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2024 DIGILAW 1078 (ALL)

Ali Yaar Khan v. Mohammad Mateen

2024-04-18

MANISH KUMAR

body2024
JUDGMENT : Manish Kumar, J. 1. Heard learned counsel for the petitioners, learned counsel for Respondent No.3 and Sri Hemant Kumar Pandey, learned Additional Chief Standing Counsel for the State and perused the record. 2. Learned counsel for the petitioners has filed supplementary affidavit bringing on record the Basic Year Khatauni, which is taken on record. 3. Learned counsel for the respondents has submitted that he does not want to file any objection to the same. 4. The present writ petition has been preferred for quashing of the impugned revisional order dated 26.11.2002 passed by Deputy Director of Consolidation. 5. Learned counsel for the petitioners has submitted that the petitioners are grand son of Late Naseera Bibi who was daughter of Late Maddu Khan, the recorded tenure holder on Khata No.129. 6. It is further submitted that Maddu Khan had two children namely Naseera Bibi i.e. the grand mother of the present petitioners and Riyasat Khan. 7. It is further submitted that Riyasat Khan had left India in the year 1942 and started residing in Burma and he was issue-less. In the Basic Year Khatauni Khata No.129 which is shown to be entered in the name of Riyasat Khan S/o Late Maddu Khan and in possession of Naseera Bibi i.e. the grand-mother of the petitioners. 8. It is further submitted that Riyasat Khan left India in the year 1942 and never came back. The grand mother of the petitioners has been in continuous possession of the Khata No.129, which also recorded so in the basic year entry in Khatauni. 9. It is further submitted that the consolidation proceedings were initiated and notification under Section 4 of the Uttar Pradesh Consolidation and Holdings Act, 1953 (hereinafter referred to as 'the Act, 1953') was issued and after one and half years of publication under Section 9 of the Act, 1953 father of Respondent No.1 namely Mohsin had raised an objection and claimed that being a son of Riyasat Khan he is rightful heir for the land bearing Khata No.129. The matter was decided by the consolidation officer in favour of the father of the Respondent No.1. Against which the petitioners had preferred an appeal under Section 11(1) of the Act, 1953 before the Settlement Officer (Consolidation), which was allowed by judgement and order dated 03.10.1978. 10. The matter was decided by the consolidation officer in favour of the father of the Respondent No.1. Against which the petitioners had preferred an appeal under Section 11(1) of the Act, 1953 before the Settlement Officer (Consolidation), which was allowed by judgement and order dated 03.10.1978. 10. It is further submitted that against the appellate order two revisions were filed, one by Respondent No.1 Mohd. Mateen and another by some third party namely Taiyab Khan. The Revisional Court had decided the matter by allowing the Revision in favour of the Respondent No.1 by re-appreciating/miss-appreciating the evidence and gave a finding on frivolous grounds in favour of the Respondent No.1 and quashed the order passed in the appeal in favour of the petitioners. 11. It is further submitted that the revision was allowed on the basis that the Respondent No.1 was the son of Mohsin Khan but without there being any evidence that Mohsin Khan was the son of Late Riyasat Khan as claimed by Respondent No.1 that he is the grandson of Late Riyasat Khan being a son of Mohsin Khan. 12. It is further submitted that during the pendency of the present writ petition the Petitioner No.5 Shafique Khan had expired and in his place his legal heirs have been substituted i.e. 5/1 to 5/7. During the pendency of the writ petition Respondent No.1 has also expired. 13. It is further submitted that during the pendency and despite the order of status quo dated 13.12.2002 passed by this Court, Mohd. Mateen i.e. Respondent No.1 had sold the property to one Mohd Arman, who has also been made party as Respondent No.3 in the present writ petition by order dated 25.4.2022 by making an observation as follows: "Though the heirs of the deceased-respondent No.1 shall be brought on record, but the contest is primarily between the petitioner and the newly impleaded respondent No.3, who is in succession interest of the respondent No.1. Consequently, no adjournment or out of station or illness slip shall be entertained on behalf of Shiv Pal Singh, Advocate." 14. On the other hand learned counsel for the Respondent No.3 has submitted that there is no information confirming about the demise of Riyasat Khan and once the same is not there the grand-mother of the petitioners cannot claim any right over the property in dispute. On the other hand learned counsel for the Respondent No.3 has submitted that there is no information confirming about the demise of Riyasat Khan and once the same is not there the grand-mother of the petitioners cannot claim any right over the property in dispute. If the contention of Respondent No.3 is taken to be correct in that event so called grandson Late Mohd. Mateen could also not sale the property to the Respondent No.3. 15. It is further submitted that the Revisional Court had examined the whole evidence and only thereafter had come to the conclusion that Mohd. Mateen from whom he had purchased the property was the grandson of Late Riyasat Khan. 16. It is further submitted that no objections were ever filed on behalf of petitioners before the appellate court against the Ration Card and the affidavit of the mother of Mohd. Mateen i.e. Respondent No.1 wherein she had come with a case that she is the wife of Mohsin, the father of Respondent No.1, Mohd. Mateen. 17. After hearing learned counsel for the parties, going through the record of the case, it is an admitted case between the parties that they are claiming their rights from being successors of Late Maddu Khan, who was tenure holder of Khata No.129, had two children namely Riyasat Khan and Naseera Bibi. 18. It is also an admitted case between the parties that Late Riyasat Khan had left for Burma in the year 1942 and prior to that in the Basic Fasli Year the name of Riyasat Khan was entered in the revenue record and name of Naseera Bibi was recorded in possession of the land in dispute. It is also admitted between the parties that after one and half years of publication of Section 9 Late Mohsin i.e. father of Respondent No.1 Late Mateen had raised his claim for the first time claiming himself as son of Late Riyasat Khan and the Consolidation Officer by its order dated 31.10.1974 had decided the matter in favour of Late Mohsin considering him as son of Riyasat Khan. Against the order dated 31.10.1974 an appeal was preferred before the Settlement Officer (Consolidation) by Late Naseera Bibi, grand mother of the petitioners and the same was allowed by order/judgement dated 03.10.1978 after examining the evidence and found that Late Mohsin had failed to establish that he is the son of Late Riyasat Khan. Against the order dated 31.10.1974 an appeal was preferred before the Settlement Officer (Consolidation) by Late Naseera Bibi, grand mother of the petitioners and the same was allowed by order/judgement dated 03.10.1978 after examining the evidence and found that Late Mohsin had failed to establish that he is the son of Late Riyasat Khan. Against the appellate order two revisions were preferred, one by Respondent No.1 Late Mohd. Mateen and the same has been decided by judgement and order dated 26.11.2002 in favour of the Respondent No.1 treating him as a successor of Late Riyasat Khan rejecting the claim of Late Naseera Bibi from which line of succession the petitioners are claiming their right on Khata No.129. 19. The concluding part of the revisional order dated 3.10.1978 is quoted hereinbelow: 20. From the conclusion/findings given by the Revisional authority wherein a finding has been given that the house No.109 in which Late Mohsin and Bilkis Begum were residing and the same belonged to Late Riyasat Khan and Late Naseera Bibi has no relation. The said finding that Naseera Bibi has no relation perhaps with Late Riyasat Khan is without there being any evidence or denying the evidence regarding the family-tree mentioned in the order itself and from perusal of the order and the record of the present case it was not the case of either of the parties that Late Riyasat Khan and Naseera Bibi were not related to each-other or children of Late Maddu Khan. The Respondent No.1 had never denied or disputed that Naseera Bibi was daughter of Late Maddu Khan and sister of late Riyasat Khan. 21. The finding given by Revisional Court that the documents/evidence adduced by Mohd. Mateen before the Appellate Court to establish that Late Mohsin Khan was the son of Late Riyasat Khan are firstly on the basis of Ration Card; secondly, an affidavit filed by Bilkish Begum which establishes that she was the mother of Respondent No.1 Late Mateen and residing in the house of Late Riyasat Khan and she never stated in her affidavit that Late Mohsin Khan was son of Late Riyasat Khan and 3rdly, Late Mohsin Khan used to send some money-orders on the same address. The same has been pressed by the learned counsel for the Respondent No.3 before this Court. 22. The same has been pressed by the learned counsel for the Respondent No.3 before this Court. 22. On being asked whether the copy of Ration Card is on the record, it has been replied by both the counsels it is not on the record of the case but learned counsel for the Respondent No.3 has stated in the Ration Card father of Late Mohsin Khan was shown as Late Riyasat Khan. 23. The revisional Court on the basis of these three evidences had accepted and given a finding that same has not been rebutted by other side and hence it proves that Mohd. Mateen is the successor of Late Riyasat Khan. The ration card cannot be a determinative evidence for determining the successor. In the finding given by the Revisional Court it is nowhere mentioned that Late Mohsin was son of Late Riyasat Khan. In absence of any such finding Respondent No.1 late Mohd. Mateen cannot be held to be successor of Late Riyasat Khan, as his grandson. If Late Mohsin was not the son of Late Riyasat Khan then Respondent No.1 Mohd. Mateen could not be successor of Late Riyasat Khan. For late Mohsin Khan the only finding was that Late Mohsin Khan and Bilkish Begum were residing at House No.109 which belongs to Late Riyasat Khan and Late Mohsin Khan used to send the money-orders to Bilkis Begum on that address meaning thereby the Revisional Court was very much aware that there was no evidence adduced by the Respondent No.1 that Late Mohsin Khan was the son of Late Riyasat Khan but jumped over the finding that the Respondent No.1 as successor of Late Riyasat Khan. The affidavit given by Bilkish Begum as per finding in the revisional court was with regard to that Bilkish begum was the mother of Respondent No1 Late Mateen, who was residing in House No.109 belonging to Late Riyasat Khan. Residing in that house in no way leads to the inference that Late Mohsin Khan was son of Late Riyasat Khan. The learned Revisional Court has recorded its finding without their being any evidence establishing the fact that Late Mohsin Khan was son of Late Riyasat Khan, so Respondent No.1 Late Mateen Khan could also not been held to be grandson of Late Riyasat Khan. The findings by revisional court are conjectural and cannot be sustained under the law. 24. The learned Revisional Court has recorded its finding without their being any evidence establishing the fact that Late Mohsin Khan was son of Late Riyasat Khan, so Respondent No.1 Late Mateen Khan could also not been held to be grandson of Late Riyasat Khan. The findings by revisional court are conjectural and cannot be sustained under the law. 24. In view of the facts and circumstances and the discussion made hereinabove, the present writ petition is allowed. 25. The impugned revisional order dated 26.11.2002 passed by the Deputy Director of Consolidation is hereby quashed.