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2018 DIGILAW 320 (ALL)

Brahmadeo v. D. D. C. , Gorakhpur

2018-02-06

SALIL KUMAR RAI

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JUDGMENT & ORDER : Salil Kumar Rai, J. Heard counsel for the parties. 2. The dispute in the present writ petition as well as in the consolidation proceedings from which the present writ petition arises relates to plot No. 604 (area 1. 54 hectares) which is part of Khata No. 140. It transpires from the record that one Mst. Keshara was recorded as bhumidhar of the said plot. Mst. Keshara was the widow of Sri Mahesh. The aforesaid Sri Mahesh was the brother of the grandfather of respondent nos. 2 and 3. It also transpires from the record that during the previous consolidation operations held in the village in the year 1962, petitioner along with Mst. Keshara was recorded as co-tenure holder of the disputed plot in CH Form-11 prepared under the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as 'Act 1953') and the rules made thereunder. The petitioner claims that he is the grandson (Nati) of Mst. Keshara i. e. the son of the daughter of Mst. Keshara and was co-opted as bhumidhar of the disputed plot by Mst. Keshara during the consolidation operations held in the village in 1962. The claim of the petitioner in the present writ petition and before the consolidation authorities was that one Smt. Kalpa was the daughter of Mst. Keshara. It has been stated by the petitioner that the aforesaid Kalpa was married to Ram Kishore and petitioner is the son of Ram Kishore and Smt. Kalpa. During the second consolidation proceedings held in the village, a dispute arose between the petitioner and respondent nos. 2 and 3 regarding the disputed plot and case No. 4029 under Section 9(A)-2 of the Act 1953 was registered in the court of Consolidation Officer, District Gorakhpur. The said case appears to have been registered on the objections filed by respondent nos. 2 and 3. It was contended by respondents nos. 2 and 3 before the consolidation officer that Sri Ram Swaroop was the original bhumidhar of the disputed plot and after the death of Ram Swaroop, his sons Baldev, Sukhdev, Ganesh and Mahesh became co-tenure holders of the disputed plot. Smt. Kesara became the co-tenure holder of the disputed plot after the death of Sri Mahesh and succeeded to the same as the widow of Mahesh. It was further contended by respondent nos. Smt. Kesara became the co-tenure holder of the disputed plot after the death of Sri Mahesh and succeeded to the same as the widow of Mahesh. It was further contended by respondent nos. 2 and 3 that Smt. Kesara died issueless and the petitioner is not entitled to succeed to the property of Smt. Kesara as by virtue of Section 171 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, ‘U.P.Z.A. & L.R.Act’), the respondent nos. 2 and 3 are entitled to succeed to the property of Smt. Kesara as they are the grandsons of Ganesh and the only surviving heirs of Ram Swarooop and consequently Mahesh. It was also contended by respondent nos. 2 and 3 that the entry in favour of the petitioner in CH Form-11 against the disputed plot was a forged and fictitious entry and has no bearing on the rights of respondent nos. 2 and 3. The aforesaid case was contested by the petitioner. The petitioner contended before the consolidation officer that Kalpa was the daughter of Mahesh and Mst. Keshara. Kalpa was married to Ram Kishore and petitioner was the son of Ram Kishore and thus the petitioner was the grandson (Nati) of Mst. Keshara and therefore under Section 171 of the U.P.Z.A. & L.R. Act, the petitioner had a preferential right over respondent nos. 2 and 3 to succeed to the property of Mst. Keshara. It was further contended by the petitioner that the disputed plot was the self acquired property of Mahesh and the petitioner was co-opted by Mst. Keshara as a co-tenure holder of the disputed plot only because he was the grandson of Mst. Keshara. ? 3. Case No. 4029 was decided by the consolidation officer by his order dated 12.1.1993. In his order dated 12.1.1993, the consolidation officer recoded a finding that the entries in CH Form-11 so far as the name of the petitioner was concerned showing that the petitioner was co-opted as tenure holder of the disputed plot appeared to be forged and fictitious entry as the said entry were made without any case having been registered before the consolidation authorities. The consolidation officer further held that respondent nos. 2 and 3 had been able to establish their case while the petitioner had failed to prove his case. The consolidation officer further held that respondent nos. 2 and 3 had been able to establish their case while the petitioner had failed to prove his case. Further, the consolidation officer vide his order dated 12.1.1993 held that the petitioner as well as respondent nos. 2 and 3 were entitled to half share over the disputed plot and the name of petitioner shall continue in the revenue records so far as other plots in khata No. 140 were concerned. Aggrieved by the aforesaid order dated 12.1.1993 passed by the consolidation officer, petitioner and respondent nos. 2 and 3 filed appeals before the Settlement Officer of Consolidation, District Gorakhpur which were numbered as Appeal Nos. 433 and 434. The Settlement Officer of Consolidation, District Gorakhpur (hereinafter referred to as 'S.O.C. ') vide order dated 10.1.1994 allowed appeal No. 433 filed by respondent nos. 2 and 3 and dismissed Appeal No. 434 filed by the petitioner and directed that the name of respondent nos. 2 and 3 be recorded as the bhumidhar of the disputed plot and the name of petitioner be deleted from the same. The aforesaid order dated 10.1.1994 passed by S.O.C. was challenged by the petitioner before the Deputy Director of Consolidation, District Gorakhpur (hereinafter referred to as 'D.D.C.') under Section 48 of the Act 1953 by filing Revision No. 315. The D.D.C. vide order dated 11.5.2001 dismissed Revision No. 315 filed by the petitioner. In their impugned orders dated 10.1.1994 and 11.5.2001, the S.O.C. and D.D.C. held that the petitioner had failed to prove that Kalpa was the daughter of Kesara and petitioner was the son of Kalpa. The aforesaid authorities also held that the entry in CH Form-11 regarding the name of the petitioner had no relevance inasmuch as there was no reference of the same in the revenue records of the basic year. The orders dated 10.1.1994 and 11.5.2001 passed by S.O.C. and D.D.C. have been challenged in the present writ petition. 4. It was argued by counsel for the petitioner that while passing the impugned order dated 11.5.2001, the D.D.C. has not considered the argument of the petitioner as narrated in his written submissions filed before the D.D.C. and annexed as annexure no. SA-1 to the supplementary affidavit. It has been further argued by counsel for the petitioner that petitioner was entitled to succeed to the whole of the estate of Mst. SA-1 to the supplementary affidavit. It has been further argued by counsel for the petitioner that petitioner was entitled to succeed to the whole of the estate of Mst. Keshara and the consolidation officer had erred in granting him only 1/2 share in the disputed plot but in any case the petitioner was entitled to 1/2 share in the disputed plot as during the previous consolidation operations held in the village, the petitioner was co-opted as a bhumidhar by Mst. Keshara on plot No. 604 and the said fact would be evident from CH Form-11 prepared during the previous consolidation operations held in the village. It has been further argued by the petitioner that the entries made in favour of the petitioner in CH Form-11 during the previous consolidation operations held in the village cannot be questioned in view of the bar imposed by Section 49 of the Act 1953. 5. Rebutting the argument of counsel for the petitioner, counsel for respondents has argued that petitioner was not entitled to succeed to the property of Mst. Keshara as he was not related to Mst. Keshara and was not able to prove that he was the grandson (Nati) of Mst. Keshara. It has been further argued by counsel for respondents that the bar of Section 49 will not apply in the present case as the entries in favour of the petitioner were forged and fictitious and the consolidation authorities were empowered to correct the said entries during the subsequent consolidation proceedings when respondent nos. 2 and 3 filed their objections. 6. I have perused the records and considered the rival submissions of counsel for the parties. 7. The gist of the written submissions filed by the petitioner before the D.D.C. is that Smt. Kalpa, who was allegedly the daughter of Mst. Keshara, became the bhumidhar of the disputed plot and subsequently after the death of Smt. Kalpa, the petitioner came in possession of the disputed plot. The aforesaid argument of the petitioner is based on his averment that Kalpa was the daughter of Mst. Keshara and petitioner is the son of Kalpa. It has been further narrated in the written argument submitted by the petitioner that under Section 171 of the U.P.Z.A. & L.R. Act 1950, the petitioner had a preferential right over respondent nos. 2 and 3 and therefore entitled to succeed to the estate of Mst. Keshara and petitioner is the son of Kalpa. It has been further narrated in the written argument submitted by the petitioner that under Section 171 of the U.P.Z.A. & L.R. Act 1950, the petitioner had a preferential right over respondent nos. 2 and 3 and therefore entitled to succeed to the estate of Mst. Keshara in preference to respondent nos. 2 and 3. ? 8. A perusal of the impugned order dated 11.5.2001 passed by D.D.C. would show that the said arguments raised by the petitioner in his written submissions have been considered by the D.D.C. The right of the petitioner flows from his alleged relationship with Mst. Keshara. A perusal of the impugned orders passed by the S.O.C. and D.D.C. would show that the said authorities rejected the claim of the petitioner on the ground that the petitioner had failed to prove his relationship with Mst. Keshara or with Smt. Kalpa or the relationship between Mst. Keshara and Smt. Kalpa. In view of the aforesaid circumstances, there was no requirement on the part of the D.D.C. to consider the right of the petitioner under Section 171 of the U.P.Z.A. & L.R. Act, 1950. The other argument that was raised by the petitioner in his written submission was that any question regarding the claim of the petitioner over the disputed plot was barred by Section 49 of the Act 1953 due to entry in CH Form-11 made during the previous consolidation proceedings held in the village whereby the petitioner were shown a co-tenure holder of the disputed plot along with Mst. Keshara. The said argument has also been considered by the D.D.C. in his impugned order dated 11.5.2001 as in his impugned order the D.D.C. has held that the entries in CH Form-11 are not reliable. 9. The findings recorded by the S.O.C. and the D.D.C. in their impugned orders dated 10.1.1994 and 11.5.2001 regarding the relationship between the petitioner and Mst. Keshara are findings of fact and not amenable to interference by this Court under Article 226 of the Constitution of India. Both the authorities have held that the petitioner had failed to prove that he was the son of Kalpa or that Kalpa was the daughter of Mst. Keshara. It was necessary for the petitioner to prove the relationship of Kalpa and Mst. Keshara and petitioner with Smt. Kalpa in view of the argument raised by respondent nos. Both the authorities have held that the petitioner had failed to prove that he was the son of Kalpa or that Kalpa was the daughter of Mst. Keshara. It was necessary for the petitioner to prove the relationship of Kalpa and Mst. Keshara and petitioner with Smt. Kalpa in view of the argument raised by respondent nos. 2 and 3 that Mst. Keshara had died issueless and petitioner was not the grandson (Nati) of Mst. Keshara. The counsel for petitioner has not been able to show any perversity or illegality in the aforesaid finding of S.O.C. and D.D.C. 10. The last argument raised by counsel for the petitioner that any dispute on the claim of the petitioner over the disputed plot was barred under Section 49 of the Act, 1953 in light of entries in CH Form-11 which showed the petitioner to be a co-tenure holder of the disputed plot with Mst. Keshara is also unfounded. It has been recorded by the consolidation authorities in their judgments dated 12.1.1993, 10.1.1994 and 11.5.2001 that the entries in CH Form-11 were forged and fictitious. In his order dated 12.1.1993, the consolidation officer has recorded a finding that no case regarding disputed plot was registered before the consolidation authorities during the previous consolidation proceedings and therefore the entries in favour of the petitioner in CH Form-11 appeared to be forged and fictitious. The aforesaid finding has been upheld by the S.O.C. and D.D.C. in their impugned orders dated 10.1.1994 and 11.5.2001. Counsel for the petitioner has not been able to show any illegality in the aforesaid findings so as to invite interference by this Court. In view of the aforesaid, the bar of Section 49 of the Act 1953 did not apply. Further, the bar of Section 49 of the Act 1953 against respondent nos. 2 and 3 would apply only if, during the previous consolidation operations, there had been proceedings relating to declaration and adjudication of rights of tenure holders in respect of disputed land or if the proceedings for such declaration or adjudication of rights of tenure holders in respect of the land could or ought to have been taken under the Act 1953. If the cause of action relating to declaration or adjudication of rights happened to arise at a stage when the proceedings could have been taken under the Act 1953, the jurisdiction to decide such questions would be exclusively exercisable by the consolidation authorities and their decisions would not be open to question in civil or revenue courts. Further, even if such questions are not raised, though the cause of action had arisen at a stage when they could have been raised before the consolidation authorities, there will be a bar to the claim on the basis of such cause of action by virtue of Section 49 of the Act, 1953. It is evident from the records and from the pleadings and the argument of counsel for the petitioner himself that Mst. Keshara was alive during the previous consolidation proceedings held in the village. The question of succeeding to the estate of a tenure holder would arise only after the death of the said tenure holder. The respondent nos. 2 and 3 had no cause of action during the previous consolidation proceedings to question any forged and fictitious entry in the revenue records relating to the plots held by Mst. Keshara as bhumidhar or for the share of Mst. Keshara. The respondent nos. 2 and 3 could claim a right to succeed to the estate of Mst. Keshara only after the death of Mst. Keshara. Thus, the issue regarding succession to the estate of Mst. Keshara and the title dispute between the petitioner and respondent nos. 2 and 3 regarding the disputed plot was not barred by Section 49 of the Act, 1953 and the argument to the contrary raised by counsel for the petitioner is rejected. Counsel for the petitioner has referred to 1966 RD page 170, AIR 1991 SC 249 . The Court fails to appreciate reference by the petitioner to 1966 RD 170 as the principles laid down in the aforesaid case do not support the case of the petitioner. Counsel for the petitioner has referred to 1966 RD page 170, AIR 1991 SC 249 . The Court fails to appreciate reference by the petitioner to 1966 RD 170 as the principles laid down in the aforesaid case do not support the case of the petitioner. In the aforesaid case, it has been held that bar of Section 49 of the Act, 1953 would be applicable only when the cause of action arose till the proceedings under Section 22 of the Act, 1953 have been completed and if the cause of action arose subsequent to the proceedings under Section 22 of the Act, 1953 having been completed, the bar of Section 49 of the Act 1953 did not apply. Further, in AIR 1991 SC 249 the issue was regarding the jurisdiction of civil courts to entertain a suit in respect of matters which were specifically barred by Section 49 of the Act 1953. The principle of law laid down in the aforesaid cases do not help the petitioner. 11. No other argument was raised by the counsel for the petitioner. 12. For the aforesaid reasons, the writ petition lacks merit and is hereby dismissed.