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2017 DIGILAW 2852 (ALL)

Dulari v. Deputy Director of Consolidation

2017-12-06

MANOJ MISRA

body2017
JUDGMENT : Manoj Misra, J. I have heard learned counsel for the petitioners; the learned Standing Counsel for the respondents 1 to 3; Sri K.P. Singh for the caveator-respondent No. 4; Sri Diwakar Singh for the respondent No. 13; and have perused the record. 2. The present petition arises from proceedings under section 9-A (2) of the U.P. Consolidation of Holdings Act. In nutshell, the dispute in between parties came to be examined in three separate cases (i.e. Case Nos. 877; 878; and 879) at the level of the Consolidation Officer in respect of: (i) Khata Nos. 4 and 5 at Village Lokapur; (ii) Khata Nos. 4 and 5 at Village Singhaldweep; and (iii) Khata No. 43 at Village Lokapur. 3. It is not in dispute between the parties that Jhagru had five sons: (i) Mata Bheek ; (ii) Badal; (iii) Pudai; (iv) Ram Autar; and (v) Chhangu. The dispute was in respect of devolvement of the share of Ram Autar in Khata Nos. 4 & 5 in both the aforesaid villages; and in respect of co-sharership in Khata No. 43, which, in the basic year, disclosed the names of Ram Lakhan and Chhangu only. 4. Ram Lakhan, the predecessor-in-interest of respondents 4 to 6, claimed right over the share of Ram Autar as his adopted son, on the basis of a registered deed of adoption of the year 1939, by which Ram Autar's widow, Sukhiya, had adopted him. In the alternative, he also claimed right by way of natural succession as Ram Autar's daughter's (Jagrupa's) son, by claiming that all the other brothers of Ram Autar had predeceased Ram Autar therefore his interest came to his widow Sukhiya and thereafter to him being daughter's son. In respect of Khata No. 43, Ram Lakhan claimed that the land was not ancestral but self acquired by him with Chhangu therefore he had one-half share and the remaining one-half share was with Chhangu and his successors. 5. The claim of Ram Lakhan was contested by the other branches emanating from Jhagru including the petitioners by denying his adoption as also by claiming that Ram Autar was not married to Sukhiya; and that Ram Lakhan was not Ram Autar's daughter's son. They also demanded equal share in Khata No. 43 as per the pedigree. 6. 5. The claim of Ram Lakhan was contested by the other branches emanating from Jhagru including the petitioners by denying his adoption as also by claiming that Ram Autar was not married to Sukhiya; and that Ram Lakhan was not Ram Autar's daughter's son. They also demanded equal share in Khata No. 43 as per the pedigree. 6. The Consolidation Officer found from the evidence, oral as well as documentary, on record that Ram Lakhan was Ram Autar's daughter's son and that all the brothers of Ram Autar had predeceased him. He also found that from the evidence on record it was proved that Sukhiya was widow of Ram Autar and that Ram Autar's interest came to his daughter's son Ram Lakhan. Accordingly, vide his order dated 24.09.1994, he gave one-fifth share to Ram Lakhan in all the Khatas including Khata No. 43 in which Ram Lakhan and Chhangu were alone recorded in the basic year. 7. Aggrieved by the order of the Consolidation Officer, appeals were preferred before the Settlement Officer of Consolidation. One set of appellants, though appealing separately, were aggrieved by providing one-fifth share to Ram Lakhan in Khata Nos. 4 and 5 in both the villages whereas Ram Lakhan was aggrieved by providing one-fifth share to each branch in Khata No. 43 in which he was recorded with Chhangu to the exclusion of others. 8. The Settlement Officer of Consolidation, vide order dated 13.12.2001, partly allowed two appeals and dismissed three appeals including that of the predecessor-in-interest of the petitioners. One appeal allowed related to plot No. 64 in Khata No. 4, which was allowed on the ground that the said plot was kept out of consolidation therefore adjudication on that was without jurisdiction. The other appeal allowed was of Ram Lakan in respect of plot No. 1/2 in Khata No. 43 on the ground that the said plot was recorded exclusively in 1359F in the name of Ram Lakhan and Chhangu and therefore the other branches would not get right thereupon, accordingly the share of Ram Lakhan was declared one-half in the said plot with the other half being with the branch of Chhangu. 9. Aggrieved by the order of the Settlement Officer of Consolidation three revisions were filed. 9. Aggrieved by the order of the Settlement Officer of Consolidation three revisions were filed. Two were by those who were aggrieved with one-fifth share of Ram Lakhan in Khatas 4 and 5 in the two villages; and the third was preferred by respondents 4 to 6, successor-in interest of Ram Lakhan, being aggrieved by not providing one-half share to them in plot No. 2/4 in khata No. 43 in conformity with basic year entry. 10. The Deputy Director of Consolidation, vide order dated 31.08.2017, dismissed the two revisions preferred by the predecessor in interest of the petitioners and allowed the revision preferred by the respondents 4 to 6 thereby providing them one-half share in the other plot pertaining to Khata No. 43 in conformity with the basic year entry which disclosed that only Ram Lakhan and Chhangu were recorded thereon. 11. The petitioners have assailed all the three orders dated 24.09.1994, 13.12.2001 and 31.08.2017 passed by the Consolidation Officer, Settlement Officer of Consolidation and the Deputy Director of Consolidation, respectively, on the ground that the adoption deed having been discarded, there was no substantial evidence to declare that Sukhiya was wife of Ram Autar and that Jagrupa was daughter of Ram Autar and that Ram Lakhan was Ram Autar's daughter's son. It was also argued that from the material brought on record it was proved that at other places Ram Lakhan had staked a claim in the property of his natural father therefore how could he stake a claim in his adoptive father's property. 12. To test the aforesaid submission I have carefully perused the orders passed by the consolidation authorities including the Consolidation Officer, who has discussed the evidence of the witnesses. He had considered and discussed the testimony of a number of witnesses who had deposed that Ram Lakhan was Ram Autar's daughter's son. He found that it was not disputed that Jhagru had five sons and Ram Autar was one of them. He also considered the testimony of one Vipat, who was Kunti's (predecessor in interest of the petitioners) witness, who had stated that Sukhiya after the death of her first husband had started living as wife of Ram Autar (i.e. Ram Autar Ke Saath Baith Gayee Thee, which is colloquial word of "Karao" marriage). He also stated that Jagrupa is daughter of Sukhiya and Ram Lakhan was Jagrupa's son. He also stated that Jagrupa is daughter of Sukhiya and Ram Lakhan was Jagrupa's son. Witnesses had also deposed that Ram Lakhan was Jagrupa's son and was residing in Sukhiya's house. He found that there was no evidence to show that on the death of Ram Autar any of his brothers was surviving and it was proved by Ram Lakhan that all brothers of Ram Autar had predeceased Ram Autar, therefore, being daughter's son of Ram Autar, Ram Lakhan was entitled to succeed to his interest as per the provisions of the then applicable U.P. Tenancy Act, notwithstanding that valid adoption could not be established. 13. The learned counsel for the petitioners could not demonstrate as to how the finding returned by the three courts below were vitiated. The only submission made was that since adoption could not be proved, the claim based upon adoption was liable to fail. 14. The aforesaid submission is unacceptable because once it was proved that Ram Lakhan was Ram Autar's daughter's son as also that Ram Autar's brothers had predeceased Ram Autar, the daughter's son was entitled to succession in preference to other brothers' sons or daughters under the then applicable U.P. Tenancy Act, as found by the courts below, notwithstanding that valid adoption could not be proved. 15. The other submission of the petitioners' counsel that since Ram Lakhan had staked claim over his natural father's property therefore he cannot stake claim on his maternal grandfather's property is equally unacceptable because Ram Lakhan's claim was accepted as tenure-holder's daughter's son and not as his adopted son. Accordingly, even if Ram Lakhan had succeeded to the estate of his father he could not have been deprived of his right to inherit his maternal grand father's interest, which was otherwise inheritable under the provisions of the then existing provisions of the U.P. Tenancy Act. 16. In so far as Khata No. 43 was concerned, admittedly, the land in that Khata, in 1359F, was recorded only in the name of Ram Lakhan and Chhangu and it was not proved to have come from common ancestor, accordingly Ram Lakhan and Chhangu's branch were provided one half share each to the exclusion of others. This finding also could not be demonstrated as perverse or contrary to the record. 17. Accordingly, this court finds no good reason to entertain this petition. 18. The same is dismissed.