Smt. Saroj Devi vs Board of Revenue and Others

Prakash Krishna, J.—The only point mooted in the present writ petition is whether the suit giving rise to the present writ petition filed by the mother of the petitioner for declaration and possession u/s 229-B/209 of U.P.Z.A and L.R Act against Suraj Prasad and his wife Smt. Phulmati is barred by Section 49 of U.P Consolidation of Holdings Act (hereinafter referred to as Act). The background facts may be noticed in brief;

Mahadeo Prasad had two sons, Gaya Prasad and Suraj Prasad (defendant) and was the recorded tenant of the agricultural land in dispute. After death of Mahadeo Prasad, the agricultural plots were inherited jointly by Gaya Prasad and Suraj Prasad. Gaya Prasad died in the year 1947 leaving behind him his widow Smt. Phoollar Devi. The holding continued to be recorded in the name of Suraj Prasad, the surviving son of Mahadeo Prasad.

Smt. Phoollar Devi widow of Gaya Prasad instituted suit No. 58 under Sections 229-B and 209 for declaration that she may be declared co Bhumidhar along with her husband''s brother Suraj Prasad in respect of the ancestral holdings. It was further pleaded that out of earning of the ancestral holdings, Suraj Prasad has purchased Khasra Nos. 182 and 405 in the name of his wife Smt. Phoolmati. She was also impleaded as defendant No. 2 in the suit besides Gaon Sabha as defendant No. 3 and State of U.P. as defendant No. 4.

The suit was contested by Suraj Prasad and Smt. Phoolmati by filing separate written statements. Suraj Prasad came out with the case that after death of his brother Gaya Prasad his all rights came to an end as the property in dispute came in his exclusive possession and it was also so found by the Tahsildar in mutation proceedings. His name was recorded in the revenue record in the basic year i.e. immediately after the abolition of Zamindari. The other plea raised by him was that the suit is barred by Section 49 of the Act in as much as admittedly the Village where in the disputed plots lie came under the consolidation operation. An objection dated 21.4.1964 was filed by the plaintiff Smt. Phoollar Devi u/s 9-A of the Act and it was registered at case No. 357. However, the said objection was dismissed on 6.10.1964 though in default.

The parties led evidence in support of their respective cases. The case of the plaintiff was that she did not file any such objection dated 21.4.1964 as alleged by the defendant No. 1 Suraj Prasad. She further pleaded that name of Suraj Prasad was recorded in the revenue record in the representative capacity and the property in dispute being ancestral, she is entitled for the relief prayed for in the plaint.

As many as 9 issues were struck by the trial Court who by its judgment and decree dated 29.10.1981 decreed the suit in part except that the plaintiff could not prove that the plots Nos. 182 and 405 which were purchased by defendant No. 2 Smt. Phoolmati Devi was acquired out of Joint Hindu Family fund. The sale deed in respect of these plots was in the name of defendant No. 2. It was held that the plaintiff has got no right therein and consequently it was dismissed in respect of the aforesaid two plots. Two appeals were preferred one by the plaintiff and another by the defendant. Both the appeals came up for consideration before the Additional Commissioner (Administration), Gorakhpur Division, Gorakhpur who by the order dated 23.12.1982 allowed both the appeals after setting aside the judgment and decree of the trial Court and remanded the matter back to the trial court to examine the matter a fresh and to find out whether any objection u/s 9 of the Act was preferred by the plaintiff or not. Her signature on the objections may be got examined by handwriting expert. A passing remark was made that if a declaratory suit has been filed before the Consolidation Court, no regular suit can be filed u/s 49 of the said Act. The matter was contested by the plaintiff by filing second appeal No. 28 of 1982-83 before the Board of Revenue, U.P. at Allahabad. The said appeal although has been allowed but at the same time the suit in its entity has been dismissed by the Board of Revenue by the order dated 12.7.1994. During the pendency of the second appeal, Smt. Phoollar Devi has expired and she was substituted by her daughter, Saroj Devi, the petitioner herein.

Shri G.N. Verma, learned Senior Counsel along with Shri Chandra Shekher Srivastava, Advocate submits that the Board of Revenue committed illegality in allowing the appeal filed by Smt. Phoollar Devi and also dismissing the suit at the same time. The order of the Board of Revenue is a very peculiar order. On merits, it wrongly proceeded to dismiss the suit on the footing that the right of Gaya Prasad stood washed of by reason of fresh determination in a settlement before the Consolidation Court. It wrongly held that the dismissal of objection filed by Smt. Phoollar Devi even if by default is an adjudication by the Consolidation Court and as such the suit is barred by Section 49 of the Act. The said approach is faulty in as much there was no determination whatsoever by the Consolidation Court, the entry which stood prior to the commencement of the consolidation operation, in the revenue record continued even after the consolidation operation. It was further submitted that the defendant No. 1 has accepted the plaintiff as co tenure holder and the said admission is contained in the sale deed, copies whereof were filed in the second appeal before the Board of Revenue and the original was produced at the time of hearing. In reply, Shri Vijay Kumar Ojha, Advocate for the contesting respondent submits that in view of very wide language employed in Section 49 of the Act, the suit has been rightly held to be barred by that provision. Reference has been made to certain decisions of the Apex Court which will be considered at the relevant place. He further submits that name of Suraj Prasad was recorded in the Chakbandi Khatauni. The consolidation proceedings become final and in CH Form No. 45 the name of Suraj Prasad alone was recorded. After lapse of 14 years, from the termination of the consolidation proceedings, the suit giving rise to the present writ petition was filed. The submission is that the suit is barred by Section 49 of the Act. Considered the respective submissions of the Learned Counsel for the parties and perused the record.

Before proceeding further, the facts which are not in dispute may be noticed in brief:

Even the Board of Revenue has noticed that there are kinds of properties in dispute; (1) ancestral property (2) self acquired property of defendant No. 2. The Board of Revenue has dealt with both the properties separately. The trial court had decreed the suit in respect of the ancestral holding only. It is also not in dispute that Mahadeo was the common ancestor who was recorded tenure holder of the ancestral holding and after his death it devolved upon his two sons Gaya Prasad and Suraj Prasad. Gaya Prasad died in the year 1947 and therefore, by operation of law, it was inherited by Smt. Phoollar Devi, the plaintiff. The case of Suraj Prasad, defendant No. 1 is that his name was mutated after death of Gaya Prasad and as such he has become the exclusive owner of the ancestral holding. After abolition of zamindari his name was recorded exclusively in the revenue record.

The case of the plaintiff is that after death of her husband Gaya Prasad, Suraj Prasad was the head of the family and he used to manage the affairs of the family, being karta/head. She did not file any such objection as alleged by the defendant No. 1 before the consolidation authority. The name of Suraj Prasad was thus according to the plaintiff was recorded in the revenue record in the representative capacity i.e. representing all the members of the family. Now the question arises whether on these facts, the suit is barred by Section 49 of the Act or not. Before proceeding further, one more aspect of the case is required to be considered first. The anchor sheet of the argument of the defendant-respondent is the objection dated 21.4.1964 purporting to have been filed by Smt. Phoollar Devi during consolidation operation before the consolidation authority. The trial court considered the said aspect of the matter in the light of the evidence available on the record under issue Nos. 8 and rejected the contentions of the defendant-respondent. It held that the said objections were not filed by Smt. Phoollar Devi. It preferred to believe the statement that she did not file any such objections during the consolidation operation. The trial Court has also noticed the fact that the defendant has failed to prove that the objections purported to be on behalf of the Smt. Phoollar Devi was filed by her. In this regard Smt. Phoollar Devi while she was being cross examined was not questioned. The Board of Revenue proceeded to decide the second appeal on the premises that the objections purported to have been filed by Smt. Phoollar Devi were filed by her. It conveniently ignored the above aspect of the matter highlighted by the trial Court. This is an obvious mistake in the judgment of the Board of Revenue. The Board of Revenue before varying or modifying the decree of the trial Court should have considered this aspect of the case also. The judgment of the Board of Revenue is therefore, vitiated on this account. In other words, it follows that the finding of the trial Court that no such objections were preferred by Smt. Phoollar Devi remains intact.

Even otherwise also it does not inspire confidence as to why a person especially a widow lady who has indisputably a share in a property will file an objection and thereafter get it dismissed for want of prosecution.

Taking into consideration that Smt. Phoollar Devi was a pardanasin widowed lady residing in the Village along with her brother- in-law Suraj Prasad, defendant No. 1, the plea that the said objections were filed by Smt. Phoollar Devi does not appeal to reason.

Coming to Section 49 of the Act, it bars the civil court and the revenue court to entertain any suit or proceeding regarding the matters including rights in land where proceedings could or ought to have been taken before the consolidation authorities. A very wide language has been employed barring the jurisdiction of civil or revenue court, therein.

In the case on hand, name of Suraj Prasad was recorded in the revenue record prior to and after the consolidation operation. It is not the case of Suraj Prasad that his brother Gaya Prasad had no right, title or interest in the disputed holding left by his father Mahadeo Prasad. His case is that Gaya Prasad had no interest in the agricultural operation and that is the reason that after death of Gaya Prasad his name was mutated by the Tahsildar in mutation proceedings. Obviously, there being no plea of ouster, after death of Mahadeo, Gaya Prasad by operation of law has become the co tenure holder along with Suraj Prasad and possession of one co tenure holder is on behalf of all the co tenure holders. In other words, mutation of the entire disputed holding in the name of Suraj Prasad, defendant No. 1 will not in any manner affect the right, title and interest left by Gaya Prasad and succeeded by his widow Smt. Phoollar Devi. Therefore, recording of the name of Suraj Prasad in the revenue records after death of Gaya Prasad is not of much help to him.

At this juncture, the plea that name of Suraj Prasad was recorded in his representative capacity put forward by the plaintiff assumes importance. The Board of Revenue in its short judgment has very conveniently ignored this aspect of the case.

The petitioner has placed strong reliance upon a judgment of the Apex Court in the case of Karbalai Begum Vs. Mohd. Sayeed and Another, a case which was relied upon by the trial court. The opening part of this judgment gives factual inside of the case. It was also a case of widow. The holding was ancestral and was being looked after by cousins and husband''s brother. The plaintiff''s name was deleted from the revenue record but she was made to understand that there is nothing wrong and the holding is being managed by the cousins properly. In this factual scenario, plea of bar of Section 49 of the Act was pressed into service by their cousins.

In this fact situation, it was held that Section 49 of the Act is not attracted. In my considered view, the ratio laid down therein is fully attracted to the facts of the present case as the facts of the present case are nearer to the facts of that case. It is apt to consider the decision relied upon by the Learned Counsel for the respondent with regard to the applicability of Section 49 of the Act.

Reliance was placed on Sita Ram Vs. C. Bhondey and Others, In this case the plaintiff did file objections before the consolidation authorities and was unsuccessful thereafter he filed a civil suit for declaration that the order of the Deputy Director of Consolidation is without jurisdiction. The suit was contested on the plea that it is barred by Section 49 of the Act. The plaintiff came forward with the case that consolidation authorities order is without jurisdiction as it had no jurisdiction to decide the question of title to the land as well as to the question relating to the parentage of the respondent No. 1 which the Civil Courts alone could decide. In this connection, the Supreme Court held that the suit is barred by Section 49 of the Act as the consolidation authorities have jurisdiction to decide the question of title. The case is distinguishable on facts and has no application to the facts of the case on hand.

The next case relied upon is Narendra Singh and Ors. v. Jai Bhagwan and Ors. 2005(1) AWC 7(SC). In this case, an agreement to sell was executed by the defendant''s father. In a suit for specific performance of contract to sale, the father came out with the case that he was not exclusive owner of the property in question as his sons who were majors have also shares. The facts of the said case are therefore, all together different with the facts of the case on hand and therefore this case is also of no assistance to the respondent.

The last case relied upon is Madan Mohan Mishra v. Chandrika Pandey(D) through LRs. 2009 (2) AWC 1135 (SC). This case is also distinguishable on facts.

The upshot of the above discussions is that the defendant-respondent failed to prove the ouster of Gaya Prasad or his widow. Gaya Prasad and his widow became co sharer along with Suraj Prasad in the disputed land after death of Mahadeo. The property in dispute being ancestral, the name of Suraj Prasad was recorded in the representative capacity. There being no change in the revenue entry even after close of the consolidation operation in the Village, the widow of Gaya Prasad will remain the co tenant of the property in question.

The plea that objections were filed by Smt. Phoollar Devi before the Consolidation Authority has not been found to be proved by the trial Court and the said finding has not been set aside by the Board of Revenue. It follows that no objections was filed by Smt. Phoollar Devi during the consolidation operation and non filing of objections by Smt. Phoollar Devi will not take away her right of co tenancy in the disputed land by operation of Section 49 of the Act here. In other words, the suit is not in the grip of Section 49. It is not barred by Section 49 of the Act, so as it relates to ancestral property is concerned. To this extent, the judgment of the Board of Revenue cannot be allowed to stand.

So far as the two plots Khasra Nos. 182 and 405 are concerned, these plots were purchased in the name of defendant No. 2. There is no evidence to show that these plots were purchased out of Joint Hindu Family Fund. In this respect, the judgment of the trial Court and of the Board of Revenue is perfectly justified. Being separate acquisition of Suraj Prasad, the plaintiff has got no title therein.

No other point was pressed.

In the result, the writ petition succeeds and is allowed in part. The judgment of the Board of Revenue dated on 12.7.1994 is modified and the decree so far it relates to the dismissal of the suit in respect of ancestral property is concerned, is hereby set aside. In other words, the judgment and decree of the trial Court is restored back. But no order as to costs.