Dhani Ram (Dead) through L.Rs. vs Deputy Director of Consolidation and Others

A.P. Sahi, J.—Heard Sri B.D. Mandhayan, learned Senior Counsel for the Petitioners and Sri Sunil Kumar Jha, learned Counsel for the contesting Respondents.

This petition has come up with a chequered history of litigation between the mother of the Petitioner Smt. Buddhho and the predecessor of the Respondents No. 4, 5 and 7, Dal Singh. The dispute is in relation to the agricultural holdings which are said to have been inherited from the branch of one Visham from the pedigree that is admitted between the parties and is gainfully reproduced hereinunden:

A perusal of the said pedigree would demonstrate that Smt. Buddhho is the married sister of Raghubir and Chandi, the two sons of Visham. Smt. Buddhho claims that she ought to have been continued and recorded as tenure holder to the extent of her property, having succeeded from Visham, in terms of the provisions of Section 171 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as ''the U.P.Z.A. and L.R. Act'') as she was entitled to inherit the same.

The contesting Respondents are the sons of Dal Singh, who is a collateral, and whose status is categorically stated in the pedigree reproduced herein above. In the event Smt. Buddhho does not succeed to the said holdings, then the contesting Respondents inherit the entire share of Visham. It is this contest which took the shape of a litigation way back in the year 1963 when Smt. Buddhho filed a suit for partition u/s 176 of the U.P.Z.A. and L.R. Act. The said suit was decreed and an appeal was filed against the same. During the pendency of the appeal consolidation operations intervened and the proceedings abated, whereafter objections were filed by Smt. Buddhho u/s 9-A of the U.P. Consolidation of Holdings Act, 1953. This objection was contested, and without tracing the intervening history of the litigation, which also includes a remand, the matter came to be ultimately decided by the Consolidation Officer, vide order dated 2.8.1977. Two appeals were filed, one by the mother of the Petitioner and the other by the contesting Respondents. The former''s appeal failed and the latter''s succeeded. The matter was remanded by the revising authority, vide order dated 20.3.1982 whereafter the matter went back in appeal before the Settlement Officer Consolidation and the appellate authority decided the matter on 20th June, 1987. By this order, the Settlement Officer Consolidation rejected the claim of the Petitioner Dhani Ram and held that the Petitioner, who is'' the son of Smt. Buddhho, has been unable to prove his title as claimed by his mother. A revision was filed which has also been dismissed, vide order dated 11.10.1988 against which the present writ petition has been instituted.

Sri B.D. Mandhayan, learned Senior Counsel submits that the fact that Smt. Buddhho is the sister of Raghubir and Chandi, is undisputed. He submits that on the date of death of Visham, Raghubir and Chandi were entitled to succeed to the said holding, and upon their death the Petitioner''s mother being the nearest heir as defined u/s 171 of the U.P.Z.A. and L.R. Act was entitled to succeed to the said property. He submits that the exact date of death of either Raghubir or Chandi was not available. The presumption in law, keeping, in view the evidence that had been led before the authorities would be, that Chandi had died after the abolition of Zamindari and if that is so, then the claim of the Petitioner deserves to be accepted. Sri Mandhayan further submits that the presumption u/s 108 of the Indian Evidence Act, 1872 can also be raised even if the date of death is not known, from the date of institution of the partition suit in the year 1963, and if that is taken into consideration, then the death of Chandi can be co-related with the year 1956 which would obviously be after the appointed date of vesting under the 1950 Act. He, therefore, contends that in view of the aforesaid legal position the Petitioner was entitled to be accepted as the heir entitled to succeed to the holding of late Visham.

Learned Counsel for the contesting Respondents, on the other hand, contends that the evidence that was brought on record clearly establishes that both Raghubir and Chandi had died prior to the abolition of Zamindari, therefore invoking of Section 171 of the U.P.Z.A. and L.R. Act by the Petitioner''s mother Smt. Buddhho was misplaced. The objection, which came to be filed during consolidation operations, also did not indicate any date of death of the two brothers after abolition of Zamindari so as to establish the said claim of the Petitioner''s mother and, therefore, the consolidation authorities were justified in passing an order for mutating the name of the contesting Respondents as the legal heirs entitled to succeed to the property to the holding of late Visham. Learned Counsel further invited the attention of the Court to the findings of fact recorded by the consolidation authorities including the evidence on the issue relating to the probable date of death of Rabhubir and Chandi. On the strength of the aforesaid submissions, it is urged that the findings of fact which stand established and proved cannot be reopened in the exercise of writ jurisdiction under Article 226 of the Constitution of India. It can not be said that the findings are perverse or there is any material which has been ignored by the consolidation authorities. In such circumstances any case set up by the Petitioner cannot be accepted and there is no occasion for this Court to interfere with the findings of fact and therefore the writ petition deserves to be dismissed.

Having heard learned Counsel for-the parties and having perused the records, the order of the Deputy Director of Consolidation after considering the entire evidence, has clearly recorded that a statement was made by Smt. Buddhho on 22.12.1970 before the Consolidation Court in which she has clearly and categorically made known that Daulat, whose name appears in the pedigree as one of the family members, died in Samvat 75. This obviously refers to Samvat 1075 which on a pure calculation comes to the Gregorian Calender year of 1918. Further statement of Smt. Buddhho is that Raghubir her brother, was employed in the armed forces and he died after 15-16 years of the death of Daulat. On a rough calculation of 16 years, if added to 1918 the same comes to 1934. Further a categorical statement was made by Smt. Buddhho that Chandi died 5 to 7 years after the death of Raghubir. This on a simple calculation would mean that Chandi died in between 1939 to 1941. It is, therefore, clear that the probable time of death can be clearly located and relying on the said statement, the Deputy Director of Consolidation has arrived at the conclusion that both Rabhubir and Chandi died prior to the abolition of Zamindari. This finding of fact, in the opinion of the Court, is therefore based on a correct assessment of evidence and it is trite law that admission is a best piece of evidence in terms of Section 58 of the Indian Evidence Act, 1872. Smt. Buddhho is the real sister of Raghubir and Chandi and therefore who else can bear a better testimony about the death of her real brothers. The Deputy Director of Consolidation therefore rightly placed reliance on the statement of Smt. Buddhho to ascertain the timing of death of Raghubir and Chandi.

Apart from this, the said categorical finding recorded by the Deputy Director of Consolidation on the issue relating to the statement of Smt. Buddhho has not even been disputed as having been either misconstrued or misread in the present proceedings.

In the absence of any successful challenge to the aforesaid findings recorded by the Deputy Director of Consolidation, I do not find any merit to interfere with the same. The writ petition is hereby dismissed.

Petition Dismissed.