Lallu Singh vs Deputy Director of Consolidation and Others

Binod Kumar Roy, J.—The Petitioner prays to quash different orders passed by different consolidation authorities as contained in Annexures-3, 5 and 9.

The main question which gave rise to the controversy between the parties was as to whether 60 decimals of land in plot No. 933 and 2.45 acres of land bearing plot No. 1117 appertaining to Khata No. 430 of village Chakki, Pargana and District Jalaun were joint family properties of Gangadin as alleged by Respondent Nos. 4 to 6 or self-acquisition of his son Gauri Shanker, whose son is the writ Petitioner?

The aforementioned two plots stand recorded in the name of the Petitioner as bhumidhar in the basic year consolidation papers.

Respondent No. 4 Hira Lal Respondent No. 5 Mohan Lal and their elder brother Mewa Lal (who is no more) filed an objection u/s 9A(2) of the U.P. Consolidation of Holdings Act, (hereinafter referred to as the Act), claiming share to the extent of l/4th each on the ground that it was acquired by their father Gangadin. They also claimed to be in possession since time immemorial. They also asserted that Gauri Shanker had two sons, the writ-Petitioner and one Ratan Lal.

The writ Petitioner in his defence denied Ratan Lal to be his brother. He further claimed that the lands in question were acquired by his father Gauri Shanker and not by his grandfather Gangadin.

Two issues were framed by the Consolidation Officer:

(i) Whether Respondent Nos. 4 and 5 are co-tenants? and

(ii) What would be the share of the parties?

The objectors apart from examining Mewa Lal, examined one Bihari, Damroo and Vljai Shanker. They also filed a number of documents enumerated in item Nos. 1 to 17 of the order of the Consolidation Officer.

The writ-Petitioner apart from examining himself, examined Ram Charan and Dhundhey. He also produced a number of documents enumerated in serial Nos. 1 to 15 of the order of Consolidation Officer.

The Consolidation Officer vide his order dated 26-7-198:2 (as contained in Annexure-1) allowed the objection.

The Petitioner went up in Appeal No. 494/81-82 before the Assistant Settlement Officer (Consolidation), Jalaun at Oral which was dismissed by order dated 9.5.1983.

The Petitioner went up in Revision No. 1415 of 1983, which was dismissed by the Deputy Director of Consolidation, Jalaun at Oral by his order dated 31.3.1987 holding as follows : (i) in the kutumb register, Gauri Shanker, father of the revision-Petitioner, was shown as Mukhiya (Karta Manager) of the family and the parties have been mentioned as one family, (ii) There is no material on the record from which it could be proved that at the time of acquisition of the land, the family of the revision-Petitioner and of the opposite party were separate and there was partition between them. (iii) Since the revision Petitioner had claimed that the land in question was acquired separately by his father, accordingly the onus to prove that It was so acquired was on him which he had totally failed to prove.

The submissions:

Shri Shesh Kumar, learned Counsel for the Petitioner contended as follows : None of the Consolidation authorities have recorded any finding of fact that there was a joint family fund out of which the properties in question were acquired by Gangadin and accordingly the objection was Illegally allowed and upheld by the appellate and revisional authorities. The disputed lands all through remained recorded in the name of Gauri Shanker, who was father of the Petitioner and after his death, the name of the Petitioner was mutuated and, thus, the onus was on the objectors to prove their case, which they had failed but wrongly upheld.

Shri P. K. Srivastava, learned Counsel appearing on behalf of Respondent Nos. 4 and 5, on the other hand, contended as follows : (i) The questions urged are concluded by findings of fact and as such this writ petition should be dismissed with cost, (ii) The submissions made by the learned Counsel for the Petitioner have got no force Inasmuch as a finding was recorded by the authorities that the land in question was acquired out of the Joint family funds and by Gangadin.

My findings:

It is a settled law that merely because a Hindu Joint family is joint, it cannot be presumed that such a family possesses any property and that the party, who claims that certain property is a joint family property, has to plead that the family was possessed of sufficient nucleus out of which the acquisition in question was made. Unfortunately the revisional authority has not cared to approach the revision keeping the aforementioned well settled principles of law.

For the aforementioned reason, the impugned revisional order cannot be sustained and justice requires remission of revision.

This writ application is accordingly allowed in part, the impugned revisional order, as also the subsequent order of the revisional authority rejecting the Petitioner''s prayer for review, both are set aside and revision No. 1415/83 is remitted back to the Deputy Director of Consolidation, Jalaun (Respondent No. 1) for fresh consideration in accordance with law.

in the peculiar facts and circumstances, however, I make no order as to cost.

Let a writ of certiorari issue accordingly.