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2015 DIGILAW 4064 (ALL)

Vijay Shanker v. Board of Revenue Alld.

2015-12-18

ANJANI KUMAR MISHRA

body2015
JUDGMENT Anjani Kumar Mishra,J. Heard Sri V.K. Singh, learned counsel for the petitioner and Sri Rajesh Kumar, learned counsel for the contesting respondents No.7 and 8. 2. This writ petition arises out of a suit for partition under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act and seeks quashing of the orders passed by the Board of Revenue on 08.09.2015 and the order dated 18.02.2006 passed by the Additional Commissioner (Administration) Varanasi Division, Varanasi. 3. The dispute in this writ petition pertains to plot Nos. 2258/58 and 2258/2859 (corresponding new numbers are 680, 681, 1105M and 1106M) situated in village Murau, Tehsil Machchli Shahar, District Jaunpur. 4. The facts of the case briefly stated are that a sale deed was executed in favour of five persons namely Vijay Shankar, Amar Bahadur and Samar Bahadur sons of Pancham and Ram Prasad and Thakur Prasad sons of Sahdev. Ram Prasad and Thakur Prasad are stated to be the brother-in-law of Pancham. 5. The vendees of the sale deed were mutated on its basis. 6. It appears that a suit under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act was filed by Pancham as the guardian of his five sons, against his brothers-in-law Ram Prasad and Thakur Prasad. 7. This suit is alleged to have been decreed on the basis of a compromise and the land in question was recorded in the name of five sons of Pancham. This situation continued even during the consolidation operations, which started sometime in the year 1971, and joint chak was carved out in the joint names. 8. After the close of consolidation operations, the instant suit under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act, for partition, has been filed. 9. This suit was filed by Pancham and his two sons Samar Bahadur and Indra Bahadur arraying Vijay Shankar and Ram Bahadur the other two sons of Pancham, as defendants. It was alleged that one of the five sons of Pancham, namely Samar Babadur, died and his father Pancham succeeded to his share. The claim of the plaintiff was that five persons recorded over the land in question, namely Pancham himself, as heir of Samar Bahadur and the remaining four sons, each had equal share therein. It was alleged that one of the five sons of Pancham, namely Samar Babadur, died and his father Pancham succeeded to his share. The claim of the plaintiff was that five persons recorded over the land in question, namely Pancham himself, as heir of Samar Bahadur and the remaining four sons, each had equal share therein. Therefore partition was sought claiming that the plaintiffs, namely Pancham and his two sons had 3/5 shares while the remaining 2/5 share was that of the defendants. It was also alleged in the plaint that a family partition on the above lines had taken place and the parties were in possession accordingly, yet the defendants were interfering in the possession of the plaintiffs and therefore the necessity of filing the suit. 10. The suit was contested by the petitioner defendant along with his brother respondent no.8, alleging therein that the property was joint. No family partition had taken place. It was also alleged that the property in question have been purchased by the father-in-law of Pancham, namely Sahdev, in the name of his two sons Ram Prasad and Thakur Prasad and his three grand sons namely Vijay Bahadur, Amar Bahadur and Samar Bahadur. The other two sons of Pancham were born after the sale deed was executed. It was their specific case in the written statement that the suit under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act had been filed by Pancham. The defendants therein, who are the maternal uncles of the petitioner, entered into a compromise and relinquished their share in the land in question and this relinquishment was in favour of their five nephews i.e. five sons of Pancham. Since this suit pertained to 2/5 share of the land in question which belonged to Ram Prasad and Thakur Prasad and the same was relinquished in favour of the five nephews, the defendants in the suit for partition were entitled to their 1/5 share as also 1/5 of the 2/5 share relinquished by the defendants in the suit and therefore, the claim that the plaintiffs and defendants had each had 1/5 share in the disputed land, was not correct. 11. The Trial Court by its judgment and decree dated 18.12.2004, accepting the contention of the defendants, held that Amar Bahadur, Vijay Bahadur and Raj Bahadur had 7/25 share each, while the share of Indra Bahadur and Pancham was 2/25. 12. 11. The Trial Court by its judgment and decree dated 18.12.2004, accepting the contention of the defendants, held that Amar Bahadur, Vijay Bahadur and Raj Bahadur had 7/25 share each, while the share of Indra Bahadur and Pancham was 2/25. 12. Aggrieved by the judgment and decree of the trial court, an appeal was preferred before the Additional Commissioner by the plaintiffs. This appeal was allowed by the judgment and decree dated 21.07.2006, the judgment of the trial court was set aside and the suit was decreed as prayed. The second appeal filed by Amar Bahadur and Vijay Shankar has been dismissed by the second appellate court affirming the judgment passed by the first appellate court, hence this writ petition. 13. Sri V.K. Singh, learned counsel for the petitioner has submitted that since the sale deed executed in the year 1962 was in favour of three sons of Pancham who was then born, as also two brother-in-laws of Pancham who subsequently entered into a compromise and relinquished their share in favour of their five nephews, the three brothers who are recorded as purchasers in the sale deed, are entitled to their share and also 1/5 share of the 2/5 share, relinquished by their maternal uncles. The property in question had been purchased and the sale consideration had been paid by Sahdev, the maternal grand father of the petitioner and respondent no.8 and the father-in-law of Pancham and therefore, the shares had rightly been determined by the trial court. This judgment have been wrongly reversed by the first appellate court holding that the sale consideration had been paid by Pancham and the property was therefore ancestral. Since the suit under Section 229-B have been decided on the basis of a compromise, all the parties recorded over the land in dispute, had equal share therein, namely 1/5 share each. He further submits that the payment of sale consideration by Pancham is based on surmises and conjectures, because the sale deed contains no recital regarding the person paying the sale consideration. 14. The courts below have discarded the case of the petitioner only on account of the fact that Pancham had produced the original sale deed as also the receipt of payment of the balance sale consideration. The second appellate court has held that this is direct evidence. 14. The courts below have discarded the case of the petitioner only on account of the fact that Pancham had produced the original sale deed as also the receipt of payment of the balance sale consideration. The second appellate court has held that this is direct evidence. It has also observed that the case set up by the petitioner that the sale consideration was paid by Sahdev, his maternal grand father, who was financially well of while Pancham was not financially well of; that there was no justification for the land being purchased by Pancham in favour of his brother-in-law, when their father was a big tenure holder, as being circumstantial evidence. The appellate court wrongly treated the production of the sale deed and the receipt for payment of balance sale consideration as direct evidence especially since the witness of this receipt, in his statement has stated that when the receipt was executed neither the vendor nor the vendee was present. This witness namely P.W. 2 Molai, has stated that the amount mentioned in the receipt had been handed over by Pancham to Raj Bahadur, the vendor, but in his cross-examination, he has stated that when the receipt was written, neither the vendor nor the vendee were present and that it was written on the asking of Pancham. Therefore, it cannot be held that Pancham was the vendee of the sale deed. This aspect has been ignored by the courts below, especially the second appellate court. 15. He has further relied upon the statement of Thakur Prasad, D.W.2 who has stated that he and his brother had relinquished their share in the land in question, in favour of their five nephews, the sons of Pancham. 16. On the basis of the aforesaid contentions, he submits, that the impugned orders are liable to be set aside. 17. Sri Rajesh Kumar, learned counsel for the contesting respondents No.4 to 7 has supported the impugned judgments. He submits that the suit under Section 229-B have been decreed in favour of the five sons of Pancham and therefore each was entitled to 1/5 share in the land in question, as has rightly been held by the orders, impugned. 18. I have considered the submissions made by learned counsel for the parties and perused the record. 19. He submits that the suit under Section 229-B have been decreed in favour of the five sons of Pancham and therefore each was entitled to 1/5 share in the land in question, as has rightly been held by the orders, impugned. 18. I have considered the submissions made by learned counsel for the parties and perused the record. 19. The second appellate court has categorically observed that there is no direct evidence as to who had paid the sale consideration. It has also observed that the plaint, compromise and the judgment in the suit under Section 229-B are not available on record. The only observation of consequence, on the basis of which the second appeal has been dismissed, is that the original sale deed as also the receipt for payment of balance sale consideration have been produced from the custody of Pancham. This to my mind is not something which could have been made the basis of the judgment. 20. It is not in dispute that Pancham is the father of the petitioner and respondent no.8 while the other respondents are his sons or daughter-in-law. 21. Since the parties to the proceedings are basically father and sons, who till the filing of the suit, comprised a joint family having joint and common cultivation, it does not appear appropriate to hold that the documents which are the basis of the judgment have been produced from the proper custody. The situation might have been different and the conclusion drawn could be held to be appropriate, in case the parties belonged to different families. 22. I do not agree with the aforemention conclusion of the second appellate court especially, when in the earlier part of its judgment, it has observed that the case set up by the defendants was reasonable but circumstantial evidence. 23. The only oral testimony available in favour of the plaint case is the statement of Pancham the plaintiff himself and of PW 2, Mulai. Pancham no doubt has stated that he paid the sale consideration, but the statement of PW 2 is silent in this aspect. 24. The second appellate court was also observed that there is no direct evidence as to who paid the sale consideration and that no independent witness has been produced in this regard. 25. Pancham no doubt has stated that he paid the sale consideration, but the statement of PW 2 is silent in this aspect. 24. The second appellate court was also observed that there is no direct evidence as to who paid the sale consideration and that no independent witness has been produced in this regard. 25. The courts below, therefore, should have, in my considered opinion proceeded to partition the share of parties, strictly on the basis of the revenue entries, since it is the admitted case of the plaintiff that the sale deed was in favour of three sons of Pancham and his brothers-in-law. It is also their case that Thakur Prasad and Ram Prasad had relinquished their share on the basis of compromise in favour of plaintiffs. 26. The dispute in the suit under Section 229-B was only with regard to the share of the aforesaid Ram Prasad and Thakur Prasad. The suit for declaration could not relate to the land which was already recorded in the name of three plaintiffs in the suit. It is the admitted position that all the sons of Pancham were the plaintiffs in the suit. 27. In the said circumstance, it can not, by any stretch of imagination and in absence of any documentary proof in this regard, be held that the compromise decree also modified the shares of the persons who are already recorded over the land in question. Their share could not have been the subject matter of a declaratory suit, as their names were already recorded over the land. It therefore necessarily follows that the suit was only with regard to the 2/5 share which belonged to Ram Prasad and Thakur Prasad and this, by the compromise, devolved upon all the plaintiffs. 28. In the aforementioned backdrop, the contention of Sri V.K. Singh, learned counsel for the petitioner that the three sons namely Vijay Shankar, Amar Bahadur and Samar Bahadur, apart from their existing 1/5 share in the land in dispute, would also be entitled to 1/5 share of the 2/5 share of Ram Prasad and Thakur Prasad, relinquished by them, has substance. The trial court in my considered opinion had rightly decided the suit in this regard. 29. The trial court in my considered opinion had rightly decided the suit in this regard. 29. The second contention of the learned counsel for the petitioner is that it was the case of the plaintiffs that the parties had 1/5 share in each in the disputed land was based upon the entries made in CH-4 of an order passed in the year 1971 recording their share to be 1/5 each. There is alleged to be a forged and fabricated entry. 30. In support of this contention, he has placed reliance upon the CH Form 2A to show that both the plots which were the subject matter of the sale deed and which are in dispute in the instant writ petition, were chak out plots and therefore there was no justification of any order being passed as regards the share of the parties therein, during the consolidation operations. 31. Learned counsel for the respondents has not been able to justify as to how this entry was made and therefore, I find merit in the submissions made by the learned counsel for the petitioner that the entries are, on the face of it, fraudulent and manipulated entries. 32. Since the plots were chak out plots, there was no question of any order being passed by the Consolidation Authorities as regards title or share thereto. 33. In view of the foregoing discussions, the impugned orders cannot be sustained. 34. The writ petition is allowed and the impugned orders dated 18.02.2006 and 08.09.2015 passed by the respondents 2 and 1 respectively are set aside and the order passed by the trial court dated 18.12.2004 is affirmed.