Kashi vs D.D.C.

Hon''ble Prakash Krishna, J.—The dispute relates to Khata No. 29 situate in village Dandupur Pargana Soraon, District Allahabad. In the basic year the said Khata was recorded in the names of Jharee and Rameshwar sons of Baiju, Buddhan and Dassu sons of Jageshwar representing the petitioner''s branch. On the commencement of the consolidation in pursuance of the notification issued u/s 4 of the Uttar Pradesh Consolidation of Holdings Act, Ram Bahadur and Raj Bahadur, respondent nos. 2 and 3 herein sons of Ram Kishore filed an objection claiming themselves co-tenure holders of the land in dispute along with the petitioners. Under the said objection it was pleaded by them that the land in dispute was ancestral holding of the parties and it was acquired by Baiju and Mst. Sukhiya. A family pedigree was given in the objection. Matadeen was shown as common ancestor who had two sons Devideen and Ram Ratan. The petitioners representing the branch of Devideen and the respondents according to them represents the branch of Ram Ratan. Ram Ratan was married to Smt. Sukhiya. Puddan is son of Smt. Sukhiya. Puddan got one son namely Ram Kishore and the contesting respondents are sons of Ram Kishore. It was stated that at the time of death of Smt. Sukhiya, Puddan was minor and he was being looked after by his cousin Baiju son of Devideen and the family remained joint. On the commencement of the consolidation operation in the village they came to know that their names are not recorded in the revenue records. It was further pleaded that their father Ram Kishore could not raise any objection during the first consolidation operation in the village as in an accident he had lost his both legs and was confined to Mirzapur hospital for about five years since 1954. Ram Kishore could not move due to imputation of his legs. Ultimately, he died about two years ago hence the objections. The said objection is dated 19th of March, 1984.

In reply, the petitioners herein disputed the pedigree given by the objectors and stated that Matadeen was the common ancestor who had two sons Devideen and Ishwardeen. Ishwardeen was married to Smt. Sukhiya who died issueless and therefore, after the death of Smt. Sukhiya the property reverted to the branch of Devideen represented by the petitioners. It was further pleaded that Ram Kishore, father of the objectors contested the case during the first round of consolidation in the village and by filing objection claiming cotenancy wherein he ultimately lost in appeal. A decision by Revenue Court, Soraon and Hadiya was given on 18th of October, 1957 holding that Ram Kishore has no share in the disputed property and the said decision operates as res judicata and stops Ram Kishore and his sons to say otherwise.

The parties led voluminous evidence oral and documentary. The objectors examined one Jawahir son of Kallu as PW/1, Nohar son of Ram Adheen as PW/2, Ram Bahadur as PW-3, Mahesh Narain as PW-4. The petitioners, on the other hand, examined Rama Nand DW/1. The parties also filed extracts of revenue record to prove their respective cases.

The Consolidation Officer rejected the oral testimony produced by the objectors as untrustworthy and held that:

� The judgment dated 24.12.1958 given by the Settlement Officer of Consolidation in the light of the order of the Revenue Court dated 18th of October, 1957 will operate res judicata;

� The medical certificate showing that Ram Kishore was confined to Hospital since 1954 to 1958 was not proved as nobody was examined to prove it;

� There is absolutely no reason as to why after death of Smt. Sukhiya in the year 1320 Fails (which corresponds to year 1913 A.D.) name of any family member of objectors'' branch was not recorded;

� The objectors have failed to prove their possession over the disputed land as no irrigation slip or receipt paying the land revenue was filed. The possession of the objectors on the disputed plot is not established; and

� The petitioners are in continuous possession over the disputed land for more than twelve years as is evident from the Khasra entries.

In view of the above findings, the objections were rejected by the order dated 13th of May, 1986. The matter was carried in appeal No. 990/322/111/98 before the Settlement Officer of Consolidation who has confirmed the order of the Consolidation Officer by the judgment dated 23.2.1989.

The matter was carried further in revision no. 194 by Ram Bahadur and another before the Deputy Director of Consolidation who has allowed the revision by the impugned order dated 30th of January, 1991. Before the Deputy Director of Consolidation the following points were urged by the learned counsel for the objectors:

Ram Kishore was confined to Hospital for the period 13th of October, 1954 to 28th of November, 1958 and in the meantime the village was notified for consolidation in the first round. He, thus, did not contest the case in the first consolidation operation in the village.

The order of revenue Court dated 18.10.1957 is no order as the same was passed u/s 59 of the U.P. Tenancy Act and the U.P. Tenancy Act was repealed on the commencement of U.P.Z.A. & L.R. Act w.e.f. 1st of July, 1952. All the cases under the U.P. Tenancy Act were abated and if the revenue Court has passed the order dated 18.10.1957 it was a mistake on the part of the revenue Court and has no legal sanctity.

The village was notified for consolidation in the year 1955. Therefore, the order dated 18th of October, 1957 passed by the revenue Court is null and void.

The Deputy Director of Consolidation after noticing the respective submissions of the learned counsel for the parties has proceeded to decide the revision on the footing that:

It is established that Sukhiya was widow of Ram Ratan and Ram Ratan had a son Puddan and Ram Kishore is son of Puddan. The objectors are sons of Ram Kishore.

The Khatauni entry of 1320 Fails is in Urdu script and it was wrongly read as Ramdeen instead of Ram Ratan. In Urdu language by adding one point Ram Deen can be read Ram Ratan.

No objection was filed by Ram Kishore in the earlier consolidation operation. Therefore, objection of the objectors in the present proceedings is not barred by section 49 of the U.P. CH Act.

Challenging the order of the Deputy Director of Consolidation, the present writ petition has been filed.

The learned counsel for the petitioner submits that the law as then stood when the village was notified for consolidation in the year 1954-55, section 5 of the U.P. Consolidation of Holdings Act was differently worded. The unamended section 5 of the Consolidation of Holdings Act had provided that the proceedings for correction of records and all suits for declaration of rights and interest over the land whether of first instance, appeal or reference or revision shall stand stayed. It was submitted that the claim filed by Ram Kishore was negative by the revenue Court by the order dated 18th of October, 1957. The Deputy Director of Consolidation was not justified in making observation that Ram Kishore did not file any objection before the Consolidation Court when the village was notified for the consolidation operation. He did file the objection which was accepted by the Consolidation Officer but the order of the Consolidation Officer was set aside in appeal by the Settlement Officer of Consolidation. In this factual scenario, the Deputy Director of Consolidation has assumed the facts wrongly and thus, committed mistake in allowing the revision. It was further submitted that there was no justification in interfering with the findings of fact recorded by the two Courts below to it.

In reply, the learned counsel for the respondents supports the impugned order and submits that the proceedings before the Revenue Court which culminated in the order dated 18th of October, 1957 passed under the U.P. Tenancy Act is forged and fabricated document. Copy of such order was not produced either before this Court and or before the Consolidation Courts. The order of the Settlement Officer of Consolidation in the first consolidation operation is also not legal and binding on the contesting respondents as the said order is based upon the order dated 18th of October, 1957 passed by the revenue Court. It was also submitted that their father Ram Kishore was confined to Hospital for a period around five years and as such, he could not file objection or contest the proceedings in the first round of consolidation. Elaborating the argument, it was submitted that admittedly, in 1319 Fails and 1320 Fails name of Sukhiya is recorded as co-tenant and the respondents being descendants of Sukhiya are co-tenants over the plot in question.

Considered the respective submissions of the learned counsel for the parties and perused the record.

The Consolidation Officer and Settlement Officer of Consolidation as well have proceeded in the matter on the footing that in the first round of consolidation when the village was notified in the year 1954 for consolidation, Ram Kishore, father of the contesting respondents herein, did file the objection claiming co-tenancy which was allowed by the Consolidation Officer but in appeal no. 57 of 1958-59 the Settlement Officer of Consolidation has allowed the appeal preferred by Rameshwar and others against Ram Kishore vide order dated 24.12.1958. A copy of the said order has been filed as Annexure-1 to the supplementary affidavit. The Settlement Officer of Consolidation has noted that there was a dispute at the instance of Ram Kishore claiming co-tenancy in the suit no. 59 of the U.P. Tenancy Act which was decided by learned Judicial Officer, Hadia and Soraon on 18th of October, 1957 against him. The said order was not challenged any further. The Settlement Officer of Consolidation consequently followed the said order and negative the claim of contesting respondents herein. The relevant portion from the aforesaid order of the Settlement Officer of Consolidation is extracted below:

...The Khatauni filed before me does not show that there was any scope for the name of Ram Ratan being misread. In any case even if this plea is correct it would not be possible in the present proceedings to disregard the decision of the learned Judicial Officer in which all the relevant points have been discussed in detail after both the parties had full opportunity to file their evidence. The issues have been clearly decided against the respondent. He did not file any appeal against this order and in my opinion it is the decision of a competent Court binding between the parties.

In the impugned order the Deputy Director of Consolidation has completely lost this vital aspect of the case. The order of Settlement Officer of Consolidation in the first round of consolidation has attained finality and it could not be ignored or discarded lightly.

The Deputy Director of Consolidation has wrongly proceeded on the assumption that no objection was filed by Ram Kishore before the consolidation Court when the village was notified for first round of consolidation. This vitiates the judgment and order of the Deputy Director of Consolidation.

The only case set out by the contesting respondents with regard to the aforesaid order dated 24th of December, 1958 is that no objection was filed by Ram Kishore as he was confined to hospital as per medical certificate for the period 13.10.1954 to 28.11.1958. It may be noted that the order of the Settlement Officer of Consolidation is of the subsequent date i.e. 24.12.1958. Admittedly, the order of the Settlement Officer of Consolidation dated 24.12.1958 was not challenged subsequently, whatever may be the reason. It has attained finality and is binding on the parties. The contesting respondents are stopped to say anything otherwise.

The plea that the order dated 24.12.1958 is forged and fabricated document has not been substantiated by any evidence. In absence of any material to show that it is a forged and fabricated document, the said order cannot be disregarded. Copy of the order dated 24th of December, 1958 was filed before the Consolidation Officer as is apparent from the list of documents filed before him. Not only this, in reply to the objection filed by the contesting respondents, it was pleaded by the petitioners herein that prior to the first consolidation operation in the village the dispute between the parties was decided by the Judicial Magistrate, Soraon and Hadiya by the order dated 18th of October, 1957 vide para 18 of the reply. In para 21 of the reply it has been pleaded by the petitioners that the case was contested by Ram Kishore and his wife and the leg of Ram Kishore was imputed even prior to the litigation and he had recovered within five to six months after the accident. In para 17 a fact that there was earlier a litigation in the first round of consolidation wherein Ram Kishore lost, has been set out. From the very beginning the petitioners have disclosed the facts relating to the earlier litigation between the parties at the earliest opportunity i.e. by way of filing the reply before the Consolidation Officer. They also produced the copy of the order dated 24.121.958. No attempt was made by the contesting respondents to establish that there was no such earlier litigation or that the order dated 24.12.1958 is forged and fabricated document by producing cogent and relevant evidence. It is difficult to accept in such factual scenario that the order dated 24.12.1958 is forged and fabricated one.

Much emphasis was laid by the learned counsel for the contesting respondents that the copy of order dated 18th of October, 1957 was not produced either before the consolidation Courts or before this Court in support of his plea that the said order is fabricated one. Non filing of copy of the order dated 18th of October, 1957 is of not much consequence in as much as the order dated 24.12.1958 of the Settlement Officer of Consolidation is admittedly on record wherein the order dated 18th of October, 1957 finds mention. The order dated 24.12.1958 was not challenged nor there is any material to show that it is either fake or fabricated order. In view of the final adjudication by the Settlement Officer of Consolidation by the order dated 24.12.1958, the contesting respondents could have any claim in the disputed Khata and it was rightly found so by the Consolidation Officer as well as by the Settlement Officer of Consolidation. The Deputy Director of Consolidation committed illegality in ignoring the order dated 24.12.1958 which has attained finality between the parties on the wrong assumption that it could not be proved that the contesting respondents through Ram Kishore did file objection in the first round of consolidation in the village. The upshot of the above discussion is that the objection filed by the contesting respondents is barred by section 49 of the Uttar Pradesh Consolidation of Holdings Act as well on principle of res judicata.

A perusal of the impugned order would show that it proceeds on assumption that it is proved on record that Sukhiya was widow of Ram Ratan and Puddan is son of Ram Ratan and Ram Kishore is son of Puddan. This was a vital issue between the parties. There was a serious dispute with regard to the pedigree. Matadeen son of Kurtey was the common ancestor. According to the petitioners, Matadeen had two sons Devi Deen (representing the branch of the petitioners) and Ishwardin whose wife is Smt. Sukhiya. Ishwardin and Smt. Sukhiya left no issue and after their death, Devi Deen became exclusive owner of entire Khata. On the other hand, the contesting respondents submit that the name of brother of Devidin was Ram Ratan who was married to Smt. Sukhiya and from this wedlock Puddan and thereafter Ram Kishore (father of the contesting respondents) were born. The sheet anchor of the respondents'' title are two revenue extracts relating to 1319 Fails and 1320 Fails which corresponds to the years 1912 and 1913 A.D. wherein name of Smt. Sukhiya is recorded as co-tenant. The said revenue extracts are in Urdu language. Name of the husband of Smt. Sukhiya according to the petitioners is mentioned as Ishwardin while according to the respondents it has to be read as Ram Ratan or Ramdeen. Remarkably, the same plea was raised before the Settlement Officer of Consolidation in the first round of consolidation and was repealed by him by his order dated 24th of December, 1958. It is admitted even to the petitioners that Smt. Sukhiya was one of the members of their family. To this extent there appears to be no quarrel. The dispute is whether she died issueless or leaving behind her Puddan as son and Puddan left Ram Kishore as his son. In this regard there is no evidence on the record from the side of the objectors/respondents. This was their plea, it has to be proved by them, but failed. This issue has been very cursorily dealt with by the Deputy Director of Consolidation by making an observation that the pedigree as set out by the respondents is proved by Bhoore Lal. It is difficult to find any such admission in the statement of Bhoore Lal. The learned counsel for the respondents did not refer any such admission from the statement of Bhoore Lal. In the cross examination the witness has stated that Smt. Sukhiya was widow of Ishwardin and was not widow of Ram Ratan (Page 56 of the Paper Book).

Apart from the above, the pedigree is not proved by the statement of any witness. It could be proved by a person who has some special knowledge.

In State of Bihar Vs. Radha Krishna Singh and Others, the Apex Court has laid down that oral evidence of witnesses to prove pedigree is bound to be hearsay and their evidence is admissible as an exception to the general rule where hearsay evidence is not admissible.

In order to appreciate the evidence of such witness, the following principles should be kept in mind:

(1) The relationship or the connection however close it may be, which the witness bears to the persons whose pedigree is sought to be deposed by him.

(2) The nature and character of the special means of knowledge through which the witness has come to know about the pedigree.

(3) The interested nature of the witness concerned.

(4) The precaution which must be taken to rule out any false statement made by the witness post litem motam or one which is derived not by means of special knowledge but purely from his imagination, and

(5) The evidence of the witness must be substantially corroborated as far as time and memory admit."

In nutshell there is no evidence to connect the contesting respondents that Smt. Sukhiya and in any view of the matter, they cannot derive any benefit from the revenue extracts 1319 and 1320 Fails even if for a moment the earlier judgment of the Settlement Officer of Consolidation dated 24th of December, 1958 is put aside.

There is one more aspect of the case. In 1319 and 1320 Fails Smt. Sukhiya was recorded as co-tenant over the property in dispute. The contesting respondents have not filed any document by way of revenue extracts or otherwise to show that the names of their father and grandfather namely Ram Kishore or Puddan was ever recorded in the revenue record. In absence of any explanation for not recording the name either of father or grandfather for a period more than half century is also suggestive of the fact that neither Puddan nor Ram Kishore had any share in the property in dispute.

Much was argued by the learned counsel for the parties with regard to the legality and validity of the order dated 18th of October, 1957 which was passed in a proceeding under the U.P. Tenancy Act. It was submitted that on the commencement of the U.P. Zamindari Abolition and Land Reforms Act w.e.f. 1st of July, 1952 the U.P. Tenancy Act has been repealed and any proceeding or order under the repealed Act is null and void. The petitioner, on the other hand, does not dispute that the U.P. Tenancy Act was repealed by Section 339 of the U.P.Z.A. & L.R. Act with retrospective effect w.e.f. 1st of July, 1952. However, he submits that there Removal of Difficulties Order namely U.P. Land Tenure (Legal Proceedings) (Removal of Difficulties) Order, 1952 which saved the pending proceedings on the date of commencement of the U.P.Z.A. & L.R. Act. In this connection, reliance has been placed upon Full Bench decision of this Court in the case of Ramesh Chand and Others Vs. Board of Revenue and Others, There is nothing on record to show as to whether the proceedings under the U.P. Tenancy Act were pending on 1st of July, 1952 or not. Looking to the fact that the present writ petition is not directed against the order dated 18th of October, 1957 it is not necessary for me to say anything in this regard. Except that even a wrong order which has attained finality between the parties is binding on them unless and until the same is set aside in a duly constituted proceedings and not in a collateral proceeding. At the cost of repetition, the said order was followed by the Settlement Officer of Consolidation in the order dated 24th of December, 1958 and that has also become final between the parties. In this factual scenario the Deputy Director of Consolidation has committed manifest error of law in holding that these two orders have no legal binding effect on the parties. He proceeded to decide the case with a wrong angle forgetting that he had no jurisdiction to examine the legality and validity of those orders in this proceeding.

Resultantly, the contesting respondents are bound by the order dated 24th of December, 1958 passed by the Settlement Officer of Consolidation in the first round of consolidation, negating their claim. The Deputy Director of Consolidation is not correct in observing that no objection was filed by Ram Kishore in the first round of consolidation in the village. There is no cogent evidence on record to connect the contesting respondents with Smt. Sukhiya and they have miserably failed to establish the pedigree as set out by them. Initial burden was upon the contesting respondents to prove the pedigree or that the revenue entry in the basic year is incorrect, which they failed to do so.

In the result, the writ petition succeeds and is allowed. The impugned order of the Deputy Director of Consolidation dated 30.1.1991 is hereby quashed and the orders dated 13th of May, 1986 passed by the Consolidation Officer and 23rd of February, 1989 passed by the Settlement Officer of Consolidation are restored back with cost of Rs. 5,000/-(Rupees Five Thousand only) payable by the contesting respondents to the petitioner.