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2020 DIGILAW 384 (ALL)

Keshav Dayal v. Additional Collector

2020-02-05

RAJNISH KUMAR

body2020
JUDGMENT : RAJNISH KUMAR, J. 1. Heard, Sri Nirmal Tiwari, learned counsel for the petitioners and Sri Birendra Narain Shukla, learned counsel for the opposite parties. 2. The instant writ petition has been filed challenging the order dated 18.02.1976 passed in Case No. 581 under Section 9-A(2) of the Consolidation of Holdings Act by the Consolidation Officer, by means of which the objection filed by the respondent no. 4 was allowed and the names of opposite party nos. 4 to 7 has been directed to be recorded as co-tenure holders and order dated 29.09.1976 passed by Settlement Officer Consolidation in Appeal No. 829 filed under Section 11 of the Consolidation of Holdings Act and order dated 21.01.1987 passed on revision No. 15/1344/36 under Section 48 of the Consolidation of Holdings Act filed by the petitioners. 3. Submission of learned counsel for the petitioners is that the dispute relates to Khata No. 12, which was recorded in the name of the father of the petitioners as Khudkasht in the 1356 Fasli and 1359 Fasli. Therefore it cannot be divided and recorded in the name of the co-sharers of the other properties. He further submitted that merely because Vidyadhar was appointed Lambardar and the power of attorney was in his favour, the land recorded as Khudkasht in the name of the petitioners cannot be divided. His further submission is that without considering the objection of the petitioners, the objection of the opposite party no. 4 has been allowed and the property has been divided. The appeal filed by the petitioners has been dismissed by the Settlement Officer Consolidation and the Deputy Director of Consolidation has also rejected the revision without considering the aforesaid facts. Therefore the impugned orders are liable to be quashed and the writ petition is liable to be allowed with cost. 4. In support of his submissions, learned counsel for the petitioners has relied on the judgments of this Court in the case of Rama Kant Singh and Others vs. Deputy Director of Consolidation and Others, 1965 ALJ 313 and Dharam Prakash and Another vs. Deputy Director of Consolidation, U.P. Lucknow, 1970 ALJ 193. 5. 4. In support of his submissions, learned counsel for the petitioners has relied on the judgments of this Court in the case of Rama Kant Singh and Others vs. Deputy Director of Consolidation and Others, 1965 ALJ 313 and Dharam Prakash and Another vs. Deputy Director of Consolidation, U.P. Lucknow, 1970 ALJ 193. 5. On the other hand, learned counsel for the respondents submitted that though the land was recorded in the name of the father of the petitioners, Vidyadhar but the land was acquired by the grand father of the petitioners; namely, Durga Prasad and his three sons namely Gangadhar, Laxmidhar and Vidyadhar were his legal heirs and co-sharers of property. However, since their father was old and used to remain ill and two brothers were living out therefore they had executed power of attorney in favour of the petitioners' father Vidyadhar in regard to the land in question. Vidyadhar was also got appointed as Lambardar for the property in question by his father and two brothers. Therefore merely because the name of the petitioners' father was recorded as Khudkasht, he is not entitled for the said land to be recorded in his exclusive name because his name was recorded on behalf of all co-sharers. It is settled proposition of law that even if the land was recorded in the name of one of the co-sharer, i.e. father of the petitioners in the present case, the same was on behalf of all the co-sharers. Therefore the power of attorney was given to him and he was got appointed as Lambardar also by them. 6. The respondents had filed the evidence before the Consolidation Officer and after considering the same, objection of the opposite party no. 4 was allowed and the property was divided and their names were directed to be recorded. Therefore the present writ-petition is misconceived and liable to be dismissed with cost. In support of his submissions, learned counsel for the respondents has relied on the judgment of the Hon'ble Apex Court in the case of Kailash Rai vs. Jai Jai Ram, (1973) 1 SCC 527 . 7. I have considered the submissions of learned counsel for the parties and perused the records. 8. The dispute in the present writ petition relates to Khata No. 12, which was recorded in the basic year in the name of Vidyadhar, Son of Durga Prasad; father of the petitioners no. 7. I have considered the submissions of learned counsel for the parties and perused the records. 8. The dispute in the present writ petition relates to Khata No. 12, which was recorded in the basic year in the name of Vidyadhar, Son of Durga Prasad; father of the petitioners no. 1 and 2 and grand father of petitioner no. 3/1. The objection was filed by the opposite party no. 4 before the Consolidation Officer under Section 9-A(2) for recording their names as co-tenure holders stating therein that some land out of the land in dispute was acquired by their grand father Durga Prasad through Sankalp and the remaining land was purchased by him, the sale deed of which was got executed in the name of his sons namely Gangadhar, Laxmidhar and Vidyadhar. The said land is ancestral property. The grand father Durga Prasad had become old and used to remain ill, therefore, he had executed power of attorney in the name of the father of the petitioners i.e. Vidyadhar. The other two sons namely Gangadhar and Laxmidhar were in service and out of town. Therefore they had also executed power of attorney in favour of Vidyadhar and got him appointed as Lambardar. Vidyadhar used to live in the village and look after the cultivation on behalf of all, therefore all of them have equal share in the land in dispute and their names should be recorded as co-tenure holders and partitioned accordingly. 9. The father of the petitioners had denied the objections and possession of the opposite parties and stated that he is in exclusive possession. Vidyadhar died during pendency of the case and after his death his widow namely Smt. Shanti Devi had filed the objections stating therein that she has got the land through Will from her husband. Therefore her name should be recorded. The petitioners also filed objections and stated that the said land was neither acquired in Sankalp nor purchased by Durga Prasad. The said land was the sole Khudkasht of their father Vidyadhar and there is no right of Smt. Gyan Devi in the said property and Smt. Jagdei, the other wife of their father has died. 10. The petitioners also filed objections and stated that the said land was neither acquired in Sankalp nor purchased by Durga Prasad. The said land was the sole Khudkasht of their father Vidyadhar and there is no right of Smt. Gyan Devi in the said property and Smt. Jagdei, the other wife of their father has died. 10. The petitioners had filed Khataunis of 1356 falsi, 1359 fasli, 1373 to 1375 fasli, Jotbahi 1376 fasli to 1378 fasli, irrigation slips, land revenue receipts, taqavi receipts, copy of the order dated 04.08.1973 passed by the Consolidation Officer and copy of the Aakar Patra No. 41 and 45, Khatauni 1369 to 1371 fasli and Aakar Patra 23. The opposite parties had filed a copy of the power of attorney executed by Badri prasad in favour of Vidydhar and copies of the sale deed dated 17.07.1928,11.04.1932 and 30.08.1938, copy of the order passed by the Munsif dated 17.08.1930, copy of the order passed by the Sub-Divisional Officer dated 05.04.1930, Sankalp dated 04.10.1989, the application for Lambardar in favour of Vidyadhar dated 25.03.1949, copy of the order dated 19.04.1950 passed by the Sub Divisional Officer in regard to Lambardar and Khudkasht of 1359 Fasli etc. 11. After considering the pleadings of the parties and evidence, the Consolidation Officer has recorded that the land in dispute is of Muhals of Badri Prasad and Lakshman Prasad. The name of Vidyadhar as Khudkasht is recorded in 1356 fasli and 1359 fasli for the last 11 years and after abolition of Zamindari it has been recorded as Bhumidhar in his name. Vidyadhar was lambardar and as per Khewat 1359 fasli, the land in dispute was of Zamindar and in accordance with the Khewat 1359 fasli all the three brothers have equal shares in the said land. The father and brothers had executed power of attorney in favour of Vidyadhar, from which it is apparent that since Vidyadhar used to live at home and his two brothers were living out therefore he used to look after the Zamindari and manage the cultivation. Accordingly, his name was recorded in the revenue records as Khudkasht and subsequently his name was solely recorded as Bhumidhar. Accordingly, his name was recorded in the revenue records as Khudkasht and subsequently his name was solely recorded as Bhumidhar. It has been proved by the application of his brothers and the order passed by the Sub Divisional officer that Vidyadhar was appointed Lambardar after the consent of the brothers of the Vidyadhar, from which it is apparent that there was a joint consent of all the three brothers. It is settled proposition of law that if there was a Joint Hindu family and the name of one of the family member was recorded out of all the Khewatdars,all will have equal share. Vidyadhar in his lifetime had filed objection but he had not taken a plea of 'ouster' of his two brothers. Though he had stated that he is solely in possession of the property as Khudkasht. Subsequently after his death his sons i.e. petitioners had filed objections claiming that it was self acquired and recorded as Khudkasht in the name of their father. Therefore the other brothers of Vidyadhar have no right in the said property. If the separation would have taken place, then Vidyadhar would not have been appointed as Lambardar which is apparent from the order dated 19.04.1950 and application dated 29.03.1949. Vidyadhar also would have got partition done on the basis of Khewat, if he had no intention to give the shares to his brothers. 12. On the basis of above, learned Consolidation Officer has recorded a finding that Vidyadhar used to manage the cultivation from the time of Zamindari on behalf of all brothers and his sole possession was not against his brothers but it was on behalf of all the brothers and therefore his name was also recorded as Khudkasht on behalf of all. 13. On due consideration of pleadings and evidence, as discussed by the learned Consolidation Officer, this Court does not find any illegality or error in the findings recorded by the learned Consolidation Officer because nothing could be pointed out against the aforesaid findings except that since the land in dispute was recorded in the name of Vidyadhar as Khudkasht in the 1356 fasli and 1359 fasli therefore it could not have been divided. Submission may be correct but if the name of the father of the petitioners was recorded on the ancestral property on behalf of all and others have also given him power of attorney and got him appointed as Lambardar to manage the property, it cannot be said that since it was recorded as Khudkasht in the name of father of the petitioners therefore the other brothers have no right and it cannot be divided. 14. The Hon'ble Apex Court in the case of Kailash Rai vs. Jai Jai Ram (supra) considered the issue of Khudkasht in the light of provisions of Section 18 of the U.P. Zamindari Abolition and Reforms Act, 1950 and held that if the plea of ouster has not been set up then in law the possession of the co-sharer is both on his behalf as well as on behalf of all other co-sharers, unless ouster is pleaded and established and if one co-sharer is in possession of the land the other co-sharers must be in constructive possession of the land. The relevant paragraphs nos. 7 to 10 are extracted below:- "7. This will be the convenient stage to refer to the, material provisions of the Abolition Act. Section 3 defines the various expressions. In clause 26, it is provided that certain other expressions referred to therein, including khudkasht and sir, shall have the, meaning assigned to them in the United Provinces Tenancy Act, 1939 (hereinafter referred to as the Tenancy Act). Section 3(9) of the Tenancy Act defines khudkasht as "land other than sir cultivated by a landlord and under-proprietor or a permanent tenure-holder as such either himself or by servants or by hired labour." Sir is defined in section 6 occurring in chapter 11 of the Tenancy Act. Section 4 of the Abolition Act provides for vesting of estates. from a date to be specified by notification. Section 1 8 (1) of the Abolition Act, which is relevant for our purpose, runs as follows:- "18. Settlement of certain lands with intermediaries or cultivators as bhumidhars - (1) subject to the provisions of sections 10, 15, 16 and 17, all lands:- (a) in possession of or held or deemed to be held by an intermediary as sir, khudkasht or an intermediary's grove. (b) held as a grove by, or in the personal cultivation of a permanent lessee in Avadh. (b) held as a grove by, or in the personal cultivation of a permanent lessee in Avadh. (c) held by a fixed-rate tenant or a rent-free grantee as such. (d) held as such by:- (i) an occupancy tenant, Possessing the right to. (ii) a hereditary tenant, transfer the holding by. (iii) a tenant on patta sale. dawami or istaim rari referred to in section 17. (e) held by a grove holder, on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such intermediary, lessee, tenant, grantee or grove-holder, as the case may be, who shall, subject to the provisions of this Act, be entitled to take or retain possession as bhumidhar thereof." 8. There is no controversy that the date of vesting is July 1 1952 and the date immediately preceding the date of vesting is 30-6-1952. Under section 18 (1) (a), broadly speaking, it will be seen, all lands in possession of, or held, or deemed to be held by an intermediary as sir, khudkasht or an intermediary's grove on 30- 61952, shall be deemed to be settled by the State Government with such intermediary. The said intermediary is entitled to take or retain possession as bhumidar subject to the provisions of the Abolition Act. In order to claim rights under clause (a), it is necessary that the lands should be, (1) in possession of an intermediary as khudkanst or sir or (2) held by an intermediary as khudkasht or sir or (3) deemed to be held by an intermediary as khudkasht or sir. If any one of these alternatives is established, clause (a), will stand attracted. Khudkasht, as we have already pointed out, means land, other than sir cultivated a landlord either by himself or by servants or by hired labour. 9. The question is whether the appellant can be considered to be in "possession" of the lands as khudkasht or whether it can be considered that the lands are "held or deemed to be held by him" as khudkasht. The finding sent by the District Court is no doubt primafacie against the appellant. But we cannot ignore the decree that has been obtained by him in suit No. 918 of 1945 and the further fact that he is working out the said decree by asking for partition in the present proceedings. The finding sent by the District Court is no doubt primafacie against the appellant. But we cannot ignore the decree that has been obtained by him in suit No. 918 of 1945 and the further fact that he is working out the said decree by asking for partition in the present proceedings. According to the High Court, as possession is with the defendants, the plaintiff-appellant cannot get any relief. 10. It should be remembered that the District Court has recorded a definite finding that the defendants have not set up any plea of ouster. This finding, so far as we would see, has not been disturbed by the High Court. The decree in suit No. 918 of 1945 clearly recognises the right of the appellant as a co-sharer along with the defendants. In law the possession of one co-sharer is possession both on his behalf as well as on behalf of all the other co-sharers, unless ouster is pleaded and established. In this case, as pointed out by us earlier, the finding is that the defendants have not raised the plea of ouster. There is no indication in the Abolition Act or the Tenancy Act that bhumidari rights are not intended to be conferred on all the co-sharers or co-proprietors, who are entitled to the properties, though only some of them may be in actual cultivation. One can very well visualise a family consisting of father and two sons, both of whom are minors. Normally, the cultivation will be done only by the father. Does it mean that when the father is found to be cultivating the land on 30-6-1952, he alone is entitled to the bhumidhari rights in the land and that his two minor sons are not entitled to any such rights? In our opinion, the normal principal that possession by one co-sharer is possession for all has to be, applied. Further, even when one co-sharer is in possession of the land, the other co-sharers must be considered to be in constructive possession of the land. The expression possession in clause (a), in our opinion, takes in not only actual physical possession, but also constructive possession that a person has in law. If so, when the defendants were in possession of the lands and when no plea of ouster had been raised or established, such possession is also on behalf of the plaintiff-appellant. The expression possession in clause (a), in our opinion, takes in not only actual physical possession, but also constructive possession that a person has in law. If so, when the defendants were in possession of the lands and when no plea of ouster had been raised or established, such possession is also on behalf of the plaintiff-appellant. Under such circumstances, the lands can be considered to be the possession of the appellant or, at any rate, in his constructive possession." 15. The Hon'ble Apex Court, in the aforesaid case, further considered the contingencies namely lands held as Khudkasht or lands deemed to be held as Khudkasht and held that held means lawfully held and held must have a meaning different from personal cultivation. The relevant paragraphs 11 and 12 are extracted below:- "11. Clause (a), as we have pointed out, takes in two other contingencies also, namely, lands held as khudkasht or lands deemed to be held as khudkasht. Even assuming that, in view of the finding of the District Court, the defendants are in possession and on that basis the plaintiff cannot be considered to be also in possession, nevertheless, the lands in question can be considered to be held or deemed to be held by the appellant also. The expression held occurs in section 9 of the Abolition Act. In interpreting the said expression, this court in Budhan Singh and Another vs. Nab Bux and Another, has held that it means lawfully held. This court has further observed that:- "According to Webster's New Twentieth Century Dictionary the word held is technically understood to mean to possess by legal title. Therefore by interpreting the word held as lawfully held there was no addition of any word to the section. According to the words of. 9 and in the context of the scheme of the Act It is, proper to construe the word held in the section as lawfully held." 12. Mr. Bagga, however, contended that the expression held in clause (a) denotes actual possession. As the finding on that point is against the appellant, the lands cannot be considered to be held by him. We are not inclined to accept this contention. In clause (b) occurs the words held as a grow by. Mr. Bagga, however, contended that the expression held in clause (a) denotes actual possession. As the finding on that point is against the appellant, the lands cannot be considered to be held by him. We are not inclined to accept this contention. In clause (b) occurs the words held as a grow by. If the expression held occurring in clause (a) means actual possession, then the same meaning must be given to the same word occurring in clause (b) also. But it will be seen that in the latter part of clause (b), the legislature has used the expression personal cultivation with reference to Avadh, whereas it has not used any such expression in the first part of clause (b). Therefore, the expression held must have a meaning different from personal cultivation. In our opinion, the expression held can only be taken to connote the existence of a right or title in a person. The appellant's right and title as holder of the lands has been declared and settled in suit No. 918 of 1945. It can also be held that the lands can be considered to be deemed to be held by the appellant. The expression deemed to be held has been used by the legislature to treat persons like the appellant bhumidhars by creating a fiction." 16. The Hon'ble Apex Court, in the aforesaid case, has also considered the case of Rama kant Singh vs. Deputy Director of Consolidation and Others (supra) of this Court relied by learned counsel for the petitioners and found that the said decision has been passed without considering the various aspects referred by Hon'ble Apex Court which are in regard to Section 18(1) of the U.P. Zamindari Abolition and Land Reforms Act and has not agreed by the view taken by the High Court. The relevant paragraph no. 14 is extracted below:- "14. It is now necessary to consider the decision of the Allahabad High Court in Rama kant Singh versus Deputy Director of Consolidation and Others (supra) following which the present decision under appeal has been rendered. It is no doubt true that the said decision does support the respondents in the sense that it holds that only that co- proprietor who is in cultivatory possession, becomes khudkasht holder and that possession over proprietary rights by itself does not confer khudkasht holder's rights. It is no doubt true that the said decision does support the respondents in the sense that it holds that only that co- proprietor who is in cultivatory possession, becomes khudkasht holder and that possession over proprietary rights by itself does not confer khudkasht holder's rights. The said decision, we find, has laid undue emphasis on cultivatory possession, which alone will attract clause (a) of section 18(1). There is no consideration in the said decision of the various aspects referred to by us and we are not inclined to agree with the view taken by the High Court in the said decision." 17. It has also not been disputed by learned counsel for the petitioners that Lambardar as defined in Section 3(3) of the Land Revenue Act means a co-sharer of a Mahal appointed under this Act to represent all or any of the co-sharers in that Mahal. The power of a Lambardar as contained in Section 245 of the U.P. Tenancy Act is primarily to collect rents and other dues and to settle and eject tenants to enhance rents and to manage the estate with a view to the common benefit. The appointment of father of the petitioners as Lambardar with the consent of his brothers has not been disputed by the petitioners. Therefore it is in fact admitted that he was a co-sharer but the dispute has only been raised because his name was recorded as Khudkasht on behalf of all. 18. In view of above, the judgment cited by learned counsel for the petitioners in the case of Rama Kant Singh versus Deputy Director of Consolidation and Others (supra) does not hold a good law and is not applicable on the facts and circumstances of the present case. 19. The other judgment cited by learned counsel for the petitioners in the case of Dharam Prakash vs. Deputy Director of Consolidation (supra) is also of no assistance to the case of the petitioners rather it is against because in the said case it has been held that the proprietor who cultivates by that act acquires Khudkasht rights in relation to that plot. But once a proprietor becomes a Khudkasht holder of a given plot and then he dies, the entire body of his heirs at that time would together become the Khudkasht holder. His Khudkasht rights will devolve on the heir whosoever he may be. But once a proprietor becomes a Khudkasht holder of a given plot and then he dies, the entire body of his heirs at that time would together become the Khudkasht holder. His Khudkasht rights will devolve on the heir whosoever he may be. If the Khudkasht holder dies leaving two sons both of them would become Khudkasht holders of that plot. Thereafter one of the two cultivators may alone cultivate the land, but nonethless both of them will remain the Khudkasht holders unless the 'ouster' of one of them is pleaded and established. 20. In view of above this Court is of the considered opinion that merely by recording a land as Khudkasht in the name of one co-tenure holder it cannot be held that it cannot be divided among co-sharers unless it is proved that it was not ancestral and his self acquired as Khudkasht and a plea of 'ouster' is set up and established. 21. In the present case it has been proved from the pleadings and evidence that the land in dispute was acquired by Durga Prasad and the petitioners have neither set up nor established the plea of ouster. Therefore all the sons of Durga Prasad have equal share and the Consolidation Officer has rightly directed to record the names of opposite party nos.4 to 7 as co-tenure holders and determined their shares accordingly. 22. The appeal filed by the petitioners was duly considered and rejected by the Settlement Officer Consolidation. Similarly the Deputy Director of Consolidation in the revision found that the name of Vidyadhar was recorded on behalf of all and rejected the revision. This Court does not find any illegality or error in the findings recorded by the learned Consolidation Officer, Settlement Officer Consolidation and the Deputy Director of Consolidation which are based on cogent evidence and correct appreciation of evidence and law. Therefore the present writ petition is misconceived and lacks merit. 23. The writ-petition is, accordingly, dismissed. 24. No order as to costs.