Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 2649 (ALL)

Munni Lal v. Deputy Director of Consolidation

2019-11-26

RAJAN ROY

body2019
ORDER : Rajan Roy, J. 1. Heard. 2. Heard, Shri P.P. Singh, learned counsel for the petitioner's and Shri Amar Nath Dubey, learned counsel for opposite party no. 3. None has appeared to argue the matter on behalf of opposite party no. 4, 5 & 6. 3. The dispute herein relates to Gata no. 208 and 303 which were recorded in basic year Khatauni in the name of Ram Dutt, who was a recorded tenure holder. Ram Dutt is said to have died on 27.06.1978, as per the petitioner, whereas, according to the private opposite party he died on 04.02.1978. The petitioner claimed execution of a sale deed and its registration on 24.04.1978 by Ram Dutt in his favour who is the son of Ram Dutt's brother Kalu. 4. Based on the aforesaid, proceedings were initiated before the consolidation authorities though it is not very clear as to whether they were initiated under Section 9(A-2) or Section 12 of the U.P. Consolidation of Holdings Act, 1953 (herein after referred as Act, 1953). Nevertheless, nature of both the proceedings is the same. In the event of dispute, such matters are to be decided by the Consolidation officer in accordance with procedure prescribed which involves filing of pleadings, framing of issues, adducing of evidence, followed by arguments and judgment. Assistant Consolidation Officer accepted the claim of the petitioner, however, it is not known how the ACO did it? It appears that either there was no dispute raised and undisputed claims could be decided by the ACO and he may have done it, as is referred in the order of DDC that some compromise at the ACO level which was signed by Munni Lal, the petitioner herein and Ram Dutt the recorded tenure holder. Be that as it may, the fact is that the ACO accepted the claim of the petitioner who was the vendee. 5. In the interregnum, four married daughters of Ram Dutt, who did not have any son, filed an application claiming rights and interest/mutation of their names after the demise of their father in respect of Gata no. 304 which was allowed on 27.07.1978. These daughters at that time did not initiate any mutation proceedings regarding the Gatas in dispute bearing no. 208 and 303. 304 which was allowed on 27.07.1978. These daughters at that time did not initiate any mutation proceedings regarding the Gatas in dispute bearing no. 208 and 303. However, subsequently i.e. after the passing of the order dated 10.06.1978 in favour of the petitioner by the ACO, they filed an appeal challenging the said order before the Settlement Officer Consolidation under Section 11(1) which was allowed on 31.01.1979 by which the order of the ACO dated 10.06.1978 was set aside on the ground that requisite permission of the SOC under Section 5-C(2) was not there, thereby rendering the sale during pendency of the consolidation operation's, void. There were other circumstances considered by the SOC which according to him made the entire exercise before the ACO suspect. 6. Against this decision dated 09.10.1979, the petitioner filed a revision before the DDC under Section 48. The revision of the petitioner was dismissed vide judgment dated 27.10.1988. It is this order which is under challenge in this petition. 7. This Court has perused the judgment of the DDC and has heard the learned counsel for the parties. The DDC has found the alleged compromise arrived at before the ACO in terms of which the dispute was decided on 10.06.1978 as suspect and unbelievable. He has also found the sale deed executed by Ram Dutt in favour of the petitioner as unreliable and void in view of absence of requisite mandatory permission from the SOC under Section 5-C(2) of the Act, 1953. In fact, he found that no such permission was brought on record, a fact which is disputed by the learned counsel for the petitioner who relies upon a document annexed as Annexure-3A which says that the permission was being granted on 14.04.1978, although it is not very clear as to whose signature's exist on the said document. The SOC and the DDC have found that though report for grant of such permission is required to be given by the Consolidation Officer, in this case it bore the signature of the SOC and the permission which was required to be given by the SOC bore the signature of Shri M.B. Singh, the Consolidation Officer. Learned counsel for the petitioner has disputed these facts. 8. Learned counsel for the petitioner has disputed these facts. 8. The DDC was greatly persuaded by the fact that on 27.07.1978 an order had been passed in favour of the four married daughters of Ram Dutt in respect of another Gata no. 304 which was also recorded in the name of Ram Dutt. Based thereon, it has been observed that if the brother's of Ram Dutt did not raise any claim then the next person in the line of preferential succession would get the rights, especially as the daughter's were claiming right through will. In this context, the learned counsel for the petitioner says that this will was never filed in these proceedings at any stage. The order of the DDC also says that non-filing of the will by the daughters in these proceedings is inconsequential as there is an order of mutation dated 27.07.1978 in their favour which has not been challenged. The learned counsel for the petitioner says that this order dated 27.07.1978 was passed on alleged will which was not filed and the same was challenged by their father Kalu and has been set aside in the year 2010 vide order dated 13.01.2010 which is annexed as Annexure SCA-1, therefore, the very basis of the order of the DDC has ceased to exist and now the said matter has been remanded back by the Appellate Court to the original Court for consideration of the rights claimed by the daughters of Ram Dutt on the basis of the alleged will afresh, but they are not pursuing the matter there. 9. Ram Dutt died on 27.06.1978. Kalu the father of the petitioner and brother of Ram Dutt died on 07.08.2004, that is, much after the death of Ram Dutt, meaning thereby, on the death of Ram Dutt unless the date of death is disputed, his brother Kalu was alive as was also stated by counsel for the petitioner. On the question of date of death of Ram Dutt a dispute was raised only to the effect that he did not die on 27.06.1978, but on 04.02.1978 as stated by his daughters. The DDC disbelieved the certificate issued by the Municipal Corporation, Varanasi which was to the effect that he had died on 27.06.1978 on the ground that it was required to be proved. The DDC disbelieved the certificate issued by the Municipal Corporation, Varanasi which was to the effect that he had died on 27.06.1978 on the ground that it was required to be proved. Instead, he relied upon the statement and documents provided by the Pradhan to the effect that Ram Dutt had died on 04.02.1978 and accordingly held the sale deed to be void on this count also as it was dated 24.04.1978 that is of a date subsequent to the date of death of Ram Dutt. 10. Based on the aforesaid analysis the DDC while affirming the order of the SOC, surprisingly enough, relying upon the order dated 27.07.1978, by which the name of daughters of Ram Dutt were ordered to be mutated, went on to hold in the operative portion that this order, which was in fact only in the context of Gata no. 304 which was not in dispute before him, would be extended to the other Gata's bearing number 208 and 303 meaning thereby, the names of the daughters would be mutated in respect of these two Gata's also based on the order dated 27.07.1978. This Court finds that the order dated 27.07.1978 has already been set aside on 13.01.2010 by the SOC in a parallel proceeding at the behest of the father of the petitioner who has subsequently died and now the petitioner has been substituted in those proceedings in place of his father, which have been remanded and are pending before the CO, therefore, there is merit in the contention of the petitioners' counsel that the decision of the DDC based on the order dated 27.07.1978 cannot survive and has to go. As regards, validity of the sale deed based on the date of death of Ram Dutt, this Court finds that the observation's and discussion made by the DDC are bereft of any reference to the evidence adduced before him in the light of the provision's of the Indian Evidence Act. He has been persuaded more by common sense rather than the law on the subject. The alleged will was never proved. 11. He has been persuaded more by common sense rather than the law on the subject. The alleged will was never proved. 11. As regards his observation's about absence of permission by the SOC based on the document's on record, it is a matter of inquiry as to whether the signature on Annexure 3A filed before this Court which was also there before the Court's below is that of the SOC or some other person. If the signature's are of some person other than the SOC, then of course, the sale deed would not be sustainable, it having been executed during consolidation operation. However, the discussion on this count also does not disclose as to what is the basis for arriving at the conclusion by the SOC and DDC that the signature's are not of the SOC nor of the CO. No oral or documentary evidence has been discussed or referred in their judgments in this regard. 12. In view of the aforesaid, this Court is of the view that the matter requires a better consideration, keeping in mind the relevant aspects as discussed herein above and hereinafter for a just and proper adjudication of rights of the parties which are valuable rights relating to agricultural holdings. The issues which arise for consideration are firstly the date of death of Ram Dutt, secondly, whether permission alleged to have been granted by SOC bears his signature as per rules or not, thirdly, the veracity of the sale deed, based on the conclusions arrived at and findings recorded on the first two issues, fourthly, assuming for a moment that the sale deed's were invalid or void, the rights of the parties based on will as claimed by the daughter's of Ram Dutt, if there is any such will on record, by considering it's veracity, lastly, if the will is also not proved or is non-existent, then the matter would have to be decided as per line of preferential succession as existing on the date of death of Ram Dutt. 13. This Court takes note of the fact that a married daughter was brought in the preferential line of succession only in the year 2004 viz-a-viz the brother's of the male Bhoomidar or Assami. 13. This Court takes note of the fact that a married daughter was brought in the preferential line of succession only in the year 2004 viz-a-viz the brother's of the male Bhoomidar or Assami. This aspect of the matter shall be taken into consideration, as, if it is found that on the date of death of Ram Dutt, in the event neither the sale deed nor will is found to be valid and proved as per law, the brother of Ram Dutt i.e. Kalu or if there was any other brother were alive then their rights to the holding of Ram Dutt would be ascertained as per law and based thereon the rights of their legal representatives would be ascertained keeping in mind the preferential line of succession. 14. Had this been done, this Court would not be compelled to remand the matter back to the consolidation officer after so many years but there being no other option considering the slip shod manner in which the issues have been considered by the Court's below. The order of the DDC is set aside without prejudice to the rights of the parties before the Consolidation Officer who shall now proceed to decide the matter afresh accordingly as per law. The other matter relating to Gata no. 304 which is also said to be pending before the Consolidation Officer shall also be considered and decided along with this matter. 15. The consolidation officer shall dispose off the proceedings afresh as aforesaid within one year from the date a certified copy of this judgment is placed before him, if necessary, by undertaking hearing of the matter on day to day basis. Parties shall cooperate in such proceedings. 16. Till disposal of the proceedings as aforesaid afresh, status quo with regard to possession and entries in the revenue record shall be maintained and none of the parties shall alienate the property in question. 17. In view of the above, the writ petition is allowed in part.