Ram Achal (D.) through L. Rs. vs Deputy Director of Consolidation and Others

Ashok Bhushan, J.—Both the writ petitions, Writ Petition No. 2416 of 1975 (hereinafter referred to as first writ petition) and Writ Petition No. 2246 of 1976 (hereinafter referred to as second writ petition), having been heard together, are being decided by a common judgment.

I have heard Sri Swaraj Prakash, learned Counsel appearing for the Petitioner in first writ petition and Sri Dinesh Pathak, learned Counsel appearing for the contesting Respondents in first writ petition. Sri Dinesh Pathak has appeared for Petitioners in second writ petition and Sri Swaraj Prakash has appeared for contesting Respondents in second writ petition.

Facts giving rise to first writ petition, briefly stated, are: dispute arose between the parties during consolidation proceedings held in the village. Dispute relates to Khata Nos. 127, 145 and 388. In basic year records Ram Achal, the Petitioner, and Respondent Nos. 3 and 4, Ram Asrey and Shiv Prasad, were recorded over khatas in dispute. Objection was filed by Respondent Nos. 3 and 4 u/s 9 of U.P. Consolidation of Holdings Act (hereinafter referred to as the Act) claiming 2/3rd share. Respondent Nos. 5 to 8 also filed objection u/s 9 of the Act claiming co-tenancy rights. There were other objections filed u/s 9 of the Act which are not relevant to be noted for the purposes of adjudicating the controversy raised in first writ petition. There is no dispute between the parties that khatas in dispute were acquired by common ancestor, Jurawan, whose name was recorded in 1322 fasli. Smt. Hansraji was wife of Jurawan. Hansraji had two daughters, Balta and Guljari. Balta was married to Jagarnath and Guljari to Ramesar. Petitioner, Ram Achal, is son of Ramesar and Respondent Nos. 3 and 4 claimed to be branch of Jagarnath. Respondent Nos. 5 to 9 also claimed to be sons of Jagarnath and Balta. The Consolidation Officer vide his order dated 5th September, 1974, gave 2/3rd share to Respondent Nos. 3 and 4, Ram Asrey and Shiv Prasad and Petitioner, Ram Achal, was given 1/3rd share. Objection of Ram Milan and others, Respondent Nos. 5 to 9, was rejected. Petitioner, Ram Achal, as well as Respondent Nos. 5 to 9 filed appeals against the order of Consolidation Officer. The Assistant Settlement Officer of Consolidation vide his order dated 8th January, 1974 allowed the appeal of the Petitioner as well as Respondent Nos. 5 to 9. The Petitioner was given half share in Khata Nos. 127, 145 and 388, along with Ram Asrey and Shiv Prasad, names of Respondent Nos. 5 to 9 were directed to be recorded as co-sharers and Ram Asrey was given 1/3rd, Shiv Prasad was given 1/3rd share and Ram Milan and others were given 1/3rd share. Revision No. 711 was filed by Respondent Nos. 3 and 4 challenging the order of Assistant Settlement Officer of Consolidation regarding Khata Nos. 388, 127 and 145. Revision filed by Respondent Nos. 3 and 4 was allowed and the order of Assistant Settlement Officer of Consolidation has been set-aside. Petitioner, Ram Achal, has filed the first writ petition challenging the order of Deputy Director of Consolidation, dated 3rd December, 1974 and the order of Consolidation Officer dated 5th September, 1973.

The second writ petition has been filed by Ram Asrey and Shiv Prasad challenging the order of Deputy Director of Consolidation dated 16th September, 1976 and those of Assistant Settlement Officer of Consolidation dated 30th September, 1975 and Assistant Consolidation Officer dated 30th September, 1975. After order of Deputy Director of Consolidation dated 3rd December, 1974, a writ petition being Writ Petition No. 3392 of 1975 was filed by Respondent Nos. 4 to 8, Ram Milan and others challenging the said order. The said writ petition was rejected on 21st March, 1975, by following order of this Court:

Petitioners grievance is that the Deputy Director of Consolidation has set aside the order of the Settlement Officer (Consolidation) giving the Petitioners 1/3rd share without considering their case. I am unable to agree. I have read the judgment carefully. Only finding recorded by the Deputy Director of Consolidation is that Ram Achal will have no share in the plots in dispute. The Petitioners'' share has not been touched much less taken away. The grievance of the Petitioners is imaginary. Rejected.

This Court while rejecting the said writ petition filed by Ram Milan and others on 21st March, 1975, observed that Deputy Director of Consolidation by the impugned order dated 3rd December, 1974, has not touched or taken away the share given to Ram Milan and others. After the order of this Court dated 21st March, 1975, rejecting the writ petition filed by Ram Milan and others, an application was moved by Petitioners for preparation of their chaks in accordance with the order of Deputy Director of Consolidation dated 3rd December, 1974. On the said application reference was made by Assistant Consolidation Officer to the Deputy Director of Consolidation u/s 48 (3) of the Act to clarify as to whether Ram Milan and others will get share or not. The Assistant Settlement Officer of Consolidation also sent reference to the Deputy Director of Consolidation that necessary directions be issued u/s 48 (3) of the Act. The reference of Assistant Consolidation Officer noted the order of this Court rejecting the writ petition filed by Ram Milan and others in which it was observed that share of Ram Milan has not been touched by the order of Deputy Director of Consolidation dated 3rd December, 1974. After the aforesaid reference, the Deputy Director of Consolidation passed an order on 16th September, 1976, u/s 48 (3) of the Act observing that the Deputy Director of Consolidation has not given any decision with regard to Ram Milan and according to the order of Assistant Settlement Officer of Consolidation, Ram Milan and others, have been accepted co-sharers along with Ram Asrey and Shiv Prasad. After giving above clarification the file was sent back to the Assistant Settlement Officer of Consolidation. The order dated 16th September, 1976, passed by Deputy Director of Consolidation and earlier two orders passed by Assistant Settlement Officer of Consolidation and Assistant Consolidation Officer making reference to the Deputy Director of Consolidation, have been challenged in the second writ petition.

Sri Swaraj Prakash, learned Counsel appearing for the Petitioner in first writ petition, challenging the order of Deputy Director of Consolidation, dated 3rd December, 1974, contended that the Deputy Director of Consolidation committed error in holding that Petitioner, Ram Achal, is not entitled for any share. The submission is that the Consolidation Officer has given 1/3rd share to Ram Achal and no appeal was filed by Ram Asrey and Shiv Prasad challenging the order giving 1/3rd share to the Petitioner and the appeal was filed only by Petitioner, Ram Achal, claiming half share. The submission is that 1/3rd share given to the Petitioner, Ram Achal, having not been challenged before the Settlement Officer of Consolidation, the Deputy Director of Consolidation has no jurisdiction to hold that Petitioner is not entitled for any share. Secondly, it has been submitted that Petitioner was entitled for half share and Settlement Officer of Consolidation has correctly given half share to the Petitioner. Submission is that gift deed dated 4th September, 1911, executed by Jurawan having been held to be void by Consolidation Officer, the Petitioner was entitled for half share. Reliance has been placed by counsel for the Petitioner on a judgment in Gaya Din v. Hanuman Prasad and others 2001 (1) AWC 344 : 2001 (92) RD 79.

Learned Counsel appearing for the Respondents in first writ petition refuting the contention of the Petitioner contended that Petitioner was not entitled for half share and the Consolidation Officer has recorded finding holding that Petitioner is only entitled for 1/3rd share since he was in possession of 1/3rd share only.

I have considered the submissions raised by counsel for both the parties and perused the record.

There is no dispute between the parties that the land in dispute belong to common ancestor, Jurawan. There is no dispute between the parties that the land being occupancy, the same was not transferable on 4th September, 1911, when Will was executed by Jurawan. The Consolidation Officer, however, recorded a finding that although the Will dated 4th September, 1911 was not operative since the land was not transferable but Khyali and Jagdutt, brother of Ram Achal came in possession of the land in dispute according to their share as given in the Will. The Consolidation Officer also recorded a finding that Khyali was co-sharing in cultivation along with Jurawan before 1911 and Jagdutt, brother of Ram Achal, was in possession of 1/3rd share.

Admittedly in 1333 fasli Hansraji was recorded as chief tenant. Hansraji died much after 1333 fasli, hence succession will be governed by Sections 24 and 25 of Agra Tenancy Act, 1926 and only that daughter''s son will be entitled to inherit who was co-sharing in cultivation. Khyali and Ram Achal, both were daughter''s son and in 1348 fasli names of Khyali and Ram Achal both were recorded in khatauni. The Settlement Officer of Consolidation held that since Will deed dated 4th September, 1911, was held to be void, the share cannot be determined according to Will, hence the share given in the Will cannot be accepted. The observation of the Settlement Officer of Consolidation that Will being void, shares cannot be determined on that basis, is correct.

The Deputy Director of Consolidation by the impugned order has allowed the revision filed by Ram Asrey and set aside the order of Assistant Settlement Officer of Consolidation by which share was given to Petitioner. The Deputy Director of Consolidation while considering Revision No. 711 observed that Will deed dated 4th September, 1911, Jurawan has given 2/3rd share to Ram Asrey son of Khyali and 1/3rd share to Shiv Prasad son of Kamta. He further observed that Will states that Ram Asrey son of Khyali and Shiv Prasad son of Kamta cultivate the land with Jurawan. The Deputy Director of Consolidation further held that whether by Will any transfer is made or not but this is clear proof of the fact that Ram Asrey son of Khyali and Shiv Prasad were co-sharing in cultivation with Jurawan. The Deputy Director of Consolidation further observed that in accordance with Section 24 of Agra Tenancy Act, 1926, Ram Asrey son of Khyali and Shiv Prasad will alone succeed to land of Jurawan, hence no share can be given to Ram Achal. With the aforesaid observation, the Deputy Director of Consolidation has allowed Revision No. 711 and set aside the order of Assistant Settlement Officer of Consolidation giving share to Ram Achal.

Before considering the aforesaid order of Deputy Director of Consolidation, it is relevant to note that objection which was filed by Ram Asrey u/s 9A (2) with regard to Khata No. 145 was to the effect that Ram Asrey and Shiv Prasad have 2/3rd share and Ram Achal has 1/3rd share whose chaks be separated. In objection claim of Respondent Nos. 4 to 8 was denied. Copy of the objection filed by Petitioner has been filed as Annexure-A-1 to the rejoinder-affidavit. Copy of the grounds of revision filed by Petitioner has been filed as Annexure-6 to the writ petition. In the grounds of revision also, it has been stated that 2/3rd share of revisionist in Khata Nos. 388, 127 and 145 be declared and 1/3rd share be given to Respondent first set (Ram Achal). The case of Ram Asrey and Shiv Prasad throughout the consolidation proceedings has been that Ram Achal, the Petitioner has 1/3rd share in khatas in dispute. At no point of time, Ram Asrey and Shiv Prasad denied the claim of the Petitioner to have share in the aforesaid khatas. Thus, the claim of Petitioner that he has share in khatas in dispute was never contested. The Deputy Director of Consolidation has committed error in carving out a third case that Petitioner has no share in disputed khatas. It is further relevant to note that Consolidation Officer gave 1/3rd share to Petitioner in all the three khatas and 2/3rd share was given to Ram Asrey and Shiv Prasad. Ram Asrey and Shiv Prasad did not file any appeal challenging the order of Consolidation Officer by which 1/3rd share was given to the Petitioner in disputed khatas.

In view of the aforesaid, Ram Asrey and Shiv Prasad, Respondent Nos. 3 and 4, could not have challenged the claim of Petitioner and the only dispute between the parties was with regard to 2/3rd claim of Respondent Nos. 3 and 4 whereas Petitioner claims half share in the khatas in dispute.

The Deputy Director of Consolidation in the impugned judgment, as noted above, has completely misread the admitted facts. The Will dated 4th September, 1911, was executed by Jurawan in favour of Khyali to the extent of 2/3rd share and interim injunction in favour of Jagdutt to the extent of 1/3rd share. Copy of the Will has been filed as Annexure-A-2 to the rejoinder-affidavit. The Will further clearly notes that aforesaid two persons are co-sharing in cultivation. The Will was executed for grow agricultural land and house. The Will being registered Will has been held to be proved by Consolidation Officer. The Consolidation Officer hold the Will void in so far as it bequeaths the occupancy land. The occupancy land being non-transferable, the Will was admittedly void and the shares as given to Khyali and Jagdutt were ineffective and unenforceable. The Will, however, found to be proved, the statement of Jurawan in the Will that both, Khyali and Jagdutt, are co-sharing in cultivation cannot be overlooked and the Settlement Officer of Consolidation has rightly held that those two persons were co-sharing in cultivation. Khyali is son of Jagarnath and Jagdutt was brother of Petitioner, Ram Achal. It has come on the record that Jagdutt died and after the death of Jagdutt, Ram Achal became entitled to his share. The khatauni of 1333 fasli was filed before the courts below which contained the name of Hansraji wife of Jurawan as chief tenant. Again in 1348 fasli khatauni names of Khyali son of Jagarnath and Ram Achal son of Ramesar were recorded. The Will regarding share being ineffective, both the persons recorded will have half share. The Deputy Director of Consolidation wrongly held that Will was in favour of Ram Asrey son of Khyali and Shiv Prasad son of Kamta. The Will being in favour of Jagdutt, brother of the Petitioner, co-sharing of Petitioner''s branch was accepted and Settlement Officer of Consolidation rightly held that Petitioner succeeded Jurawan being daughter''s son. In 1348 fasli names of Khyali and Ram Achal were recorded which proved that they were accepted as heir of Hansraji being determined in accordance with Sections 24 and 25 of Agra Tenancy Act, 1926. Hansraji having been died between 1333 to 1348 fasli when Agra Tenancy Act, 1926, was enforced, the Deputy Director of Consolidation committed error in holding that no share can be given to Ram Achal. The Deputy Director of Consolidation failed to consider that Jagdutt, brother of the Petitioner, was co-sharing in cultivation which was so mentioned in Will dated 4th September, 1911. Further Ram Achal being recorded in 1348 fasli till basic year without there being any objection by other side, it cannot be said that Ram Achal had no share in the khatas in dispute. Both, Khyali and Ram Achal being jointly recorded in 1348 fasli, were entitled for half share each. The Will executed by Jurawan having been held void, the share determined in the Will became ineffective and cannot be a basis for determining the share between the parties. There is no other basis for giving 2/3rd share to Respondent Nos. 3 and 4. The order of Deputy Director of Consolidation dated 3rd December, 1974, in so far as Revision No. 711 is concerned cannot be sustained and is hereby set aside. The order of Assistant Settlement Officer of Consolidation dated 8th January, 1974, is restored. The first writ petition filed by Petitioner, Ram Achal is allowed accordingly.

Now coming to the second writ petition filed by Ram Asrey and Shiv Prasad praying for quashing the order dated 16th September, 1976, passed by Deputy Director of Consolidation u/s 48 (3) of the Act, it is clear that the said order has been passed by Deputy Director of Consolidation taking the view that order of Deputy Director of Consolidation, dated 4th December, 1974, does not affect the share of Respondent Nos. 4 to 8, Ram Milan and others. Taking the aforesaid view, the Deputy Director of Consolidation has relied on the observation of this Court dated 21st March, 1975, while dismissing Writ Petition No. 3392 of 1975. This Court in its order dated 21st March, 1975, observed that share of Petitioners (Ram Milan and others) has not been touched, much less taken away by the order of Deputy Director of Consolidation dated 4th December, 1974. This Court having observed that order of Deputy Director of Consolidation has not taken away the share of Ram Milan and others, it was open to Ram Asrey and Shiv Prasad to challenge the said order of Deputy Director of Consolidation. Ram Asrey and Shiv Prasad have neither got the observation of this Court in its order dated 21st March, 1975, modified nor challenged the order of Deputy Director of Consolidation dated 4th December, 1974. The observation of this Court in its order dated 21st March, 1975, to the effect that Deputy Director of Consolidation has not affected the share of Ram Milan and others has to be accepted and there is no occasion to take any other view in the present writ petition. The Settlement Officer of Consolidation has held Ram Milan and others co-sharers along with Ram Asrey and Shiv Prasad and the Deputy Director of Consolidation in the impugned order has not dealt with the claim of Ram Milan and others nor has held that Ram Milan has no share in khatas in dispute. The order of Settlement Officer of Consolidation giving share to Ram Milan and others remain unaffected. The Deputy Director of Consolidation vide his order dated 16th September, 1976, u/s 48 (3) of the Act has only sought to give effect to the order of Assistant Settlement Officer of Consolidation. The order of Assistant Settlement Officer of Consolidation giving share to Ram Milan and others having remain unchanged, the same has to be given effect to and no exception can be taken to the order of Deputy Director of Consolidation passed u/s 48 (3) of the Act for giving effect to the said order. No error can be found in the order of Deputy Director of Consolidation dated 16th September, 1976. No grounds have been made out for interference with the impugned order dated 16th September, 1976, in the second writ petition. There is no merit in the second writ petition and the same is dismissed.

In the result, Writ Petition No. 2416 of 1975 is allowed as indicated above and Writ Petition No. 2246 of 1976 is dismissed.