Janki Singh and Others vs Bhagwan Singh and Others

Ravinandan Sahay, J.—The dispute in this case between the co-sharers with regard to certain ancestral lands of the parties, the details of which have been given in para 4 of the writ petition.

The common ancestor of the parties was Gokul Singh. He has four sons, namely, Nathu Singh, Chatu Singh, Mithu Singh and Daroga Singh (died issueless).

The petitioners are descendant of Mithu Singh. The respondents are descendants of Chatu Singh. According to the petitioners, the rcvisional survey land of joint family should have been recorded half and half of the parties as the branches of Nathu Singh and Daroga Singh had become extinct. The revisional parcha showed l/3rd share to Faujdar and Jamadar l/3rd shar to Bhagwan and Laxmi and the rest 1/3rd to Jagdo Singh. It so happened because Nathu Singh''s wife Most. Bhagwatia had gifted 1/3rd share in the ancestral property of Bhagwan and Laxmi although according to the petitioners Most. Bhagwatia was not legally competent to do so since after the death of Nathu Singh the property devolved upon his coparcener. This is the whole controversy in the present case that whether the deed of gift executed in favour of Bhagwan and Laxmi was void and inoperative.

The petitioners filed an objection application Under/Section 103A of the B.T.Act. The revisional survey record was rectified as desired by the petitioners.

Against the order of 103A of the B.T. Act the respondents filed a suit Under/Section 106 of the B.T. Act (Suit No. 902/77) During the pendency of the suit the land register u/s 10(1) of the Act was published from 25-7-74 to 23-8-74. No objection Under/Section 10(2) of the Act was filed before the Assistant Consolidation Officer. The proceeding Under/Section 106 of the B. T. Act abated sometime in 1975 since the Consolidation proceeding started. Thereafter the respondents did not file any objection Under/Section 10(2) of the Act but they filed a suit on 16-5-77 bearing T. S. No. 88/ 77. The claim of the respondents under the Consolidation Act became barred under the provision of Section 10A of the Act. Section 10A reads as follows:

"10A. Bar to objection -- No question in respect of any entry made in the map or registers prepared Under/Section 9 or the statement of principles prepared Under/Section 9A relating I the consolidation area, which might or ought to nave been raised Under/Section 10 but has not been raised, shall not be raised or heard at any subsequent stage of the Consolidation proceeding."

In Shyam Bihari Upadhyay and Others Vs. State of Bihar and Others, , it was held that when the Director exercises revisional power, it is not a subsequent stage of the consolidation proceedings. Section 10A does not operate as the baron the power of the Director. Director within the limitation prescribed, for exercise of supervisory jurisdiction can exercise his power Under/Section 35 for rectifying any mistake in the order passed or proceeding taken for ends of justice. This court relied upon a decision of Ramakant Singh Vs. Deputy Director of Consolidation, U.P. and Others, . The Full Bench of Allahabad High Court held that under revisional power the Director of consolidation can examine the record to decide whether it was a fit case for exercise of the revisional jurisdiction suo motu and it was observed that such opinion shall have to be formed even in a case where the application in revisions moved by a party defective having been made beyond the prescribed period of limitation or where all the necessary parties have not been impleaded. Coming to the merit of the case the Division Bench made the following observations :

"Coming to the facts of the present case it is an admitted position that respondents 6 to 8 did not file any objection u/s 10(2) of the Act. As such, the bar prescribed u/s IO-A operated against them. They could not have taken an objection in respect of the entry u/s 10(2) because Sub-section (2) of Section 12 opens with the words "Subject to the provisions contained in Section IDA". The Consolidation Officer, while allowing that objection by his order dated 12-2-83 overlooked the bar imposed by Section 10-A of the Act. As such, that order cannot be sustained. The Director of Consolidation did not notice this aspect of the matter while dismissing the application of the petitioners. The matter would have been different if in exercise of his revisional jurisdiction he had come to the conclusion that in the facts and circumstances of the case it was only just and proper that respondents 6 to 8 should have been allowed to file an objection for the ends of justice."

In the present case the respondents after gap of three years from publication of land filed an objection purported to be Under/Section 10(2) of the Act. The objection was heard and decided in favour of respondents on 10-7-77 by the Consolidation Officer, Bikramganj (Annexure 3). The Consolidation Officer after examining the contention and the evidence came to the conclusion that the disputed land has been gifted to the sons of Gajadhar by a registered document. The respondents all along remained in possession of the disputed land. The petitioners filed an appeal before the Dy. Director of Consolidation, Rohtas Under/Section 10(6) of the Act. The documents were filed by both the parties. The report of the circle officer was that the respondents have been coining in possession since the time of gift in the year 1948. The Dy. Director Consolidation held as follows :

"But in view of the report of L.C.O. and other impeachable documents in support of the respondents the only irresistible conclusion that can be drawn is that the respondent''s claim are well established by facts and evidence."

The matter went to the Director, Consolidation Under/Section 35 of the Act. The Director vide order (Annexure 3) held that the revisional court affirmed the orders of the Consolidation Officer mainly in view of the report of Circle Officer, the respondents were enjoining the possession of the disputed land since 1948.

Shri Keshav Srivastava, learned counsel appearing on behalf of the petitioners has argued that the question of limitation has not been considered by any of the courts below although the question of limitation was not raised in the courts below. Learned counsel contended that the case is fully covered by Shyam Bihari Upadhyay and Others Vs. State of Bihar and Others, .

This contention of Sri Shrivastava is well founded. As it appears from para 10 of the report that the matter was remitted to the Director of Consolidation since the Directorof Consolidation had not considered the fact that the application Under/Section 10(2) was barred having not preferred within 45 days of the publication of the register.

It would be necessary to consider a dvision bench decision of this Court in Hari Narain Singh v. State of Bihar 1997 (1) All PLR 302 : 1997 AIHC 3340, wherein the division bench held that the power of the Director u/s 36 of the Act could not be construed to be so wide to usurp the jurisdiction of the original authority as a fact finding authority by appreciating for itself all the fact de novo, though it is completely barred by Section 10A of the Act. The Division Bench observed "There being no non obstante clause in Section 35, it is difficult to infer that the legislature purported to give such a wide power in the Director of Consolidation to ignore any bar of limitation provided for filing objection, appeal etc. at different stages and to give it an overriding effect even on Section 10A providing bar from raising any objection at any subsequent stage of proceeding, if not raised within the stipulated time. "This answers the contention of Sri Ravi Ranjan, learned counsel for the respondenfs, who argued that the bar Under/Section 10 A does not obstruct the revisional power of the Director. The division bench dissented with the view in Shyam Bihari Upadhyay and Others Vs. State of Bihar and Others, relying on a decision of the Supreme Court in Ramdular v. Dy. Director of Consolidation JT(1994) 3 341.

In Suraj Prasad Singh v. Joint Director, Consolidation 1997 (l)All PLR 83: (1997 AIHC 2902), the point for consideration was whether Under/Section 35 of the Consolidation of Holdings and Prevention of Fragmentation Act, the Director in exercise of revisional power can set aside the order of the Collector Under/Section I08A of B. T. Act without there being any legal evidence adduced before him. The division bench, held the order to be illegal still there was no interference and the mailer was not remitted to the Director of Consolidation for fresh decision. The reason was that the dispute between the parties involved question of title which could be agitated before the Civil Court. Following observations were made in para 16 of the report. :--

"16. However, Mr. Mishra, learned counsel for the respondents fairly submitted that as in the instant case the question of title is involved for which the suits have been filed and are pending before the subordinate Judge, any finding recorded by this Court may prejudice either parties. As such, he submitted that in view of the stand taken by the respondents in the counter affidavit that notification issued u/s 3 of the Act operating the consolidation scheme in the area has been cancelled, the pclitioner may seek his remedy in civil court. In this regard, he also referred to the Full Bench decision of this court in the case of Sheoratan Chamar and Others Vs. Ram Murat Singh and Others, and also to the decision in the case of Kaiika Kaur alias Kalika1 v. State of Bihar, reported in 1989 PLJR 1203; wherein this Court held that the jurisdiction of the civil court is not completely ousted for such disputes."

'' In Ram Sakal Singh Vs. Mosamat Monako Devi (Dead) and Others, , the Supreme Court held that if the document is void, the suit or a proceeding would abate Under/Section 4(1)(c) of the Consolidation Act but if the document is voidable, the suit for declaration deed is voidable would not abate. The ratio of this case applies to the facts of the present case. In the instant case, the deed of gift has been challenged as null and void. The document cannot be said to be void document. It will hold good till it is so declared by acompetent court. The petitioner can file suit for appropriate reliefs.

In my view the dispute involves question of title and legality of the deed of gift. It would be proper for the petitioners to file civil suit for appropriate reliefs.

This writ application is disposed of with the observations made above.