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2020 DIGILAW 46 (ALL)

Thaloo v. Deputy Director of Consolidation

2020-01-06

SALIL KUMAR RAI

body2020
JUDGMENT : Salil Kumar Rai, J. 1. Heard the Counsel for the parties. 2. The facts of the case are that one Gola was the recorded tenure holder of Chak No. 65. Gola died in 1995. Petitioner is the brother of Gola. Rama Devi i.e. respondent No. 2 and Gora Bai i.e. respondent No. 3 are the daughters of Gola. One Nanhi Bahu was the widow of Gola. The aforesaid relationship of the parties with Gola is admitted by the petitioner. After the death of Gola in 1995, Case Nos. 259, 260 and 261 were registered under section 12 of the U.P Consolidation Act, 1953 (hereinafter referred to as Act, 1953) before the Consolidation Officer (hereinafter referred to as C.O) at the instance of the petitioner, Rama Devi and Nanhi Bahu. The claim of Nanhi Bahu was rejected by the CO vide his judgment and order dated 14.12.2011 on the ground that after the death of Gola, she had remarried and therefore, under section 172 of the U.P. Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to as Act, 1950), the holding shall devolve on the nearest surviving heir of Gola as prescribed under section 171 of the Act, 1950. The order dated 14.12.2011 passed by the C.O was never challenged by Nanhi Bahu in appeal, therefore, the controversy regarding the rights of Nanhi Bahu are not under consideration before this Court in the present writ petition. The claim of the petitioner was rejected by the CO vide his order dated 14.12.2011 on the ground that after the death of Gola, the holding had vested in Rama Devi i.e. respondent No. 2 who was unmarried at the time of death of Gola because under section 171 of the Act 1950, as it stood at the time of death of Gola, the unmarried daughter excluded the brother of the tenure holder. The claim of respondent No. 3 had been rejected on the ground that she was married when Gola died and was, therefore, excluded by respondent No. 2 i.e. Rama Devi. In his order dated 14.12.2011, the CO. further held that by the amendment dated 23.8.2004 in section 171 of the Act, 1950 even the married daughter excluded the brother of the original tenure holder and therefore, even if Rama Devi i.e. respondent No. 2 was married after 23.8.2004, the respondent No. 2 excluded the petitioner. In his order dated 14.12.2011, the CO. further held that by the amendment dated 23.8.2004 in section 171 of the Act, 1950 even the married daughter excluded the brother of the original tenure holder and therefore, even if Rama Devi i.e. respondent No. 2 was married after 23.8.2004, the respondent No. 2 excluded the petitioner. The order dated 14.12.2011 passed by the CO was set aside by the Settlement Officer of Consolidation (hereinafter referred to as S.O.C) vide his order dated 19.6.2015 passed in Appeal No. 24 filed by the petitioner on the ground that respondent No. 2 Rama Devi had married in 2002 and therefore, by virtue of section 172 of the Act, 1950, the holding shall vest in the nearest surviving heir of Gola as prescribed in section 171 of the Act, 1950 and thus, the holding shall vest in the brothers of Gola which included the petitioner. The order dated 19.6.2015 has been set aside by the Deputy Director of Consolidation (hereinafter referred to as D.D.C) vide his order dated 9.3.2017 passed in Revision No. 34 filed by respondent No. 2 and the order passed by the C.O. has been restored. In his order dated 9.3.2017, the D.D.C. has held that the respondent No. 2 excluded the petitioner from succession to the estate of Gola and the holding vested in respondent No. 2 as she was the unmarried daughter of Gola. The order dated 9.3.2017 passed by the D.D.C. has been challenged in the present writ petition. 3. A reading of the order dated 19.6.2015 passed by the S.O.C. shows that in Appeal No. 24, the family register of the year 2002 was filed by the petitioner to prove that respondent No. 2 had married in the year 2000. Relying on the said family register, the S.O.C. held that because the respondent No. 2 had married in the year 2000, therefore, by virtue of section 172 of the Act, 1950, read with section 171 of the Act, 1950 the holding shall devolve on the petitioner, who was the nearest surviving heir of Gola after respondent No. 2. 4. Relying on the said family register, the S.O.C. held that because the respondent No. 2 had married in the year 2000, therefore, by virtue of section 172 of the Act, 1950, read with section 171 of the Act, 1950 the holding shall devolve on the petitioner, who was the nearest surviving heir of Gola after respondent No. 2. 4. In his order dated 9.3.2017, the D.D.C. has set aside the findings recorded by the S.O.C. on the ground that the family register of the year 2004 did not reveal that Rama Devi i.e. respondent No. 2 was married and the family register of 2002 which was filed by the petitioner in the Appellate Court was prepared in 2013 i.e. during the pendency of the appeal before the S.O.C. The D.D.C. has held that the entries in the family register of the year 2002 were not reliable and the claim of respondent No. 2 cannot be rejected merely on the ground of an entry in the family register which could not be relied on for recording a finding regarding the marriage of respondent 2. 5. It is not disputed that in 1995 i.e. at the time of death of Gola," respondent No. 2 i.e. Rama Devi was unmarried. 6. In view of the aforesaid, after the death of Gola, the holding devolved on Rama Devi. The succession could be reopened by virtue of section 172 of the Act, 1950 only if the petitioner had proved that Rama Devi had remarried before 23.8.2004 because by virtue of the amendment dated 23.8.2004, a married daughter had a preferential right to succession over the brother of the tenure holder. The only evidence which the petitioner produced to prove that Rama Devi i.e. respondent No. 2 had married before 23.8.2004 was a copy of the family register and the said copy was filed by the petitioner in the Appellate Court. 7. As evident from the order dated 9.3.2017 passed by the D.D.C., copy of the family register which was filed before the Appellate Court was issued in 2013 and therefore, the D.D.C. has rejected the said family register on the ground that it was prepared only for the purposes of the case and mere entry in the family register was not sufficient to prove the marriage of Rama Devi. 8. 8. The aforesaid is a finding of fact and relates to assessment of evidence and I am not able to find any perversity in the approach adopted by the D.D.C. It is further, relevant to note that no-other evidence, oral or documentary, was produced by the petitioner to prove that respondent No. 2 had married before 23.8.2004. 9. For the aforesaid reason, there is no illegality in the order dated 9.3.2017 passed by the D.D.C. 10. The writ petition lacks merit and is dismissed.