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2017 DIGILAW 2833 (ALL)

Nagendra Kumar v. Dy. Director of Consolidation

2017-12-05

MANOJ MISRA

body2017
JUDGMENT : Manoj Misra, J. Heard learned counsel for the petitioners; learned Standing Counsel for respondents 1 and 2; Sri R.B. Yadav for respondent No. 3 and Sri A.K. Mishra for respondents 4, 5 and 6. The petitioners have challenged the orders dated 9th August, 2017 and 11th June, 2015, passed by the Deputy Director of Consolidation and Settlement Officer of Consolidation, Sonbhadra, respectively. 2. To better understand the controversy, it would be appropriate to notice few facts. 3. In the basic year, the land pertaining to Khata in dispute was recorded in the name of Bhagwan Das and Prabhu (predecessor-in-interest of the respondents 4 to 6). Bhagwan Das and Prabhu were sons of Roop whose father was Ram Badan. Ram Badan had two sons, namely, Roop and Sukhdev. Sukhdev had three sons, namely, Ishwar, Badri and Lakshman. The petitioners are claiming under Sukhdev whereas respondents 4 to 6 are claiming under Roop. 4. A claim was set up by Ishwar; (predecessor-in-interest of the petitioners 1 to 3), Badri; and Lakshman for being recorded as co-sharer in the disputed Khata. 5. The Consolidation Officer by his order dated 1st March, 1994, recorded the petitioners as co-sharers in the disputed Khata primarily by placing reliance on an order dated 17th February, 1971, passed in a suit instituted by Roop against Sukhdev, where-under, on a compromise in a different Khata which was exclusive in the name of Sukhdev, certain share was provided to Roop. The Consolidation Officer found that since Roop had made a claim in Khata of Sukhdev, the family must be joint and therefore they would have share as per the pedigree. 6. Challenging the order passed by the Consolidation Officer, the predecessor-in-interest of the respondents 4 to 6 filed an appeal before the Settlement Officer of Consolidation. 7. The Settlement Officer of Consolidation by his order dated 11th June, 2015 allowed the appeal and set aside the order passed by the Consolidation Officer dated 1st March, 1994 after noticing that Ishwar (predecessor-in-interest of the petitioners) had, in his statement recorded before the consolidation authorities, admitted that the land was obtained by the predecessor-in-interest of the contesting respondents under a separate Patta. The Settlement Officer of Consolidation, accordingly, found that since it was not proved that the land was coming from a common ancestor and, to the contrary, it was proved that it was acquired under a separate Patta, the objectors had no interest in the disputed Khata. 8. Aggrieved by the order passed by the Settlement Officer of Consolidation, the petitioners filed revision before the Deputy Director of Consolidation, which has been dismissed by the impugned order dated 9th August, 2017. 9. While dismissing the revision preferred by the petitioners, the Deputy Director of Consolidation has taken notice of the following facts : (a) that the contesting respondents (predecessor-in-interest of respondents 4 to 6) had been exclusively recorded in the disputed Khata; (b) that the Pariwar register reflected that families were not joint but were recorded separately; (c) that there was no evidence on record to show that the joint family had acquired the land; and (d) that the burden to establish that the land in dispute was of the joint family, was on the objectors, but that burden was not discharged by them. In addition to above, it also did a survey of the revenue entries to find that the land in disputed Khata was not coming from common ancestor. 10. Assailing the orders passed by the Settlement Officer of Consolidation and the Deputy Director of Consolidation, learned counsel for the petitioners has placed heavy reliance on the compromise decree which was passed in a suit instituted by Roop (predecessor-in-interest of the respondents 4 to 6) against Sukhdev (predecessor-in interest of the petitioners), under Section 229-B of the U.P.Z.A. & L.R. Act, in which, on the basis of compromise between the parties, the predecessor-in-interest of the respondents 4 to 6, namely, Roop, was provided a share in the Khata of the predecessor-in-interest of the petitioners. On the basis of the aforesaid compromise, learned counsel for the petitioners has urged that since the predecessor-in-interest of the respondents 4 to 6 had claimed right in Khata of the predecessor-in-interest of the petitioners, it should be deemed that the parties were co-khatedars and therefore the predecessor-in-interest of the petitioners including the petitioners ought to be provided co-khatedar's right in the Khata of predecessor-in-interest of respondents 4 to 6. 11. 11. The aforesaid contention of learned counsel for the petitioners cannot be accepted because the decree which has been relied upon by the petitioners does not relate to the Khata in dispute. Therefore, the said decree cannot be taken as binding for determining rights of the parties in the disputed Khata. More Over, it is always permissible for a member of a joint family to have property in his own individual/personal account. Further, if the predecessor-in-interest of the respondents 4 to 6 had joint interest with the predecessor-in-interest of the petitioners in the disputed Khata, then there was no justification as to why compromise was not entered into in respect of the disputed Khata as well in the previous suit proceeding. Therefore, the compromise which was entered into between the predecessor-in-interest of the petitioners with the predecessor-in-interest of the respondents 4 to 6 in the proceeding under Section 229 of the U.P.Z.A. & L.R. Act would have no material bearing on the present case because it relates to a different Khata. Even otherwise learned counsel for the petitioners has not been able to demonstrate that the finding returned by the Settlement Officer of Consolidation and the Deputy Director of Consolidation that evidence brought on record could not demonstrate that land in the disputed Khata had come from a common ancestor was incorrect or contrary to the record. It has also not been shown that the observation of the Settlement Officer of Consolidation that Ishwar in his statement had admitted that the predecessor-in-interest of the contesting respondents had obtained the land in dispute under a Patta is incorrect or contrary to the record. Once it is not disputed that Ishwar (predecessor-in-interest of the petitioners) had admitted that there was a separate Patta which forms basis of title of the land in the disputed Khata, and there was nothing to show that the land had come from a common ancestor and the records also suggested that the families were not joint, the findings returned by the Settlement Officer of Consolidation and the Deputy Director of Consolidation are based on proper appreciation of evidence on record and therefore call for no interference under Article 226 of the Constitution of India. 12. The petition is dismissed.