Dulam vs Deputy Director of Consolidation, Azamgarh

Ram Surat Ram (Maurya), J.—Heard Sri Satyendra Kumar Singh for the petitioners and Sri Ajeet Kumar Singh for the respondents.

This petition has been filed against the orders of ASOC dated 2.1.2004 and DDC dated 4.5.2016, passed in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the ''Act'').

The dispute related to land recorded in khata no. 9 of village Pahindapur, pargana Nizamabad, district Azamgarh. The petitioners filed an objection for recording their names over the khata in dispute and declaring their shares as ⅓ in it. The petitioner took the plea that the land in dispute was original holding belonging to Badlu. After the death of Badlu, it was inherited by his son Chotu (⅓ share), Moti and Lalman, sons of Feru (⅓ share) and Ram Asrey, son of Meru (⅓ share). Meru died on 30.10.1954 and by the order of CO dated 14.2.1959, after the death of Badlu, names of the aforesaid persons were mutated in the consolidation records. Thereafter, Ram Asrey executed a sale deed dated 15.4.1975 in respect of his ⅓ share in the land in dispute and on the basis of the aforesaid sale deed, the petitioners had become co-sharer of ⅓ share in the land in dispute and their names were liable to be recorded over it. The case was contested by Chotu, Moti and Lalman. They have stated tht Meru died issueless during the lifetime of Badlu. After the death of Badlu, � share was inherited by Chotu and remaining � share was jointly inherited by Moti and Lalman, but by making forgery in the order of CO dated 14.2.1959, name of Ram Asrey was got recorded as son of Meru, although Meru died on 14.3.1953 and after death of Meru, his widow Smt. Prabhudei remarried to Phool Chand, resident of village Khatuhana, from whom Ram Asrey was born on 1.1.1955. Ram Asrey was not the son of Moti and had no share in the land in dispute. Ram Asrey also filed a suit (registered as Suit No. 15 of 1972) u/s 21 of U.P. Act No. 1 of 1951, for declaring him as co-sharer of ⅓ share in the land in dispute. This suit was dismissed by the SDO by order dated 9.8.1972.

The case was tried by CO. Apart from documentary evidence, the petitioners examined Munni Lal and Babu Lal as witnesses. The respondents apart from documentary evidence, examined Chotu, Lalman, Pramod and Sati Ram as witnesses. CO after hearing the parties, by order dated 24.2.2003, allowed the objection of the petitioners and directed for recording the names of the petitioners over khata no. 3, declaring their ⅓ shares in it, on the basis of sale deed dated 15.4.1975, executed by Ram Asrey in their favour.

Moti and others filed an appeal (registered as Appeal No. 292) from the aforesaid order. The appeal was heard by ASOC, who by the order dated 2.1.2004 found that Ram Asrey was not the son of Meru, in as much as, Meru died on 14.3.1953, while Ram Asrey was born on 1.1.1955, therefore, Ram Asrey had no share in the land in dispute and on the basis of sale deed dated 15.4.1975, executed by Ram Asrey, the petitioners will not get any share in the land in dispute. The sale deed dated 15.4.1975 was executed during pendency of the litigation, as such, it is hit by Section 52 of Transfer of Property Act. Ram Asrey was resident of village Tundwal, as such, death register of Ram Asrey of village Mohanpur appears to be fabricated document and not reliable, while the death register produced by the respondents of village Tundwal is reliable document from which, it was proved that Meru died on 14.3.1953. The order of CO dated 14.2.1959 is passed in the mutation proceeding, as such, it has no effect in the regular title proceeding. Chotu was not examined before the CO and his alleged statement before the CO on 14.2.1959 is not decisive of the issue. On this finding, he allowed the appeal, set aside the order of CO dated 24.2.2003 and dismissed the objection of the petitioner. He held share of Chotu as 1/2 and share of Moti and Lalman, jointly, as 1/2 in the khata in dispute. The petitioner challenged the order in revision (registered as Revision No. 139) which was dismissed by DDC by the order dated 4.5.2016. Hence, this petition has been filed.

I have considered the arguments of counsel for the parties and examined the record. So far as argument of counsel for the petitioners that order of DDC is a cryptic order, in as much as, she has neither considered the various arguments raised, nor considered the evidence on record and dismissed the revision is concerned, the order of DDC is an order of affirmance, as such, so long as the petitioner is not able to point out any illegality in the order of appellate court, the order of DDC cannot be set aside on this ground alone.

So far as order passed by CO dated 14.2.1959 is concerned, it is an order passed in the mutation proceeding and prior to amendment of U.P. Consolidation of Holdings Act, 1953 in 1963, orders of mutation proceeding are summary orders and have not effect of res-judicata, as such, ASOC has not committed any illegality in ignoring this order and deciding the dispute of the parties on the basis of other evidence on record.

A perusal of annexure-16 to the writ petition shows that after death of Badlu, Chotu (son of Badlu), Moti and Lalman (minor sons of Feru), filed an application for mutation of their names before the ACO on 1.3.1958. In this application, it has been clearly stated that Meru died issueless during lifetime of Badlu. A perusal of the proclamation issued by ACO filed as annexure-4 to the writ petition also confirms that mutation application was filed for mutating the names of Chotu, son of Badlu and Moti and Lalman (minor sons of Feru). The petitioner has also filed the order of CO dated 14.2.1959 as annexure-8 to the writ petition. In the order dated 14.2.1959, CO has only referred to the statement of Chairman, Land Management Committee. In this order, there is no whisper that apart from Mahabir, Chairman, Land Management Committee, other witnesses were also examined before him. A copy of statement of Mahabir, Chairman, Land Management Committee, has been filed showing that Mahabir in his statement has not stated that name of Ram Asrey, although, he had stated that Meru left behind him a minor son. The statement of Mahabir, filed as annexure-6 to the writ petition, was not signed by any Presiding Officer, while statement of Atwaria, widow of Kumar and Chotu, were signed by CO-VIII. The date of statement is 14.2.1959, which is the date of order itself. Chotu had denied that he was ever examined before the CO. Statement of Chotu and Atwaria were not relied upon in the order of CO dated 14.2.1959. The parties have also adduced their expert evidence in respect of thumb impression of Chotu in the statement dated 14.2.1959. Considering all these evidences, ASOC found that Chotu was not examined before the CO, as such, plea of estoppel is not liable to be accepted. The finding in this respect does not suffer from any illegality. In any case, this court in exercise of writ jurisdiction, cannot interfere in the finding of facts.

So far as date of death of Meru is concerned, the petitioner filed an extract of death register of village Mohanpur, which is the parental place of Smt. Prabhudei, wife of Meru, while the respondents filed the extract of death register of village Tundwal, which is the original residence of Badlu and his sons. CO ignored the death register filed by the respondents on the ground that photostat copy of the death register was filed. However, this deficiency was completed before the appellate court and certified copy of the death register has been filed before the appellate court. The appellate court has relied upon the death register of village Tundwal, which in the circumstances of the case, is more appropriate certificate, as there had been no reason for Meru to reside in village Mohanpur, which was the village of his wife. Genuineness of the certificate of village Tundwal was not challenged by the petitioner in the memorandum of revision, as such, this court is not inclined to interfere on the ground that certificate of death register of village Tundwal, filed by the respondents was not a genuine certificate.

Argument of counsel for the petitioners that DDC by the order dated 21.2.1999, gave last opportunity to the respondents to adduce their evidence within a period of one month, therefore, the certificate produced before the appellate court could not be admitted, is not liable to be accepted. After the order dated 2.12.1999, the respondents examined their witnesses Chotu (DW 1), Lalman, son of Bhikari (DW 2), Pramod (DW 3) and Sati Ram (DW 4) and also filed their documentary evidence. Due to mistake of the counsel, instead of filing the certified copy of death register, he has filed its photostat copy. The appellate court has admitted additional evidence at appellate stage, in the shape of certified copy of death register, as its photostat copy had already been filed before the CO. The order of appellate court, admitting the death register of village Tundwal, does not suffer from any jurisdictional error and the order of DDC dated 2.12.1999, does not come in the way of admitting additional evidence before the appellate court.

Ram Asrey filed a suit (registered as Suti No. 15 of 1972) in the year 1972. This suit was dismissed u/s 229-B of U.P. Act No. 1 of 1951. In th is suit, Ram Asrey has stated that the land in dispute was ''sirdari'' land and his name be recorded as co-sharer of ⅓ share. In this suit, Smt. Prabhudei (mother of Ram Asrey) was examined as witness. She has admitted that during consolidation, an objection was filed by her for recording name of Ram Asrey, but that objection was dismissed. Relying upon the statement of Smt. Prabhudei, SDO held that the claim of the petitioners is barred u/s 49 of the Act and in as much as his objection was dismissed and on this finding, the suit was dismissed by order dated 9.8.1972. This order was not challenged by Ram Asrey and has become final against him. Now, in this consolidation, a fabricated order of CO dated 14.2.1959 is being relied upon by the petitioners, which has been rightly ignored by the appellate court.

When Ram Asrey executed sale deed dated 15.4.1975 in favour of the petitioner, then the respondents contested the mutation application. They also filed a suit u/s 229-B, registered as Suit No. 121, which was ultimately abated at the appellate stage and thereafter, the litigation between the parties before the CO was started.

In the circumstances, finding recorded by the consolidation authorities that Meru died on 14.3.1953 and admittedly, date of birth of Ram Asrey is 1.1.1955, as such, Ram Asrey could not be the son of Meru, does not suffer from any illegality.

The petition has no merit and is dismissed.