Raghubir and others vs Assistant Director, Consolidation, Deoria and others

S.K. Singh, J.—Heard Sri Ashwani Kumar Misra, learned Advocate in support of this petition and Sri V.K.S. Chaudhary, learned, Seniors Advocate assisted by his colleague for the respondents'' side.

Proceedings are under section 9A (2) of UPCH Act which is in respect to adjudication of dispute of title/right between the parties.

For disposal of writ petition, notice of facts in brief will be required.

Land in dispute was recorded in the basic year records, in the name of Raghubir, Battak and Bandhui. An objection was filed by the petitioners claiming their share to the extent of 5/6th and the share of Bandhui as 1/6th. Before the start of consolidation proceedings, there happened to be a sale deed by Bandhui dated 5.1.1959 in respect to 1/2 share/right in respect to which, suit for cancellation of sale deed was filed in the Civil Court being O.S. No. 19 of 1959, which was decreed by the Trial Court on 4.1.1963 and share of petitioners'' side was accepted as 5/6. Appeal filed by defendant was dismissed on 16.10.1963, but thereafter, second appeal filed by defendants'' side was abated due to intervention of consolidation process in the village. In the consolidation proceedings, from the side of respondents, statement of only Bandhui, was recorded. Khatauni extracts of 1334, 1356, 1359, 1362 and 1363 Fasli besides Kutumb Register of the year 1955 and the Voter List of the year 1965 are on record. Apart from revenue extracts, voter list/kutumb register, the judgment of Civil Court of the suit referred above was also filed. Consolidation Officer and the Settlement Officer, Consolidation allowed petitioners'' claim/objection and accepted their rights as 5/6 and the rights of respondents was accepted as 1/6. On filing revision, the Deputy Director, Consolidation reversed the findings of two Courts below and varied the share. Thus, petitioners have come up to this Court by filing present writ petition.

Submission of learned Counsel for the petitioners is that on own showing of respondents and on admitted facts, Javvaher died first and thereafter Moti died and in the last Hira died and thus, share of Hira to the extent of 1/3rd devolved on his three nephews i.e. Petitioner No. 1. and father of petitioners Nos. 2 and 3 and Patru. Submission is that it is established that on the death of Yadunandan, his widow Bandhui did not marry his brother Patru and thus on the death of Patru, his share devolved on the petitioners'' side and accordingly petitioners became entitled to the share as claimed by them. Argument is that main contest/claim of respondents'' side is on the ground that Bandhui after the death of Yadunandan remarried to Patru and therefore, she succeeded and thus, transfer deed dated 5.1.1959 is also valid. Argument is that in respect to remarriage of Patru and Bandhui, there is no positive evidence, in the shape of document, or oral evidence. Statement of lady which is the only oral evidence is too vague. It has been just stated in the statement that after one year of death of Yadunandan marriage took place. There is absolutely no detail whatsoever that how marriage was performed, who was present and in what manner, it was completed. Submission is that in all the revenue extracts; which are on record i.e. extract of 1356, 1359,1362 Fasli, Bandhui is shown to be the wife of Yadunandan and it is just, all of sudden, in khatauni extract of 1363 Fasli, she is shown to be Dayadhikarni of both i.e. Yadunandan and Patru. Submission is that thereafter, the only other document is the kutumb register of 1955 in which Bandhui is shown to be the wife of Patru but nobody came to, prove that document. So far as voter list is concerned, it is of the year 1965 which admittedly came up during pendency of litigation as civil suit started in the year 1959. It is then pointed out that in the registered sale deed executed by Bandhui herself in 1959, she mentioned herself to be the wife of Yadunandan. Thus to conclude, it is pointed out that in all the records, i.e. registered sale deed of the year 1959, revenue extracts of 1356, 1359 and 1362 Fasli, Bandhui is recorded/shown to be the wife of Yadunandan. Argument is that in view of submission of respondents'' side if the death of Yadunandan took place in the year 19351936 Fasli, it is something unusual and unbelievable that for the last 2530 years, Bandhui continued to be recorded as wife of Yadunandan and in the sale deed executed by her in 1959 although, she is said to have remarried to Patru just after 1935, she showed herself as wife of Yadunandan. Argument is that Consolidation Officer and Settlement Officer, Consolidation on these facts rightly took into account the judgment given by the civil Court in the suit proceedings, which ultimately abated, as a piece of evidence to help the petitioners'' contention that Bandhui never remarried to Patru and she continued to be widow of Yadunandan. The Deputy Director, Consolidation by recording perverse finding in a most arbitrary manner negatived the petitioners'' claim by reversing the findings given by two Courts below and therefore, as the judgment of Deputy Director, Consolidation is not based on consideration of various relevant aspects, findings given by two Courts below, there being error apparent, that needs interference by this Court. Argument is that although findings on a question of fact has been recorded by the Deputy Director, Consolidation but as the same is vitiated by error which is apparent on record, this Court is to interfere exercising writ powers.

In support of the submission that findings given by the civil Court and evidence relied upon in those proceedings, can be accepted to have evidentiary value by consolidation Courts even if the suit was abated, reliance was placed on the judgment given by the Apex Court in the case of Ram Prasad v. Assistant Director of Consolidation 1994 RD 299 (SC). To support the submission that even if the Deputy Director, is to interfere in the findings on the question of fact recorded by two Courts below, the powers cannot be, said to be so wide so as to permit the Deputy Director, Consolidation to record a perverse finding, not supported by evidence on the record and thus if it is so, then in the writ interference is to be made, reliance has been placed on the judgment given by the Apex Court in the case of Gayadin v. Hanuman Prasad 2001 (92) RD 79 (SC).

In response to the aforesaid, Sri Chaudhary, learned Senior Advocate submits that it has been established that Yadunandan died near about 193536 and then after one year Bandhui remarried with Patru which is also clear from Kutumb Register of 1955 in which she is mentioned as wife of Patru. Argument is that Patru had no other wife and thus, Kutumb Register makes it clear that three daughters were born from Patru and thus on the death of Patru, Bandhui succeeded. It is further submitted that although in the revenue extract of 1356, 1359 and 1362 Fasli, Bandhui as shown to be the wife of Yadunandan but in 1363 Fasli, she is rightly shown to be Dayadhikarini of Yadunandan and Patru both. Argument is that in the registered sale deed, Bandhui has shown herself to be the wife of Yadunandan although, he died about 25 years back, but that cannot be treated to be unusual as that might have been mentioned in a routine manner. Submission is that stand of respondents'' side is clearly established in view of entry in voter list of the year 1965 and Khatauni of 1363 Fasli and therefore, if the Deputy Director, Consolidation on these facts by ignoring the proceeding/judgment of Civil Court, has recorded a particular finding on the question of fact, then no error can be found.

Sri Chaudhary, learned Senior Counsel further submits that there is a presumption of genuineness of kutumb register as that is a public document and that is prepared under a particular Act. In the kutumb register of 1955, it is clearly mentioned that Bandhui have three daughters with Patru and in the statement of Bandhui, it is clearly stated that she had three daughters and thus that is corroborated. Emphasis has been given that claim of respondent is established on the basis of khatauni extract of 1363 Fasli and copy of kutumb register referred above.

In support of the submission that on account of living together of a lady and a male, there is presumption of marriage, reliance has been placed on the decision given by the Apex Court, 1974 AIR SC 1557, AIR 1996 SC 1090 and AIR 1992 SC 756.

Lastly, it is submitted that finding on a question of fact has been recorded by the Deputy Director, Consolidation and no error of law has been pointed out and thus, no interference is required.

Sri Mishra, learned Counsel, as a rejoinder to the aforesaid submission, submitted that to prove a person to be the husband and wife, Khatauni cannot be said to be crucial evidence as that is a document of title and presumption so attached to the Khatauni under Land Revenue Act is in respect to title of that person and in any view of the matter, here is the case where if the submission of respondents'' side is accepted to be correct, then in Khatauni extract, of 1356, 1359 and 1362 Fasli, Bandhui is shown to be the wife of Yadunandan and in 1363 Fasli, she is mentioned to be ''Dayadhikarini'' of Yadunandan and Patru both and thus, no reliance can be placed on the authenticity of that document or even if that is to be placed, then that document cannot be said to be decisive evidence. It was then submitted that so far as Kutumb Register of 1955 which is the only other document which can be said to be the basis of respondents'' claim is proved to be a forged document and by recording a particular reason, the Consolidation Officer and Settlement Officer, Consolidation both have preferred not to rely on that document and that was discarded. Submission is that document of Kutumb Register of 1955 which has been brought on record of this Court also, on its face and otherwise is proved to be a forged document. Although it is mentioned to be of 1955 but that has come into existence during litigation as according to the submission of Sri Chaudhary himself, page of Kutumb Register of a family remains the same for quite number of years so long it is full. Submission is that if Bandhui married with Patru then at that time, Patru was certainly alive. Then in the head of family, name of Patru should have been there but in the document filed head of family is shown as Bandhui and thus, it is very strange that from Bandhui Kutumb Register started in 1955. In the Court of Consolidation Officer itself, the document was opposed to be a forged document but nobody was summoned to prove the same by bringing original before the Court, and thus without there being any positive evidence on the basis of that document alone, reversal of the judgment of two Courts below by the Deputy Director, Consolidation cannot be said to be correct. Khatauni extract of 1356, 1359 and 1362 Fasli shows Bandhui as wife of Yadunandan. In the registered sale deed of 1959, she mentioned herself to be the widow of Yaduhandan. Explanation/argument of Sri Chaudhary during course of argument that she was dealing with the property left by Yadunandan and therefore, she mentioned herself to be widow of Yadunandan and it was in a routine manner, is not found iri the statement of Bandhui. It happens to be slightly unnatural that after the death of Yadunandan, which took place sometime in 193536 and according to the stand of Sri Chaudhary, marriage with Patru took place within a year or two of the death of Yadunandan i.e. in 193738 but for such a long time in all Khatauni extracts referred above, she is mentioned as widow of Yadunandan and she herself stated in the registered document to be the widow of Yadunandan.

Thus submission is that stand of respondent is not at all proved by any evidence and on the facts reversal of judgments of two Courts below is not at all justified and therefore, interference is required by this Court.

In view of aforesaid, this Court has to decide the claim of parties.

To appreciate the claim of parties, a pedigree which is mentioned in the judgment of the Deputy Director, Consolidation will be useful to be reproduced here;

Karia

Jawaher

Hira

Moti

Yadunandan Patru

Raghubir

Battak

Bandhui

Bhagelu

Subhash

During course of arguments, now there remains no dispute about the fact that Jawaher died first and thereafter, Moti died and in the last, Hira died. In view of argument as advanced by Sri Chaudhary, learned Senior Advocate, Yadunandan died near about 193536. There is no dispute about the fact that in Khatauni extract of 1356, 1359, 1362 Fasli, Bandhui is shown to be the wife of Yadunandan. In the registered sale deed dated 5.1.1959, she has mentioned herself to be the widow of Yadunandan. So far as voter list of 1965 is concerned, that is admittedly of the period when litigation between the parties started. Thus, to support the claim of respondents'' side, there remains Kutumb Register of 1955 and the extract of 1363 Fasli. In that extracts, Bandhui is shown to be Dayadhikarini of both i.e. Yadunandan and patru.

Admittedly, there is no oral evidence from the side of respondent except that of Bandhui. On record, there are two statements of Bandhui. One is dated 29.12.1974 and other is dated 6.4.1977. These two statements were recorded in two different cases before the Consolidation Officer which were decided on 5.2.1975 and 14.4.1977 respectively. Appeals were also decided by two different orders, i.e. 26.9.1975 and 6.9.1978 but the judgment of Deputy Director, Consolidation in respect to both cases is one and common. In the statement of Bondhui dated 29.12.1974 which was recorded in the first case before the Consolidation Officer, she never stated to have any daughter with Patru and only one sentence is there, that after death of Yadunandan, after a year or two, she remarried with Patru. Judgment of the Consolidation Officer in that case is dated 5.2.1975. Statement of Bandhui was recorded in the second case on 6.4.1977 and in this statement, she improved things and in the last she stated to have three daughters from Patru. Having three daughters can be said to be important thing but that was never stated in the first statement, upon which, judgment was given by the Consolidation Officer on 5.2.1975. Finding was given by the Consolidation Officer that Bandhui never married with Patru. Copy of Kutumb Register which has been filed before the Consolidation Officer which has been annexed as Annexure SCA1 of the supplementary counter affidavit filed by respondent, shows that copy was taken on 25.1.1977 which is said to have been filed in the Court below. On record of this Court, as SCA1, a photo state copy of that document was filed. During course of argument, on 5.5.2008, another supplementary counter affidavit was filed by respondents'' side annexing another copy of Kutumb Register which is said to have been filed in second case before the Consolidation Officer but that demonstrates that copy was taken on 12.3.1975. Thus, it is clear that both documents which are on record of this Court from respondents'' side were taken much after the statement of Bandhui and judgment of Consolidation Officer dated 5.2.1975 of the first case. Admittedly, nobody has come to prove the document and original was never summoned, although the Consolidation Officer has recorded a finding that Bandhui never married with Patru. First judgment of the Consolidation Officer dated 5.2.1975 even do not refer the Kutumb Register of 1955 and thus, it is clear that case was fought by the respondents before the Consolidation Officer on the basis of Khatauni extract of 1363 Fasli and the Voter List of 1965 (wrongly mentioned in the judgment as 1973).

Although, this Court is not to record any finding on the genuineness of Kutumb Register but so far as, SCAI (first supplementary counter affidavit) filed by respondent is concerned, if is perused from naked eye, mention of the year 1955 appears to have a clear over writing and it is for this reason, when it came to light on the first date of argument, respondents'' side filed second supplementary counter affidavit annexing another copy of Kutumb Register of 1955 which is just certified copy of the document, but as analysed above, both documents happens to have been taken/obtained much after the first judgment of the Consolidation Officer dated 5.2.1975 and therefore, in view of the first statement given before the Consolidation Officer, in the first case in which Bandhui never stated to have three daughters, document of Kutumb Register which is one of the main basis for giving judgment by the Deputy Director, Consolidation requires a deeper examination to record a finding that the document is genuine and is proved in accordance with law. Apart from filing copies of that documents, no effort whatsoever was made to prove the same.

The Consolidation Officer and Settlement Officer, Consolidation both have recorded a categorical finding that Bandhui never married with Patru and it was clearly J held that there is no eye witness and thus Khatauni extract of 1363 Fasli which records the name of Yadunandan and Patru both, is not to be preferred in preference to Khatauni of 1356, 1359 and 1362 Fasli and further in preference to registered sale deed dated 5.1.1959 which is registered document written by Bandhui herself. Perusal of the judgment of the Deputy Director, Consolidation makes it clear that he has taken into account, the voter list of 1965 which is admittedly of the period when litigation started. The Deputy Director, Consolidation has assigned reason that in the registered sale deed of 1959, she must have mentioned herself to be the wife of Yadunandan for the reason that in the earlier Khatauni, she was mentioned as such. This is not a explanation given by Bandhui in her statement or otherwise. In the entire judgment of Deputy Director, Consolidation, so far discussion part on the question in issue is concerned, there is no reference to the Khatauni of 1356, 1359 and 1362 Fasli and just in a casual manner, it has been said that as in 1363 Fasli, she is mentioned as ''Dayadhikarini'' of both, that is to be accepted. There happens to be no positive evidence referable to the finding to accept the stand of respondent and to negative the contention ''of petitioner although that relates to a question of fact. In the earlier litigation, although that abated, there was evidence of no marriage of Bandhui with Patru and two Courts below have just referred them to be one of circumstance but the Deputy Director, Consolidation has just observed that matter is pending in this Court although that was already abated.

In view of analysis made above, it is clear that although a question of fact was there but that was decided by two Courts in favour of petitioner and by the Deputy Director, Consolidation against the petitioner but no positive, evidence has been referred and there is no independent witness. Statement of Bandhui is clearly contradictory and there is improvement as noted above, after the first judgment of the Consolidation Officer. Khrtauni extract of 1363 Fasli is in variance to the earlier Khatauni of 1356,1359 and 1362 Fasli. Kutumb Register of 1955 which is another main basis, has not been proved by summoning any body in the light of original and that appears to have come after the first judgment of Consolidation Officer, in the light of improvement in the statement of Bandhui about three daughters.

Be as it may, this Court has a limited scope of going into factual aspects in the writ exercise as no positive finding can be recorded. If this Court finds judgment of the Deputy Director, Consolidation to be perverse or without reference to any positive evidence or while reversing judgments of two Courts below, having not properly met and reversed the finding and reasoning of two Courts below, then this Court is only entitled to remit the matter back to the last Court to again go into evidence and then record proper finding on the question in issue. It has been emphasised time and again by Apex Court that irrespective of limitation on the powers of this Court to interfere in the finding on a question of fact, if the finding so recorded is perverse or there is error apparent, then this Court is to intervene.

So far as cases on which reliance has been placed by Sri Chaudhary, learned Senior Counsel, they all are cases in which there was positive evidence in support of theory of marriage. In the first case referred by Sri Chaudhary, there was evidence that both lived together as husband and wife for about 50 years. In the second case cited, there was admission of the opposite party himself about living of claimant with male person together for long and a son was born and in the third case referred, there were witnesses who clearly stated that both lived together and chilaren were born. So far as case in hand is concerned, there is neither any independent witness nor there is any evidence/statement of living together for long and thus on the facts, these cases have absolutely no application.

On the other hand, cases on which reliance has been placed from petitioner''s side, they permit interference by this Court, if finding is found to be perverse and the last judgment has not met and reversed the reasoning and approach of the two Courts below and thus have full application to the facts of present case. Observation made by the Apex Court in the judgment relied from petitioner''s side can be quoted at this place;

Thus, it is clear that notwithstanding the fact that section 48 has been couched in wide terms, it only permits interference where the findings of the subordinate authority are perverse in the sense that they are not supported by the evidence brought on record or they are against the law or where they suffer from the vice of procedural irregularity."

"A perusal of the order of the Deputy Director of Consolidation shows that nowhere did he point out that the findings recorded by the Settlement Officer (Consolidation) were perverse or contrary to the evidence or not supported by evidence. What all appears is that in respect of certain facts, the Deputy Director arrived at a conclusion different from that reached by the Settlement Officer (Consolidation) but that by itself, in our view, does not under section 48 of the Consolidation Act clothe the Deputy Director with the power to disturb the findings of fact recorded by the Settlement Officer (Consolidation)."

For the discussion made above, this Court is convinced that this is a case of improper exercise by the revisional Court as the revision has been allowed without meeting and reversing the finding and reasoning given by two Courts below and otherwise also, without looking into the entire evidence which is on record. Findings recorded by the revisional Court can be safely termed to be perverse and not up to the level so as to make the finding to be a finding on the question of fact, not amenable to the jurisdiction of this Court.

For the reasons given above, this petition is to succeed and thus that is allowed. Impugned judgment of the Deputy Director, Consolidation/revisional Court is hereby quashed. Revision is directed to be revived to its original number for being decided on merits, in accordance with law, without being influenced by any observation, if it has come in favour/against either of the sides, preferably within a period of three months from the date of presentation of a certified copy of this order.