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2016 DIGILAW 2392 (ALL)

Rajendra Prasad Mishra v. D. D. C. , Varanasi

2016-07-11

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya), J. Heard Sri Ajay Kumar Singh, for the petitioners and Sri Mahendra Narain Singh, for respondent-3. 2. The writ petition has been filed against the orders of Consolidation Officer dated 23.06.2015 and Deputy Director of Consolidation, dated 19.05.2016, passed in title proceeding under U.P. Consolidation Act, 1953 (hereinafter referred to as the Act). 3. In basic consolidation year khata-351 (consisting plots 62-ka (area 0.08 acre), 63 (area 0.01 acre), 65-ka (area 0.05 acre), 66-ka (area 0.06 acre), 437/1 (area 0.62 acre), 455/1 (area 0.16 acre), 455/2 (area 0.49 acre), 455/3 (area 0.31 acre), 458 (area 0.35 acre), 547/1 (area 0.15 acre), 547/2 (area 0.30 acre) and 549 (area 0.34 acre)(total 12 plots, area 2.92 acre) of village Kotwa, pargana Kaswar Raja, district Varanasi was recorded in the names of Smt. Jairaji widow of Parmanand and Sadanand son of Ram Swarup, who had ½ share each in it. Parmanand died during consolidation proceeding and was inherited by his sons Rajendra Prasad and Jagdish Prasad (the petitioners). Smt. Jairaji died in the year 2000 and was inherited by her daughter Smt. Durgawati (respondent-3), under her registered will dated 13.02.1979. 4. Sadanand and Smt. Jairaji executed a sale deed dated 17.12.1974, in respect of plot 437/1 (area 0.62 acre) in favour of one Vibhuti Narain, whose name was mutated over it, by order of Assistant Consolidation Officer, dated 23.02.1981, passed in Case No. 9845, under Section 12 of the Act. Sadanand and Smt. Jairaji executed another sale deed dated 13.05.1977, in respect of plot 458 (area 0.35 acre) in favour of one Sriprakash, whose name was mutated over it, by order of Assistant Consolidation Officer, dated 24.02.1981 passed in Case No. 9848, under Section 12 of the Act. Sadanand executed a sale deed dated 16.05.1977 in respect of plot 455/2 (area 0.25 acre) in favour of one Ram Adhar, whose name was mutated over it, by order of Assistant Consolidation Officer dated 08.03.1981, passed in Case No. 9847, under Section 12 of the Act. 5. During consolidation, respondent-3 claimed that Sadanand sold plot 437/1 (area 0.62 acre) and 455/2 (area 0.25 acre) exclusively as such this area of 0.87 acre, be deducted from his ½ share, in remaining area of khata-351. Sadanand did not dispute execution of sale deed dated 16.05.1977 of plot 455/2 (area 0.25 acre), exclusively. 5. During consolidation, respondent-3 claimed that Sadanand sold plot 437/1 (area 0.62 acre) and 455/2 (area 0.25 acre) exclusively as such this area of 0.87 acre, be deducted from his ½ share, in remaining area of khata-351. Sadanand did not dispute execution of sale deed dated 16.05.1977 of plot 455/2 (area 0.25 acre), exclusively. But he disputed sale deed dated 17.12.1974 of plot 437/1 (area 0.62 acre), being executed by him exclusively. He pleaded that sale deed dated 17.12.1974 was jointly executed by Sadanand and Smt. Jairaji as such this area is liable to be deducted from share of both of them. Consolidation Officer, by order dated 23.06.2015 held that Sadanand sold plot 437/1 (area 0.62 acre) through sale deed dated 17.12.1974 and plot 455/2 (area 0.25 acre) through sale deed dated 16.05.1977 exclusively as such this area of 0.87 acre was liable to be deducted from his ½ share in remaining land of khata 351. On this finding, he adjusted this area of 0.87 acre, in ½ share of the petitioners, in remaining plots of khata-351. 6. The petitioners filed an appeal (registered as Appeal No.752/1314) from the aforesaid order. The appeal was heard by Settlement Officer Consolidation, who by his order dated 28.10.2015, held that names of Smt. Jairaji and Sadanand were jointly recorded over plot 437/1 (area 0.62 acre). Smt. Jairaji and Sadanand jointly executed sale deed dated 17.12.1974 of plot 437/1 (area 0.62 acre) as such the area sold under this sale deed is not liable to be adjusted in the share of the petitioners alone. On this finding, he partly allowed the appeal. Respondent-3 filed three revisions (registered as Revision Nos. 1380, 1381 and 1382) from the orders dated 28.10.2015, passed in Appeal No. 752/1314 and Appeal No. 63/85 (under Rule 109 (3) of the Rules, 1954 and order dated 23.02.1981 passed in Case No. 9845. These revisions were consolidated and heard by Deputy Director of Consolidation, who by order dated 19.06.2016, allowed Revision No. 1380 and reinstated order of Consolidation Officer dated 23.06.2015 and dismissed Revision No. 1381, on merit and Revision No. 1382, as time barred. Hence this writ petition was filed. 7. Only dispute between the parties is as to whether sale deed dated 17.12.1974 of plot 437/1 (area 0.62 acre), was executed by Sadanand exclusively or jointly by Sadanand and Smt. Jairaji? Hence this writ petition was filed. 7. Only dispute between the parties is as to whether sale deed dated 17.12.1974 of plot 437/1 (area 0.62 acre), was executed by Sadanand exclusively or jointly by Sadanand and Smt. Jairaji? The counsel for the petitioners submits that entire khata, including plot 437/1 (area 0.62 acre) was jointly recorded in the names of Smt. Jairaji and Sadanand. Sale deed dated 17.12.1974 was jointly executed by Smt. Jairaji and Sadanand. There is no evidence relating to partition of joint holdings between the parties. As such Settlement Officer Consolidation recorded findings that sale deed dated 17.12.1974 was jointly executed by Smt. Jairaji and Sadanand. The finding has been illegally set aside by Deputy Director of Consolidation. The order of Deputy Director of consolidation is illegal and liable to be set aside. 8. I have considered the arguments of the counsel for the parties and examined the record. Clause-3 of the sale deed dated 17.12.1974, recites that property under sale deed was of exclusive share and possession of Sadanand, who alone had taken entire sale consideration. Jairaji joined in the sale deed, as khata is jointly recorded in their names, in revenue records. Thus sale deed dated 17.12.1974 contains a clear admission of Sadanand that entire area of 0.62 acre of plot 637/1 was sold by Sadanand and he alone had taken its sale consideration. Only explanation of the petitioners in respect of this admission of Sadanand was that entire land of khata 351 was joint, there is no evidence relating to partition between joint tenure holders and sale deed dated 17.12.1974 was jointly executed by Sadanand and Smt. Jairaji. As entire land of khata, including plot 637/1, was jointly recorded as such Smt. Jairaji joined in the sale deed. But this is no explanation of clause-3 of the sale deed dated 17.12.1974, in which it had been clearly admitted by Sadanand that plot 637/1 (area 0.62 acre) was sold by Sadanand alone and he alone had taken its sale consideration. Supreme Court in Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi, AIR 1960 SC 100 , held that an admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. Supreme Court in Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi, AIR 1960 SC 100 , held that an admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. In the absence of any explanation, Deputy Director of Consolidation or Consolidation Officer have not committed any illegality in relying upon this admission of Sadanand and their orders do not suffer from any illegality. This Court in exercise of writ jurisdiction cannot interfere with the findings of fact in this respect. 9. In view of the aforesaid discussion, the writ petition has no merit and is dismissed. Petition Dismissed.