Jaggi and Others vs Dy. Director Consolidation and Others

Poonam Srivastav, J.—Heard Sri S.S. Pandey counsel on behalf of Petitioners and Sri Sankatha Rai on behalf of contesting Respondents.

The judgment and orders dated 16.6.2005 passed by Respondent No. 1 and 18.6.2003 passed by Respondent No. 2 arising out of proceedings under U.P. Consolidation of Holdings Act (hereinafter referred to as the Act), are impugned in the instant petition.

The dispute relates to basic year Khata No. 18 situated in village Charki Khurd, Tappa Upraudh, Pargana Kantit, Tehsil and District Mirzapur. When village was notified for consolidation, names of Ramjan and Khalik sons of Millu and Jumman who is son of Gazi father of Petitioner No. 1 were recorded as Bhumidhar in the basic year Khatauni.

Case of the Petitioners is that in the basic year, name of Ramjan and Khalik, and Jumman son of Buddhu were recorded as Bhumidhar. Claim of the Petitioners is that each of them had 1/3rd share over the land in dispute.

Objection u/s 9 of the Act was preferred by Ramjan and Khalik before Consolidation Officer bringing to his notice that name of Jumman was wrongly recorded and his name be expunged. Jumman has also preferred an objection that his name should be intact. He is son of Bhddhu and name of Ramjan and Buddhu be expunged. Two issues were framed on the pleadings of parties, which are quoted hereinbelow:

Whether name of Jumman has been wrongly recorded in the disputed Khata?

Whether Jumman has half share over the land in dispute?

Objection of Ramjan and Khalik was rejected by Consolidation Officer vide order dated 4.5.1987. Against the order dated 4.5.1987 passed by Consolidation Officer, an appeal filed u/s 11 of the Act vide Appeal No. 463/479 Ramjan and Ors. v. Jumman and Ors., was allowed by Settlement Officer Consolidation vide judgment and order dated 18.6.2003. The order of Consolidation Officer was set aside and name of Jumman son of Buddhu was expunged. The disputed Khata was divided into two between Ramjan and Khalik.

Jumman died during pendency of the proceedings leaving behind Jaggi and others as his heirs. They preferred a revision u/s 48 of the Act vide revision No. 466/251 before Dy. Director Consolidation, Mirzapur, which was dismissed vide judgment and order dated 16.6.2005. Both the orders are challenged by Petitioners'' counsel in the instant petition.

On perusal of the impugned judgment and orders, it transpires that Dy. Director Consolidation after taking into consideration oral and documentary evidence on record, held that Khata No. 18 was recorded initially in the name of Mirza Ahmed, Lari Ali as Khurd Kast holder in Zaman-2 as Sirdar. Name of Mst. Niwasiya was exclusively recorded in Zaman-7 in Khatauni 1346 Fasli and 1356 Fasli. She became Sirdar on the advent of U.P. Z.A. & R.L. Act. It is, thus concluded by authorities below that it was Niwasiya herself who acquired the land in dispute in her own name. Dy. Director Consolidation considered oral evidence of a number of witnesses examined at the behest of Ramjan who deposed that Niwasiya was initially married to Gazi. She had no issue from Gazi. After his death, she remarried Millu father of Ramjan and Khalik. Therefore, after the death of Niwasiya, Ramjan and Khalik succeeded over the land in dispute u/s 174 of the Act. It was, therefore, held that Jumman had no concern whatsoever with the disputed property. Statement of Jumman was discarded by the Deputy Director Consolidation.

Petitioners have placed extract of cross examination of Ramjan to substantiate that when Niwasiya died, Ramjan was 15 years old and after 8-10 years, Khalik was born. He was not able to disclose the length of time when Niwasiya died after her second son was born.

Objection of the Petitioners is that Muslim Behna can not marry in the family of Muslim Nayee. There was a finding of the Consolidation Officer that Ramjan and Khalik were born before seond marriage of Niwasiya with Millu, therefore, they can not inherit the property. There are factual aspects which are raised by Petitioners'' counsel and certain evidence has been pointed out in the written argument submitted by Sri S.S. Pandey, counsel for the Petitioners. On its basis, it is submitted that the findings recorded by the authorities below are against the evidence.

I have given due consideration to the arguments advanced on behalf of respective parties. It is evident that the judgment and orders of Settlement Officer Consolidation and Deputy Director Consolidation impugned in the instant writ petition have been passed on consideration of oral evidence brought on record and its reappraisal. The writ petition rests on the basis of conclusion of fact after appraisal of evidence. It is settled principle of law where the order of a Domestic Tribunal makes a reference of some relevant or irrelevant existent or non-existent factual aspects and the order is passed on its basis and its appraisal. This Court while exercising jurisdiction under Article 226 of the Constitution of India can not enter into realm of reappraisal of facts. In the instant case, finding is one of the fact and could not be said to be patently wrong much less could be a finding based on no evidence or inadmissible evidence. The last court of fact is Settlement Officer Consolidation exercising appellate jurisdiction. In few cases, the Dy. Director Consolidation can look into the facts but very sparingly otherwise the revisional court is also not entitled to re-evaluate the evidence.

Sri Sankatha Rai, counsel for the Respondents has placed reliance on a decision of Hon''ble Apex Court in the case of Bishwanath Pandey Vs. Badami Kaur and Others, wherein it was held that widow of the last proprietor of the land in dispute was recorded. At the relevant time neither U.P. Act was passed nor Succession Act came into force. The widow became absolute owner of the property and the interest of collaterals ceased to exist. Similarly in the instant case, claim of the Petitioner is that Niwasiya married Gazi and two contesting Respondents were from previous husband, therefore, she cannot inherit absolute right of Millu. This is a factual dispute and the assertions can not be looked into by this Court while exercising jurisdiction under Article 226 of the Constitution of India. The judgment and orders of the two courts below are concluded by findings of fact. I am of the considered view that the judgment and orders impugned in the instant writ petition can not be interfered at this stage. There is no merit in the writ petition. The writ petition fails and is, accordingly, dismissed.