Hari Lal & Others vs Asstt. Director Of Consolidation & Others

Heard Sri Virendra Singh along with Sri Dinesh Tiwari, for the petitioners and Sri Balram Bind, for the contesting respondents.

The writ petition has been filed against the order of Assistant Director of Consolidation dated 15.02.1980, passed in title proceeding, under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to the Act).

Dispute between the parties is in respect of land recorded in basic consolidation year khata-683 of village Jamalpur, pargana Ghisuwa, district Jaunpur. In basic consolidation year, names of Ram Autar (now represented by petitioners-1 to 3), Basudeo, Sahdeo (petitioners-4 and 5) Ram Chel (petitioner-6), Gutun son of Balak (now represented by petitioners-4 to 6), Shobhi Lal, Bihari Lal, Girdhari Lal (respondents-4 to 6), Parabhu (now represented by respondent-8) were recorded. During verification of khatauni, Ram Autar was reported to be dead and his sons Hari Lal and others (petitioners-1 to 3) were his heirs. Ghurhoo was reported to have three sons namely Parabhu, Harihar and Harigen. The names of Harihar and Harigen be recorded along with Parabhu. During partal some plots were found uncultivated and some plots were found as abadi but details of which are not relevant for the purposes of this writ petition.

During consolidation, Shobhi Lal, Bihari Lal, Girdhari Lal (respondents-4 to 6) filed an objection claiming 1/2 share in the disputed khata. Smt. Tita (respondent-7) filed an objection claiming 1/4 share. The petitioners contested the aforesaid objections by filing their written statement, stating therein that Shobhi Lal, Bihari Lal, Girdhari Lal had 1/4 share jointly in disputed khata. Smt. Tita was real sister of Shobhi Lal and others and had no share. The petitioners jointly had 1/2 share. Parabhu, Harihar and Harigen sons of Ghurhoo jointly had 1/4 share. Share of the parties has been finally decided in partition Suit No. 53 of 1962 under Section 176 of U.P. Act No. 1 of 1951, by the preliminary decree of Assistant Collector dated 10.01.1963, which was affirmed by Additional Commissioner, by order dated 02.07.1964, in appeal and Board of Revenue U.P. by order dated 06.03.1968, in second appeal. This order has become final between the parties. Harihar, Parabhu and Harigen filed an objection claiming sole tenancy of plots 36 and 150. All the objections were consolidated and issues were framed.

There is no dispute between the parties that disputed land was joint ancestral property. The dispute is in respect of share based upon different pedigree set up by the parties. The petitioners set up following pedigree:- "TREE CHART OMITTED"

Respondents-4 to 7 set up following pedigree:- "TREE CHART OMITTED"

Following papers were filed by the parties to prove their respective case:- (a) The petitioners filed copy of the plaint of civil suit (registered as O.S. No. 361 of 1932, Sumer and others Vs. Kareem Darji and others, Ramesar, Gokul and Mathura were arrayed as defendants-10 to 12). In the plaint it has been stated that Ram Lal, Dukhi, Jamai and Bhan were members of joint Hindu family. Partition between them took place 60 years ago, in which Ram Lal and Dukhi took their joint share and Jamai and Bhan took their joint share. From this plaint, they tried to say that Ram Lal and Dukhi were real brothers and Kalu and Gulla were real brothers. This suit was later on dismissed as withdrawn on 15.03.1933.

(b) Ram Autar filed Suit No. 223/57 of 1950, under Section 49 of U.P. Tenancy Act, 1939, for partition of the disputed land, claiming his 1/4 share. Sumer, Guttan, Basdeo and Sahdeo (now represented by petitioners-4 to 6) filed their written statement on 25.01.1951, in which they stated that their branch had 1/4 share, branch of Gurhoo had 1/4 share and branch of Mathura had 1/2 share. Through written agreement between the parties dated 25.01.1954, the dispute was referred to Panchayat. This suit was dismissed in default on 27.02.1954. Panchayat was held in which Panch Award was passed on 17.03.1954, in which branch of Mathura was given 1/2 share. Copies of this plaint, written statement, agreement dated 25.01.1954, referring the dispute for panchayat and Panch Award have been filed.

(c) Ram Autar again filed Suit No. 53 of 1962, under Section 176 of U.P. Act No. 1 of 1951, for partition, claiming his 1/4 share. Ram Autar, in his oral statement recorded on 22.11.1962, admitted his signatures on the agreement dated 25.01.1954 and also passing of Panch Award dated 17.03.1954. Copy of his statement was filed.

(d) The petitioners filed copies of the judgment and preliminary decree of Assistant Collector dated 10.01.1963, passed in partition Suit No. 53 of 1962, under Section 176 of U.P. Act No. 1 of 1951, judgments of Additional Commissioner, dated 02.07.1964 passed in Appeal No. 261 of 1963-64 and Board of Revenue U.P. dated 06.03.1968, passed in Second Appeal No. 261 (Z) of 1963-64, showing that in preliminary decree, share of branch of Mathura was held as 1/4. They claimed that this decree has become final between the parties.

(e) Smt. Tita filed an application dated 06.06.1970 for recalling preliminary decree dated 10.01.1963 passed in partition Suit No. 53 of 1962, which was abated under Section 5 (2) of the Act on 09.12.1971. Smt. Tita filed O.S. No. 102 of 1970 for cancellation of preliminary decree dated 10.01.1963 passed in partition Suit No. 53 of 1962, which was abated on 08.04.1972 under Section 5 (2) of the Act.

(f) In khatauni 1272 F of village Jamalpur, names of Jamai son of Kalu was recorded over khata 14. In Jamabandi 1287 F of village Jamalpur, names of Balak son of Ram Lal, Bhan son of Gulla, Jamai son of Kalu and Dukhi son of Prasad were recorded. In khatauni 1287 F of village Molnapur, names of Balak son of Ram Lal and Jamai son of Kalu were recorded, over land of khatas-7 and 55. Bhan son of Gulla was recorded over khata 59 and Dukhi son of Parsad was recorded over khata 68, Madhuri wife of Gulla was recorded over khata 79. In khatauni 1307 F of village Molnapur, names of Balak, Bhikhari sons of Ram Lal and Ramesar son of Jamai were recorded over khata 14, Kanhai, Gokul and Mathura sons of Bhan were recorded over khata 34. In Jamabandi 1306 F of village Molnapur, names of Balak son Ram Lal and Ramesar son of Jamai were recorded over khata 12 and in khatauni their names were recorded in khata-7. In Jamabandi 1306 F of village Molnapur, names of Kanhai, Gokul and Mathura sons Bhan were recorded over khata 32. In Jamabandi 1307 F of village Molnapur, name of Dariyab son Dukhi was recorded over khata 21. In Jamabandi 1309 F of village Molnapur, names of Balak son Ram Lal and Ramesar son of Jamai were recorded over khata 37, Kanhai, Gokul and Mathura son Bhan were recorded over khata 40. In khatauni 1334 F of village Jamalpur, names of Balak, Bhikhari sons of Ram Lal, Ramesar son of Jamai, Smt. Kabutara wife of Kanhai, Gokul, Mathura sons of Bhan, Dariyab son of Dukhi were recorded over khata 52. In khatauni 1355 F of village Jamalpur, names of Sumer, Guttan sons of Balak, Basdeo, Sahdeo sons of Kuber, Ram Chel son of Pandohi, Parabhu, Harihar sons of Ghurhoo, Smt. Kabutara wife of Kanhai, Shobhi Lal, Bihari Lal, Girdhari Lal sons of Mathura were recorded over khata 13. Same entry continued in 1356 F over khatas-12, 13 and 94.

(g) The respondents filed report of Naib Tahsildar dated 31.10.1907, in mutation case, started on the application of one Maniklal on the basis of mortgage deed dated 17.05.1907, executed by Dariyab son Dukhi in his favour. This case was contested by Kanhai, Mathura and Gokul on the ground that Dariyab had surrendered his share in their favour in the disputed land for more than 20 years ago and was permanently shifted to village Sarokhanpur. In this case, statement of Dariyab was recorded, in which he had admitted to have permanently shifted to village Sarokhanpur and exclusive possession of Kanhai and others. Mutation Application of Maniklal was dismissed by Assistant Collector dated 06.01.1908.

Before Consolidation Officer, Smt. Tita examined Brijraj as her witness. She filed copy of Kutumb Register, showing that Smt. Kabutari died on 20.08.1963. She filed an application dated 06.06.1970 for recalling preliminary decree dated 10.01.1963 passed in partition Suit No. 53 of 1962, which was abated under Section 5 (2) of the Act on 09.12.1971. Smt. Tita filed O.S. No. 102 of 1970 for cancellation of preliminary decree dated 10.01.1963 passed in partition Suit No. 53 of 1962, which was abated on 08.04.1972 under Section 5 (2) of the Act. Consolidation Officer, after hearing the parties, by order dated 18.01.1974, held that Smt. Tita could not adduce any evidence to prove that she was daughter of Kanhai. In judgment of Additional Commissioner, dated 02.07.1964, pedigree as given by Ram Autar has been finally accepted. This judgment has become final as such binding upon the parties. On these findings, he dismissed objections of Smt. Tita and Shobhi Lal and others and held their share as 1/4 jointly.

Shobhi Lal and others filed an appeal (registered as Appeal No. 604) and Smt. Tita filed an appeal (registered as Appeal No. 622) from the aforementioned order. Both the appeals were consolidated and heard by Assistant Settlement Officer Consolidation, who by order dated 09.10.1974, held that from the evidence on record, it is proved that Smt. Tita was the daughter of Kanhai. Smt. Kabutari widow of Kanhai died on 20.08.1963 and was inherited by Smt. Tita. In the suit for partition filed under Section 176 of U.P. Act No. 1 of 1951, preliminary decree was passed on 10.01.1963, in which pedigree given by Ram Autar was accepted. Preliminary decree was affirmed up to Board of Revenue, U.P. in second appeal. The suit was abated at the stage of final decree. As such preliminary decree is binding between the parties. Smt. Tita could not prove the pedigree as set by her. There is no evidence to prove that as to who was the nearest heir of Dariyab, at the time of his death. On these findings, he partly allowed the appeal of Smt. Tita and dismissed the appeal of Shobhi Lal and others and held share of Smt. Tita as 1/8 and share of Shobhi Lal and others as 1/8 jointly.

Smt. Tita filed a revision (registered as Revision No. 186). Shobhi Lal and others filed a revision (registered as Revision No. 189) from the aforesaid order. The revisions were consolidated and heard by Assistant Director of Consolidation, who by his order dated 15.02.1980, held that the finding of Assistant Settlement Officer Consolidation that Smt. Tita was daughter of Kanhai was not challenged by any one before him. Smt. Tita was necessary party in partition Suit No. 53 of 1962, under Section 176 of U.P. Act No. 1 of 1951, but she was not impleaded as party in that suit as such preliminary decree dated 10.01.1963 passed in it does not operate as res-judicata against her. The consolidation authorities are free to decide the case on the basis of evidence adduced before them. In the earliest settlement khatauni, names of Balak son of Ram Lal, Bhan son of Gulla, Jamai son of Kalu and Dukhi son of Parsad were recorded and their shares were also recorded as 1/4 each. From the objection filed by Kanhai, Gokul and Mathura, it is proved that they were in possession of the share of Dariyab, which has been accepted by Dariyab in his statement. In settlement khatauni 1287 F, Bhan and Parasad were recorded as the sons of Gulla. In plaint of Suit No. 223/57, under Section 49 of U.P. Tenancy Act, 1939, the pedigree given by Sumer and others is fully tallying with the pedigree given by Smt. Tita, which is proved from evidence on record. From evidence on record, it is disproved that Dukhi had died issueless. Dariyab son of Dukhi, in his statement admitted that Kanhai and others were in possession of the land of his share, from which it is proved that 1/4 share of Dukhi was inherited by Kanahi and others after death of Dariyab and their share had become 1/2. On these findings, both the revisions were allowed, share of Smt. Tita was held as 1/4 and share of Shobhi Lal and others was 1/4 jointly. Hence this writ petition has been filed.

The counsel for the petitioners submitted that Ram Autar filed partition Suit No. 53 of 1962, under Section 176 of U.P. Act No. 1 of 1951, in which Assistant Collector passed preliminary decree dated 10.01.1963, holdings share of branch of Bhan as 1/4. This decree was affirmed by Additional Commissioner, by his order dated 02.07.1964, in Appeal No. 261 of 1963-64 and Board of Revenue U.P. by order dated 06.03.1968, in Second Appeal No. 261 (Z) of 1963-64. This decree has become final between the parties and operates as res-judicata between the parties as held by Supreme Court in Mool Chand Vs. D.D.C. And others, AIR 1995 SC 2493. Smt. Tita filed an application dated 06.06.1970 for recalling preliminary decree dated 10.01.1963, passed in partition Suit No. 53 of 1962, which was abated under Section 5 (2) of the Act on 09.12.1971. The decree was not recalled and her application alone was abated and not the suit. Smt. Tita filed O.S. No. 102 of 1970 for cancellation of preliminary decree dated 10.01.1963, passed in partition Suit No. 53 of 1962, which was abated on 08.04.1972 under Section 5 (2) of the Act. This suit was wrongly abated as consolidation court has no jurisdiction to cancel the decree passed by revenue court. In Jamabandi 1287 F of village Jamalpur, names of Ram Balak son of Ram Lal, Bhan son of Gulla, Jamai son of Kalu and Dukhi son of Prasad were recorded and their shares were also recorded as 1/4 each. Assistant Director of Consolidation has illegally misread khatauni 1287 F and held that Bhan and Parsad were recorded as the sons of Gulla although there is no such document on record. Assistant Director of Consolidation has illegally set aside concurrent findings of facts of courts below, in respect of pedigree although it was based upon documentary evidence as well as previous pleadings of the parties. The order of Assistant Consolidation Officer is illegal and liable to be set aside.

I have considered the arguments of the counsel for the parties and examined the record. Assistant Director of Consolidation found that the finding of Assistant Settlement Officer Consolidation that Smt. Tita was daughter of Kanhai was not challenged by any one before him. Smt. Tita was necessary party in partition Suit No. 53 of 1962, under Section 176 of U.P. Act No. 1 of 1951, but she was not impleaded as party in that suit as such preliminary decree dated 10.01.1963 passed in it does not operate as res-judicata against her. It is proved from evidence on record that after death of Kanhai, name of his widow Smt. Kabutara was recorded over disputed land since 1334 F. Smt. Kabutara died on 20.08.1963, as mentioned in Kutumb Register. At the time of filing of partition Suit No. 53 of 1962, Smt. Kabutara was alive but she was not impleaded as the party in the suit. After death of Smt. Kabutara, share of Kanhai was inherited by his daughter Smt. Tita but she was also not impleaded/substituted in the partition suit. Although Shobhi Lal and others, who are of sons of Mathura, were impleaded as the defendants and they contested the suit. But their interest is adverse to Smt. Tita as she was claiming herself as an heir of Kanhai. As such finding of Assistant Director of Consolidation that preliminary decree dated 10.01.1963, passed in partition suit does not operate as res-judicata against Smt. Tita does not suffer from any illegality. It is admitted that partition suit was abated before passing final decree.

Section 11 Civil Procedure Code, 1908, provides as follows:- Section 11. Res judicata.-No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court."

Supreme Court in Ameena Amma v. Sundaram Pillai, (1994) 1 SCC 743, held that it is settled law that the general principles of Section 11 of the Code of Civil Procedure apply to execution proceedings as well but the basic criteria for applying the principles of res judicata is that the order must be between the same parties and that the matter should have been heard and decided by such court. In Payappar Sree Dharmasastha Temple A. Com. v. A.K. Joseph, (2009) 14 SCC 628, held that since the Board was not arrayed as a party to the suit and decree was obtained only against the State Government, so, the said decree at the most would be binding only against the State and not against the Board.

Now it has to be examined as to whether, the pedigree as given by the petitioners is proved? Earliest document, which has been filed by the parties is Jamabandi 1287 F of village Jamalpur, in which names of Balak son of Ram Lal, Bhan son of Gulla, Jamai son of Kalu and Dukhi son of Prasad were recorded and their share has been shown as 1/4 each. According to the pedigree given by the petitioners, shares of Dukhi, Ram Lal, Jamai and Bhan comes of 1/4 each. According the pedigree as given of Smt. Tita also, share of these persons comes to 1/4 each. Main dispute between the parties is that according to the petitioners, Paran had two sons Sheo Dayal and Kunda. Parsad was son of Sheo Dayal. Parsad had two sons Dukhi and Ram Lal. Dukhi died issueless as such his share was inherited by branch of Ram Lal and their share became 1/2. Kunda had two sons namely Kalu and Gulla. Jamai was son of Kalu and Bhan was son of Gulla and their share were 1/4 each. But this pedigree as given by the petitioners has not been proved from any evidence on record.

According to respondents-4 to 7, common ancestor Paran had four sons namely Kalu, Gulla, Sheo Dayal and Kunda. Sheo Dayal and Kunda died issueless. Kalu had two sons Jamai and Ram Lal. Gulla had two sons Bhan and Parsad. Parsad had one son Dukhi, who had one son Dariyab. After death of Dariyab, his 1/4 share was inherited by sons of Bhan by way of survivorship. Although from Jamabandi of 1287 F share of Jamai, Ram Lal, Bhan and Dukhi comes to 1/4 each. Assistant Director of Consolidation has illegally held that Bhan and Parsad were shown as sons of Gulla in khatauni 1287 F. The pedigree given by respondents-4 to 7 is also not proved from various extract of khatauni and Jamabandi filed by them.

Now share of the parties has to decided from other evidence on record. In the plaint of O.S. No. 361 of 1932, Sumer and others Vs. Kareem Darji and others, in which Ramesar, Gokul and Mathura were arrayed as defendants-10 to 12, it has been stated that Ram Lal, Dukhi, Jamai and Bhan were members of joint Hindu family. Partition between them took place 60 years ago, in which Ram Lal and Dukhi took their share jointly and Jamai and Bhan took their share jointly. From this plaint, the predecessors of the petitioners tried to say that Ram Lal and Dukhi were real brothers and Kalu and Gulla were real brothers. But the fact is contrary to the entries in the revenue records. which shows that Balak son Ram Lal and Jamai son of Kalu were jointly recorded over khata 59 of village Jamalpur in 1287 F. In khatauni 1287 F of village Molnapur, names of Balak son of Ram Lal and Jamai son of Kalu were recorded, over land of khatas-7 and 55. In khatauni 1307 F of village Molnapur, names of Balak, Bhikhari sons of Ram Lal and Ramesar son of Jamai were recorded over khata 14. In Jamabandi 1306 F of village Molnapur, names of Balak son Ram Lal and Ramesar son of Jamai were recorded over khata 12 and in khatauni their names were recorded in khata-7. In Jamabandi 1309 F of village Molnapur, names of Balak son Ram Lal and Ramesar son of Jamai were recorded over khata 37. Thus from these documents as well admission of the predecessors of the petitioners in O.S. No. 361 of 1932, that in the partition which took place 60 years ago, branch of Jamai and Ram Lal took their shares jointly is proved, which shows that they were real brothers as alleged by respondents-4 to 7.

The respondents filed report of Naib Tahsildar dated 31.10.1907, in mutation case, started on the application of one Maniklal on the basis of mortgage deed dated 17.05.1907, executed by Dariyab son Dukhi in his favour, in respect of his 1/4 share of the disputed land. This case was contested by Kanhai, Mathura and Gokul on the ground that Dariyab had surrendered his share in their favour in the disputed land for more than 20 years ago and was permanently shifted to village Sarokhanpur. In this case, statement of Dariyab was recorded, in which he had admitted to have permanently shifted to village Sarokhanpur and surrendering his 1/4 share in favour of Kanhai and others, over entire land. Mutation Application of Maniklal was dismissed by Assistant Collector dated 06.01.1908. Branch of Ram Lal and Jamai did not contest thhis proceedings. From admission of the predecessors of the petitioners in O.S. No. 361 of 1932, that in the partition which took place 60 years ago, branch of Bhan and Parsad took their shares as jointly proved, which shows that they were real brothers as alleged by respondents-4 to 7. Further the petitioners in their pedigree has shown Dukhi died as issueless but from these documents, this fact is proved to be false as Dukhi had one son Dariyab.

Ram Autar filed Suit No. 223/57 of 1950, under Section 49 of U.P. Tenancy Act, 1939, for partition of the disputed land, claiming his 1/4 share. Sumer, Guttan, Basdeo and Sahdeo (now represented by petitioners-4 to 6) filed their written statement on 25.01.1951, in which they stated that their branch had 1/4 share, branch of Gurhoo had 1/4 share and branch of Mathura had 1/2 share. This admission can be relied upon against the petitioners and they cannot be permitted to raise a contradictory plea in subsequent litigation. The petitioners have not given any explanation of this admission of their predecessors.

During pendency of partition Suit No. 223/57 of 1950, the dispute was referred to Panchayat, through agreement dated 25.01.1954, between the parties and the suit was dismissed in default on 27.02.1954. Panchayat was held in which Panch Award was passed on 17.03.1954, in which branch of Mathura was given 1/2 share. Thereafter, Ram Autar accepted Panch Award and remained silent for about 8 years. This partition Suit No. 53 of 1962 was filed in the year 1962, i.e. after eight years of the award. This agreement and Panch award operate as estoppel against them.

In view of the aforesaid discussions, the order of Assistant Director of Consolidation holding branch of Bhan had 1/2 share in disputed khata does not suffer from any illegality. The writ petition has no merit and is dismissed.