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2016 DIGILAW 3213 (ALL)

Tej Pratap Singh v. D. D. C.

2016-09-20

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra,J. Heard Sri R.C.Singh, learned counsel for the petitioners and Sri Satendra Kumar Singh for the contesting respondents. 2. The writ petition arises out of an objection under Section 9A(2) of the U.P. Consolidation of Holdings Act and seeks quashing of the orders of three Consolidation Courts namely, the Consolidation Officer, Assistant Settlement Officer Consolidation and the Deputy Director of Consolidation. 3. The dispute in the writ petition pertains to Khata Nos. 58, 78 and 172 of village Lachhmipur Tappa Hata, District Deoria. Initially, the dispute pertained to a third Khata namely, Khata No.172 also. 4. In the basic year record. Khata No.58 was recorded in favour of the respondent Nos.4 to 6, sons of Dwarika Singh. Khata No.78 was recorded in the name of the respondent no.7, Ram Khelawan Singh, father of the petitioners. Khata No.172 was recorded in the name of the respondent nos.4 to 7. 5. It appears that at the time of Partal, Ram Khelawan Singh, respondent no.7 was found in possession over Khata No.58. 6. The respondents 4 to 6 filed an objection that the name of the father of Ram Khelawan Singh may be expunged and they be declared as exclusive owners of the Khata in question. Another objection was filed by the respondents 4 to 6 claiming half share in Khata No.172. 7. A third objection was filed by one Shyam Lal son of Badarath claiming to be in possession of plot nos.1217 and 1218 of Khata No.78 and 58 respectively, since prior to the abolition of the land and therefore sought a declaration of their title over the said plots. 8. The last objection was filed by Ram Khelawan Singh regarding Khata Nos.58 and 172. It was prayed that the name of the respondents 4 to 6 be expunged from these Khatas and the name of his sons, the petitioners in this writ petition be recorded thereon, holding additionally that the objectors Ram Khelawan Singh had 1/4 share and his sons, the petitioners have 3/4 share therein. 9. The Consolidation Officer by his order dated 05.12.1974 dismissed the objections and maintained the basic year entry. 10. Aggrieved by this order, three appeals were filed. One appeal was filed by the objector Ram Khelawan Singh, the father of the petitioners. Another appeal was filed by Shyam Lal and a third by the respondents 4 to 6, sons of Dwarika Singh. 10. Aggrieved by this order, three appeals were filed. One appeal was filed by the objector Ram Khelawan Singh, the father of the petitioners. Another appeal was filed by Shyam Lal and a third by the respondents 4 to 6, sons of Dwarika Singh. 11. The Assistant Settlement Officer Consolidation by his order dated 08.11.1976 dismissed the three appeals. 12. Against the appellate order, two revisions were filed, one by the petitioners and the other by Shyam Lal. 13. No revision was filed by respondents 4 to 6 and therefore their claim has came to an end. 14. Both the aforesaid revisions, one filed by Ram Khelawan Singh and the other by Shyam Lal, were dismissed vide order dated 05.04.1982. It therefore, follows that this writ petition is only as regards, the objection filed by Ram Khelawan Singh regarding Khata No.58 and 172 wherein it was prayed that the name of the respondents 4 to 6 be expunged and the petitioners be recorded as co-tenure holders to the extent of 3/4 share. 15. (This writ petition has also been filed on behalf of Shyam Lal, who is the petitioner no.4). However, during the course of the arguments nothing of substance was submitted as regards his claim. 16. The claim of the petitioners and their father Ram Khelawan Singh in the objection was that the parties were descendants of one Madhav Prasad, who had three sons namely, Deo Narain Singh, Jokhan Singh and Dwarika Singh. The case of the objectors was that the family possessed land in two villages namely, Lachhmipur and Rampur Sohrauna. By means of a mutual settlement, the land of village Lachhmipur came in the exclusive share of Deo Narain Singh, father of Ram Khelawan Singh while the land of village Rampur Sohrauna came to be the exclusive share of Dwarika Singh. It was further the case of the petitioners that they were entitled to 3/4 share in the disputed Khata, which comprised of Sir and Khudkasht plots, as they were born before 01.07.1952 that is prior to the date of vesting and therefore they have acquired rights in the Sir and Khudkasht plots on birth. 17. It was further alleged that the father of the respondents had admitted the family arrangement. This admission was made in the suit No.340 of 1935. 17. It was further alleged that the father of the respondents had admitted the family arrangement. This admission was made in the suit No.340 of 1935. It is contended that the case No.340 of 1935 was decided on 23.12.1937 holding that Dwarika Singh, father of the respondents alone was the original lease holder of village Rampur Sohrauna. 18. It is lastly contended that a suit under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act filed by the respondents wherein they were held to be entitled of half share in the plots in village Lachhmipur, but, the said judgment and decree is not binding upon the petitioners as they were not parties thereto and only their father was a party in the suit. 19. The contention of the learned counsel for the petitioners is that it stood admitted by father of the respondents that by a family settlement, the petitioners and their father, Deo Narain Singh became exclusive owners of the land in dispute while Dwarika Singh, the father of the respondents got the entire holding in village Rampur Sohrauna. The admission made by Dwarika Singh in this regard in the proceedings of Case No.340 of 1935 has wrongly and illegally been ignored. 20. It is next contended that since the petitioners were not parties in the suit for partition filed by the respondents in the year 1964, the judgment in this partition suit would not operate as res-judicata. 21. The petitioners were entitled to 3/4 share in the disputed land since it consisted of Sir and Khudkasht plots, wherein they acquired a share, having been born prior to the abolition of zamindari. 22. Learned counsel for the respondents has supported the impugned orders. He has submitted that all the three Courts below have rightly decided against the petitioners and the impugned orders call for no interference. 23. I have considered the submissions made by the parties and have perused the record. 24. The Courts below have held that the suit for partition wherein Dwarika Singh and Ram Khelawan Singh were held to be entitled to 1/2 share each in the disputed khatas, had attained finality and therefore the same would operate as res-judicata. 25. The Courts below have also recorded a categorical finding that the Case No340 of 1935 was not decided on the basis of the alleged admission made by Dwarika Singh. 25. The Courts below have also recorded a categorical finding that the Case No340 of 1935 was not decided on the basis of the alleged admission made by Dwarika Singh. He was held to be the exclusive owner on the ground that portion of Sir and Khudkasht land situated in village Lachhmipur had been sold and Deo Narain failed to file any suit to regain possession within the period of limitation and therefore, his rights therein stood extinguished. 26. During the course of the arguments learned counsel for the petitioners could not point out any other illegality in the impugned orders. The Courts below have rightly observed that the petitioners could only claim co-tenancy as regards the share of their father. 27. In view of the above, I do not find any illegality in the concurrent findings recorded by three Courts below. Even the judgment cited by the learned counsel for the respondent; Smt. Lachhmina Vs. Board of Revenue 1964 RD 47 does not help the petitioners. This judgment holds that once possession is parted by an ex-proprietary tenants and he fails to regain his proprietary rights in the land within the period of limitation or to obtain demarcation under Section 36 of the U.P. Land Revenue Act, such land ceases to be 'Sir' and becomes Khalsa land, in which all the proprietors have a share. 28. The Courts below have recorded a categorical finding that once part of the Khata in dispute have been sold, the father of the petitioners namely, Ram Khelawan Singh never took any steps for regaining possession and therefore, his rights came to an end. I do not find any illegality in finding returned. 29. The Full Bench decision in the case of Jokhu Mal Vs. Gopi Mal, AIR 1952 (ALL) 251 (FB). Learned counsel for the respondent has rightly contended that in so far as the petitioners are concerned the coparcenary would include the petitioner their father, Ram Khelawan Singh and their grand father, Deo Narain Singh. 29. The Full Bench decision in the case of Jokhu Mal Vs. Gopi Mal, AIR 1952 (ALL) 251 (FB). Learned counsel for the respondent has rightly contended that in so far as the petitioners are concerned the coparcenary would include the petitioner their father, Ram Khelawan Singh and their grand father, Deo Narain Singh. The Revisional Court has therefore rightly held that their claim for their share in the property in question on the ground that it is coparcenary property would therefore be only as regard, the share of Deo Narain Singh as held in the suit for partition, filed in the year 1964, wherein it was finally held that Dwarika Singh and Deo Narain Singh had half share each in the disputed khata. 30. It is also established from the material on record that Deo Narain Singh had mortgaged his share in the land in village Rampur Sohrauna and the said land was sold in execution and that subsequently Deo Narain Singh did not seek demarcation of his leased area and therefore did not claim ex-proprietary rights therein. This land was therefore recorded exclusively in the name of Dwarika Singh, the father of the respondents. It is therefore clear that the order in favour of Dwarika Singh was not on the basis of his alleged admission as it sought to be alleged by the petitioners. 31. Moreover, it would be relevant to note that the Courts below has further observed that the parties possessed land in other villages also and therefore, in case a mutual family partition had taken place, the land of the other villages would also have been partitioned. This is an additional circumstance for holding that no partition took place between the parties. I do not find any illegality even in this reasoning given in the impugned revisional order. 32. In view of the above discussions, the writ petition lacks merit and is dismissed.