Khunkhun vs The D.D.C. and Others

Hon''ble Vikram Nath, J.—By means of this petition under Article 226 of the Constitution of India, the petitioners have prayed for quashing of the judgment and order dated 19.10.1973 (Annexure 3 to the writ petition) passed by the Deputy Director of Consolidation, Pratapgarh, Camp at Basti, respondent no.1, whereby the revision filed by the respondents has been allowed, and after setting aside the judgment of the Settlement Officer, Consolidation dated 20.7.1972, that of the Consolidation Officer dated 10.11.1971 has been maintained.

The dispute in the present petition relates to Khata No.56, Village Madhwa Tappa Banjaraha, Pargana and Tahsil Naugarh, district Basti (hereinafter referred to as the Khata in dispute).

The pedigree as set up by the petitioners is as follows-

In the basic year the Khata in dispute was recorded in the name of Rama and Hansraj (respondent nos.3 & 4). Objections u/s 9-A(2) of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the CH Act) was filed by the petitioners, claiming co-tenancy with the respondent nos.3 & 4 in the Khata in dispute. According to the petitioners khata in dispute originally belonged to their father Jagannath who was also recorded over the same in 1324F, in the revenue records. Subsequently Rama, who was the Pradhan of the village surreptitiously got the name of Jagannath deleted and got his name and the name of Hansraj recorded over the khata in dispute. The respondents contested the objections alleging that Jagannath did not belong to the family of the respondents, the pedigree as such was denied. In 1324 F the person recorded was Jagannath son of Goli and not Jagannath son of Ganesh, who was the grand-father of Hansraj and father of Rama. It was further alleged that the Khata in dispute had been settled by the Zamindar in favour of Tekai (father of Hansraj and brother of Rama). As such it was the sole acquisition of Tekai and Jagannath had nothing to do with the same. It is further alleged that Jagannath and thereafter Dulare were alive at the time settlement was made but they never objected to the settlement made in favour of Tekai nor did they ever claimed any right or interest over the Khata in dispute.

The Consolidation Officer after considering the material evidence on record came to the conclusion vide judgment and order dated 10.11.1971 that the petitioners had no right, title or interest over the Khata in dispute. There was a serious dispute with regard to the parentage of Jagannath and as such pedigree also stood disputed. In any case fresh settlement had been made by the Zamindar in favour of Tekai and in khatauni of 1348F the muddat (period of possession/title) was shown to be 12 years. The name of Tekai continued in 1356F also and even after the zamindari abolition.

It may be relevant to mention here that there were some other plots apart from the plots comprising of khata no.56, with regard to which the Consolidation Officer by the same judgment had decided in favour of the petitioners and against the respondents holding that the petitioners were the exclusive owner in possession of the same.

Against the order of the Consolidation Officer two appeals were filed. The petitioners filed an appeal with regard to their claim in respect of khata no.56 whereas the respondents filed appeal with regard to the co-tenancy over the other plots over which the Consolidation Officer had given the exclusive right to the petitioners. The Settlement Officer, Consolidation vide judgment dated 20.7.1972 allowed both the appeals and declared the parties to be co-tenant over the khata in dispute and also the other plots.

Respondents filed revision u/s 48 of the CH Act. with regard to their claim over khata in dispute. The Deputy Director of Consolidation vide judgment dated 19.10.1973 allowed the revision and after setting aside the judgment of the Settlement Officer, Consolidation maintained that of the Consolidation Officer. The Deputy Director of Consolidation recorded the following findings-

(i) in 1348F the name of Tekai, father of Hansraj (respondent no.4) was recorded with a muddat (period of title/possession) as 12 years.

(ii) in 1356F also the name of Tekai continued and at the time of settlement Jagannath was alive but no objection had been raised.

(iii) this clearly indicates that even if the khata in dispute was recorded in the name of Jagannath in 1324 F, it was a case of fresh settlement in favour of Tekai and his name continued as such.

Aggrieved by the same the present petition has been filed.

I have heard Sri S.L. Yadav, learned counsel for the petitioners and Sri Anshu Chaudhary, Advocate representing the private respondents and have perused the material on record.

At the out set, it would be relevant to observe that along with the Writ Petition apart from the copies of the three judgments of the Consolidation Courts no other material has been filed. However the parties were given liberty to file their written submissions and the petitioners along with their written submissions have filed, apart from the two copies of the judgment of the Consolidation Officer and the Settlement Officer, Consolidation, dated 10.11.1971 and 20.7.1972, several other documents including interim order of the Deputy Director of Consolidation, extract of khatauni and have sought to rely upon the same.

I am afraid that these documents cannot be taken into consideration as part of the record and therefore no reference is being made to the same. However the authority relied upon by the petitioners in the case of Dallu vs. Dy. Director of Consolidation, Lucknow Camp at Varanasi and others, reported in 1971 RD 507 would be discussed later in this judgment at the appropriate place.

Only the legal submissions advanced by the petitioners in their written submissions divorced to the material sought to be placed on record alone are dealt with. It may also be observed here that counsel for the respondents along with the written submissions has not filed any documents.

The following arguments have been advanced on behalf of the petitioners-

(i)the Deputy Director of Consolidation confused himself by mentioning khata no.24 while deciding the controversy of khata no.56.

(ii)the Deputy Director of Consolidation committed illegality in holding that the tenancy of Jagannath came to an end as fresh settlement had been made in favour of Tekai.

(iii)material evidence on record in the form of khatauni of 1363F and 1365F had not been considered by the Deputy Director of Consolidation thereby vitiating his judgment.

(iv)the possession of one co-tenant would be deemed to be possession of all co-tenants and unless the plea of ouster had been pleaded and proved the finding to the contrary would be against law.

In support of this submission learned counsel has relied upon the following decisions-

(i)Dallu vs. Dy. Director of Consolidation, Lucknow Camp at Varanasi and others, reported in 1971 RD 507.

(ii)Dariyao Singh vs. Deputy Director of Consolidation and others reported in 1974 URC 487.

(iii) Muneshar Tewari and Another Vs. Ram Narain Tewari .

(iv)Lakshman Singh vs. D.D.C. Agra and others reported in 1974 URC 519.

(v) the Deputy Director of Consolidation exceeded the jurisdiction vested in him u/s 48 of the CH Act by interfering in the finding of the fact recorded by the Settlement Officer, Consolidation and substituting it by his own finding. In support of this submission he has relied upon the following decisions-

(i) Ramzan Ali vs. Deputy Director of Consolidation, Azamgarh and others, reported in 1997(88) RD 418.

(ii)Ram Dular vs. Dy. Director of Consolidation, Jaunpur and others, reported in 1994 RD 290 (SC)

On the above submissions learned counsel for the respondents has submitted as follows-

(i) although the Deputy Director of Consolidation did not record any finding with regard to the parentage of Jagannath as also the pedigree but never the less the Consolidation Officer and also the Settlement Officer, Consolidation had recorded in their judgment that there was serious dispute with regard to the parentage of Jagannath and the pedigree as claimed by the petitioners.

(ii) the finding recorded by the Consolidation Officer and the Deputy Director of Consolidation that it was a case of fresh settlement in favour of Tekai, was a right conclusion based upon material on record and such finding being pure finding of fact based upon consideration of material on record would not warrant any interference under Article 226 of the Constitution of India.

(iii) the Settlement Officer Consolidation had recorded a totally perverse finding that Jagannath was recorded over the khata in dispute in 1324F and therefore, he and his successors would be co tenant, in ignorance of the fact that in 1324F the name recorded was that of one Jagannath son of Goli and not Jagannath son of Ganesh, the common ancestor of the respondents.

(iv) the petitioners had never been able to establish that they had any right, title or interest over the land in dispute as such their objections for co tenancy over the khata in dispute had been rightly rejected.

(v) the argument that possession of one co-tenant is the possession of all on behalf of the petitioners would have no application in the present case in as much as the petitioners had failed to establish their claim either by way of establishing the pedigree or by establishing that acquisition has been made by common ancestor. (vi)the petitioners had failed to establish by way of cogent evidence that the pedigree as alleged by them was the correct pedigree and that the petitioners and the respondents belong to the common ancestors.

Having considered the submissions advanced on behalf of the parties I now proceed to deal with the respective arguments.

Even if it is assumed that Jagannath belonged to the same family as that of the respondents and that Ganesh was their common ancestor, in the opinion of the Court, the objections of the petitioners with regard to the claim of co-tenancy over khata in dispute has rightly been rejected.

It is not in dispute that in 1324F the name recorded was that of Jagannath. However in 1348F the name of Tekai was recorded with a muddat of 12 years. Further in 1356F the name of Tekai continued. Even after abolition of zamindari the name of Tekai had continued. No objection was ever filed by Jagannath or his son Dulare with regard to the entries in favour of Tekai. Both Jagannath and his son Dulare were alive in 1348 F and even thereafter in 1356 F. For the first time during consolidation the petitioners who are sons of Dulare filed objections claiming co-tenancy. These objections were filed after 30 years of the entry as it existed in 1348F. The objections were filed in 1970 which would relate to 1377-78 F. Further the petitioners or their predecessors never raised any claim or objections to the revenue entries right from 1348F which had continued for almost 3 decades. This clearly indicates that the zamindar had made fresh settlement in favour of Tekai after withdrawing the khata in dispute from Jagannath.

Although the Deputy Director of Consolidation has not dealt with the dispute regarding pedigree or the parentage of Jagannath but in view of the entries right from 1348F till the filing of the objections i.e. basic year entries, the claim of the petitioners could not be accepted for the reasons recorded above. The settlement entries carry with them presumption of correctness unless proved by cogent evidence otherwise. The petitioners had failed to prove the settlement entries to be incorrect.

The Consolidation Officer as also the Settlement officer, Consolidation have clearly recorded that there was serious dispute with regard to the pedigree and the parentage of Jagannath and that the petitioners have utterly failed to establish the pedigree set up by them. They were rightly treated to be as not belonging to the family of the respondents coming down from their common ancestor Ganesh. This finding was a pure finding of fact based upon consideration of material on record and could not have been gone into by this Court in its extraordinary jurisdiction under Article 226 of the Constitution.

In the judgment of the Deputy Director of Consolidation there may have been some inaccuracy recorded therein but they are only minor errors not affecting the findings recorded by him. The petitioners cannot derive any advantage from the same.

Once it was not established by the petitioners that they were from the same family as that of respondents and further that the acquisition had been made in the name of Tekai for the benefit of the joint family, they could not be treated co-tenants as such the arguments that possession of one co-tenant is possession of all co- tenants is totally irrelevant and does not merit consideration. Thus there would be no purpose served in dealing with the case law relied upon by the petitioner in support of this submission.

The last submission advanced on behalf of the petitioners with regard to the scope of the revisional jurisdiction u/s 48 of the CH Act, also does not help the petitioners in as much as the Deputy Director of Consolidation after examining the material on record concurred with the findings recorded by the Consolidation Officer, after holding that the Settlement Officer, Consolidation had committed serious illegality by ignoring material evidence on record. No fault could be found with the judgment of the revisional Court.

In view of the above discussion petition lacks merit and is accordingly dismissed.