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2019 DIGILAW 2274 (ALL)

Rajendra v. D. D. C.

2019-09-27

SALIL KUMAR RAI

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JUDGMENT : Salil Kumar Rai, J. Both the writ petitions arise out of a dispute between the same parties and their share in the same plots and were, therefore, connected by orders of this Court and have been heard together and are being decided by a common order. 2. Heard Sri Vinod Kumar Singh, the counsel for the petitioners, the Standing Counsel representing respondent nos. 1 and 2 and Sri Vishnu Singh, Advocate representing respondent nos. 3 & 4 and their heirs. 3. The dispute in the present writ petitions as well as in the consolidation proceedings from which the present writ petitions arise relates to plots included in Khata No. 122. The facts of the case are that one Ram Saran had three sons, namely, Bhulan, Gajadhar and Dubri. Bhagwan was the son of Bhulan and Sri Chand was the son of Bhagwan. Nand was the son of Gajadhar. Nand had one son, namely, Ram Chander. Rajendra, i.e, the petitioner, is the son of Ram Chander and is the great grandson of Gajadhar. Dubri had two sons, namely, Suraj and Ganga (impleaded as respondent no. 3 in Writ Petition No. 10611 of 1981). Respondents are descendants of Bhulan and Dubri. The aforesaid pedigree is admitted between the parties. In the revenue records relating to 1292 Fasli, Bhulan was recorded as non-occupancy tenant of Khata No. 122. However, subsequently in the revenue records relating to 1323 Fasli, Gajadhar was recorded as occupancy tenant of the disputed plots. It appears from the order passed by the Deputy Director of Consolidation that in the revenue records of 1322 Fasli, Gajadhar was shown as occupancy tenant of the disputed plots since the last 28 years. There is some dispute regarding the entries in the revenue records of 1322 Fasli in as much as it has been stated by the petitioner that Gajadhar was recorded as occupancy tenant of the disputed plots in the records of 1324 Fasli and 1323 Fasli also but the period for which he held the said plots as occupancy tenant was not shown in the aforesaid revenue records. The said controversy, as would be evident from reasons given subsequently, is not relevant for a decision of the present writ petition. The said controversy, as would be evident from reasons given subsequently, is not relevant for a decision of the present writ petition. As a consequence of the entries in the revenue records since 1322/1323 Fasli, only Gajadhar and his descendants continued to be recorded as tenant in the revenue records and were recorded as such in the basic year records. 4. The respondents filed objections under Section 9 of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') before the Consolidation Officer alleging that the plots were jointly acquired by Bhulan, Gajadhar and Dubri, i.e., the sons of Ram Saran. The case of the respondents was that in 1292 Fasli, Bhulan and subsequently Gajadhar were recorded in the revenue records in representative capacity and, therefore, Bhulan, Gajadhar and Dubri and consequently their descendants had 1/3 share each in the disputed plots. On the aforesaid objections of the respondents, Case No. 5940 of 1974-75 under Section 9-A(2) of the Act, 1953 was registered before the Consolidation Officer. The petitioner contested the aforesaid objections alleging that there was a partition between the descendants of Ram Saran and Gajadhar was recorded as occupancy tenant of the disputed plots not in representative capacity but as a result of a fresh settlement by the Zamindar in favour of Gajadhar. It was alleged that in view of the aforesaid, the objections of the respondents was liable to be rejected. To prove his case that there was a partition between the sons of Ram Saran before 1322 Fasli, the petitioner filed as evidence the plaint in Case No. 162 of 1949 instituted by the sons of Dubri against the grandfather of the petitioners which was dismissed in default by the trial court and also the plaint in Case No. 2300 of 1922 filed by Dubri wherein Dubri had allegedly stated that he had separated from Gajadhar and Bhagwan (the son of Bhulan) eight years before the institution of the case, i.e., some times in 1914. 5. The Consolidation Officer vide his order dated 12.3.1975 dismissed the objections of the respondents and the said order was affirmed by the Settlement Officer of Consolidation vide his judgment and order dated 4.9.1975 passed in Appeal No. 1439. 5. The Consolidation Officer vide his order dated 12.3.1975 dismissed the objections of the respondents and the said order was affirmed by the Settlement Officer of Consolidation vide his judgment and order dated 4.9.1975 passed in Appeal No. 1439. In their orders dated 12.3.1975 and 4.9.1975, the Consolidation Officer and the Settlement Officer of Consolidation held that the averments made in the plaint registering Case No. 2300 of 1922 indicated a partition between the descendants of Ram Saran in 1914 and the entries in the revenue records since 1322 Fasli showing Gajadhar as the occupancy tenant of the disputed plots was a result of a fresh settlement between Gajadhar and the Zamindar and, therefore, Gajadhar was recorded as occupancy tenant in the revenue records not in representative capacity. In his judgment dated 4.9.1975, the Settlement Officer of Consolidation also took note of the fact that Plot Nos. 131 and 132 which were included in Khata No. 122 were recorded as 'Padti' in the revenue records before 1322 Fasli and were never recorded in the name of Bhulan or Ram Saran and Gajadhar was recorded as occupancy tenant of the said plots for the first time in the revenue records of 1324 Fasli. The Consolidation Officer and the Settlement Officer of Consolidation also held that the petitioners had not been able to prove a joint family of Bhulan, Gajadhar and Dubri in 1323 Fasli and that the plots were jointly acquired by the brothers. Aggrieved by the orders passed by the Consolidation Officer and the Settlement Officer of Consolidation, the respondents filed a revision under Section 48 of the Act, 1953 before the Deputy Director of Consolidation which was registered and numbered as Revision No. 415/181. The Deputy Director of Consolidation vide his order dated 23.5.1981 allowed the Revision holding that the petitioners had 2/3 share in the disputed plots while the descendants of Dubri had 1/3 share in the disputed plots. The order dated 23.5.1981 holding that the petitioners had 2/3 share in the disputed plots was passed by the Deputy Director of Consolidation on the ground that Sri Chand, i.e., the grandson of Bhulan had not challenged the orders passed by the Consolidation Officer and the Settlement Officer of Consolidation and, therefore, the said orders had attained finality against Sri Chand. Subsequently, Sri Chand also filed Revision No. 480 before the Deputy Director of Consolidation challenging the orders passed by the Consolidation Officer and the Settlement Officer of Consolidation which was allowed by the Deputy Director of Consolidation vide his order dated 16.11.1988 and the order dated 23.5.1981 was modified and Bhulan, Gajadhar and Dubri and consequently their descendants were held to have 1/3 share each in the disputed plots. The order dated 23.5.1981 was passed by the Deputy Director of Consolidation on the ground that the entries in the revenue records of 1292 Fasli and 1322 Fasli proved that the disputed plots were jointly acquired by the sons of Ram Saran and the petitioners had failed to prove any fresh settlement between Gajadhar and the Zamindar. The Deputy Director of Consolidation took note of the entry in the revenue records of 1322 Fasli which showed that Gajadhar held the disputed plots since the last 28 years, i.e., since 1294 Fasli and held that the entry, read along with the entry in 1292 Fasli which showed that Bhulan was a non-occupancy tenant of the disputed plots, indicated that Gajadhar was recorded in 1322 Fasli in representative capacity. It appears that before the Deputy Director of Consolidation, the petitioner had also relied on a family settlement allegedly executed between the ancestors of the parties but the said family settlement was rejected by the Deputy Director of Consolidation on the ground that all the tenure holders had not signed the family settlement produced by the petitioner. The order dated 23.5.1981 has been challenged by the petitioner in Writ - B No. 10611 of 1981 and the order dated 16.11.1988 has been challenged by the petitioners in Writ- B No. 3903 of 1989. 6. Challenging the impugned orders passed by the Deputy Director of Consolidation, the counsel for the petitioner has argued that partition between the ancestors of the parties was admitted by Dubri in the plaints instituting Original Suit No. 308 of 1992 and Original Suit No. 162 of 1941. It was further argued that the fact that Bhulan was not recorded as a tenant of Plot Nos. 96/1 and 97 (New Nos. 131 and 132) which are part of Khata No. 122 showed that there was a fresh settlement between the Zamindar and Gajadhar regarding the disputed plots. It was further argued that the fact that Bhulan was not recorded as a tenant of Plot Nos. 96/1 and 97 (New Nos. 131 and 132) which are part of Khata No. 122 showed that there was a fresh settlement between the Zamindar and Gajadhar regarding the disputed plots. It was further argued that there was no evidence on record to prove that the plots were jointly acquired by the ancestors of the parties and, therefore, the claim of the respondents was rightly rejected by the Consolidation Officer and the Settlement Officer of Consolidation. It was argued that the findings recorded by the Deputy Director of Consolidation in his impugned orders dated 23.5.1981 and 16.11.1988 that the disputed plots were jointly acquired by the three sons of Ram Saran and consequently their descendants had 1/3 share each in the disputed plots are without any evidence and also contrary to the evidence on record. It was argued that for the aforesaid reasons, the writ petitions deserve to be allowed and the orders dated 23.5.1981 and 16.11.1988 passed by the Deputy Director of Consolidation are liable to be set-aside. 7. Rebutting the contentions of the counsel for the petitioner, the counsel for the respondents has argued that the findings of the Deputy Director of Consolidation as recorded in his impugned orders dated 23.5.1981 and 16.11.1988 that the disputed plots were jointly acquired by the sons of Ram Saran are based on evidence on record and are findings of facts and not amenable to interference by this Court under Article 226 of the Constitution of India. It was argued that it was proved from evidence on record that Bhulan, Gajadhar and Dubri, i.e., the sons of Ram Saran, had constituted a joint family and the petitioners could not prove partition between the descendants of Ram Saran and, therefore, the Deputy Director of Consolidation did not commit any error in holding that Gajadhar was recorded in the revenue records in representative capacity. It was argued that for the aforesaid reasons, the writ petitions lack merit and are liable to be dismissed. 8. I have considered the rival submissions of the counsel for the parties. 9. The fact that in 1292 Fasli, Bhulan was recorded as a non-occupancy tenant of Khata No. 122 except Plot Nos. 131 and 132 (Old nos. 96/1 and 97) has not been denied by the petitioner. 8. I have considered the rival submissions of the counsel for the parties. 9. The fact that in 1292 Fasli, Bhulan was recorded as a non-occupancy tenant of Khata No. 122 except Plot Nos. 131 and 132 (Old nos. 96/1 and 97) has not been denied by the petitioner. It is also not denied by the petitioner that in 1292 Fasli, the sons of Ram Saran, namely, Bhulan, Gajadhar and Dubri constituted a joint family. The fact that before the revisional court, the petitioner pleaded a family settlement between the ancestors of the parties shows that the petitioners do not deny that initially Bhulan, Gajadhar and Dubri constituted a joint family. The case of the petitioner is that some time after 1292 Fasli, there was a partition between the sons of Ram Saran and that Gajadhar, i.e., the ancestor of the petitioner was recorded as the sole tenant of the disputed plots after the said partition and as a consequence of a fresh settlement in his favour by the Zamindar. In the circumstances, the burden to prove partition between the descendants of Ram Saran was on the petitioner. In his impugned orders dated 23.5.1981 and 16.11.1988, the Deputy Director of Consolidation has held that the petitioner failed to prove any partition between the descendants of Ram Saran. While recording the aforesaid finding, the Deputy Director of Consolidation has considered the plaint registering Case No. 308 of 1922 which was relied upon by the subordinate consolidation authorities to accept the plea of the petitioner regarding partition between the ancestors of the parties. In his impugned order dated 23.5.1981, the Deputy Director of Consolidation has recorded that in paragraph no. 3 of the plaint, Dubri had categorically stated that the house, agricultural plots and the business of the parties were joint. It is not the case of the petitioner that the aforesaid recital in the order dated 23.5.1981 is contrary to records. Relying on the averment made in paragraph no. 3 of the plaint, the Deputy Director of Consolidation has held that the partition between the ancestors of the parties before 1322 Fasli and any settlement between Gajadhar and the Zamindar before 1322 Fasli were not proved and has, therefore, held that Gajadhar was recorded as occupancy tenant of the disputed plots in representative capacity. 3 of the plaint, the Deputy Director of Consolidation has held that the partition between the ancestors of the parties before 1322 Fasli and any settlement between Gajadhar and the Zamindar before 1322 Fasli were not proved and has, therefore, held that Gajadhar was recorded as occupancy tenant of the disputed plots in representative capacity. The said findings of the Deputy Director of Consolidation are findings of facts based on evidence on record and there is no perversity in the findings. The findings recorded by the Deputy Director of Consolidation in his impugned order are not amenable to interference by this Court under Article 226 of the Constitution of India only on the ground that a different view may be possible on the same set of evidence. 10. The entry in 1322 Fasli or in the revenue records of 1323 Fasli and 1324 Fasli showing Gajadhar to be occupancy tenant also does not help the case of the petitioner. Before enforcement of Agra Tenancy Act, 1926, a change in the nature of tenure from non-occupancy tenancy to occupancy tenancy did not require any settlement by the Zamindar and under Section 8 of the North-Western Provinces Rent Act, 1881, a tenant who had actually occupied or cultivated the land continuously for twelve years acquired a right of occupancy in the land and was declared to be an occupancy tenant. Similarly, under Section 11 of the North-Western Provinces Tenancy Act, 1901 (hereinafter referred to as, 'Act, 1901'), a tenant acquired occupancy rights if he held the same plot continuously for 12 years after he ceased to hold it as a tenant and was declared to be an occupancy tenant under Section 16 of the Act, 1901. Section 16 of Agra Tenancy Act, 1926 (hereinafter referred to as, 'Act, 1926') defines an occupancy tenant as a person who, either at the commencement of Act, 1926 had acquired a right of occupancy under Act, 1901 or under any previous Act or had been conferred a right of occupancy under Section 17 of Act, 1926. Section 17(1)(a) of Act, 1926 enabled the land holder or a permanent tenure holder to confer a right of occupancy on any person and a person who had been conferred the right of occupancy under Section 17 was to be recorded as occupancy tenant in accordance with the procedure prescribed in Section 18 of Act, 1926. Section 17(1)(a) of Act, 1926 enabled the land holder or a permanent tenure holder to confer a right of occupancy on any person and a person who had been conferred the right of occupancy under Section 17 was to be recorded as occupancy tenant in accordance with the procedure prescribed in Section 18 of Act, 1926. It is to be noted that by virtue of Section 2 of United Provinces (Designation) Act, 1902 any reference to North-Western Provinces in every enactments in force at that time shall be construed as reference to 'Agra' and under Section 4(4) of the United Provinces General Clauses Act, 1904 Agra' has been defined to mean the territories known as North-Western Provinces before 22.3.1902. Thus, the reference to Agra Tenancy Act, 1901 in Act, 1926 is a reference to North-Western Provinces Tenancy Act, 1901. 11. Gajadhar was recorded as occupancy tenant in 1322 Fasli, i.e., 1915, i.e., when Act, 1901 was in force. Under Act, 1901, occupancy rights could be acquired by non-occupancy tenant under Section 11 by efflux of time and the Act, 1901 or Act, 1881 do not recognize conferment of occupancy right or evolution of non-occupancy tenant to occupancy tenant as a consequence of any settlement with the Zamindar. It is not the case of the petitioner that Gajadhar occupied the land continuously for a period of twelve years before 1915 and thus acquired occupancy rights under Section 11 of Act, 1901 and became occupancy tenant under Section 16 of Act, 1901. It is not denied by the petitioner that Bhulan was recorded as non-occupancy tenant in 1292 Fasli. It is not the case of the petitioner that Bhulan surrendered or abandoned his rights in the plots or was evicted from the disputed plots and Gajadhar took possession of the disputed plots after such surrender, abandonment or eviction. The mere change of status from non-occupancy tenant to occupancy tenant before enforcement of Act, 1926 is not relevant to show any settlement between the Zamindar and Gajadhar, i.e., the ancestor of the petitioners, creating a fresh tenancy in favour of Gajadhar. In light of the aforesaid statutory position, the plea of the petitioners that they became occupancy tenant as a result of a fresh settlement by the Zamindar falls to ground and was rightly disbelieved by the Deputy Director of Consolidation. 12. In light of the aforesaid statutory position, the plea of the petitioners that they became occupancy tenant as a result of a fresh settlement by the Zamindar falls to ground and was rightly disbelieved by the Deputy Director of Consolidation. 12. Further, the fact that the petitioner and the respondents were recorded as co-tenure holders of Khata No.132 was also an evidence showing that there had not been a partition between the ancestors of the parties. The fact that Bhulan was not recorded as non-occupancy tenant of Plot Nos. 96/1 and 97 (New nos. 131 and 132) of which Gajadhar, i.e., the ancestor of the petitioner was recorded as an occupancy tenant in 1322 Fasli also does not help the case of the petitioner in as much as the revenue records reflecting Gajadhar as occupancy tenant of the said plots show that Gajadhar had tenurial rights over the said plots since 28 years. Because the petitioner could not prove partition between the sons of Ram Saran, therefore, the burden was on the petitioner to prove that the property was independently acquired by Gajadhar and not jointly by all the three sons of Ram Saran. In his order dated 23.5.1981, the Deputy Director of Consolidation has rightly rejected the plea of partition raised by the petitioner on the basis of revenue records relating to Plot Nos. 96/1 and 97. There is no illegality in the order dated 23.5.1981 passed by the Deputy Director of Consolidation. 13. The order dated 16.11.1988 is merely a consequence of order dated 23.5.1981. In his order dated 23.5.1981, the Deputy Director of Consolidation has held that the disputed plots were jointly acquired by the sons of Ram Saran and the petitioner could not prove his case that there was a partition between the descendants of Ram Saran. In view of the aforesaid findings, Bhulan, Gajadhar and Dubri and consequently their respective descendants had 1/3 share each in the disputed plots and the Deputy Director of Consolidation rightly modified his order dated 23.5.1981 through his order dated 16.11.1988. The findings recorded by the Deputy Director of Consolidation in his order dated 23.5.1981 are findings of facts and there is no jurisdictional error in the impugned orders dated 23.5.1981 and 16.11.1988 passed by the Deputy Director of Consolidation. 14. The writ petitions lack merit and are, hereby, dismissed.