Dharam Deo and Others vs Deputy Director of Consolidation and Others

G.S.N. Tripathi, J.—This is a writ petition Under Article 226 of the Constitution of India praying for a writ in the nature of certiorari quashing the order dated 23.5.74 and 26.5.75 passed by Respondents 1 and

There is a useless disputed pedigree given in the judgment of the Consolidation Officer, Varanasi, showing that Gokul had four sons, namely, Budhan, Ram Das Banphal and Falku. For the purpose of this litigation, Budhan and Fatku are not important. Ram Das has a son Ram Naresh, now Respondent No. 3. Budhans son, Dharam Deo, Ram Chandra and Rajendra are the Petitioners in this case. Consolidation proceedings started some time in 1970-71 when Budhan was very much alive. In the basic year, the name of Ram Naresh was recorded. Dharam Deo, Rajendra and Ram Chandra filed their objection u/s 9(A)(2) of U.P. Consolidation of Holdings Act. They claimed the property as the sole property of Budhan inherited by them. Not only this, another plank which was developed later on was that Gokul had no son of the name of Ram Naresh. Meaning thereby, that Ram Naresh was totally foreign to this family.

In his reply, Ram Naresh said that he was a co-tenant of the disputed property. He relied upon a compromise entered into by Budhan with him in mutation proceedings on 28.4.54, in which Budhan had admitted Ram Naresh as a co-tenant and his Interest to be 1/2 in the disputed property.

Before the learned Consolidation Officer, Ram Naresh filed this document of compromise, consequential mutation order, entries in Khatauni 1363 Fasli onwards and Khasra, apart from revenue receipts, irrigation slips etc.

After appraisal of entire evidence, the learned Consolidation Officer upheld the compromise as regards its fact. He further found that Ram Naresh was member of this family. However, he concluded that this compromise was valid in respect of plot No. 113 with an area of 1.87 acres only. Regarding other plots in this Khata, he found that they did not exist in their original compromise initially and were developed later on. Thus, the objection of the Petitioners was partially allowed and so was the case with Ram Naresh as well.

Both the sides felt aggrieved and filed appeals before the Settlement Officer, Consolidation, who decided the appeals by his judgment dated 15.1.75. He also did not dispute the existence and factum of the compromise In respect of all the plots as such but he said that since it was a compromise entered into between the parties In a mutation proceedings, therefore, it had no legal value. Consequently, he allowed the Petitioners'' appeal in toot and rejected the appeal of Ram Naresh.

Ram Naresh felt aggrieved against this order of the learned Settlement Officer, Consolidation and Consolidation Officer and filed a revision No. 3024 before the learned D.D.C., who decided the matter by his judgment dated 25.6.75. He found that the compromise was in respect of all the plots in dispute. Ram Naresh was a member of this family and the compromise was acted upon. Ram Naresh''s name has been entered into the papers ever since 1362 Fasli onwards and he has been paying revenue as well as irrigation dues. Consequently, he upheld the case of Ram Naresh in respect of the entire disputed property and rejected the objection of the Petitioners.

Feeling aggrieved, the Petitioners have preferred this petition.

I have heard learned Counsel for the parties at a stretch and gone through the record. I find that there is absolutely no force in this petition and it deserves to be dismissed.

The fact that a compromise was entered into between Buchan, the father of the Petitioners and the Respondent No. 3 Ram Naresh as early as on 28.4.54, now stands concluded by the concurrent findings of fact by almost all the three courts. Not only this, in the objection filed u/s 9(A)(2) of the aforesaid Act by the Petitioners before the learned Consolidation Officer, the factum of compromise had not been challenged. Hence, the conclusion drawn by the learned D.D.C. and other courts is based on evidence available on the records. It cannot be challenged now in the writ Jurisdiction as it is not an appellate court. No gross injustice has been established. Therefore, this Court will not be interfering in writ jurisdiction with the concurrent findings of fact arrived at by the courts below that Buchan had entered Into a compromise with Ram Naresh on 28.4.54 and admitted Ram Naresh as a co-tenant.

Not only this, Buchan did not challenge this compromise so long as he was alive (he died some times in 1971-72). The continuous name of Ram Naresh in the records was seen with the open eyes by Buchan. But he never dared to challenge this. Not only this, Ram Naresh ha� been paying the irrigation dues and land revenue to the extent of his share and for proof of that, he had filed irrigation slips and revenue receipts before the lower court. So from all these considerations concurrent findings of fact regarding the factum of compromise and its continued existence for the last 20 years had become a fact and that should not be disturbed in a writ jurisdiction. .

Now the only question remains for determination is that what will be the value of the compromise because It was entered Into during mutation proceedings. There is no dispute that an admission does not confer title ipso jacto. But It is relevant to prove that on the basis of this compromise since 28.4.54, Ram Naresh is in possession as a co-tenant and has been exercising all the powers and rights of a co-tenant ever since. So, it will not be fruitful for this Court to say that everything has been wrongly done. This compromise may not be the basis for creation of a co-tenancy. But it is an admission all right which has gone unchallenged. On the basis of this admission, his name has been recorded and his possession has been continuing for a pretty long time. By virtue of possession, he gets a right.

Not only this, this compromise may take the shape of family settlement as well. Ram Naresh has been held to be a member of this family and the plank of the Petitioners that he was a foreign to this family, has been rightly rejected by the lower courts. Therefore, family settlement between Buchan and Ram Naresh could be validly entered into even before mutation court. No gross Injustice has been established. Therefore, the compromise may be treated as a family settlement conferring a right of co-tenancy upon Ram Naresh.

Taking all these factors into consideration, I find that the learned D.D.C. has committed no Jurisdictional error nor he has misdirected himself. Therefore, no glaring defect of any nature has been pointed by the learned Counsel for the Petitioner.

This petition has no force. It is accordingly dismissed. Cost easy. Stay order date. 9.2.76 is vacated.