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2016 DIGILAW 3177 (ALL)

Mst. Bahgirathi Devi v. D. D. C. , Varanasi

2016-09-16

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya), J. – Heard Sri Ajay Kumar Singh, for the petitioner and Dr. C.P. Upadhyay along with Sri Ram Raj Prajapati, for respondents-4 to 6. 2. This writ petition has been filed against the orders of Consolidation Officer dated 1.6.2013 and 14.2.2014, Settlement Officer Consolidation dated 21.7.2015 and Deputy Director of Consolidation dated 30.5.2016, passed in title proceedings under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 3. The dispute between the parties is in respect of land of basic consolidation year khata 27 [consisting plots 262 (area 1.38 acre), 271 (area 1.87 acre), 290/1 (area 0.57 acre), 385 (area 0.79 acre), 412 (area 0.76 acre) (total 5 plots area 4.04 acre)] of village Madhopur, pargana Dehat Amanat, district Varanasi, which was recorded in the names of Jawahir son of Jhurru, Kallu, Jittu, Kalicharan and Malicharan sons of Somaru, Babunandan son of Dukhran, Jhagru and Mangru sons of Dassu. 4. Smt. Prema Devi, Smt. Jharema Devi and Smt. Sarema Devi (respondents-4 to 6) (hereinafter referred to as the respondents) filed a time barred objection dated 23.5.1994 under section 9 of the Act, along with delay condonation application, for recording their names as the heirs of Phoolchand (their brother) and declaring their 1/5 share jointly in disputed khata. It has been stated by the respondents that the disputed land was ancestral property from the time of Dukhran, who was inherited by his five sons Somaru, Jhurru, Dassu, Ramman alias Ram Nandan and Babunandan. Ramman alias Ram Nandan was inherited by Phoolchand, who died issueless. At the time of death of Phoolchand, they were his minors sisters and unmarried. Being his preferential heirs according to section 171 of U.P. Act No. 1 of 1951, they inherited his 1/5 share, in disputed khata. On 19.5.1994, when they took extract of khatauni from Lekhpal, then they noticed that their names were not mutated after death of Phoolchand. 5. It may be mentioned that Kiran Society also filed another objection for recording its name over the land purchased by it from the respondents. Assistant Consolidation Officer, along with his report dated 3.6.1994 forwarded the objections to Consolidation Officer for disposal. Consolidation Officer by order dated 4.6.1997 condoned the delay in filing the objection. 5. It may be mentioned that Kiran Society also filed another objection for recording its name over the land purchased by it from the respondents. Assistant Consolidation Officer, along with his report dated 3.6.1994 forwarded the objections to Consolidation Officer for disposal. Consolidation Officer by order dated 4.6.1997 condoned the delay in filing the objection. Thereafter, Consolidation Officer, by order dated 17.4.1998, proceeded ex-parte against other recorded tenure holders of the khata and by ex-parte order dated 27.4.1998 allowed the objections. 6. Jawahir son of Jhurru filed an application for recall of the orders dated 4.6.1997, 17.4.1998 and 27.4.1998, along with delay condonation application on 15.2.1999. Consolidation Officer, by order dated 19.4.2003 allowed the recall application, recalled the orders dated 17.4.1998 and 27.4.1998 and restored the objection of the respondents its original number. During trial, Consolidation Officer summoned the record of Case Nos. 501 to 503 decided on 21.3.1993, on the application of recorded tenure holders. 7. At this stage, the respondents came to know about the order dated 21.3.1993 passed in Case Nos. 501 to 503. Then they filed an application dated 21.4.2003, along with delay condonation application, for recalling the order dated 21.3.1993. Consolidation Officer, by order dated 29.8.2005 dismissed their recall application on the ground that as the respondents were not parties in the proceeding nor they filed their objection under section 9 of the Act as such recall application was not maintainable. 8. In the objection of the respondents, the recorded tenure holders filed their counter-objection. On the basis of pleadings, issues were framed on 29.8.2005 and the parties adduced their evidence. While case was listed for evidence, Jawahir filed an application on 26.4.2011, raising preliminary objection, relating to the maintainability of the objection of the respondents on the ground that Consolidation Officer had already passed an order dated 21.3.1993 in Case Nos. 501 to 503, in respect of disputed khata. The respondents filed an application for recall of this order, which was dismissed on 29.8.2005 and the order dated 21.3.1993 has become final such their objection under section 9 of the Act was not maintainable. During pendency of this application evidence of the parties were recorded. On 23.4.2012, except Jawahir, other recorded tenure holders were absent as such their evidence was closed and 30.4.2012 was fixed for final arguments. Both the parties submitted their written arguments on 6.3.2013. During pendency of this application evidence of the parties were recorded. On 23.4.2012, except Jawahir, other recorded tenure holders were absent as such their evidence was closed and 30.4.2012 was fixed for final arguments. Both the parties submitted their written arguments on 6.3.2013. Consolidation Officer, rejected the application of Jawahir dated 26.4.2011, by order dated 1.6.2013, holding that as issues in the case had already been framed as such issue relating to maintainability of the objection would also be decided along with other issues and fixed 28.6.2013 for arguments on merit. 9. In the meantime, Smt. Bhagirathi Devi appeared before Consolidation Officer, filed her vakalatnama and informed the Court that Babunandan, her husband had died on 8.6.2013. The respondents then filed an application dated 11.7.2013 for substituting the petitioner as an heir of Babunandan and also for substituting the heirs of Kallu. Consolidation Officer, by order dated 11.7.2013 allowed the substitution application. In order sheet dated 11.7.2013 (page-86 of writ petition), it has been noted that "Bhagirathi had already filed her vakalatnama. Issue notice to heirs of Kallu". On 20.11.2013, arguments of the respondents was heard and 29.11.2013 was fixed for arguments of the recorded tenure holders. On 11.12.2013, both the parties stated that they had not to raise any further arguments and they had already filed their written arguments. Thereafter, Consolidation Officer, by order dated 14.2.2014, decided the case finally holding that admittedly Phoolchand inherited 1/5 share of his father Ramman alias Ramnandan in disputed khata. At the time of death of Phoolchand, the respondents, his sisters were minors and unmarried as such they were his preferential heirs. Jawahir and others set up their claim on the basis of an unregistered Will dated 30.11.1977, allegedly executed by Phoolchand in their favour. Raghunath, one of the attesting witness of the Will, filed his affidavit denying his thumb impression on the Will dated 30.11.1977. Due execution of the Will dated 30.11.1977, was not proved, by examining the attesting witnesses of the Will. The respondents executed a sale-deed of the land within their share to Kiran society. The respondents were not made as party or given opportunity of hearing before passing order dated 21.3.1993 as such it Will neither operate as res-judicata nor bar the objection of the respondents. The respondents executed a sale-deed of the land within their share to Kiran society. The respondents were not made as party or given opportunity of hearing before passing order dated 21.3.1993 as such it Will neither operate as res-judicata nor bar the objection of the respondents. On these findings the objection of the respondents was allowed, their names were directed to be recorded over the disputed khata and holding their 1/5 share jointly. On the basis of their sale-deed, name of Kiran Society was also recorded over the land sold to it. 10. Smt. Bhagirathi Devi (the petitioner) alone filed an application on 22.2.2014 for recall of the orders dated 1.6.2013 and 14.2.2014. Thereafter, she alone filed a time barred appeal on 7.2.2015 from the orders dated 1.6.2013 and 14.2.2014. Apart from other grounds, she raised grounds that at the time of order dated 1.6.2013, the case was listed for evidence of the opposite parties. After order dated 1.6.2013, no opportunity of evidence was given nor arguments were heard and final order dated 14.2.2014 was passed. Her husband Babunandan died during this period but she was neither substituted nor given any notice of the proceeding. The appeal was heard by Settlement Officer Consolidation, who by order dated 21.7.2015, held that from order sheet it is proved that on 23.4.2012, evidence of the opposite parties was closed after finishing cross-examination of the witness and the case was listed for arguments. The opposite parties based their claim on the basis of unregistered will dated 30.11.1977, allegedly executed by Phoolchand in their favour but they failed to prove due execution of the Will. Order of Consolidation Officer dated 21.3.1993 Will not operate as res-judicata against the respondents as they were neither parties nor given opportunity of hearing. The respondents are preferential heirs of Phoolchand, being his unmarried sisters at the time of his death, according to the provisions of U.P. Act No. 1 of 1951. On these findings the appeal was dismissed. Smt. Bhagirathi Devi alone filed a revision against the aforesaid order. Deputy Director of Consolidation, by order dated 30.5.2016, upheld the findings of Consolidation Officer and Settlement Officer Consolidation and dismissed the revision. Hence this petition has been filed. 11. The Counsel for the petitioner submitted that Phoolchand executed a Will dated 30.11.1977, in favour of his uncles. Phoolchand died issueless prior of start of consolidation operation in village. Deputy Director of Consolidation, by order dated 30.5.2016, upheld the findings of Consolidation Officer and Settlement Officer Consolidation and dismissed the revision. Hence this petition has been filed. 11. The Counsel for the petitioner submitted that Phoolchand executed a Will dated 30.11.1977, in favour of his uncles. Phoolchand died issueless prior of start of consolidation operation in village. On the basis of Will dated 30.11.1977, the names of other sons of Dukhran were mutated as legatees of Phoolchand. In basic consolidation year, the name of Phoolchand was not recorded. Consolidation Officer, by order dated 21.3.1993, passed in Case Nos. 501 to 503, decided shares of recorded tenure holders as there was no objection against basic year entry by any co-tenure holder. The respondents filed an application for recall of order dated 21.3.1993. Consolidation Officer, by order dated 29.8.2005, rejected recall application of the respondents and order dated 21.3.1993 has become final. The objection of the respondents, under section 9 of the Act was not maintainable, in respect of land of same khata. Babunandan, husband of the petitioner, died during pendency of the proceeding, before Consolidation Officer. Recorded tenure holders were not given any opportunity to cross-examine the witnesses of the respondents nor adduce their evidence. She was neither substituted nor given any notice of the proceeding. The order was passed against a dead person. Jawahir argued his application dated 26.4.2011, relating to maintainability of the objection of the respondents. Consolidation Officer, by order dated 1.6.2013, deferred disposal of this application thereafter without hearing any argument, the case was finally decided on 14.2.2014. The order of Consolidation Officer was illegal and has been passed without proper trail of the case, without hearing arguments and against dead persons. The appeal and revision of the petitioner have been illegally dismissed. 12. I have considered the arguments of the Counsel for the parties and examined record. So far as arguments of the Counsel for the petitioner that there was no proper trial by Consolidation Officer in as much as the recorded tenure holders were not given opportunity of cross-examination of the witnesses of the respondents nor adduce their evidence is concerned, a perusal of the order sheet (Annexure-10 to the writ petition) shows that evidence of the respondents was closed on 23.4.2012. The case was decided finally on 14.2.2014. During this long period of about two years, various dates were fixed for final arguments. The case was decided finally on 14.2.2014. During this long period of about two years, various dates were fixed for final arguments. The recorded tenure holders did not move any application before Consolidation Officer to the effect that they were willing to adduce any further evidence and opportunity of evidence be given to them. The arguments that there was no proper trial nor the recorded tenure holders were not given opportunity to adduce their evidence is not liable to be accepted. 13. So far as the arguments that Babunandan had died and the petitioner, who was his only heir was not substituted nor any notice of the case was issued to her and order is against a dead person is concerned, the respondents have filed photostat copy of Substitution Application filed on 11.7.2013, along with Supplementary Counter-Affidavit, which was allowed on the same day The petitioner, in Rejoinder-Affidavit, has not denied this fact. Consolidation Officer, in order-sheet dated 11.7.2013 (page-86 of writ petition), has been noted that "Bhagirathi had already filed her vakalatnama. Issue notice to heirs of Kallu", Arguments in this respect is false. 14. The husband of the petitioner and other recorded tenure holders took their plea that Phoolchand executed a will dated 30.11.1977, in favour of his uncles. Phoolchand died issueless prior of start of consolidation operation in village. On .the basis of Will dated 30.11.1977, the names of other sons of Dukhran were mutated as legatees of Phoolchand. So far as order of mutation of revenue Court is concerned, in view of section 40-A of U.P. Land Revenue Act, 1901, the order of mutation is always subject to regular title proceeding. Mutation neither creates nor extinguishes right of any person. It will not operate as res-judicata in regular title proceeding under the Act. Recorded tenure holders failed to prove due execution of the will dated 30.11.1977. This will cannot be read in evidence, in view of section 68 of Evidence Act, 1872. Other recorded tenure holders, who had set up common title on the basis of Will dated 30.11.1977, are not challenging the order of consolidation authorities. The petitioner has failed to establish her claim against the respondents, who are heirs of Phoolchand under section 171 of U.P. Act No. 1 of 1951. 15. The arguments that in basic consolidation year, the name of Phoolchand was not recorded. The petitioner has failed to establish her claim against the respondents, who are heirs of Phoolchand under section 171 of U.P. Act No. 1 of 1951. 15. The arguments that in basic consolidation year, the name of Phoolchand was not recorded. Consolidation Officer, by order dated 21.3.1993, passed in Case Nos. 501 to 503, decided shares of recorded tenure holders as there was no objection against basic year entry by any co-tenure holder. The respondents filed an application for recall of order dated 21.3.1993. Consolidation Officer, by order dated 29.8.2005, rejected recall application of the respondents and order dated 21.3.1993 has become final. The objection of the respondents, under section 9 of the Act, was not maintainable, in respect of land of same khata, is also not liable to be accepted, in as much as the respondents were not arrayed as parties nor given opportunity of hearing before passing order dated 21.3.1993. Their recall application was rejected only on the ground that they were not parties as such their recall application was not maintainable. This order does not operate as res-judicata against the respondents nor creates any bar under the Act, against the objection of the respondents under section 9 of the Act. 16. In view of the aforesaid discussion, the writ petition has no merit and is dismissed. Petition Dismissed.