Smt. Mohd. Jahan Begum and Another Vs Board of Revenue and Others

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Judgment

104 paragraphs · 8,784 words

Rakesh Sharma, J.—Heard Sri Umesh Chandra, learned Senior Counsel, assisted by Sarvasri Vivek Singh and V.C. Misra, learned Counsel for the petitioners and Sri Mohd. Arif Khan, learned Senior Counsel, assisted by Sri Adil Khan, learned Counsel for the respondent Nos. 4, 5 and 7. Learned Standing Counsel represents respondent No. 9.

Through this writ petition, a mother and daughter duo has challenged a judgment and order rendered by the Board of Revenue, U.P., at Allahabad on 15.12.2006, setting aside an order dated 11.3.2003, passed by the Additional Commissioner, Lucknow Division, Lucknow, effecting partition of the shares of the petitioners in the agricultural land in Suit. The Board of Revenue has declared respondent No. 4, Shafiqur Rahman Khan, being the only son of the original tenureholder, Fazlur Rahman, as a sole Bhumidhar of the land in preference over his step mother Smt. Mohd. Jahan Begum, who had remarried with another person to lead a happy married life with her husband to leave his family, after the death of her first husband, Fazlur Rahman Khan (father of respondent No. 4-Shafiqur Rahman). The Board of Revenue, applying the provisions of Section 35 of U.P. Tenancy Act and other relevant laws on the subject, which were applicable at the time of death of original tenureholder, Fazalur Rahman Khan, entitling the male son to be the sole titleholder of the land left behind by his father, Fazlur Rahman Khan, the original tenureholder, who died on 28.8.1950.

Smt. Mohd. Jahan Begum and her daughter were held to be disentitled to their share in the agricultural land left behind by Fazlur Rahman Khan, the original tenureholder, after his death, due to remarriage of Smt. Mohd. Jahan Begum. Smt. Mohd. Jahan Begum, petitioner No. 1, wife of Fazlur Rahman Khan, after his death, had married one Ahad Mirza and as such she ceased to have any right altogether in respect of the agricultural land left by her former husband.

For appreciating the dispute, the admitted pedigree of the parties is being quoted below: Fakir Mohd. Died on 1926

As per Sri Umesh Chandra, learned Senior Counsel appearing for the petitioners, the petitioners had claimed 1/4th share in the Bhumidhari agricultural land in dispute bearing plot Nos. 129, 163, 164, 459, 461, 989, 996, 1397, 994 and 1109, situate in Village Mandiyaon, Tehsil Lucknow (now Tehsil Bakshi Ka Talab) in the District of Lucknow.

There were two Suits, one filed u/s 176 of the U.P. Zamindari Abolition & Land Reforms Act by the petitioners seeking partition of their 1/4th share as Co-Bhumidhars, while the other Suit was filed u/s 229B of the U.P. Zamindari Abolition & Land Reforms Act by Sri Atiqur Rahman Khan, respondent No. 5, the cousin brother of respondent No. 4, Shafiqur Rahman Khan, seeking declaration that he and Shafiqur Rahman Khan, respondent No. 4, were the Bhumidhars of the land in dispute. Atiqur Rahman Khan and Shafiqur Rahman Khan, respondent Nos. 5 and 4 have disputed 1/4th share, as claimed by the petitioners, in the aforesaid plots and, thus, the dispute was referred by the Assistant Consolidation Officer, Lucknow u/s 9 of the U.P. Consolidation of Holdings Act to the Consolidation Officer, Lucknow on 4.4.1962. The Consolidation Officer had accepted the claim of the petitioners holding that they are entitled to have 1/4th share in the aforesaid Bhumidhari plots of land and the names of petitioners, the mother and daughter were accordingly entered in the Consolidation Khatauni.

An appeal was filed by Atiqur Rahman Khan, respondent No. 5 herein, u/s 11 of the U.P. Consolidation of Holdings Act, but the same was dismissed on 12.9.1962 by the Settlement Officer, Consolidation. The claim of the petitioners as Co- Bhumidhars was upheld.

Being aggrieved, a Second Appeal was preferred by the respondent Nos. 4 and 5 before the Deputy Director of Consolidation, Lucknow, which was also rejected on 16.1.1963. The rights of the petitioners as Co-Bhumidhars alongwith respondent Nos. 4 and 5 were upheld. Thereafter, on 3.8.1982, the petitioners had filed a Suit in respect of abovementioned plots u/s 176 of the U.P. Zamindari Abolition & Land Reforms Act.

On 7.5.1985, Atiqur Rahman Khan, respondent No. 5, had filed a Suit, u/s 229B of the U.P. Zamindari Abolition & Land Reforms Act for declaration that the petitioners did not have any share in the land in dispute, that is, the plots mentioned in the foregoing paragraphs.

10.

The litigations continued. On 11.3.2003, the Deputy Collector, Lucknow had decreed the Suit filed by respondent No. 5, Atiqur Rahman Khan and an order for expunction of names of the petitioners from the Khatauni had been passed.

11.

The petitioner No. 1, Mohd. Jahan Begum had filed an appeal against the said order of the Deputy Collector, Lucknow and her appeal was allowed on 30.4.2004 by the Additional Commissioner, Lucknow Division, Lucknow. The Additional Commissioner, Lucknow Division, Lucknow remanded the case to the Trial court for effecting the partition in the Suit, filed by the petitioners u/s 176 of the U.P.Z.A. & L.R. Act. Both the Suits, that is, one filed u/s 176 and the other filed u/s 229B of the U.P. Z.A. & L.R. Act were consolidated and heard together. Both the Suits were decided by a common judgment rendered on 30.4.2004.

12.

Against the judgment and decree passed by the Additional Commissioner, Lucknow Division, Lucknow, a Second Appeal was preferred by the respondent Nos. 4 and 5, that is, Shafiqur Rahman Khan and Atiqur Rahman Khan before the Board of Revenue, U.P., at Allahabad. This Appeal was allowed by the Board of Revenue holding that the petitioners are not co-tenureholders with the respondent Nos. 4 and 5. The Board of Revenue, while allowing the Appeal of respondent Nos. 4 and 5, Shafiqur Raheman Khan and Atiqur Rahman Khan, has held that as the Additional Commissioner, Lucknow Division, Lucknow had remanded the matter to the appropriate court, even the Deputy Collecotr, Lucknow had no jurisdiction to entertain the Suit preferred by the petitioners. There was no decree accompanying the Appeal, preferred by the petitioners and as such the Appeal was not maintainable.

13.

Sri Umesh Chandra, learned Senior Counsel appearing for the petitioners, has vehemently argued that since no Second Appeal lies against the order of remand, filing of decree alongwith the memorandum of Appeal was not necessary. There was no defect in the appeal preferred by the petitioners on account of non-filing of certified copy of the decree dated 11.3.2003. The finding recorded by the Board of Revenue on this count are erroneous.

14.

The Board of Revenue has held that Sri Fazlur Rahman Khan, the original tenureholder had died on 28.8.1950 and u/s 35-B of the U.P. Tenancy Act, only the male heir of the deceased tenureholder could inherit the agricultural land and the petitioners could not have inherited the land in view of the provisions of Section 35-C of the said Act, after the death of Sri Fazlur Rahman Khan on 28.5.1950.

15.

It has been submitted by the learned Senior Counsel for the petitioners that the petitioner No. 1, Mohd. Jahan Begum, was the widow of Fazlur Rahman Khan and the petitioner No. 2, Naseem Begum, being the daughter were heirs of Fazlur Rahman Khan under the Mohammedan Law and, therefore, they were entitled for 1/4th share in the land in dispute. The Consolidation Authorities, that is, the Consolidation Officer, Settlement Officer, Consolidation and the Deputy Director of Consolidation, under the relevant provisions of the U.P. Consolidation of Holdings Act had already held that there was no evidence of custom amongst Mewati Pathans, as alleged by the respondent Nos. 4 and 5, that a widow is not entitled to inherit the agricultural land and the daughters are also debarred from inheritance amongst Mewati Pathans. He has relied upon the provisions of the U.P. Shariyat Laws Application Act, 1937 to submit that that Mohammedan Law became applicable to all the Muslims and the Customary Laws had ceased to apply. The petitioners'' rights were rightly held valid by the Consolidation Authorities.

16.

The petitioners have categorically denied that the provisions of Section 35-C of the U.P. Tenancy Act could apply and in any case prevent the petitioners from inheriting the share in the land in dispute as heirs of Fazlur RahmanKhan. The findings of the Board of Revenue are against the provisions of the Land Record Manual regarding entry of names of the petitioners in the records maintained by the Consolidation Department. It was immaterial that the oral evidence of petitioner No. 2 was not recorded and the findings are erroneous that the boundaries of the land could not be described by the petitioner No. 1 before the revenue courts. The fact of the petitioner No. 1, Mohd. Jahan Begum''s remarriage was immaterial as she has already inherited the land in dispute before advent of the U.P. Z.A. & Land Reforms Act. The petitioners'' Co Bhumidhari rights have already been established in consolidation proceedings. They are entitled to partition of their 1/4th share in the land in dispute. The Board of Revenue has no jurisdiction to re-agitate the question of share of the petitioners and to dismiss the Suit brought by the petitioners u/s 176 of the U.P. Z.A. & L.R. Act seeking partition by metes and bounds. Sri Umesh Chandra, learned Senior Counsel for the petitioners, has also drawn attention of the Court to the transfer of agricultural land by sale by the respondent Nos. 4 and 5 to various Housing Societies.

17.

Sri Umesh Chandra, has argued the case for three days to highlight the points made in the writ petition having 33 Paragraphs only. He has also highlighted the Grounds No. A to G contained in the memo of writ petition as well as advanced the submissions in rejoinder. He has led the Court in detail to the orders passed by the Consolidation Authorities, read all the events indicated in the memo of the writ petition and also read the judgments rendered by the Revenue and Consolidation courts. He also sought certain amendments, even after raising substantial arguments, which were allowed. Three grounds were sought to be added on 22.4.2010 and the same have been permitted to be added. This Court has also recorded all the attempts in its orders, which were made by Sri Umesh Chandra Learned Senior Counsel appearing for the petitioners, in order to avoid the hearing and get the hearing of the case adjourned. Even a Special Appeal has also been preferred to get the hearing of the case adjourned, which was dismissed by the Division Bench of this Court. This Court has also dealt with the fact of allowing the application seeking impleadment of legal heirs of respondent Nos. 6 and 7 who had died much before 1996 and were settled in Pakistan (they were not Indian Citizens and admittedly their properties were declared enemy properties and declared as Evacuee Property). The Court has also dealt with other Miscellaneous applications. The orders passed by the Court, during the course of the hearing of the case, are being quoted below:

Dt:21.4.2010

Hon''ble Rakesh Sharma, J.

This case has come up for admission today. This case has not been admitted so far, although it was filed in the year 2007.

The case was presented on 15.1.2007. An ex parte interim order was granted by this Court taking note of the submissions put-forth by Sri Umesh Chandra, learned Senior Counsel assisted by Sri Yogendra Singh, learned Counsel appearing for the petitioners. Thereafter the case proceeded counter and rejoinder affidavit were filed. Interim order had lapsed on 15.9.2008. On the written application alongwith affidavit the interim order was ordered to be revived. The case proceeded further it was taken up on 13.5.2009 and following order was passed by this Court. The case was directed to be taken up for hearing.

Heard.

Application is allowed.

Till the next date of listing, inter order dated 1.2.2007 shall remain in operation.

The case was again listed in the cause list of this Court on 12th April, 2010. It was adjourned for 16.4.2010. The following order was passed on 16.4.2010 On the request of learned Counsel for the petitioner put up this case for hearing on Wednesday i.e. 21.4.2010.

Sri D.P.S. Chauhan, Advocate has filed his vakalatnama on behalf of petitioners in this case on 19.4.2010. The case was taken up today i.e. 21.4.2010. He sought an adjournment of the case which is pending adjudication for the last three years and ex parte interim order is operative despite filing of counter affidavit and application for vacating the stay order.

Sri Mohd. Arif Khan, learned Senior Counsel for the respondents has submitted that he had already informed Sri Vikas Singh, learned Counsel for the petitioner who was an assisting counsel of Sri Umesh Chandra, Senior Advocate. The case was taken up at about 11.30 a.m. after the list of fresh cases was over. It was listed in the list of part heard cases. On the request of learned Counsel for the petitioner the case was adjourned and according to his convenience the case was to be taken up again after the lunch break.

Sri D.P.S. Chauhan, Advocate has put in appearance on behalf of the petitioner and has submitted that he wants adjournment of the case and the matter be listed in the next week. He had already filed his vakalatnama on 19.4.2010.

Sri Mohd. Arif Khan, learned Senior Counsel for the respondents has strongly opposed the request of Sri D.P.S. Chauhan on the ground that the learned Counsel for the petitioners are playing hide and seek with the Court. Proper information was given to him. As per his convenience the matter was taken up adjourned for today and at a time as per his convenience. After this accommodation there appears no justification for adjourning the case which is listed for admission and an ex parte order is operating for the last three years.

However, in the interest of justice it is provided that the case shall be taken up at 10.15 am tomorrow i.e. on 22.4.2010 for further arguments. Sri D.P.S Chauhan, Advocate has stated that he will argue the case tomorrow on behalf of the petitioners and he has instructed to do so.

It is made clear that the case shall not be adjourned tomorrow and the same may be heard and disposed of.

Dt: 23.4.2010

Hon''ble Rakesh Sharma, J.

Heard leaned counsel for the parties. Sri Mohmad Arif Khan, has no objection to the amendments sought for. Since the Court has already heard. Sri Umesh Chandra, learned senior counsel for the petitioner at length yesterday i.e. on 22.4.2010, let the amendments be carried out during the course of the day for completing the record.

This writ petition is pending admission for the last more than 3 years. It was taken up on 1st February, 2007 and an ex parte interim order was granted by the Court issuing notices to the respondents. Hearing on admission commenced yesterday, i.e., on 22nd April 2010. The amendment application was submitted, however, it was allowed after hearing both the parties. The case proceeded and substantial arguments were raised by Sri Umesh Chandra, learned Senior counsel for about 2.00 hours from 2.00 p.m. to 4.00 p.m. The case was to be taken up at 12.30 p.m. Today, i.e., 23.4.2010, but Learned Senior Counsel Sri Umesh Chandra has put in appearance at 2.00 p.m. at his convenience. An application for amendment was filed in the Court the same was allowed in the interest of justice after hearing both the parties.

The court has seen the array of parties as it stood on 15.1.07 when the writ petition was presented.

Sri Umesh Chandra, learned senior counsel for the petitioner has pressed the application and sought adjournment of the case on this ground alone that he wants some time to furnish information about the legal heirs to bring them on record.

Sri Mohmad Arif Khan has drawn attention of Court provisions of order 22 Rule 10(a) C.P.C. He has submitted that it was duty of the parties to bring to the notice of the Court as to who died and when and who are the persons to be impleaded as legal heirs and legal representatives of the deceased.

In this application no details have been furnished nor affidavits have been filed as to when respondent No. 6 and 7 have died and who are the legal heirs and legal representatives.

It is noteworthy that the case is yet to be admitted. The court has already indicated in the last order about the status of the case. The case is still at admission stage. The court has yet to decided after hearing learned Counsel for the parties whether writ petition is to be admitted or to be rejected or the matter should be remanded. Any such order can be passed only after hearing and taking into account the version, on facts and law, put forth by the learned Counsel for the parties. Making such applications in instalments when the case is pending for last 3 and half years for admission only it is not appreciable. This Court is of the view that Sri Umesh Chandra, learned senior counsel assisted by Sri Vikash Singh must complete their arguments and then this Court may pass appropriate order whether he should be permitted to implead legal heirs/ legal representatives of respondent No. 6 and 7 or not and whether the court should hear the learned Counsel for the petitioner and other side on admission and as to how the order of the court is going to be affected such parties. Entertaining substitution/amendment application is of technical matter and in the writ jurisdiction it is at the discretion of the court to pass appropriate order in such matters. However, it is made clear in the present case, that no formal application seeking substitution has been filed by the petitioner''s counsel.

Sri Mohmad Arif Khan, has drawn attention of the court that in the array of parties, Aisha Khatoon, w/o Abdul Sattar Khan (Divorced), through the Prescribed Authority, Enemy Property, Lucknow and Hafizur Rahman Khan, s/o Abdul Mannan Khan through the Assistant Custodian, Evacuee, Property Lucknow have been impleaded as opposite parties. Their names be deleted from the array of the parties as it appears that both have migrated to Pakistan and are not citizens of India.

In view of above this Court requested Sri Umesh Chandra, learned senior counsel to continue with his argument on admission of the writ petition.

As requested by Sri Umesh Chandra, learned Senior Advocate and Sri Vikash Singh, put up on 26.4.2010 for further hearing on admission by the parties.

Dt:26.4.2010

Shri Amar Pratap Chaudahary, holding brief of Shri Vikas Singh has come to the Court and informed that a Special Appeal has been filed in this case and the request has been made to adjourn the case today. The law is settled that by mere filing a Special Appeal and without any interim order stalling the proceedings of the court, this Court cannot stall the proceedings, which is already going on for the last more than three years and hearing is going on for the last three or four days. Substantial argument of Shri Umesh Chandra has already been completed. He has requested the court that he wants to make further submissions and for this purpose 26.4.2010 has been fixed. The case was called out at 11:00 A.M. and again at 2:00 P.M. today.

After dictating the above order, the case was taken up at 2.00 pm after the lunch break. After taking note of the request of Sri A.P. Chaudhary, Advocate holding brief of Sri Vikas Singh, the hearing was adjourned for some time. Learned Counsel for the petitioner was requested to place order, if any, passed by the Division Bench entertaining the appeal.

Now it is 3.16 pm and no order has been received from the Division Bench which is said to be taking up the Special Appeal filed against interim order passed by this Court in the last week. At this juncture Sri Moinuddin Khan, Advocate holding brief of Sri M.A. Khan, learned Senior Advocate has submitted that this Court may proceed with the case as the proceedings have not been stalled.

Sri A.P. Chaudhary, Advocate has informed the Court that the hearing has commenced before the Division Bench.

Put up this case tomorrow i.e. on 27.04.2010 at 11.00 am.

27.4.2010

Hon''ble Rakesh Sharma, J.

Head Sri V.C. Mishra holding brief of Sri Umesh Chandra, learned Senior counsel for the petitioners. In furtherance of the order passed by this Court yesterday i.e. 26.4.2010, the case was taken up today. It is noteworthy that in addition to this several cases are on the list and a large number of learned Counsel are waiting for their turn for disposal of their cases in this Court. Since this Court has allocated this time on the request and as per convenience of Sri Umesh Chandra learned Senior Counsel for the petitioners, the case was called out twice. Sri V.C. Mishra holding brief of Sri Umesh Chandra, learned Senior counsel for the petitioners has put in appearance today. According to him a special appeal has been filed against the application for substitution. This Court was informed yesterday i.e., on 26.4.2010 about filing of special appeal and as such the case may be adjourned. Now today again the same request has been made.

Sri Mohd. Arif Khan, learned Senior counsel for the respondent Nos. 5 and 6 strongly resisted the motion seeking adjournment of the case. He has drawn attention of the Court to provision of Chapter 8 Rule 5 of the Rules of the Court and placed before the Court a Full Bench decision of this Court reported in 2010 page 561 Shital Gupta v. State of U.P. According to him the Land Revenue and Rent Control matters relating to proceedings arising out of C.P.C., no Special Appeal lies. Several other judgments have been referred in this Full Bench decision. In one more case similar attempt was made challenging the order passed in a Rent Control matter. A Special Appeal was preferred before the Division Bench, subsequently this Special Appeal was dismissed on the ground of non-maintainability and the matter was again remanded back to Hon''ble Single Judge for disposal.

Since there is no interim order passed by the Division Bench of this Court, stalling the proceedings of the court and the case is already listed for hearing on admission, the Court declines to accept the request of learned Counsel for the petitioners. Thus the Court is proceeding with the case. Sri Umesh Chandra, learned Senior Counsel has already made submissions for about more than 3.00 hours on two dates, as indicated in the previous orders. He has already covered submissions put forth in the writ petition and the grounds made in the memo of the writ petition as also the submissions made in the rejoinder affidavit.

Arguments of Sri Mohd. Arif Khan learned Senior counsel for the respondents No. 5 and 6 have commenced. When Sri Umesh Chandra, learned Senior counsel did not turn up to argue the case, Sri Mohd. Arif Khan, learned Senior counsel for the respondents No. 4 and 5 was requested to put forth his arguments. He started his arguments. In the meantime Sri Umesh Chandra, learned Senior counsel for the petitioners has put in appearance and submitted that against an order passed on application for substituting the legal heirs and legal representatives of opposite party No. 6 a Special Appeal has been filed yesterday i.e. on 26.4.2010 and the Special Appeal is also listed today i.e. 27.4.2010 in Court No. 1 in the Supplementary list of the Court and on account of the pendency of the Special Appeal the writ petition is defective. Sri Umesh Chandra, learned Senior counsel for the petitioners has further submitted that he does not wish to argue the case on behalf of petitioners. Specific questions were raised before Sri Umesh Chandra, learned Senior counsel as to when and where Smt. Aisha Khatoon has died in Pakistan. In reply to it, learned Counsel for the petitioners has submitted that he has learnt about her death, date of death a fortnight ago and the status of legal heirs and legal representatives have to be ascertained from Pakistan through another relatives. The Court has asked specific questions to Sri Umesh Chandra learned Senior Counsel to indicate what is the relation of the Aisha Khatoon with the land in dispute, which is situated in Lucknow in India. Sri Umesh Chandra, learned Senior counsel has submitted that he does not want to reply this query and Lordship may kindly permit him to withdraw himself from the case.

On the above statement recorded in the Court, Sri Mohd. Arif Khan, learned Senior counsel for the respondent No. 4 and 5 has submitted that in view of the array of the parties in the suit filed by the petitioners Smt. Aisha Khatoon wife of Abdul Sattar Khan, (who is residing in Pakistan and said to be no more now) has been arrayed through Competent Authority, Enemy Properties in India, Lucknow. Sri Hafizur Rahman Khan was arrayed through Assistant Custodian Evacuee Property, Lucknow. Both of these persons Smt. Aisha Khatoon and Hafizur Rahman Khan although were arrayed as opposite parties in Suit No. 213/263 2002-03, Mohd. Jahan Begum and Anr. v. Atiqur Rehman and Ors. He has laid emphasis that these persons were impleaded as parties, despite the report of service they did not come to the court and contest the matter. It is evident from the materials on record. He has drawn attention of the Court to the plaint, annexure No. 2 to the writ petition.

Sri Mohd. Arif Khan, learned Counsel for the respondent No. 4 and 5 has drawn attention of the court to Suit No. 215 of 1984-85 filed by Atiqur Rehman Khan, which was pending in the Court of opposite party No. 3 and an application was made on 4.11.96 by Atiqur Rehman Khan bringing to the notice of the court that Smt. Aisha Khatoon wife of Abdul Sattar Khan was divorced in the year 1954. She had expired and this application was submitted on 4.11.96 indicating therein that Smt. Aisha Khatoon had died. The pleadings in that case are that defendant No. 3 Smt. Aisha Khatoon filed a Suit No. 34 of 1956 in the court of Civil Judge, Lucknow which was dismissed on 8.11.68, thus, she was no more in the year 1996. This application was allowed by the Court on 28.1.97. This application had already been indicating the above facts was served on learned Counsel for the petitioners after service of this application the order was passed.

From the above chronology of events, it is now amply clear that Smt. Aisha Khatoon had died. The information about her death was brought to the notice of the court in judicial proceedings long back in the year 1996. It is very surprising to note that Sri Umesh Chandra, learned Senior counsel appearing for the petitioners does not know about these developments, which took place in the aforesaid proceedings. Smt. Aisha Khatoon had already died long ago. The fact regarding death of Smt. Aisha Khatoon, which was known to petitioners'' counsel from the petitioners in the year 1996, was not brought to the notice of the court when the writ petition was presented on 25.11.06.

18.

It is also relevant to mention here that against one of the above orders, the petitioners have also preferred a Special Appeal before a Division Bench of this Court in order to get the proceedings/hearing of the case adjourned. This Court has been apprised by the learned Senior Counsel appearing for the respondent Nos. 4 and 5 that the Special Appeal, so preferred by the petitioners, has been dismissed as not maintainable on 27.4.2010 and in view of this, the Court is further proceeding with the case as after dismissal of the Special Appeal, now there is no impediment in proceeding with the case.

19.

Sri Umesh Chandra, learned Senior Counsel appearing for the petitioners, after raising detailed arguments, has made a request for summoning of the record from the Board of Revenue. In the present case, the Court is sitting in writ jurisdiction, exercising its powers under Article 226 of the Constitution of India. All the judgments passed by the Consolidation Authorities and Revenue Authorities are already on record. It is not that the Court is hearing a Second Appeal, First Appeal, Revision or F.A.F.O. where the records of lower court are necessary for adjudication of the case. It is the duty of the petitioners to place documents, materials and evidence, which they think necessary to support their case. It is burden of the petitioners to place all the materials on which they have based their claim. Thus, after admitting the writ petition, if this Court finds fit only then the Court may pass order for summoning of the records. At this stage, when all the judgments and orders, passed by the Consolidation Authorities or the Revenue Authorities, in favour or against, are on record and the counter and rejoinder affidavits have been exchanged, it would not be appropriate to adjourn the case in order to summon the record of Board of Revenue. Such requests are devices of the parties to get the case adjourned on one pretext or the other. While the case was pending for the last more than three years, no such request was ever made for summoning of the record. Even no such request was made by the petitioners on 21.8.2008 when the case was directed to be listed for final hearing in September, 2008 to which parties agreed. Surprisingly, no such request was made either on 21.8.2008 or on 15.9.2008 and thereafter when the case was listed in the Cause list for final hearing. The interim order, granted earlier, had also lapsed once and on revival of the interim order, learned Counsel for the petitioners has not made any such request for summoning of the record. Thus, the Court has noted that an effort is being made by the petitioners to get the proceedings stalled on one ground or the other as the petitioners are enjoying benefits the ex parte interim order granted on 1.2.2007.

20.

Sri Mohd. Arif Khan, learned Senior Counsel, assisted by Sri Adil Khan, learned Counsel for the respondent Nos. 4 and 5, has opposed the writ petition on several grounds. At the outset he has submitted that respondent No. 4, Shafiqur Rahman Khan''s father Fajalur Rahman Khan had died on 28.8.1950. At the relevant time, his mother, Smt. Faheeman, was pregnant and after some time she was blessed with a son, that is, Shafiqur Rahman Khan, respondent No. 4, after the death of his father Fazlur Rahman Khan. The respondent No. 4, was a little child at the relevant time. His step mother, Mohd. Jahan Begum, second wife of Fazalur Rahman Khan had remarried to Sri Ahad Mirza when the petitioner was a little child (Minor). Being a little child, the respondent No. 4 and his mother, Smt. Faheeman, a widowed lady, they were unaware of the worldly practises. Sri Mohd. Arif Khan has submitted that taking advantage of this situation, respondent No. 4, Shafiqur Rahman Khan''s step mother, Mohd. Jahan Begum, who had married one Ahad Mirza, had cleverly approached the Consolidation Authorities in order to grab 1/4th share in the property illegally.

21.

He has submitted that here was a case where a little child having no knowledge of revenue and consolidation laws and having 100% share in the agricultural land left behind by his father under the U.P. Tenancy Act was pitted against his own step mother, who had left the family after the death of her husband and remarried to live happily with another person. Despite remarriage by step mother and living a happy life, she was interested in the agricultural land of her first husband, late Fazlur Rahman Khan.

22.

Respondent No. 4, Shafiqur Rahman Khan, was minor and had no guardian as contemplated by Rule 14 of the Rules framed under the U.P. Consolidation of Holdings Rules as no guardian was appointed by the Consolidation Authorities nor any notice was issued to him to look after his interest in the property. Sri Khan, learned Senior Counsel appearing for the respondent Nos. 4 and 5 has led the Court to Rule 14 of the U.P. Consolidation of Holding Rules, which is being quoted below:

14.(1) The Assistant Consolidation Officer shall in consultation with the Consolidation Committee appoint guardians, for purposes of proceedings under the Act, of such tenure-holders who are minors, idiots or lunatics unless such guardians have been already appointed by order of a competent Court.

(2) The guardian appointed for a minor, diot or lunatic under Sub-rule (1) shall be his natural guardian unless the natural guardian possesses an interest adverse to the interest of the minor, the idiot or the lunatic. If the natural guardian is not so appointed, the nearest male relative of the minor, the idiot or lunatic, not possessing an interest adverse to him as his guardian.

(3) A list of all such guardians together with the names of their wards shall be published in the village and any person interested in the ward may file an objection against such appointment before the Consolidation Officer within fifteen days, of such publication, whose orders shall, subject to the modification, if any, made by orders passed u/s 48, be final.

23.

To strengthen his submissions, Sri Mohd. Arif Khan, learned Senior Counsel appearing for the respondent Nos. 4 and 5 has relied upon two judgments of this Court reported in 1994 RD 481, Ravindra Kumar v. The Deputy Director of Consolidation, Varanasi and Ors. and 2003 (3) AWC 3162 Khursheed Ahmad and Anr. v. Gulzar Ahmad and Ors.

24.

According to Sri Mohammad Arif Khan, learned Senior Counsel, the judgments rendered by the Consolidation Officer, Settlement Officer, Consolidation and the Deputy Director of Consolidation etc. were not only illegal, but the same were also without jurisdiction. These judgments were null and void. After the death of his father, Fazlur Rahman Khan, the respondent No. 4, Shafiqur Rahman Khan, was the only preferential heir as provided u/s 35 of the U.P. Tenancy Act. He has inherited entire holdings of his father after his death. According to him, only the male member of the family would inherit the holdings of his father after his death nor a wife who had remarried. The Consolidation authorities have proceeded with the case without appointing a male guardian, as provided under Rule 14 of the U.P. Consolidation of Holdings Rules. What had happened in the present case is that the an alleged lady relative of the petitioners was planted as guardian of the respondent No. 4 just to grab the property of a minor. This event had taken place in the year 1960, when the respondent No. 4 was admittedly a minor and was unable to look after his interests in the property left by his deceased father. The judgments of the Consolidation Authorities, including that of Deputy Director of Consolidation are not binding on the respondent No. 4, Shafiqur Rahman Khan.

25.

He has further submitted that the petitioners'' Appeal was illegally allowed by the Additional Commissioner, Lucknow Division, Lucknow, but the Board of Revenue has undone the wrong. Sri Mohd. Arif Khan, learned Senior Counsel appearing for the respondent Nos. 4 and 5, has submitted that although an appeal was filed by the petitioner No. 1-Mohd. Jahan Begum, but the same was not accompanied by a copy of the decree. The detailed report made by the Munsarim on 22.3.2003 was read in the Court in support of his submission. Neither the decree was filed in time nor any application accompanying by any affidavit was filed before the Appellate court. Thus, the said Appeal was defective and was not maintainable.

26.

On the point of accompanying the decree sought to be challenged in the Appeal, Sri Mohammad Arif Khan, learned Senior Counsel for the respondent Nos. 4 and 5, has relied upon Rule 161 of the U.P. Revenue Court Manual, which reads as under:

161.

Presentation of appeal:-Every appeal shall be preferred in the form of a memorandum and presented to the Court concerned or to such officer as it appoints in this behalf. The memorandum shall be accompanied by copies or the decree or order appealed from and of the judgements or orders passed in the case by all the Court subordinate to the Court to which the memorandum of appeal is presented.

27.

Lastly, Sri Mohd. Arif Khan, learned Senior Counsel appearing for the respondent Nos. 4 and 5 has summed up with the submission that the writ petition is devoid of merits and is liable to be dismissed with costs.

28.

This Court has heard Sri Umesh Chandra, learned Senior Counsel, assisted by Sarvasri Vivek Singh and V.C. Misra, learned Counsel for the petitioners, and noted his detailed arguments. Sri Mohd. Arif Khan, learned Senior Counsel has argued for the respondent Nos. 4 and 5 as well as respondent No. 7, whose share in the land in dispute has been purchased by the respondent No. 4, Shafiqur Rahman Khan. The Court has also gone through the contents of the writ petition, including Paragraphs 30-A, 30-B and 30-C which have been brought on record by application dated 23.4.2010 and the Grounds A to H made in the writ petition (Ground G and H brought by amendments sought) as well as the counter and rejoinder affidavits filed by the contesting parties. The Court has also perused various orders passed by the Consolidation and Revenue Authorities which are available on record.

29.

It has emerged from the record that the original tenureholder, Fazalur Rahman Khan had died on 28.8.1950 leaving behind his two wives, that is, Smt. Faheeman, the first wife and Smt. Mohd. Jahan Begum, the second wife, the petitioner No. 1. The second wife, Smt. Mohd. Jahan Begum, the petitioner No. 1, had a daughter, Naseem Begum. It is admitted to the parties that after the death of Fazalur Rahman Khan, the second wife, Smt. Mohd. Jahan Begum, petitioner No. 1, had married one Asad Mirza. Thus, after this second marriage, she ceased to be a family member of the original tenureholder, Fazalur Rahman Khan. Now the question to be considered in this case is that after the death of Fazalur Rahman Khan, who will succeed him and would be entitled to cultivate his agricultural land. It is noteworthy that the Revenue Authorities of the District Lucknow and the concerned Tehsil authorities have to bring on record, the name of the new tenureholder on record at the said point of time in the light of the event of death of Fazalur Rahman Khan, the original tenureholder. Fazalur Rahman Khan had left behind his only son respondent No. 4, Shafiqur Rahman Khan, to inherit his property as the only male issue. Petitioner No. 1, Smt. Mohd. Jahan Begum did not have a male issue. The inheritance was to be governed by the provisions as contained in the U.P. Tenancy Act, 1939, which were operative at the relevant time. The order of succession has been given in Section 35 of the said Act, which is being quoted below:

Succession to a male tenant:-When a male tenant, other than a tenant mentioned in Section 34 dies, interest in his holding shall devolve in accordance with the order of succession given below:

(a) male linereal descendants in the male line of descent:

provided that no member of this class shall inherit if any male descendant between him and the deceased is alive;

(b) widow;

(d) mother, being a widow;

(e) step mother, being a widow;

(f) father''s father;

(g) father''s mother, being a widow;

(h) widow of male lineal descendant in the male line of descent;

(i) unmarried daughter;

(j) brother, being the son of the same father as the deceased;

(k) daughter''s son;

(l) brother''s son, the brother having been a son of the same father as the deceased;

(m) father''s brother;

(n) father''s brother''s son

30.

Thus, from Section 35 of the U.P. Tenancy Act, quoted above, it is clear that Smt. Mohd. Jahan Begum, petitioner No. 1, who had married one Asad Mirza and her daughter, Naseem Begum had no right when the only son/male member, Shafiqur Rahman Khan (the only son of Fazalur Rahman Khan, the original tenureholder) was alive. This legal provisions situation also bars others, like the petitioner No. 1, who had remarried after the death of Fazalur Rahman Khan, the original tenureholder. Even as per Section 174 of the U.P. Zamindari Abolition & Land Reforms Act, the petitioners name could not have been brought on Revenue Records in July, 1952 also.

31.

This Court has noted that Smt. Mohd. Jahan Begum was not entitled to inherit the property left behind by her late husband, Fazalur Rahman. After remarriage with Asad Mirza, she had ceased all of her rights and title as widow of tenureholder altogether in respect of property left by late Fazalur Rahman Khan, her Ist husband, the original tenureholder. She ceased to be a family member of late Fazlur Rahman Khan, the tenureholder.

32.

The Board of Revenue, U.P., at Allahabad is the Apex Revenue Authority in the State of Uttar Pradesh. It has dealt with the facts and law on this subject, after taking note of the rival version, in its judgment dated 15.11.2006, which is sought to be challenged in this writ petition. Thus, the Board of Revenue has rightly held that after the death of Fazalur Rahman Khan on 28.8.1950, his only son, that is, respondent No. 4, Shafiqur Rahman Khan, the only male member was entitled to succeed the agricultural land of his late father, Fazalur Rahman Khan. The Board of Revenue has also expressed its surprise as to how after the death of tenureholder, Fazalur Rahman Khan on 28.8.1950, the name of his widow, who had remarried with one Asad Mirza and the name of her daughter were recorded in the revenue records. Under the law, the names of Smt. Mohd. Jahan Begum, petitioner No. 1 and her daughter Smt. Naseem Begum, petitioner No. 2, ought not to have been recorded as tenureholders in the land in dispute left behind by Fazalur Rahman Khan. The Board of Revenue has also taken note that there was no entry in the revenue records of that period, that is, from 1950 and thereafter, which itself shows as to how this entry was made and how the petitioners names were entered into the revenue records. The Court has taken note of the judgments reported in 1984 RD 227, 1996 RD 66 and 1988 All.L.J. 1336 to record a finding and clarify the law that if someone''s name has been recorded against the specific provisions of Land Record Manual and other provisions of law, that is, Section 35 of the U.P. Tenancy Act, it cannot be treated to be a legal and valid entry. A person who is not entitled to be recorded as a tenureholder or co-tenureholder or Co-Bhumidhar, such entry in his or her name would not be of any avail and would not continue any further. The Board of Revenue has taken note that the petitioner No. 1, Smt. Mohd. Jahan Begum could not even identify or explain the boundaries of the agricultural land in the lower court. She could not even indicate the numbers of the plots or new numbers. On the other hand, petitioner No. 2, Naseem Begum never appeared either before the Trial court or before any other court to pursue her case. The petitioners had not even placed any revenue receipt before the courts below to demonstrate that they were cultivating the land and were paying the revenue rent (Lagan) or irrigation charges etc. Nothing of the sort has been brought on record as to what kind of crops were being sowed or harvested by them. No material worth the name has been brought on record as to which kind of food grains were produced, when sown and what seeds were sown by them. The claim regarding their possession over the land was not established.

33.

The Board of Revenue has recorded a categorical finding and highlighted the law that u/s 35 of the U.P. Tenancy Act and even u/s 172 (2) of the U.P. Zamindari Abolition & Land Reforms Act, after remarriage by petitioner No. 1, Smt. Mohd. Jahan Begum with one Asad Mirza, upon the death of her husband late Fazlur Rahman Khan, the original tenureholder, she has ceased to have any legal right in the land left behind by her first husband, that is, Fazalur Rahman Khan.

34.

Smt. Naseem Begum had married in the year 1970 and as such her rights also extinguished after the year 1970 as per Section 172 (2) of the U.P. Zamindari Abolition & Land Reforms Act. Thus, petitioner No. 2, Smt. Naseem Begum was also not entitled to have any legal rights in the land in dispute as she was not a male member of the family at the time of death of her father, Fazalur Rahman Khan, who died on 28.8.1950 as per Section 35 of the U.P. Tenancy Act and after her marriage as per Section 172 of the U.P. Zamindari Abolition & Land Reforms Act.

35.

The Board of Revenue has further dealt with the case and judicially scrutinised effect of the judgments and orders passed by the Consolidation Authorities. The Board of Revenue as well as this Court has noted that at the time of death of Fazlur Rahman Khan, the original tenureholder, the respondent No. 4, was not born and when the litigation before the Consolidation initiated, dealt with and concluded, he was a minor. As per the provisions contained in Rule 14 of the U.P. Consolidation of Holdings Rules, which are specific and clear that. It is the duty of the Assistant Consolidation Officer/Consolidation Officer to appoint a guardian to take care of the interest of a minor with the consultation of the Consolidation Committee of the concerned village. Such guardian shall be a natural guardian, unless the natural guardian possesses an interest adverse to the interest of the minor. It has also been provided in the said Rule that the name of such guardian shall be published in the Village and objection in this regard shall be invited. This procedure has not been followed in the present case. The judgment and orders by the Consolidation Authorities, as referred to by the petitioners, do not indicate as to how this procedure has been followed and as such this Court holds that the procedure as prescribed in Rule 14 of the U.P. Consolidation of Holdings Rules has not been followed in the present case.

36.

The Board of Revenue has also dealt with the question of appointment of guardian of minor, respondent No. 4, Shafiqur Rahman Khan. Sri Umesh Chandra, learned Senior Counsel appearing for the petitioners, has pointed out that a guardian was appointed to look after the interest of respondent No. 4, Shafiqur Rahman, who was a minor.

37.

This Court and the Board of Revenue have carefully gone through the orders passed by the Consolidation Authorities and the materials on record. The said Aunt (Chachi), who claimed to have been appointed as guardian of the respondent No. 4, Shafiqur Rahman, was a distant relative of the petitioners. The Board of Revenue in its judgment has recorded a categorical finding that the said Aunt, a female (Not male as provided in law) was set up as guardian only in order to grab the property of a minor. The record reveals that the so called Aunt, claimed to have been appointed as guardian, not in accordance with the procedure prescribed u/s 14 of the U.P. Consolidation of Holdings Act, did not take care of the interest of minor-Shafiqur Rahman Khan, respondent No. 4. She had not performed the duties assigned to her as guardian of minor as per the intention of Section 14 of the U.P. Consolidation of Holdings Act. Even in view of the discussions made above, where the petitioner No. 1, step mother of respondent No. 4 had remarried, upon the death of her first husband, Fazalur Rahman Khan, the only male member was respondent No. 4, who was a little child (minor), but his interest was not properly watched either by his alleged guardian or by his step mother, who had already left the family to remarry one Asad Mirza, rather all of them were interested in grabbing the property of a minor (respondent No. 4). Thus, the Board of Revenue has rightly held that the appointment of guardian was not proper. This Court also approves the findings recorded by the Board of Revenue in this regard.

38.

As far as argument of bar of Section 49 of the U.P. Consolidation of Holdings Act is concerned, the Board of Revenue has recorded detailed findings that the respondent No. 4-Shafiqur Rahman was a minor at the time of proceedings before the Consolidation courts. Thus, bar of Section 49 of the U.P. Consolidation of Holdings Act is not applicable on minors. The Trial court has rightly held that the respondent No. 4, Shafiqur Rahman, was a minor and as such provisions of Section 49 would not be attracted in the present case.

39.

The Board of Revenue has rightly held that the appeal preferred by the petitioners before the Additional Commissioner was defective. It was barred by Rule 161 of the Revenue Court Manual as submitted by Sri Mohd. Arif Khan, learned Senior Counsel appearing for the respondent Nos. 4, 5 and 7. Even scrutinising this case in the light of Order 32, Rule 3 and Order 8, Rules 1 and 10 C.P.C., the consolidation authorities had not acted in a proper and legal manner. Respondents'' case finds support from the judgments reported in 1994 RD 481 (Supra) and 2006 (3) AWC 3162 (Supra). Even in the light of the procedure prescribed in Order 41, Rule 1 such Appeal was defective.

40.

In view of the discussions made above, this Court is of the view that there is no illegality or infirmity in the judgment rendered by the Board of Revenue, the Apex Revenue Authority of the State of Uttar Pradesh. The Board of Revenue has passed a detailed, well considered and well reasoned judgment and order in which each and every issue has been dealt with. The Board of Revenue by its judgment has undone the wrong which was done to a minor tenureholder. Thus, this long drawn litigation must now come to an end. Accordingly, the writ petition is dismissed.

41.

Since this Court has dismissed the writ petition at the admission stage itself, therefore, even if legal heirs and legal representatives of respondent Nos. 6 and 7 have not been brought on record, they are not going to be affected by the judgment and order passed by the Court. It has already been noted that these persons had died long ago and no such application was made by the petitioners when the litigation was going on in consolidation and revenue courts. Lateron, share of Hafizur Rahman Khan had already been purchased by the respondent No. 4-Shafiqur Rahman Khan and as such he is duly represented. Respondent No. 6 had died much prior to 1996, a fact already in the notice of the petitioners. Seeking substitution of these respondents at this belated stage is nothing, but only a device invented by the petitioners to get the case adjourned in order to enjoy the ex parte interim order granted in their favour.

42.

No order as to costs.

Smt. Mohd. Jahan Begum and Another vs Board of Revenue and Others

Judgment