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Judgment
Poonam Srivastav, J.—Heard counsel for petitioner and counsel for contesting respondent.
Dispute relates to plot No. 1220 area 2.40 acres and plot No. 1222 area 0.74 acres situated in village Tindwari, Pargana and District Banda. Claim of petitioner is that his name was recorded in the basic year as Bhoomidhar and name of respondent No. 3 was recorded in column No. 9.
Admitted facts are that the disputed plots originally belong to Shambhu Saran. He was also known as Shambhu Dayal. There is specific assertion in the writ petition that both are one and the same person. He had four daughters namely Smt. Chandania, Smt. Sumitra, Smt. Lalita and Smt. Kamla Bai and only one son namely Sita Ram. Smt. Kamla Bai was married to one Ambika Prasad, petitioner in the instant petition. Financial condition of Smt. Kamla Bai was very bad, therefore, Shambhu Dayal executed a registered deed of maintenance "Gujarnama" dated 1.12.1959 which relates to the disputed plots. The said deed was only for the life time usage of his daughter Kamla Bai. It was specifically directed that after her death, it will revert to the only son of Shambhu Dayal.
Smt. Kamla Bai had no claim of ownership and thus no right of alienation of the property in question. She applied for mutation before Sub-Divisional Magistrate, Banda, on the basis of the aforesaid deed of maintenance. Application was allowed by S.D.M. Banda, in favour of Smt. Kamla Bai as Bhoomidhar vide order dated 18.2.1963/16.3.1963. This order was also incorporated in Khatauni of 1969-71 Fasli. Copy of "Gujarnama" has been brought on record by means of an application dated 28.7.2010 supported by an affidavit. Extract of Khatauni is annexed as annexure No. 4 to the writ petition. Smt. Kamla Bai died on 20.6.1970 and her name was substituted by petitioner Ambika Prasad. Dispute arose on this point of time since according to the deed of maintenance "Gujarnama", Smt. Kamla Bai had only usufructuary right over the property in her life time.
Suits u/s 229-B of U.P. Act No. 1 of 1951 were preferred by petitioner as well as contesting respondent. Both suits were dismissed in default. Suits could not be restored for the reason that village was notified u/s 4(2) of U.P. Consolidation of Holdings Act (hereinafter referred to as the Act) and petitioner''s name came to be recorded in the basic year as Bhoomidhar. Objections were preferred u/s 9 of the Act claiming himself to be an exclusive owner of the plots in dispute and stating that Smt. Kamla Bai had only life interest over the disputed plots but she had alienated the property in question vide deed dated 6.1.1970 in favour of other respondents for consideration of Rs. 4,000/ -. It was also claimed that respondent has matured his right as his name continued to be recorded in column No. 9 since last twenty years.
Petitioner filed his objection to delete name of respondent from column No. 9. It was disputed by petitioner that Smt. Kamla Bai never executed any sale deed dated 6.1.1970 and that petitioner was always in possession. Entry in column No. 9 in favour of respondent is liable to be expunged. Objection was rejected by Consolidation Officer vide order dated 2.11.1982.
Aggrieved by the order of Consolidation Officer, contesting respondent preferred an appeal before Assistant Settlement Officer Consolidation which was allowed vide judgment and order dated 2.1.1985. Revision filed by petitioner was dismissed by Dy. Director Consolidation vide judgment and order dated 24.11.1990. Both the judgment and orders are impugned in the instant petition.
I have perused the two orders impugned and also scrutinized deed of "Gujarnama". Respondent preferred a document dated 6.1.1970 at the appellate stage, which was in fact deed of transfer for consideration of Rs. 4,000/ - in favour of her brother Sita Ram and also that possession was handed over to Sita Ram. Entry of Sita Ram in Varg 9 was made on 11.3.1970. Thus, there is a close proximity between the two dates on which deed of transfer was executed by Smt. Kamla Bai in favour of Sita Ram on 6.1.1970 and entry in Varg 9 was made on 11.3.1970. Besides, in Khasra of 1377, 1378 and 1386 Fasli, possession of contesting respondent has been shown. There are several other receipts and documents. The said order was upheld by Dy. Director Consolidation.
It is true that petitioner has pleaded the alleged gift deed dated 2.5.1962 for the first time in the instant writ petition which was not in existence prior to it. The gift deed was neither pleaded nor proved at any stage. Therefore, I am of the view that this document cannot be read while deciding the petition and adjudicating on the judgment and orders passed by consolidation courts specially since this document has been brought on record for the first time in the writ petition. The deed of "Gujarnama" in favour of Smt. Kamla Bai and the conditions of the said deed are undisputed but after her death, petitioner has tried to usurp the property which belongs to respondent No. 3 Sita Ram son of Shambhu Dayal. In fact, document dated 2.5.1962 cannot bestow any right in favour of petitioner. So far Smt. Kamla Bai is concerned, she had already relinquished her right over the plots in dispute. Besides, a registered deed dated 1.12.1959 was executed by Shambhu Dayal in favour of Smt. Kamla Bai. After death of Smt. Kamla Bai, property stood reverted to his son (respondent No. 3). So far petitioner''s claim on the basis of entry in Varg 9 is concerned, it has evidently no legs to stand. The claim of petitioner is through his wife, she had no means of her own and admittedly property belongs to Shambu Dayal father of the contesting respondent. Therefore, I am in agreement with the conclusions, judgment and orders passed by Assistant Settlement Officer Consolidation and upheld by Dy. Director Consolidation.
Claim of petitioner that Assistant Settlement Officer Consolidation and Dy. Director Consolidation had relied only on irrigation receipts and land revenue receipts is far-fetched. So far possession of petitioner and suit u/s 229-B against contesting respondent are concerned, this will not give any benefit to him. Contesting respondent acquired Bhoomdhari right for the reason that he is the only surviving son of the original owner Shambhu Dayal and petitioner stakes his right on the basis of entry in Varg 9. Besides, perusal of the original document, which is a deed of maintenance "Gujarnama" executed in favour of Smt. Kamla Bai, which also forms part of the record spells in unequivocal terms that Smt. Kamla Bai had only a life interest and the contesting respondent is the only surviving heir.
Counsel for contesting respondent has placed reliance on a number of decisions of Hon''ble Apex Court, claiming that the alleged gift deed executed by Shambu Dayal dated 2.5.1962 cannot be relied upon unless and until the said document was proved in accordance with provisions of Indian Evidence Act. Hon''ble Apex Court in the case of Hardip Singh v. State of Punjab (2008) 8 SCC 557 held that Sections 64, 61 and 62 of the Evidence Act speaks that genuineness of a document must stand the test of proof when produced and read in evidence.
Similar view was expressed by Hon''ble Apex Court in the recent decision in the case of L.I.C. of India and Another Vs. Ram Pal Singh Bisen, that mere filing or exhibiting of a document in court does not amount to proof of its contents. Admission of a document in court may amount to admission of recital of document but not correctness and truth of the said recital. It was further held that document not having been proved and marked as exhibits as required under the Evidence Act, cannot be relied upon by the court.
Hon''ble Apex Court in the case of Rameshwar Dass v. State of Punjab and Anr. (2007) 14 SCC 696 held that proof of documents is to be proved by a person who is acquainted with handwriting of the author thereof. Similar view was expressed by Hon''ble Apex Court in the case of Tukaram S. Dighole Vs. Manikrao Shivaji Kokate,
In the circumstances, the only basis on which petitioner has claimed the property is the fact that his name was recorded in the basic year as Bhoomidhar Khatauni entry on account of the entry in Varg 9. Father of respondent No. 3 had only given her usufructuary right to petitioner''s wife and after her death it reverted to respondent No. 3. Petitioner started manufacturing evidence such as gift deed, which is brought on record for the first time in the Court. No reliance can be placed on it. The judgment and order dated 2.1.1985 passed by Assistant Settlement Officer Consolidation, Banda which is the last court of fact and confirmed by Dy. Director Consolidation, Hamirpur Banda Camp, Banda vide judgment and order dated 24.11.1990 cannot be interfered by this Court in exercise of jurisdiction under Article 226 of the Constitution of India.
In view of what has been stated above, the writ petition has no merits and is, accordingly, dismissed.