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2024 DIGILAW 1042 (ALL)

Chhedi v. D. D. C.

2024-04-10

CHANDRA KUMAR RAI

body2024
JUDGMENT : (Chandra Kumar Rai, J.) 1. Heard Mr. V. Ram, Advocate holding brief of Mr. Sushil Kumar, learned counsel for the petitioner and Mr. Ashutosh Kumar Rai, learned Additional Chief Standing Counsel for the State-respondents. 2. No one appeared on behalf of respondent nos.4/1 to 4/3. 3. Notice upon respondent nos.5 to 7 has already held sufficient vide order of this Court dated 12.1.1982. 4. The instant petition is pending before this Court for last 46 years, as such, the same is being heard and disposed of finally in absence of learned counsel for private respondent nos.4/1 to 4/3. 5. Brief facts of the case are that in the basic year of the consolidation operation, petitioners were recorded over plots of Khata no.615 situated in Village-Saunrai, Buzurg, Pargana Kara, Tahsil-Sirathu, District-Allahabad. An objection under Section 9 A (2) of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred as "U.P.C.H. Act") has been filed by respondent no.4 i.e. Chaitoo claiming right of co-tenant of 1/2 share in respect to the plot in question. Tribhuwan & others have also filed objection against basic year entry in respect to plot no.1501, 1502, 1503 claiming that plots are sir plot, as such, name of recorded person be expunged and they may be recorded over the plot. The case was registered as Case No.806/ 1976. The issues were framed before the Consolidation Officer and Consolidation Officer vide order dated 6.7.1976 dismissed the objection filed by respondent no.4 but the objection of Tribhuwan & others was allowed. Against the order of Consolidation Officer, an appeal under Section 11 (1) of U.P.C.H. Act was filed by respondent no.4, which was registered as Appeal No.588 and another appeal was filed by Chedi, which was registered as Appeal No.590. Both the appeals were consolidated and heard together. The Assistant Settlement Officer of Consolidation vide order dated 28.12.1976 allowed the appeal no.588 in part filed by respondent no.4 and appeal no.590 filed by the petitioner-Chedi was allowed. The Assistant Settlement Officer of Consolidation has rejected the claim of Tribhuwan & others and held that respondent no.4 will be entitled to 1/3 share and remaining 2/3 share shall be divided among the heirs of Gunguwa including plot nos.1501, 1502 & 1503. Against the appellate order passed by the Assistant Settlement Officer of Consolidation, three revisions were filed before the Deputy Director of Consolidation, under Section 48 of U.P.C.H. Act. Against the appellate order passed by the Assistant Settlement Officer of Consolidation, three revisions were filed before the Deputy Director of Consolidation, under Section 48 of U.P.C.H. Act. Revision No.99/218 was filed by Chedi, Revision No.128/ 251 was filed by Prabhu & Revision No.111/ 234 was filed by Tribhuwan. All the three revisions were consolidated and heard together by Joint Director of Consolidation who vide order dated 21.4.1977 allowed the revision filed by Chaitoo modifying the share to the extent of 1/2 & 1/2. The revisions filed by Prabhu & Tribhuwan were rejected, hence this writ petition on behalf of the petitioner (Chedi & Others) challenging the the orders dated 21.4.1977, 28.12.1976 & 6.7.1976. 6. This Court has entertained the matter on 25.7.1977 and granted interim protection. 7. In pursuance of the order dated 25.7.1977 respondent no.4-Chaitoo has filed his counter affidavit and petitioners have filed their rejoinder affidavit. 8. Learned counsel for the petitioner submitted that the Consolidation Officer has rightly rejected the title objection filed by respondent no.4 holding that property in dispute was not joint family property, as such, the objection filed by respondent no.4 cannot be allowed. He further submitted that appellate Court has illegally held that the property in question is joint family property, as such, respondent no.4 is entitled to be recorded as cotenant of the plot in question. He submitted that finding recorded by the Consolidation Officer has not been reversed in proper manner by Assistant Settlement Officer of Consolidation, as such, the appellate order cannot be sustained. He further submitted that the revisional Court has exceeded his revisional jurisdiction while determining the share of the parties. He further submitted that appellate Court as well as revisional Court has failed to consider the evidence on record which fully demonstrates that property is not joint family property. He also submitted that the impugned orders passed by consolidation authorities be set aside and basic year entry be maintained. 9. On the other hand, Mr. Ashutosh Kumar Rai, learned Additional Chief Standing Counsel for the State-respondents submitted that the finding of fact has been recorded by Settlement Officer of Consolidation that property in question is joint family property, as such, petitioner and respondent are entitled to be recorded as co-tenant in the plot in question. 9. On the other hand, Mr. Ashutosh Kumar Rai, learned Additional Chief Standing Counsel for the State-respondents submitted that the finding of fact has been recorded by Settlement Officer of Consolidation that property in question is joint family property, as such, petitioner and respondent are entitled to be recorded as co-tenant in the plot in question. He next submitted that the finding has been recorded by the Settlement Officer of Consolidation that the petitioners have failed to establish his sole acquisition with respect to the plot in question, as such, the claim for cotenancy allowed by the appellate Court cannot be interfered with. He further submitted that no interference is required against the finding recorded by the consolidation authorities. 10. I have considered the argument advanced by learned counsel for the parties and perused the records. 11. There is no dispute about the fact that in the basic year entry of consolidation operation, the petitioners were recorded over the plot in question. There is also no dispute about the fact that the title objection filed by respondent no.4 was dismissed by the Consolidation Officer but in appeal, objection was allowed and respondent no.4 was ordered to be recorded as co-tenant of 1/3 share of the plot in question as well as 2/3 share was given to petitioners. There is also no dispute about the fact that in revision, order of appellate Court was modified to the extent that respondent no.4 shall be co-tenure of 1/2 share and petitioners shall be entitled to the remaining 1/2 share. 12. In order to appreciate the controversy involved in the matter, the family pedigree, which is admitted to both parties will be relevant, the same is as under: 13. The finding recorded by the appellate Court while deciding the appeal will be relevant for perusal, which is as under: 14. The finding which has been recorded by the appellate Court after considering the revenue entry of the plot in question as well as family pedigree of the parties fully demonstrates that the property in question is ancestral property, as such, the claim for co-tenancy for 1/3 share setup by respondent no.4, who is also member of the family was rightly allowed. 15. 15. Considering the finding of fact recorded by the appellate Court, there was no scope of interference by the revisional Court to exercise his revisional jurisdiction regarding quantum of share as revisional order was passed on 21.4.1977 and revisional Court was having limited jurisdiction under Section 48 of U.P.C.H. Act upto 9.11.1980, as such, the exercise of revisional jurisdiction changing the quantum of share from 1/3 to 1/2 was beyond the jurisdiction of the revisional Court. It is material that Explanation no.3 in Section 48 of U.P.C.H. Act has been inserted by legislature by U.P. Act no.3 of 2002 w.e.f. 10.11.1980, as such, prior to 10.11.1980, the revisional Court was having limited jurisdiction. 16. The appellate Court has also recorded the finding of fact regarding the claim of Tribhuwan & Others in respect to plot nos.1501, 1502, 1503 to the effect that Tribhuwan & Others are not entitled to be recorded as Sirdar on the basis of evidence on record and consolidation officer has illegally ordered to record the name of Tribhuwan and others as Sirdar of plot nos.1501, 1502 & 1503, which has been rightly maintained under impugned revisional order dated 21.4.1977. 17. So far as the exercise of revisional jurisdiction affirming the claim of cotenancy of respondent no.4 and refusing the claim of Tribhuwan and Others as held by appellate Court, there is no illegality in the impugned revisional order but the modification made by revisional Court regarding quantum of share of the parties is erroneous. 18. The Apex Court in Sher Singh (dead) by legal representatives vs. Jt. Director of Consolidation and Others, 1978 R.D. 170 held as under:- "The principal question that falls for our determination in this case is whether in passing the impugned order, the Joint Director of Consolidation, exceeded the limits of the jurisdiction conferred on him under section 48 of the 1953 Act. Director of Consolidation and Others, 1978 R.D. 170 held as under:- "The principal question that falls for our determination in this case is whether in passing the impugned order, the Joint Director of Consolidation, exceeded the limits of the jurisdiction conferred on him under section 48 of the 1953 Act. For a proper decision of this question, it is necessary to advert to section 48 of the 1953 Act is it stood on the relevant date before its amendment by Act No. VIII of 1963 "Section 48 of the U.P. Consolidation of Holdings Act: The Director of Consolidation may call for the record of any case if the Officer (other than the Arbitrator) by whom the case was decided appears to have exercised a jurisdiction not vested in him by law or to have failed to exercise jurisdiction so vested, or to have acted in the exercise of his jurisdiction illegally or with substantial irregularity and may pass such orders in the case as it thinks fit." As the above section is pari materia with section 115 of the Code of Civil Procedure, it will be profitable to ascertain the scope of the revisional jurisdiction of the High Court. It is now well settled that the revisional jurisdiction of the High Court is confined to cases of illegal or irregular exercise or non-exercise or illegal assumption of the jurisdiction by the subordinate courts. If a subordinate court is found to possess the jurisdiction to decide a matter, it cannot be said to exercise it illegally or with material irregularity even if it decides the matter wrongly. In other words, it is not open to the High Court while exer-cising its jurisdiction under section 115 of the Code of Civil Procedure to correct errors of fact howsoever gross or even errors of law unless the errors have relation to the jurisdiction of the-court to try the dispute itself." 19. Considering the entire facts and circumstances of the case, the revisional order dated 21.4.1977 with respect to quantum of share is liable to be set aside and the same is hereby set aside. The writ petition is allowed in part and the order passed by the Settlement Officer of Consolidation dated 28.12.1976 is hereby affirmed. 20. No order as to cost.