Asharfi (Dead) by L.Rs. and Chautri (Dead) vs The Deputy Director of Consolidation and Others

S.S. Chauhan, J.—This petition has been field with a prayer for quashing the orders dated 29.11.1984, 28.10.1977 and 30.4.1977 passed by opposite parties No. 1 to 3 respectively.

The facts giving rise to the present petition are that the dispute relates to khata No. 156 measuring 9.12 decimal situated in Village Adwari, Pargana Tambour, Tahsil Biswan, District Sitapur. Consolidation commenced in the village and upon verification of khatauni, the Petitioners and opposite party No. 5 were found alongwith the opposite party No. 4 recorded as sole tenant and one Chandra Bhal moved an application for being recorded as co-tenant. The tenancy originated from the time of Peman and after his death it was recorded in the name of Mihi being the elder son. At the time of second settlement, name of Mihi son of Peman was recorded. After second settlement one of the brothers namely Mohan separated himself from other brothers and got his share separated from the original khata and the khata was bifurcated from other brothers at the time of third settlement.

The parties led evidence before the Consolidation Officer and the Consolidation Officer by means of order dated 30.4.1977 proceeded to record the name of Ram Bilas along with Bharosey as tenure holder in respect of Gata Nos. 97 and 903 and gave half share to each of them. Rest of the remaining land i.e. 7.36 acre was divided amongst Asarfi, Chantu, Chandra Bhal and Ram Bilas and they were declared tenure holder. Three appeals were filed against the aforesaid order by Asharfi and Chantu, Bharosey and Ram Bilas. The appeals of Ram Bilas and Bharosey were allowed by the Settlement Officer Consolidation and the appeal of Asharfi and Chantu was rejected vide order dated 28.10.1977 and in the disputed khata name of Ram Bilas was recorded along with Bharosey and the names of Asarfi, Chantu and Chandra Bahal were directed to be deleted. Feeling aggrieved with the aforesaid order of the Settlement Officer Consolidation, a revision was preferred by Asarfi and Chantu before Deputy Director of Consolidation, Sitapur, who dismissed the revision vide order dated 29.11.1984. Hence this writ petition.

It is to be noted that no written objection was filed before the Assistant Settlement Officer Consolidation. The Assistant Settlement Officer Consolidation in case No. 5734 to 5783 by means of order dated 6.5.1974 allowed the claim of the parties on the basis of compromise and on the basis of the said compromise, the entry of possession was incorporated and names of Asarfi, Chantu and Ram Bilas were recorded as co-tenure holder. Appeals were filed by Chandra Bhal and Bharosey against the aforesaid order before the Settlement Officer Consolidation. These appeals were numbered as 1642, 1655 and by means of order dated 18.7.1975, the said order of Assistant Consolidation Officer was set aside and the matter was remanded to the Consolidation Officer. After remand, Asarfi and Chandra Bhal filed their objections in respect of their claim stating therein that the land in question was ancestral property and it was joint family property acquired through joint family fund and in the said property every family member was having his right equally and thus the khata may be divided and the share of the parties may be determined. Bharosey filed his objection denying the claim that the property was acquired by Mihi and the other share holders have no right in the said property.

Submission of learned Counsel for the Petitioners is that there is no evidence of eviction and so the entry in the name of Peman shall continue and the property will devolve accordingly on the basis of settlement in favour of the tenant. It is also submitted that no fresh settlement was made in favour of Mihi and there was no evidence of ejectment of the recorded tenure holder tenant. It is also submitted that no order to delete the name of Peman has been passed at any point of time. It is further submitted that there is slight variation in the area. That slight variation does not change the nature and identity of the land and it shall be presumed that the land continued in identical form. Learned Counsel also submits that the finding of Deputy Director of Consolidation is non-speaking and has not considered the issue involved in this case. Learned Counsel for the Petitioners has relied upon the judgments rendered in the case ofSanehi and Anr. v. D.D.C. Faizabad and Ors. 1985 (3) L.C.D. 330, Amrit Lal and Ors. v. Maharani and Ors. 2009 (76) ALR 734 and Sripal and Ors. v. The Deputy Director of Consolidation and Ors. 1983 (1) L.C.D. 395.

Learned Counsel for the opposite parties, on the other hand, has submitted that from plot numbers recorded in the name of Peman and the plot numbers recorded and settled with Mihi go to indicate that there was much difference in the plot numbers and in the area and there was substantial variation in the rent also. In 1334 fasli (30.6.1928) in the khatauni name of Peman son of Baldi was recorded on yearly rent of Rs. 64, 4 aana, 4 pai against an area of 10.22 acre. In 1335 fasli, name of Mihi was recorded independently with an area of 10.85 acre having its rent as Rs. 71, 14 aana, 3 pai and the period of occupation shown as four years. It is also submitted that Bharosey admitted the claim before Assistant Consolidation Officer in order to benefit himself and possess the major share of land in his favour and admitted the claim in respect of land of other co-tenure holders but the said compromise was set aside in appeal by means of order dated 18.7.1975. Learned Counsel has also submitted that Asarfi in his statement has stated that Mohan was eldest son and during the life of his father Peman, he separated himself by acquiring separate land which is entered in 1344 fasli and the period of occupation has been shown as four years which goes to indicate that it was acquired in 1340 fasli. It means that Peman was alive up till 1340 fasli and settlement was made in favour of Mihi by the Zamindar. In these circumstances, learned Counsel has submitted that the finding recorded by the Consolidation Officer is wholly erroneous and is bad in law. It is also submitted that Bhola has admitted that Peman had died 50 years back and he has given statement after 18.7.1975 and Bharosey has stated that he died 35 years back. So in all eventuality, there was fresh settlement in favour of Mihi and in case the statement of Bhola is accepted, then Peman died in April 1927 and if statement of Bharosey is relied upon, then Peman died in 1943 whereas the land has also come in the name of Mihi in 1335 fasli. Since Peman was alive at that time, therefore, it cannot be presumed at any stretch of imagination that it was a joint family property in the name of Mihi.

Chandra Bhal did not file any revision against the order of Settlement Officer Consolidation and he has accepted the order of the Settlement Officer Consolidation and as such, he cannot come forward to argue the matter before this Court and neither any claim can be raised on his behalf. There was fresh settlement in the name of Mihi and therefore succession has to be governed accordingly. The Deputy Director of Consolidation has found that there was change in area of land and plot numbers and identity of the land did not remain the same and there was considerable difference in the rent also. Earlier it was Rs. 64, 4 aana, 4 pai whereas the settlement was made in the name of Mihi of Rs. 71, 14 aana, 3 pai. So the Deputy Director of Consolidation has committed no mistake while allowing the claim of the opposite parties.

I have heard learned Counsel for the parties and perused the record. The dispute initially was raised in respect of khata No. 156 measuring 9.12 decimal claiming co-tenancy and also adverse possession. Khata No. 156 was initially recorded in the name of Bharosey son of Mihi as sirdar. After verification of possession, certain disputes were raised and a compromise was entered into in case Nos. 5734 to 5783 on 6.5.1974 and on the basis of said compromise, entry of possession were expunged and names of Asarfi, Chantu and Ram Bilas were recorded as co-tenure holder. Chandra Bhal and Bharosey filed appeals against the aforesaid order before the Settlement Officer Consolidation, Sitapur being Appeal Nos. 1642 and 1655 and these appeals were decided by means of order dated 18.7.1975. Learned Settlement Officer Consolidation proceeded to set aside the order dated 6.5.1974 and directed the Consolidation Officer to decide the issue again after giving opportunity to the parties to adduce evidence. After remand Asarfi etc. and Chandra Bhal filed their claim stating therein that the disputed land belonged to the common ancestors and was purchased out of the joint family fund and all the family members were in possession according to their shares on the land in dispute and they may be declared co-tenure holder on the basis of the aforesaid entries. Bharosey filed objection and stated that the entire disputed land belonged to Mihi, which was self acquired property of Mihi and his brothers were having no share in it.

In the oral evidence, statement of Bharosey was recorded. The Consolidation Officer after evaluating the evidence ordered that in khata No. 156, gata No. 97 measuring 0.58 acre and in gata No. 903 measuring 0.18 acre name of Ram Bilas along with Bharosey was recorded. Bharosey and Ram Bilas were given half share to each. Rest of the land of khata No. 156 was recorded in the names of Ram Bilas, Chandra Bhal, Asarfi and Chantu (minor) under the guardianship of Ramdei along with Bharosey. Chandra Bhal was given 1/3 share, Asarfi was given 1/6 share, Chantu was given 1/6 share, Bharosey was given 1/6 share and Ram Bilas was given 1/6 share. Thus, the Consolidation Officer decided the cases vide order dated 30.4.1977. Against the order of the Consolidation Officer, three appeals were preferred. Asarfi and Chantu filed appeal No. 2596 on the ground that Chandra Bhal having no share in the disputed land because his father Mohan had separated during the life time of Mihi and he acquired separate land and in two gatas, which have been given to Bharosey, Chantu etc. have also got their share. Bharosey and Ram Bilas have filed another appeal and they stated that initially gata was in the name of Peman but later on it was resettled in the name of Mihi and at that juncture Mohan and Bhola had also separated from Mihi. Therefore, there was no share of any other person in these khatas. Chandra Bhal never claimed sah-khatedari in support of his claim. Bharosey and Ram Bilas filed copy of khatauni of 1334 fasli in respect of khata No. 46 and copy of khatauni of 1335 fasli in respect of khata No. 190 to draw the attention that in the khatauni of 1334 fasli, 18 plots were recorded in the name of Peman son of Baldi for yearly rent of Rs. 44, 7 aana and the said rent was entered in Jiman-7 with one year''s period. In 1335 fasli, land of khata No. 190 was recorded in the name of Mihi son of Peman and it comprised of 20 gatas measuring 10.85 acre with an annual rent of Rs. 71, 4 aana and in all the plot numbers possession was written as one year. The aforesaid facts show that there was fresh settlement in the name of Mihi because at that time Avadh Rent Act was applicable and the property was not heritable. Had entry continued, then the possession would have been shown for six years. It is clear form the khatauni of 1344 fasli in respect of khata No. 189 that it was in the name of Mohan son of Peman comprising of four plots. In respect of plot No. 904, cultivatory period has been written as four years and in respect of plot No. 955, cultivatory period has been written as three years and in respect of other two gatas, cultivatory period has been written as two years and they are entered in ziman-7. Khata No. 201 was recorded in 1335 fasli comprising 18 plots measuring 10.85 acre in the name of Mihi son of Peman in class-5 and cultivatory period was written as four years. In the khatauni of 1350 fasli, in khata No. 110, 15 gatas were recorded with an area of 7.34 acre in the name of Mihi indicating the cultivatory period as 16 years. In 1351 fasli, these khatas were recorded in the name of Mihi as aforesaid and cultivatory period was indicated as 17 years. Khatauni of 1358 fasli also indicates that Mohan son of Peman had four separate gatas and gata No. 102 and name of Bhola son of Peman was recorded in gata khata No. 266.

The aforesaid state of affairs goes to indicate that the identity of the land did not remain the same and there were two settlements in 1335 fasli and 1344 fasli. The disputed plot continued in the name of Mihi from 1335 fasli. None of the parties made any effort to get their name recorded and moreover, it is to be noted that all the persons were having their separate land with separate plot numbers. It is to be noted that Chandra Bhal admitted that khatas were settled in the name of Mihi after the death of Peman. On these findings the appeal was allowed and thereafter a revision was preferred. Chantu and Asarfi filed revision against the order of the Settlement Officer Consolidation. Learned Deputy Director of Consolidation found that the identity of the land did not remain the same and there was change in the land as well as in the plot numbers as stated by the Settlement Officer Consolidation and he agreed with the said finding and dismissed the revision.

The Court has given anxious consideration to the finding recorded by the Settlement Officer Consolidation and Deputy Director of Consolidation and the Court finds that it has come in the statement of Chandra Bhal that Peman died 50 years back whereas Bharosey stated that he died 35 years back. It is also stated that partition had taken place between the parties 40 to 45 years back. If the aforesaid statement is accepted, then Peman was not alive after 1334 fasli and there is no entry to that effect. From the evidence on record, it is evident that a fresh settlement was made in the name of Mihi. Mohan and Bhola also acquired their separate property. Asarfi and Chantu sold most of their land and then they have filed objection against the land of the opposite parties. They did not raise any claim and kept mum for 50 years and when consolidation commenced, then they raised a frivolous claim. A fraud was played before the appellate court but the appellate court did not accept the said version and neither it was pressed before the court regarding admission of claim.

There was variation of plot numbers in 1334 fasli and 1335 fasli and there was also variation in rent, therefore, it has to be presumed that there was fresh settlement specially when Bharosey and Mohan acquired separate properties being the brothers. It cannot be said that it continued to be ancestral property and derived from joint family funds. There is no evidence that Peman was alive after 1334 fasli. In these circumstances, argument of the learned Counsel for the Petitioners that the Petitioners are the share holders and their share has to be allocated cannot be accepted. Reliance placed by the learned Counsel for the Petitioners on Sanehi and Anr. (supra), does not apply in the case of the Petitioners as there is no evidence on record to prove that the property was acquired out of joint family funds or it was acquired in representative capacity. The other share holders acquired their separate land, therefore, the said case law does not come to the rescue of the Petitioners. In Sripal and Ors. (supra), the court after considering the argument held that the identity of the land will not change merely because some land was utilized in construction of a well and therefore, it was held that the said identity has to be presumed whereas in the case of the Petitioners, the said identity is not available as there is variation in plot numbers as well as in annual rent. On the said reasoning, the judgment of Amrit Lal and Ors. (supra) is also not applicable as the said case related to the joint hindu property whereas the present case is governed by different provisions of law i.e. Avadh Rent Act and there was no right of inheritance available under the Avadh Rent Act.

Having given anxious consideration to the argument of the parties, I find that the orders passed by the Settlement Officer Consolidation and the Deputy Director of Consolidation do not require any interference.

The writ petition is devoid of merit. It is accordingly dismissed. There shall be no order as to costs.