and proceeded exparte. On 17.07.2010, Amarawati filed an application that in the application dated 20.12.1991, by fabricating word "swikrit" has been written on 21.12.1991 and she be granted time to file objection in the application dated 20.12.1991 and the order dated 21.12.1991 be declared as forged. The parties filed objection and counter objection on this application and the application was heard on 03.01.2011 and 15.01.2011 was fixed for order. But in the record of Consolidation Officer, there was no order dated 15.01.2011. The case was finally decided by order dated 31.01.2011 by Consolidation Officer, who held that name of Ram Surat was recorded over the land of Mewa by making forgery in the records. As such name of Ram Surat was directed to be deleted from the land in dispute and names of Parwati and Banarasi were directed to be recorded as heirs of Mewa. objections of the transferees of Mewa Ram Surat were also dismissed. 6. Amarawati filed an appeal (registered as Appeal No. 14 of 2010-11) and Zahruddin (the petitioner) filed an appeal (registered as Appeal No. 215 of 2010-11) from the aforesaid order. objections of the transferees of Mewa Ram Surat were also dismissed. 6. Amarawati filed an appeal (registered as Appeal No. 14 of 2010-11) and Zahruddin (the petitioner) filed an appeal (registered as Appeal No. 215 of 2010-11) from the aforesaid order. Both the appeals were consolidated and heard by Settlement Officer Consolidation, who by his order dated 02.06.2011 held that order dated 20.12.1991 was recalled by Consolidation Officer on 21.12.1991 and the case was restored. The land in dispute was recorded in the name of Mewa son of Ram Saran in khatauni 1360 F. In khatauni 1363 F-1365 F, an amaldaramad recording the name of Ram Surat was made, on the basis of order of Tahsildar dated 19.04.1955. The petitioner could not adduce any evidence to prove that how name of Ram Surat was recorded over the land of Mewa. Tahsildar had no jurisdiction to delete the name of Mewa and record the name of Ram Surat. It has been proved from the evidence on record by respondent-3 that Parwati and Nanki were daughters and heirs of Mewa. On these findings the appeals were dismissed. Amarawati filed a revision (registered as Revision No. 33/33/40/83 of 2013-14) and Zahruddin (the petitioner) filed a revision (registered as Revision No. 32/32/39/82 of 2013-14) against the aforesaid order. Both the revisions were consolidated and heard by Deputy Director of Consolidation, who by order dated 18.07.2014, affirmed the findings of the Consolidation Officer and Settlement Officer Consolidation and dismissed the revisions. 7. Amarawati filed a writ petition (registered as Writ-B No. 62174 of 2014). In the writ petition, various facts including that order of Consolidation Officer dated 20.12.1991 was never recalled as such Consolidation Officer had no jurisdiction to pass fresh order on 31.01.2011 were raised. Due to serious factual controversy as desired by counsel for both the parties, original records of the consolidation authorities relating to the cases were summoned and veryfied, which have been narrated above. Thereafter, after hearing the parties, the writ petitioner was allowed by judgment dated 21.01.2015 and he order of Deputy Director of Consolidation dated 18.07.2014 was set aside and the matter was remanded to Deputy Director of Consolidation, who was directed to record a finding in respect of genuineness of the order of Tahsildar dated 19.04.1955. The petitioner also filed a highly belated writ petition i.e. Writ-B No. 5954 of 2015, against the orders of consolidation authorities. The petitioner also filed a highly belated writ petition i.e. Writ-B No. 5954 of 2015, against the orders of consolidation authorities. As the matter had been remanded to Deputy Director of Consolidation as the writ petition was decided finally by order dated 03.02.2015 and the petitioner was also given liberty to appear before Deputy Director of Consolidation, who was directed to consider the case of the petitioner also while deciding the revisions afresh. 8. After remand, Deputy Director of Consolidation again heard the revisions and by order dated 14.07.2015 held that Tahsildar had no jurisdiction to delete the name of Mewa from the land in dispute and record the name of Ram Surat over it. A suit under Section 229-B of U.P. Act No. 1 of 1951 was filed by Smt. Nanki and Smt. Parwati Devi for declaring them as owners of the land in dispute and deleting the names of Mewa and his transferees on 02.06.1988, which was abated under Section 5 (2) of the Act and thereafter objections were filed before Assistant Consolidation Officer. On these findings, he dismissed the revisions of the petitioner and Amarawati again. Hence, this writ petition has been filed. 9. The counsel for the petitioner submitted that Deputy Director of Consolidation has failed to follow the direction in remand order of this Court in its true spirit in as much as he was directed to record a findings regarding genuineness of the amaldaramad of the order of Tahsildar dated 19.04.1955 as made in khatauni 1363-F to 1365 F but he has not recorded a definite finding in this respect. The order of Tahsildar dated 19.04.1955 was challenged for the first time by respondent-3 and her sister the suit (registered as Suit No. 110 of1988) under Section 229-B of U.P. Act No. 1 of 1951, on 02.06.1988, which was abated under consolidation, i.e. after more than 12 years. Ram Surat died in the year 1987, then three set of mutation applications were filed before Tahsildar i.e. (i) Smt. Gangi widow of Ram Surat (ii) Radhey Shyam Singh and (iii) Shiv Murat and Tahsildar by order dated 02.07.1987 directed for mutation of the name of Smt. Gangi as an heir of Ram Surat. By order dated 30.04.1991, Tahsildar has maintained the order dated 02.07.1987. By order dated 30.04.1991, Tahsildar has maintained the order dated 02.07.1987. In basic consolidation year, name of Smt. Gangi was recorded over the land in dispute and burden was upon respondent-3 to prove her title. There was no basis for the consolidation authorities to hold that entry of the name of Ram Surat was made by making forgery. Long standing entry could not be deleted without any evidence. In any case, Ram Surat and after his death his widow and thereafter the petitioner have been in possession of the land in dispute and their names cannot be deleted. Orders of consolidation authorities are illegal and liable to be set aside. 10. I have considered the arguments of the counsel for the parties and examined the record. Consolidation Officer found that name of Mewa was recorded in the khatauni 1360 F and 1363 F. Ram Surat (predecessor of the petitioner) was recorded over the land in dispute by order of Tahsildar dated 19.04.1955 in khatauni 1363 F-1365 F. Under the provisions of U.P. Land Revenue Act, 1901, Tahsildar has jurisdiction to mutate the name of any person in cases of transfer or succession. The petitioner could not prove that land in dispute was transferred by Mewa to Ram Surat nor that Ram Surat was the heir of Mewa as such, Deputy Director of Consolidation found that amaldaramad made in khatauni 1363 F-1365 F by the order of Tahsidar is without jurisdiction. 11. Supreme Court in Vishwa Vijay Bharati v. Fakhrul Hassan, AIR 1976 SC 1485 =1976 RD 237 (SC). held that it is true that the entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry into their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry in the revenue record states but the entry is open to the attack that it was made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title. This judgment has been followed in Wali Mohhd. Vs. Ram Surat, AIR 1989 SC 2296 =1989 RD 403 (SC). Again in Vikram Singh Junior High School v. District Magistrate (Fin. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title. This judgment has been followed in Wali Mohhd. Vs. Ram Surat, AIR 1989 SC 2296 =1989 RD 403 (SC). Again in Vikram Singh Junior High School v. District Magistrate (Fin. & Rev.), (2002) 9 SCC 509 =2002 (93) RD 278 (SC). it has been held that the entry in the revenue record must have a legal basis. Further there was no adjudication of dispute as regards continuance of the wrong entry. The appellant could not have claimed any title over the land in dispute merely on the basis of wrong entry which continued in its favour through negligence or failure of the Revenue Officer or the Consolidation Officer to correct the record, in pursuance of the order of the Board of Revenue which had attained finality. In the consolidation proceedings, the Collector is also the District Deputy Director of Consolidation under the U.P. Consolidation of Holdings Act and is authorized to correct any wrong entry continued in the consolidation record in that capacity in the exercise of power under Section 48 of the U.P. Consolidation of Holdings Act, 1953. 12. At the time of hearing of the writ petition No. 62174 of 2014, the counsel for the respondents had produced a questioner to the effect that no case was registered before Tahsildar in the year 1955 nor any order was passed on 19.04.1955. He submitted that the entry in khatauni 1363 F-1365 F was merely a forgery without there being any order of any competent authority. Ram Surat had no concern with Mewa nor the petitioner could adduce any evidence to justify for recording the name of Ram Surat over the land of Mewa. As the questioner was produced before this Court as such the matter was remanded to Deputy Director of Consolidation, for giving opportunity of evidence to both the parties and record a fresh findings as to whether entry made in khatauni 1363 F-1365 F was genuine or forged. After remand, the petitioner could not adduce any evidence to justify the entry made in khatauni 1363 F-1366 F by Tahsildar nor they could file any thing in the writ petition in this respect. After remand, the petitioner could not adduce any evidence to justify the entry made in khatauni 1363 F-1366 F by Tahsildar nor they could file any thing in the writ petition in this respect. As such the findings recorded by Deputy Director of Consolidation that under the provisions of U.P. Land Revenue Act, 1901, Tahsildar has no jurisdiction mutate the name of any person in khatauni except in cases of transfer or succession and his order is without jurisdiction and does not affect the right and title of Mewa or his heirs does not suffer from any illegality. Otherwise also, in view of Section 40-A of U.P. Land Revenue Act, 1901, the orders passed relating to mutation/correction can always be challenged in the suit and has no effect of res-judicata. 13. In view of the aforesaid discussion, the writ petition has no merit and is dismissed.