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2015 DIGILAW 484 (ALL)

Khattoo v. Dy. Director of Consolidation

2015-03-13

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri K.N. Rai, for the petitioners and Sri J.P. Sharma, for the contesting respondent-4. The writ petition has been filed against orders of Consolidation Officer dated 3.3.2010, Settlement Officer Consolidation dated 11.8.2014 and Deputy Director of Consolidation dated 27.10.2014 passed in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 2. The dispute between the parties is in respect of share in plot 424 (area 0.73 acre) of village Kotawa, pargana Jalhupur, district Varanasi. In basic consolidation year, land in dispute was recorded in two khats 34 and 347. Khata 34 (consisting plot 424, area 0.385 acre) was recorded in the name of Khattoo son of Hazari (petitioner-1) and khata 347 (consisting plot 424, area 0.345 acre) was recorded in the name of Hazari son of Gullu (now represented by the petitioners). Dashrath alias Dashmi (respondent-4) filed two separate objections, in aforesaid khatas, claiming his 1/4 share in plot 424 (area 0.73 acre). It has been stated by respondent-4 that his father was having 1/4 share in the land in dispute and remaining 3/4 share belonged to Ram Sewak son of Santoo, Bechan, Gaya sons of Babua, residents of village Deenapur and Manni Lal, Hari Lal and Jawahir Lal sons of Raghunandan residents of village Khalispur, from whom Khattoo and Hazari have obtained the sale deeds. However, the name of respondent-4 has been illegally deleted from the land in dispute, in the mutation proceeding. 3. Hazari and Khattoo contested the objections and filed their separate written statement/counter-objection. They have stated that area of plot 424 was 0.73 acre. In family settlement, Charandasi son of Deo Nandan (father of respondent-4) was given 0.065 acre, which was sold by him to Khatto (petitioner-1) through sale-deed dated 3.7.1971. On the basis of this sale-deed name of Khattoo was mutated and name of Charandasi was deleted from the land in dispute. Remaining area of this plot came in the shares of Munni Lal, son of Raghunandan, Ram Lal, Bhola sons of Jawahir, Shitla son of Hari Lal alias Bihari, Kunnar alias Kunnur son of Sewak, Bechan son of Babuwa, Tara, Vishwanath, Baijnath sons of Gaya, Ma-hadeo son of Jittu, Kallu, Dallu, Siri, Bachau, Ramji sons of Sunnar. Remaining area of this plot came in the shares of Munni Lal, son of Raghunandan, Ram Lal, Bhola sons of Jawahir, Shitla son of Hari Lal alias Bihari, Kunnar alias Kunnur son of Sewak, Bechan son of Babuwa, Tara, Vishwanath, Baijnath sons of Gaya, Ma-hadeo son of Jittu, Kallu, Dallu, Siri, Bachau, Ramji sons of Sunnar. Munni Lal, son of Raghunandan, Ram Lal, Bhola sons of Jawahir, Shitla son of Hari Lal alias Bihari executed a sale-deed dated 28.2.1968 in respect of an area of 0.1825 acre of plot 424 in favour of Khattoo, whose name was mutated in revenue record on its basis. Kunnar alias Kunnur son of Sewak, Bechan son of Babuwa, Tara, Vishwanath, Baijnath sons of Gaya, Mahadeo son of Jittu, Kallu, Dallu, Siri, Bachau, Ramji sons of Sunnar executed a sale-deed dated 24.7.1974, in respect of an area of 0.15-5/6 acre of plot 424 in favour of Khattoo, whose name was mutated in revenue record on its basis. Land purchased by Khattoo came to be recorded in basic consolidation year khata 34. Kunnar alias Kunnur son of Sewak, Bechan son of Babuwa, Tara, Vishwanath, Baijnath sons of Gaya, Mahadeo son of Jittu, Kallu, Dallu, Siri, Bachau, Ramji sons of Sunnar executed a sale-deed dated 24.7.1974, in respect of an area of 0.345 acre of plot 424 in favour of Hazari, whose name was mutated in revenue record on its basis and this land was recorded in basic consolidation year khata 347. Respondent-4 has no share in it. Charandasi has filed a suit under section 229-B of U.P. Act No. 1 of 1951, on false allegations, claiming his 1/4 share in the land in dispute, which was abated at the stage of second appeal. From the date of sale-deed, the petitioners have been in exclusive possession over the land in dispute, their possession was also found during partal, in consolidation over entire area of the land in dispute, claim if any of respondent-4 has barred by limitation, estoppel and acquiescence. 4. Both the cases were consolidated and tried by Consolidation Officer. Respondent-4, apart from documentary evidence, examined Chhannu son of Munni Lal as PW-1 and Dashrath alias Dashmi as PW-2, who proved family settlement and share of Deonandan to be 1/4. 4. Both the cases were consolidated and tried by Consolidation Officer. Respondent-4, apart from documentary evidence, examined Chhannu son of Munni Lal as PW-1 and Dashrath alias Dashmi as PW-2, who proved family settlement and share of Deonandan to be 1/4. The petitioners filed sale deeds dated 28.2.1968, 3.7.1971, 24.7.1974 and 24.7.1974 as documentary evidence, and examined Daya Ram as DW-1, Rajendra as DW-2 and Bhola Nath as DW-3. Consolidation Officer, by his order dated 3.3.2010 held that from khatauni 1366 F, 1368 F, 1369-71 F and 1372 F-1374 F, it was proved that name of Charandasi son of Deonandan was jointly recorded over plots 424/1 (area 0.37 acre) and 424/2 (area 0.36 acre). Charandasi filed a suit (registered as Suit No. 236 of 1981) under section 229-B of U.P. Act No. 1 of 1951, in which the parties, entered into compromise and written compromise dated 23.3.1993 was filed, in which it was admitted by Hazari and Khattoo that Charandasi had 1/4 share in plot 424 (area 0.73 acre). Sub-Divisional Officer by order dated 11.4.1983 although accepted compromise but held that as total area of land in dispute was less than 3.125 acre as such its partition cannot be done in view of section 168 of U.P. Act No. 1 of 1951. He, therefore, joined the land of both the khatas in one khata and directed for recording the name of Charandasi as co-sharer in it. Decree of Sub-Divisional Officer was challenged by Hazari and Khattoo in appeal but compromise was not challenged, in it. The compromise contains admission of Hazari and Khattoo and was binding upon them. Charandasi (father of respondent-4) has sold an area of 0.065 acre to Khattoo through sale-deed dated 3.7.1971 as such an area of 0.115 acre of his share still remained in the land in dispute. Although after sale-deed dated 3.7.1971, share of Charandasi remained in the land in dispute but his name has been illegally deleted. On these findings objection of respondent-4 was partly allowed and it was held that he was still having 0.115 acre, in plot 424 of his total 1/4 share. 5. The petitioners filed an appeal (registered as Appeal No. 401/661/1525) from the aforesaid order. The appeal was heard by Settlement Officer Consolidation, who by order dated 11.8.2014 affirmed the findings of Consolidation Officer and dismissed the appeal. 5. The petitioners filed an appeal (registered as Appeal No. 401/661/1525) from the aforesaid order. The appeal was heard by Settlement Officer Consolidation, who by order dated 11.8.2014 affirmed the findings of Consolidation Officer and dismissed the appeal. The petitioners filed a revision (registered as Revision No. 1142/1655) from the aforesaid orders. In the revision, the petitioners filed copy of khatauni 1372-F-1374-F, containing an amaldaramad of the order of Judicial Officer dated 12.4.1967, passed in Case No. 1005, directing for recording the name of Mahadeo Prasad son of Jittu as co-sharer in the land in dispute, having 1/12 share. On the basis of this endorsement, it was argued that in the suit filed by Mahadeo Prasad, share of Charandasi was also held as 1/12 as such in his share an area of 0.06-1/12 acre was coming. However, he executed a sale-deed dated 3.7.1971, of an area of 0.065 acre of plot 424, in favour of Khattoo as such he left with no share in it and at the time of mutation, his name of rightly deleted. The revision was heard by Deputy Director of Consolidation, who by order dated 27.10.2014 held that the petitioners have never raised this point that Judicial Officer by order dated 12.4.1967, passed in Case No. 1005, held that Charandasi had 1/12 share in the land in dispute as such they cannot be permitted to raise this point for the first time in revision. After the order dated 12.4.1967, Khattoo purchased 1/4 share i.e. an area of 0.1825 acre of plot 424, from Munni Lal, son of Raghunandan, Ram Lal, Bhola sons of Jawahir, Shitla son of Hari Lal alias Bihari, through a sale-deed dated 28.2.1968, from which it was proved that by decree of Judicial Officer dated 12.4.1967, share of Charandasi son of Deo Nandan, was not decided as 1/12, who was having share, equal to Raghunandan. 1/4 share of Charandasi has been given from both the khatas. 1/4 share of Charandasi has been given from both the khatas. Although, the suit under section 229-B was abated but the compromise dated 23.3.1983, which was duly signed by the parties and verified by the Court, has not been challenged by Hazari and Khattoo in appeal as such it is binding between the parties, in which it was admitted that Charandasi (father of respondent-4) had 1/4 share in the land in dispute on which he was having separate possession in view of family settlement between the parties and after sale-deed dated 3.7.1971, an area of 0.115 acre still remained in his share. On these findings the revision was dismissed. Hence this writ petition has been filed. 6. The Counsel for the petitioners submitted that total area of plot 424 was 0.73 acre. Share is a question of law and has to be decided according to the pedigree of the parties. In the absence of all the co-sharers, consolidation authorities have illegally held that respondent-4 was having 1/4 share. The compromise filed in revenue suit was collusive and forged, in which, share of respondent-4 was noted as 1/4, was liable to be ignored, as there will be no estoppel against law. The suit filed in revenue Court has been abated under section 5(2) of the Act, as such it has become non est and no reliance can be placed either on the compromise or in the order passed in it. Khattoo purchased an area of 0.1825 acre of plot 424 from Munni Lal, son of Raghunandan, Ram Lal, Bhola sons of Jawahir, Shitla son of Hari Lal alias Bihari through sale-deed dated 28.2.1968, an area of 0.065 acre, of plot 424 from Charandasi son of Deo Nandan (father of respondent-4) through sale-deed dated 3.7.1971 and an area of 0.15-5/6 acre of plot 424 from Kunnar alias Kunnur son of Sewak, Bechan son of Babuwa, Tara, Vishwanath, Baijnath sons of Gaya, Mahadeo son of Jittu, Kallu, Dallu, Siri, Bachau, Ramji sons of Sunnar through sale-deed dated 24.7.1974, his name was mutated in revenue record on its basis. Thus total area of 0.1825 + 0.065 + 0.15-5/6 = 0.3955, was purchased by Khattoo while in his name an area of 0.385 acre was recorded. Thus total area of 0.1825 + 0.065 + 0.15-5/6 = 0.3955, was purchased by Khattoo while in his name an area of 0.385 acre was recorded. Hazari purchased an area of 0.345 acre of plot 424, from Kunnar alias Kunnur son of Sewak, Bechan son of Babuwa, Tara, Vishwanath, Baijnath sons of Gaya, Mahadeo son of Jittu, Kallu, Dallu, Siri, Bachau, Ramji sons of Sunnar through sale-deed dated 24.7.1974, which was recorded in his name. Respondent-4 and his co-sharers have already sold excess area through various sale deeds and nothing remained in it of the share of respondent-4. Judicial Officer by his judgment dated 12.4.1967, passed in Case No. 1005, held share of Mahadeo Prasad son of Jittu as co-sharer in the land in dispute, having 1/12 share. Charandasi was also having same share. This judgment was not challenged by any of the co-sharers. Consolidation authorities have illegally failed to take notice of all these evidence and their orders are illegal and liable to be set aside. 7. I have considered the arguments of the Counsel for the parties and examined the record. From oral and documentary evidence of respondent-4, his case was that Gulab was having two sons Deonandan and Raghunandan who jointly had 1/2 share in the land in dispute. Descendants of Raghunandan, were residing at village Khalispur, while respondent-4 who was descendant of Deonandan was residing at village Kotawa. Remaining 1/2 share belonged to Sewak, Babuwa and Sunnar. This branch was residing at village Deenapur. Mahadeo son of Jittu was member of the family of Sewak and his 1/12 share was in that branch, who were residing at village Deenapur. In family settlement, Deonandan and Raghunandan were given an area of 0.36 acre and remaining area of 0.37 acre was given in the family of Sewak, Babuwa and Sunnar and others. Khattoo purchased an area of 0.1825 acre of plot 424 from Munni Lal, son of Raghunandan, Ram Lal, Bhola sons of Jawahir, Shitla son of Hari Lal alias Bihari (branch of Raghunandan) through sale-deed dated 28.2.1968, i.e. after judgment of Judicial Officer dated 12.4.1967. From which it was proved that branch of Raghunandan was having 1/4 share. Respondent-4 belonged to the branch of Deonandan who had also 1/4 share. From which it was proved that branch of Raghunandan was having 1/4 share. Respondent-4 belonged to the branch of Deonandan who had also 1/4 share. Khatto purchased an area of 0.065 acre, of plot 424 from Charandasi son of Deonandan (father of respondent-4) through sale-deed dated 3.7.1971 thus an area of 0.115 acre in plot 424 of his share still remained. This case has been proved from oral evidence and compromise dated 23.3.1983, which contained an admission of Khattoo and Hazari and concurrently accepted by all the consolidation authorities. Findings in this respect cannot be said to be perverse. 8. Reason for accepting case of respondent-4 was that Khattoo purchased an area of 0.1825 acre of plot 424 (i.e. 1/4 share) from Munni Lal and others (of the branch of Raghunandan) through sale-deed dated 28.2.1968, (ii) It was proved from oral evidence that Deonandan and Raghunandan were real brothers and jointly had 1/2 share and (iii) Hazari and Khattoo in their compromise filed on 23.3.1983, in Suit No. 236 of 1981 Charandasi v. Hazari and others, accepted share of Charandasi as 1/4. The compromise contain an admission of Hazari and Khattoo, which was best evidence, which can be relied upon against them as held by Supreme Court in Narain Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi AIR 1960 SC 100 and relied upon by High Court in subsequent cases in Girdhari Lal v. DDC and others 1985 RD 135, Chandrika Singh v. DDC and other1994 (Suppl.) RD 176 and Sita Ram v. DDC and others 2005 (99) RD 101. 9. Although in paragraph-15 of the writ petition, the petitioners have denied filing of compromise dated 23.3.1983, in Suit No. 236 of 1981, but along with Supplementary Affidavit, memorandum of Appeal No. 36 of 1983-84, filed by Khattoo and Hazari from the order of Sub-Divisional Officer, has been filed as Annexure SA-1, in which in paragraph-5, filing of compromise, the compromise being based upon previous family settlement and separate portion of respondent-4, on the spot had been admitted. Khattoo, who had signed the compromise, deliberately avoided to appear in witness box. His admission in the compromise has been rightly relied upon. Allegations in paragraph-15 of writ petition is false. 10. Khattoo, who had signed the compromise, deliberately avoided to appear in witness box. His admission in the compromise has been rightly relied upon. Allegations in paragraph-15 of writ petition is false. 10. So far as the arguments that in the absence of all the co-sharers, consolidation authorities were not competent to decide the share of respondent-4 and have illegally held that respondent-4 was having 1/4 share, is concern, at the time of suit in revenue/consolidation Court, Khattoo and Hazari have purchased sharers of all other co-shares as such they were represented through them. Issue relating to share of respondent-4 was raised in revenue suit and thereafter before consolidation authorities and it has been decided after giving opportunity of evidence to the parties. Thus before consolidation authorities all the necessary parties were impleaded. There was no defect of non-joinder of necessary parties. 11. So far as effect of abatement of revenue suit under section 5(2) of the Act, is concerned, relevant part of section 5(2) of the Act is quoted below "Section 5(2).--Upon the said publication of the notification, under sub-section (2) of section 4, the following further consequences shall ensue in the area to which the notification relates, namely: (a) every proceeding for the correction of records every suit and proceeding in respect of declaration or rights or interest in any land lying in the area, of for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any Court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the Court or authority before whom such suit or proceeding is pending, stand abated: Provided that no such order shall be passed without giving to the parties notice by post or in any other manner and after giving them an opportunity of being heard: Provided further that on the issue of a notification under sub-section (1) of section 6 in respect of the said area or part thereof, every such order in relation to the land lying in such area or part as the case may be, shall stand vacated. (b) Such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said suits or proceedings before the appropriate consolidation authorities under and in accordance with the provisions of this Act and the Rules made thereunder." 12. Abatement of revenue suit under section 5(2)(b) does not preclude the person affected to agitate his right or interest in dispute in the said suits or proceedings before the appropriate consolidation authorities. Thus previous judgments have become non est on abatement of suit. Supreme Court in Ram Prasad v. Additional Director of Consolidation AIR 1994 SC 2733 : 1994 RD 299 (SC), held that though the suit stood abated, yet the evidence recorded in the suit or appeal and the findings recorded by civil Courts do not get wiped out; are entitled to be considered and that, therefore, it being the relevant evidence the authorities under the Consolidation Act, unless contrary evidence is established, could go into the evidence and were entitled to rely upon the findings recorded by the civil Courts in support of its conclusions. In subsequent case, in Paras Nath Rai v. State of Bihar 2013 (118) RD 736 (SC), where similar provisions was considered and it was held that the suit as well as the appeal abated and resultantly the very commencement of the civil proceeding came to a naught and, therefore, findings recorded in the said proceeding became extinct. 13. This point may be considered from another angle relating to admissibility of the papers of abated suit as evidence under the provisions of Evidence Act, 1872, before consolidation authorities. The pleadings, evidence or compromise, of civil/revenue suit, which contain admission within the meaning of section 17 of Evidence Act, 1872 are admissible in evidence under section 33 of Evidence Act, 1872, however, judgments, having not become final, are not admissible in evidence under the provisions of sections 40 and 43 of Evidence Act, 1872. Thus judgments of civil/revenue suit, which was ultimately abated cannot be relied upon and shall be treated as extinct as held in Paras Nath Rai's case (supra) as well as under section 5(2)(b) of the Act, while pleading, compromise and the evidence recorded in the abated suit, containing admissions, are admissible in evidence and can be relied upon as held in Ram Prasad's case (supra). The consolidation authorities have not committed any illegality in relying upon the compromise, filed in revenue suit, which contained the admission of the petitioners and the petitioners could not give any explanation in respect of their admission or contradictory evidence could be adduced by them. Admission, being best evidence against the person, who admitted a fact, can be relied upon. 14. Question of adverse possession is irrelevant as respondent-4 through out remained as co-sharer and possession of one co-sharer can be treated as possession on behalf of all. Otherwise also in the compromise and sketch map attached to the compromise, separate possession of respondent-4 was admitted. In view of the aforesaid discussions, writ petition has no merit and is dismissed.