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2019 DIGILAW 1264 (ALL)

Ram Lochan v. D. D. C.

2019-05-09

SALIL KUMAR RAI

body2019
JUDGMENT : 1. Heard Shri S.C.Verma, learned counsel for the petitioners and Shri R.C.Singh, counsel for respondent No. 3. Written argument filed on behalf of the petitioners, is taken on record. 2. The dispute in the present writ petition as well as in the consolidation proceedings from which the present writ petition arises relates to Khata No.85 in Village Premwalia which included Plot Nos. 120/121/122/123/124. In the basic year records, the petitioners were recorded as the tenure holders of the disputed Khata. The respondent No. 3 filed objections under Section 9 of the Act, 1953 (hereinafter referred to as, 'Act, 1953') claiming to be co-tenure holder of the disputed Khata. It was alleged in the objections that Tengary was the original tenure holder of the disputed plots. Tengary had two sons Sahsi and Amrit. Mangaru was the son of Sahsi while Ramdihal was the son of Amrit. Petitioner No. 1 and Jeeta were the sons of Mangaru. Petitioner Nos. 2, 3 & 4 are the sons of Jeeta. Phool Jhariya was the wife/widow of Ramdihal. It was stated in the objections that respondent No. 3 is the daughter of Ramdihal and Phool Jhariya. The respondent No. 3 alleged that after the death of Tengary, Sahsi had fraudulently got his name recorded in the revenue records excluding Amrit i.e. grand father of respondent No. 3 and the respondent No. 3 as the grand daughter of Amrit and the daughter of Phool Jhariya and Ramdihal was entitled to be recorded as a co-tenure holder of the disputed plots after the death of Phool Jhariya. Phool Jhariya had died on 13.1.1968. The respondent No. 3, apart from claiming co-tenancy on the basis of succession, being the daughter of Ramdihal and the grand daughter of Amrit, also claimed co-tenancy on the basis of a Will dated 21.2.1957 executed in her favour by Phool Jhariya, the widow of Ramdihal. On the aforesaid objections of respondent No. 3, Case No. 1630 was registered in the court of Consolidation Officer (hereinafter referred to as, 'C.O.') under Section 9-A(2) of the Act, 1953. 3. The petitioners filed their reply denying that respondent No. 3 was the daughter of Ramdihal and Phool Jhariya and the grand daughter of Amrit. However, the relationship between Phool Jhariya, Ramdihal, Amrit, Sahsi, Mangaru and the petitioners and their relationship with Tengary was admitted by the petitioners. 3. The petitioners filed their reply denying that respondent No. 3 was the daughter of Ramdihal and Phool Jhariya and the grand daughter of Amrit. However, the relationship between Phool Jhariya, Ramdihal, Amrit, Sahsi, Mangaru and the petitioners and their relationship with Tengary was admitted by the petitioners. Before the consolidation authorities, the petitioners denied the claim of respondent No. 3 on the ground that she was not the daughter of Phul Jhariya and therefore, not entitled to succeed to her property and be recorded as a co-tenure holder of the disputed plots. 4. It would be relevant to note that in 1292 Fasli, Tengary was recorded as tenant of the disputed plots while the revenue records of 1322 Fasli showed only Shahsi, and not Amrit, as tenant of the disputed plots. 5. The C.O vide his order dated 7.9.1981 rejected the claim of respondent no.3 on the ground that Sahsi i.e. the grandfather of petitioner no.1 and great-grandfather of other petitioners was recorded as the sole tenure holder of the disputed plots since 1322 Fasli and the respondent no.3 had not been able to explain her failure or the failure of her predecessors, i.e., Amrit and his descendants, to get the revenue records corrected. 6. Aggrieved by the order dated 7.9.1981 passed by the C.O., respondent No. 3 filed Appeal No.3039 before the Settlement Officer of Consolidation, Padrauna, District Deoria (hereinafter referred to as, 'S.O.C') i.e. respondent No.2 which was allowed by the respondent no.2 vide his judgment and order dated 22.7.1987. In his order dated 22.7.1987, the S.O.C took notice of the fact that Tengary was the recorded tenure holder of the disputed plots in 1292 Fasli and the plots had come down in the same form till 1322 Fasli when Sahsi was recorded as tenure holder of the same. After considering the evidence, the respondent No. 2 held that after the death of Tengary, his both sons, Sahsi and Amrit, became the co-tenure holder of the disputed plots. In his order dated 27.7.1987 the respondent No. 2 also held that the respondent No. 3 had proved the pedigree as stated by her in her objections and her relationship with Amrit and Tengary i.e. she was the grand daughter of Amrit and the daughter of Ramdihal. In his order dated 27.7.1987 the respondent No. 2 also held that the respondent No. 3 had proved the pedigree as stated by her in her objections and her relationship with Amrit and Tengary i.e. she was the grand daughter of Amrit and the daughter of Ramdihal. Consequently, in his order dated 27.7.1987 the respondent No. 2 held that respondent No. 3 became a co-tenure holder of the disputed plots by succession. 7. Aggrieved by the order dated 27.7.1987, the petitioners filed Revision No. 204 under Section 48 of the Act, 1953 before the Deputy Director of Consolidation, Deoria, i.e., respondent No. 1 (hereinafter referred to as, 'D.D.C') which was dismissed by the D.D.C vide his order dated 18.8.1989. The orders dated 18.8.1989 passed by the D.D.C. in Revision No. 204 and the order dated 27.7.1987 passed by the S.O.C. in Appeal No. 3039 have been challenged in the present writ petition. 8. Challenging the impugned orders dated 18.8.1989 and 27.7.1987 passed by the S.O.C. and the D.D.C., the counsel for the petitioners has argued that the Family Register proving the relationship of respondent No. 3 with Phool Jhariya and the pedigree as alleged by her as well as the Will dated 21.2.1997 of Phool Jhariya was filed by respondent No. 3 as additional evidence in appeal before the S.O.C. and the petitioners were not given any opportunity to rebut the said evidence. It was argued by the counsel for the petitioners that for the aforesaid reasons, the proceedings before the S.O.C. in Appeal No. 3039 were contrary to law and the impugned orders dated 18.8.1989 and 27.7.1987 passed by the S.O.C. and the D.D.C. are liable to be set aside. It was further argued by the counsel for the petitioners that since 1322 Fasli, i.e., 1915, only Sahsi and his descendants including the petitioners were recorded as the tenure holders of the disputed plots and the respondent No. 3 or her predecessors had not filed any objections against the aforesaid revenue entries, and therefore, the objections filed by respondent No. 3 under Section 9 of the Act, 1953 and her claim were barred by principles of acquiescence and estoppel. It was further argued that Phool Jhariya, i.e., the mother of respondent No. 3 was recorded as the sole tenure holder of certain plots located in another Village-Dhanaha which were also acquired by Tengary, i.e., the common ancestor of the parties. It was argued that the aforesaid fact showed that after the death of Tengary, there was a partition between the predecessors of petitioners and the predecessors of respondent No. 3 and the predecessors of the petitioners became the sole tenure holders of the disputed plots while the predecessors of respondent No. 3 became the sole tenure holders of the plots in Village-Dhanaha. It was argued that for the aforesaid reasons also the objections of respondent No. 3 were liable to be rejected. It was further argued that in any case under Section 172 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950') read with Section 171 of the Act, 1950 the property of Phool Jhariya would devolve upon the heir of the last recorded male tenant in accordance with Section 171 of the Act, 1950 and as the predecessors of the petitioners were the last recorded male tenant, therefore, under Section 171 of the Act, 1950, the petitioners would succeed to the property of Phool Jhariya and the S.O.C. and the D.D.C. have committed an error of law apparent on the face of record in holding that the respondent No. 3 being the daughter of Phool Jhariya would be the co-tenure holder of the disputed plots by succession. It was further argued that the right of respondent No. 3 to succeed to the estate of Phool Jhariya could not be decided without first determining the date of death of Ramdihal, i.e., the father of respondent No. 3 and in their impugned orders dated 18.8.1989 and 27.7.1987 the S.O.C. and the D.D.C. have not considered that the respondent No. 3 had not disclosed the date of death of Ramdihal, and therefore, she would not get any right over the disputed plots by succession and be recorded as co-tenure holder of the same. It was argued that for the aforesaid reasons the orders dated 18.8.1989 and 27.7.1987 passed by the S.O.C. and the D.D.C. are contrary to law and are liable to be set aside. 9. It was argued that for the aforesaid reasons the orders dated 18.8.1989 and 27.7.1987 passed by the S.O.C. and the D.D.C. are contrary to law and are liable to be set aside. 9. Rebutting the argument of the counsel for the petitioner, the counsel for the respondent No. 3 has argued that mere long standing revenue entries would not act either as acquiescence or estoppel to bar the objections filed by respondent No. 3 or to reject her claim of co-tenancy over the disputed plots. It was argued that from the evidence on record, it was apparent that Tengary was the recorded tenure holder of the disputed plots in 1292 Fasli and because the petitioners did not lead any evidence in the courts below to prove the alleged partition between the descendants of Tengary, therefore, the respondent No. 3 became a co-tenant of the disputed plots after the death of Phool Jhariya. It was further argued that under Section 172 read with Section 171 of the Act, 1950, the respondent No. 3 had a preferential right over the petitioners to succeed to the property of Phool Jhariya. It was further argued that the findings recorded by the S.O.C. and the D.D.C. in their impugned orders dated 18.8.1989 and 27.7.1987 are findings of fact and not liable to be interfered under Article 226 of the Constitution of India. It was argued that for the aforesaid reasons, the writ petition lacks merit and is liable to be dismissed. 10. I have considered the rival submissions of the learned counsel for the parties and also perused the record. 11. The findings recorded by the S.O.C. and the D.D.C. in their impugned orders dated 18.8.1989 and 27.7.1987 that the respondent No. 3 was the daughter of Phool Jhariya, i.e., the widow of Ramdihal, are findings of fact based on evidence on record and there is no perversity in the aforesaid findings. In their written argument and during the course of argument in the Court, the counsel for the petitioners has fairly not challenged the findings recorded by the S.O.C. and the D.D.C. regarding the relationship of respondent No. 3 with Phool Jhariya and has fairly conceded that the aforesaid findings are findings of fact and are not liable to be interfered under Article 226 of the Constitution of India. 12. 12. In view of the aforesaid, the argument of the counsel for the petitioners regarding the Family Register filed by respondent No. 3 as additional evidence in appeal is not being considered as the said Family Register was filed by respondent No. 3 only to prove the pedigree admitted by the petitioners and to prove that she was the daughter of Phool Jhariya. Similarly, the argument of the petitioners that the Will dated 21.2.1957 executed by Phool Jhariya was also filed by respondent No. 3 as additional evidence in appeal and the petitioners were not given any opportunity to rebut the same is also not necessary to be decided in the present writ petition as the S.O.C. and the D.D.C. while deciding in favour of respondent No. 3 have not relied on the Will but have accepted the claim of the petitioners under Section 172 read with Section 171 of the Act, 1950 as she was the daughter of Phool Jhariya. 13. So far as the argument of the counsel for the petitioner that the objections and the claim of respondent No. 3 were barred by principles of acquiescence and estoppel is concerned, it would be sufficient to record that long standing revenue entries hold only a presumptive value and they can not be taken to be an absolute proof for pressing the principles of acquiescence, estoppel or waiver to bar a person from claiming his rights. In this regard the observations of this Court in paragraph Nos. 48, 49, 55 and 58 in Shri Ram and Others Vs. Deputy Director of Consolidation, Allahabad and Others, 2011 (112) RD 734 are relevant for the purpose and the same are reproduced below :- "48. We are unable to subscribe to the above view. No public policy can be found out which does not permit a person to seek reversal of the state of affairs continuing for scores of years, if he has a right to do so The view of the learned Single Judge "that a certain but some what erroneous state of affairs is better than almost correct but uncertain state of affairs" can also not be approved. A person who has a right to a property which right he has neither abandoned nor relinquished can be claimed even after a lapse of considerable period, provided the claim is not barred by any law of limitation. 49. A person who has a right to a property which right he has neither abandoned nor relinquished can be claimed even after a lapse of considerable period, provided the claim is not barred by any law of limitation. 49. Law pertaining to land tenure is principally for determining rights of peasants of this country who earn their livelihood from agriculture. Most of them are not literate enough to know their rights and vigilantly assert their rights. Unless the claim of such person is barred by any law, barring their objection on the principle of estoppel and acquiescence is not in accordance with the purpose and object of that Act. 55. The entries in the revenue records raise only a presumption which is a rebutable presumption. There is one more principle i.e. presumption of correctness of entries can apply to only genuine not forged or fraudulent entries. If the bar is read in filing objections against such entries it would lead to injustice. 58. Thus, when the revenue entries raise only a reubttable presumption a party objecting to the said entry can always by sufficient evidence rebut the presumption. Shutting out such objections at the very threshold cannot be said to be in accordance with the provisions of the Act, 1953." (Emphasis added) 14. Thus, in view of the judgment of this Court in Shri Ram (Supra) the objections and the claim of respondent No. 3 was not barred by the principles of acquiescence, estoppel or waiver. 15. It was argued by the counsel for the petitioners that the claim of respondent No. 3 was liable to be rejected as partition between the descendants of Tengary was proved by the fact that Phool Jhariya was recorded as sole tenure holders of certain plots located in Village-Dhanaha which were also acquired by Tengary, the common ancestor of the parties. It was argued that the entries in the revenue records since 1322 Fasli showing Sahsi and his descendants, which includes the petitioners, the tenants of the disputed plots to the exclusion of Amrit and his descendants, which includes respondent No. 3, are explained by the fact of partition between the descendants of Tengary. it is notable that before the consolidation authorities, the petitioners had not set up any case of partition between the descendants of Tengary to justify or explain the revenue entries since 1322 Fasli. it is notable that before the consolidation authorities, the petitioners had not set up any case of partition between the descendants of Tengary to justify or explain the revenue entries since 1322 Fasli. From the records, it is apparent that before the consolidation authorities, the petitioners had denied the claim of respondent No. 3 only on the ground that she was not the daughter of Phool Jhariya. It would be evident from the impugned orders dated 18.8.1989 and 27.7.1987 passed by the S.O.C. and the D.D.C. that the petitioners had not set up any case before the consolidation authorities that the revenue entries in 1322 Fasli showing only Sahsi as the tenure holder of the disputed plots were either a result of partition between the descendants of Tengary or of any fresh settlement in favour of Sahsi. Partition between the co-tenure holders is a question of fact which has to be specifically raised by a party pleading partition before the first court of fact and if permissible in the appellate court. It is also apparent from the records that from 1292 Fasli to 1322 Fasli the disputed plots are in almost identical form and considering the aforesaid fact, the S.O.C. and the D.D.C. have held that after the death of Tengary both Sahsi and Amrit became the tenure holders of the disputed plots and therefore consequently the respondent No. 3, being the daughter of Phool Jhariya, was a co-tenant of the disputed plots. There is no illegality in the aforesaid findings of the S.O.C. and the D.D.C. and the argument of the learned counsel for the petitioners regarding partition between the parties can not be accepted and stands rejected. 16. The next argument of the counsel for the petitioners was that under Section 172 read with Section 171 of the Act, 1950, the petitioners were entitled to succeed Phool Jhariya as they were the heirs of the last recorded male tenant of the disputed plots, and therefore, the impugned orders passed by the S.O.C. and the D.D.C. holding that the respondent No. 3 was entitled to succeed Phool Jhariya were contrary to law and were liable to be set aside. The argument of the counsel for the petitioners cannot be accepted. It is apparent that Phool Jhariya became the tenure holder of the disputed plots as the widow of Ramdihal. The argument of the counsel for the petitioners cannot be accepted. It is apparent that Phool Jhariya became the tenure holder of the disputed plots as the widow of Ramdihal. It is not clear as to whether Ramdihal died before 1 July, 1952, i.e., before the date of vesting as defined in the Act 1950 or after 1 July, 1952. However, the said fact would not be relevant so far as the applicability of Section 172 is concerned because in either case under Section 172 of the Act, 1950 the disputed plots shall devolve upon the nearest surviving heir of the last male Bhumidhar or last male tenant ascertained in accordance with Section 171 of the Act, 1950. Under Section 171 of the Act, 1950 as it stood in 1968, i.e., on the date of death of Phool Jhariya, a married daughter or son's daughter had a preferential right over father's father's son's son. A look at Section 171 of the Act, 1950 as it stood in 1968 shows that a married daughter and son's daughter are shown in Section 171(g) and 171(l) of the Act, 1950 while father's father's son's son is shown in Section 171(r) of the Act, 1950. Under Section 172, the nearest surviving heir of last male Bhumidhar is entitled to succeed to the estate of any female Bhumidhar specified in Section 172 of the Act, 1950. To hold that the phrase 'last male Bhumidhar' in Section 172 of the Act, 1950 means 'last recorded male tenant or Bhumidhar' would be adding words in the statute. The phrase 'the nearest surviving heir of last male Bhumidhar' in Section 172 of the Act, 1950 means the nearest surviving heir of the last male who in the eyes of law was the Bhumidhar and, therefore, entitled to be recorded as Bhumidhar. Accepting the argument of the counsel for the petitioners regarding the phrase 'last male Bhumidhar' in Section 172 of the Act, 1950 would amount to acknowledging the finality of revenue entries in cases involving succession to the property of a female Bhumidhar specified in Section 172 of the Act, 1950. It is evident from the findings recorded by the S.O.C. and the D.D.C. that the last male Bhumidhar was either Amrit or Ramdihal because the S.OC. and the D.D.C. have held that Sahsi and Amrit became co-tenants of the disputed plots after the death of Tengary. It is evident from the findings recorded by the S.O.C. and the D.D.C. that the last male Bhumidhar was either Amrit or Ramdihal because the S.OC. and the D.D.C. have held that Sahsi and Amrit became co-tenants of the disputed plots after the death of Tengary. In either case the respondent No. 3 had a preferential right, being either in Sections 171(g) or 171(l) of the Act, 1950, over the petitioners who, at the most, are entitled only under Section 171(r) of the Act, 1950. 17. So far as the argument that the right of respondent No. 3 could not be decided without ascertaining the date of death of Ramdihal is concerned it is sufficient to note that before the consolidation authorities the petitioners had not taken any case that the plots devolved on them under the Personal Law after the death of Ramdihal or his ancestor. The said argument is being raised for the first time in the writ petition and is contrary to their argument that the ancestors of the petitioners became tenants of the disputed plots to the exclusion of the ancestors of respondent No. 3 because of partition between the ancestors of the parties. In any case, the petitioners can not be permitted to raise a fresh plea in proceedings under Article 226 of the Constitution of India regarding their rights over the disputed plots on a fact which was not brought in issue by them before the courts below. Under Article 226 of the Constitution of India, this Court can consider the legality of the findings and reasons recorded by the courts below only to the extent they adjudicate the rival claims of the parties based on the respective cases taken up by them in the lower courts and only to the extent the lower courts decide the disputed questions of facts put in issue by the parties in the lower courts. 18. In view of the aforesaid, there is no illegality in the findings recorded by the S.O.C. and the D.D.C. in their impugned orders dated 18.8.1989 and 27.7.1987. The findings recorded by the S.O.C. and the D.D.C. in their impugned orders dated 18.8.1989 and 27.7.1987 are findings of fact which are based on evidence on record. There is no perversity in the aforesaid findings so as to occasion interference by this Court under Article 226 of the Constitution of India. 19. The findings recorded by the S.O.C. and the D.D.C. in their impugned orders dated 18.8.1989 and 27.7.1987 are findings of fact which are based on evidence on record. There is no perversity in the aforesaid findings so as to occasion interference by this Court under Article 226 of the Constitution of India. 19. The writ petition lacks merit and is dismissed. Interim order, if any, stands vacated.