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2019 DIGILAW 225 (ALL)

Ram Janam Singh v. Dina Nath Singh

2019-01-28

RAJAN ROY

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ORDER : Rajan Roy, J. 1. This writ petition was filed in the year 1981 challenging the order passed by the Deputy Director of Consolidation dated 6.12.1980 under section 48 of the U.P. Consolidation of Holdings Act 1953 (hereinafter referred as the ‘Act 1953’). 2. The facts of the case in brief are that six Gatas bearing Nos.1113, 1414, 1560, 1133, 1175, 1344 were recorded in the Khevat in the 2nd settlement in the name of Jawahar and others, who were Zamindars. In the 3rd settlement which started from 1931 and continued till 1938, the name of Ram Bahal Singh belonging to the other branch of the common ancestor Sudershan also got recorded as co-Khewatdar i.e. Zamindar. Thus, both the warring parties one whose predecessor-in-interest was Jawahar and the other Ram Bahal were recorded jointly in respect of the aforesaid Gatas in the 3rd settlement. After the death of Ram Bahal, his wife Bhagwan Dei’s name was entered in respect of the said Gatas along with others mentioned hereinabove. The entries aforesaid as recorded in the 3rd settlement were never put to challenge. Prior to the date of vesting which is 1.7.1952 also name of Ram Bahal Singh was recorded in respect of the said Gata as a co-Khewatdar in Khewat of 1356 (1948). Even after coming into force of the U.P. Zamindari Abolition and Land Reforms Act 1950 (hereinreferred as 'Act 1950')and the date of vesting mentioned therein as aforesaid, the name of Ram Bahal Singh continued in the records of 1359F. It is nobody’s case that the entries of the 3rd settlement in the Khewat as aforesaid were incorrect or were challenged in any proceedings wherein the name of Ram Bahal Singh may have been deleted. The entry pertaining to Ram Bahal Singh in Khewat of 1356 and 1359F in respect of the aforesaid Gatas was also not challenged by the opposite parties nor their predecessors-in-interest. 3. Consequently, Bhagwan Dei, the recorded tenure holder having half share in the aforesaid six Gatas sold off her share in all the Gatas in favour of the petitioners vide registered sale-deed dated 4.5.1963. No cancellation of the said sale-deed was sought before the Civil Court by the opposite parties nor their predecessors in interest. 3. Consequently, Bhagwan Dei, the recorded tenure holder having half share in the aforesaid six Gatas sold off her share in all the Gatas in favour of the petitioners vide registered sale-deed dated 4.5.1963. No cancellation of the said sale-deed was sought before the Civil Court by the opposite parties nor their predecessors in interest. In 1966 the opposite parties herein initiated proceedings for declaration of their title under section 229-B of the Act 1950 claiming exclusive right/interest in the aforesaid six Gatas alleging that the said lands were the exclusive ownership of Jawahar who had mortgaged the same in the year 1926 and had redeemed the mortgage in 1945 which did not contain the name of Ram Bahal Singh. This suit was decreed in part, and, Gata Nos.113, 1414 and 560 were held to be the exclusive ownership of Bhagwan Devi, whereas Gata Nos.1133, 1175 and 1344 were held to be the exclusive ownership of Markandey Singh, Ram Surat Singh i.e. predecessors-in-interest of the opposite parties. It is pertinent to mention that the opposite parties herein did not challenge the said decree under section 229-B of the Act 1950 and did not file any appeal. In fact they accepted the decree and vide sale-deed dated 3.8.1968 purchased the remaining half share in Gata Nos.113, 1414 and 1560 from Bhagwan Dei, i.e the half share which remained with her after the sale-deed dated 4.5.1963 executed by her in favour of the petitioners, thus, they accepted the title of Bhagwan Devi in the said Gatas i.e. in three out of the six Gatas. This decree, however, was challenged by the petitioners herein before the Commissioner under section 331 of the Act 1950 by filing an appeal, which was dismissed. The petitioners herein challenged the order of the Commissioner referred hereinabove in second appeal, but, due to the onset of consolidation operations sometime in the year 1970 the entire proceedings abated in view of section 4 and 5 of the Act 1953, however, this did not adversely affect the sale-deed dated 3.8.1968 by which the opposite parties or their predecessors in interest purchased half share of Bhagwan Devi in the aforesaid three out of six Gatas, who, by their conduct accepted the title of Bhagwan Devi in respect thereof. In this regard the contention of Sri U.S. Sahai, learned counsel for the opposite parties was that this purchase was made only to settle the dispute and to buy peace, but this aspect would be considered in the later part of the judgment. 4. In the consolidation proceedings the opposite parties herein filed objections under section 9-A(2) of the Act 1953 claiming exclusive ownership of the remaining three Gatas i.e. Gata Nos.1133, 1175 and 1144. It is again pertinent to mention that no claim was made in respect of half share of Gata Nos.1113, 1414 and 1560 purchased by the petitioners herein from Bhagwan Dei vide sale deed 4.5.1963. 5. The ground of claim of the opposite parties again was the ‘Rehannama’ of the year 1926 and its redemption in the year 1945 as also that there was no order on the basis of which the name of Ram Bahal Singh was entered in the Khewat in the 3rd Settlement or in the Khatauni of 1359F. At this stage it is pertinent to mention that the name of Ram Bahal Singh was entered in the Khewat in the 3rd settlement in respect of all the six Gatas as a co-Khewatdar i.e. Zamindar, therefore, any acceptance of title of Ram Bahal Singh and Bhagwan Dei in respect of part of the Gatas i.e. three Gatas mentioned hereinabove, by purchasing their share in respect thereof vide sale-deed dated 3.8.1968, would estopp the opposite parties from challenging the title of Bhagwan Dei from whom they had purchased part of land as they could not approbate and reprobate both at the same time. By their conduct they acquiesced to the title of Bhagwan Dei, therefore, this Court is of the opinion that the objections of the opposite parties were not maintainable under section 9-A(2) of the Act 1953. It was not open to them to accept the title of Bhagwan Dei partly, as, she had a share in all the Gatas on the same basis, and not on any independent or separate basis. 6. It was not open to them to accept the title of Bhagwan Dei partly, as, she had a share in all the Gatas on the same basis, and not on any independent or separate basis. 6. Be that as it may, the Consolidation Officer allowed the objections of the opposite parties on the basis of the decree passed by the S.D.M. in the suit under section 229-B wholly oblivious of the fact that arising out of the said suit proceedings, a second appeal had been pending when the notification was issued under section 4 of the Act 1953 for consolidation operations, on account of which, the entire proceedings including the initial proceedings under section 229-B stood abated and any order passed therein stood nullified in view of the settled legal position in this regard. 7. At this stage even at the cost of repetition it is necessary to mention that this however did not obliterate the purchase of part of the lands of Bhagwan Dei by the opposite parties themselves vide sale-deed dated 3.8.1968 nor their conduct in this regard acquiescing to her title thereby estopping them from challenging the same in consolidation operations. The contention of Sri Sahai, Advocate that this was done only to settle the dispute is not tenable in view of the aforesaid reasoning. Even if this was done to settle the dispute, then this is how the dispute should have remained settled and no challenge was permissible subsequently. 8. In view of the above, as the very basis of the order of the consolidation officer was an order which was a nullity consequent to the abatement of the proceedings under section 229B at the second appeal level, the same does not require any elaborate discussion in this regard. Even Sri Sahai admitted to the fact that the ground on which the Consolidation Officer had passed the order was not available. 9. Even Sri Sahai admitted to the fact that the ground on which the Consolidation Officer had passed the order was not available. 9. The Settlement Officer Consolidation upturned the order of the Consolidation Officer dated 8.3.1977 on the ground that the 3rd settlement entries had remained unchallenged so was the case with the pre date of vesting entry in the Khetauni of 1356 F and the same entry continued after the date of vesting in the Khatauni of 1359 F., therefore, in view of section 18 rights had accrued to Ram Bahal Singh/Bhagwan Dei and consequently to the petitioners herein who had purchased part of the land from Bhagwan Dei. The Settlement Officer Consolidation referred to the decision of the Supreme Court reported in RD 1973 Page 183, Kailash Rai v. Jai Jai Ram& ors., in support of his reasoning and to dispel the contention of the opposite parties herein based on the ‘Rehennama’ and its redemption. 10. Being aggrieved the opposite parties herein preferred a revision before the Deputy Director of Consolidation who allowed the same vide judgment dated 6.12.1980 which is under challenge in this writ petition. The Deputy Director of Consolidation upturned the judgment of the Settlement Officer, Consolidation on the ground that the plots in question were recorded in the name of Jawahar Singh in the second settlement and the name of Ram Bahal Singh was not recorded at that time in respect of the said Gatas which went to show that Jawahar Singh was the Zamindar of the said lands, as also on the ground that in 1926 a mortgage had been executed by Jawahar Singh which was redeemed by his successors in interest in 1945. Had Ram Bahal Singh been one of the co-owners, then his name would have figured in the mortgage-deed and he would also have been a party to the redemption. Moreover, according to the Deputy Director of Consolidation no basis was available for entry of the name of Ram Bahal Singh in the 3rd settlement nor in the Khatauni of 1356 F., therefore, in the absence of any order on the basis of which such entries could be made, same was not acceptable as proof of title and the same stood rebutted in view of the mortgage referred hereinabove. 11. 11. Having heard the learned counsel for the parties and perused the records this Court is of the view that the Deputy Director of Consolidation failed to appreciate the intervening event by which the opposite parties (their predecessors-in-interest) accepted the title of Bhagwan Dei by purchasing her half share in three of the six plots referred hereinabove which were the very plots in which the other half share was purchased by the petitioners herein and as already stated hereinabove the ownership of Ram Bahal and the entry of his name in the Khewat of 3rd settlement was common to all the six Gatas and the basis of his title was the same in all Gatas i.e. he was Zamindar alongwith other co-zamindars, therefore, as already stated earlier, it was not open for the opposite parties to have challenged the title of Bhagwan Dei, having accepted the same prior to the consolidation operations by their conduct and having acquiesced to the same. Even otherwise the entry in the Khewat in the 3rd settlement in favour of Ram Bahal Singh was never put to challenge. No doubt Khewats were revised every four years, but it is not the case of the opposite parties that they were so revised and the name of Ram Bahal Singh was deleted in the period intervening the 3rd settlement and the Khewat of 1356, and that of the name of Ram Bahal Singh or Bhagwan Dei were entered again in the Khatauni or Khewat of 1356 which was fraudulent or illegal. There is nothing to show that the entry in the Khewat, as made in the third settlement, in favour of Ram Bahal Singh, was ever changed, therefore, it is this entry which got reflected in the Khatauni of 1356 F. which preceded the date of vesting which has to be attached significance in view of the provisions of U.P. Zamindari Abolition and Land Reforms Act 1950, especially as, even after the date of vesting the entry continued in the Khatauni of 1359F. Moreover, these entries of Khewat of 1356 and 1359F were also never put to challenge by the opposite parties or their predecessors in interest till much after the purchase of the land in question by the petitioners from Bhagwan Dei vide sale-deed dated 4.5.1963 when for the first time a suit under section 229-B of the Act 1950 was filed by the opposite parties in1966 which stood abated as already explained earlier. Moreover, as already stated, by accepting the decree under section 229B before abatement of the said proceedings and purchasing the remaining half of her share in the three out of six Gatas, the opposite parties acquiesced to the title of Bhagwan Dei. In this view of the matter, once the opposite parties themselves accepted the title of Bhagwan Dei it was not open to them to challenge the same in respect of her half share in the other Gatas as sold to the petitioners. The contention in this regard by Sri U.S. Sahai as noted earlier that the land was purchased from Bhagwan Dei to buy peace and settle the matter is neither comprehensible nor acceptable. If the intent was to settle the matter, then subsequent challenge should not have been made. In fact it could not have been made for reasons already discussed above. 12. It is not out of place to mention that the claim of the opposite parties in the suit under section 229-B was of exclusive ownership of all the six Gatas on the ground that Bhagwan Dei had no title thereto, therefore, once they acquiesced to her title in respect of three of the six Gatas then even at the cost of repetition this Court is compelled to say that the objections of the opposite parties under section 9A(2) of the Act 1953 subsequently, in the consolidation operations, were not maintainable. Even otherwise for the reasons aforesaid it was not safe for the D.D.C. to rely upon the entries of the 2nd settlement and the mortgage of 1926 to upset the long standing entries since 3rd settlement in favour of Ram Bahal Singh which continued in Khewat of 1356. and 1359F. 13. In the facts and circumstances of the present case the impugned judgment of the Deputy Director of Consolidation dated 6.12.1980 cannot be sustained. The impugned judgment of the Deputy Director of Consolidation dated 6.12.1980 is hereby quashed. and 1359F. 13. In the facts and circumstances of the present case the impugned judgment of the Deputy Director of Consolidation dated 6.12.1980 cannot be sustained. The impugned judgment of the Deputy Director of Consolidation dated 6.12.1980 is hereby quashed. Consequences to follow as per law. With these observations the writ petition is allowed in the aforesaid terms.