Ved Prakash and Others vs Dy. Director of Consolidation, Muzaffarnagar and Others

Ram Surat Ram (Maurya), J.—Heard Sri Arjun Singhal, for the petitioners and Sri Afaq Ahmad Ansari, for the respondents. The writ petition has been filed against the orders of Deputy Director of Consolidation (respondent-1) dated 26.12.2005, Settlement Officer Consolidation (respondent-2) dated 15.9.2004 and Consolidation Officer (respondent-3) dated 20.11.2002, passed in the proceeding, u/s 12 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).

The dispute relates to the land of chak-108 of village Patti Kasabi and chaks-59 and 62 of village Patti Naugaon, tahsil Kairana, district Muzaffarnagar, which were carved out in the name of Imam Ali. After the death of Imam Ali, the name of Smt. Bashiran, his widow was recorded over it, by the order of Consolidation Officer dated 28.4.1984. After death of Smt. Bashiran, Taj Mohammad (now represented by respondents-7 to 11) and Sher Mohammad (respondent-6) (hereinafter referred to as the respondents) filed applications u/s 12 of the Act, for recording their names, on the basis of Will of Imam Ali dated 20.5.1980. One Shabbir also filed an objection claiming himself to be the heir of Smt. Bashiran. Shabbir is now not contesting the matter. It has been stated by the respondents that Imam Ali during his life time executed a registered Will dated 20.5.1980, according to which after his death, the property in dispute devolved upon his widow Smt. Bashiran and after death of Smt. Bashiran, it devolved upon his three sons namely Taj Mohammad, Sher Mohammad and Aas Mohammad. However, Aas Mohammad was absconding for more than 7 years and was not heard during this period as such his civil death be presumed and the property in dispute be recorded in the names of Taj Mohammad and Sher Mohammad, remaining two sons of Imam Ali.

The applications of the respondents and Shabbir were registered as Case Nos. 146, 147, 148, 204, 205 and 206) u/s 12 of the Act. These cases were consolidated and heard by Consolidation Officer (respondent-3), who by order dated 21.1.1986, directed for mutating the names of Taj Mohammad and Sher Mohammad over the land in dispute. Thereafter, a time barred appeal (registered as Appeal No. 193/140) was filed from the aforesaid order, in the name of Aas Mohammad. Respondent-2 by order dated 10.1.1990 allowed the appeal and remanded the case to the Consolidation Officer for trial on merit and the parties were directed to appear before the Consolidation Officer on 21.1.1990. After remand, it is alleged that statements of Mahendra son of Ghasitu and Aas Mohammad son of Imam Ali were recorded on 21.7.1990 and 2.2.1991 respectively. However, according to the respondents, no such statement was ever recorded by Consolidation Officer, rather in collusion with the staff, fabricated statements of Mahendra and Aas Mohammad were placed on record. The respondents moved an application dated 16.12.1998, to recall Mahendra and Aas Mohammad for cross-examination. This application was allowed by the Consolidation Officer by the order dated 18.2.1999 on the costs of Rs. 150/- and Mahendra and Aas Mohammad were directed to appear for cross examination on 10.3.1999. In spite of the order of Consolidation Officer dated 18.2.1999, Aas Mohammad was not produced for cross-examination. The respondents, then moved an application to decide the validity of Power of Attorney dated 25.9.1986 allegedly executed by Aas Mohammad in favour of Jameer Hasan. The Consolidation Officer framed an additional issue on 25.1.2002 as to whether the Power of Attorney dated 25.9.1986, allegedly executed by Aas Mohammad in favour of Jameer Hasan was a forged document?

During pendency of the matter before Consolidation Officer, one Vakeela claiming to be wife of Aas Mohammad also filed an objection for recording her name as an heir of Aas Mohammad. She also took the case that Aas Mohammad was absconding and was not heard for more than seven years. On behalf of Aas Mohammad, witnesses Mam Chand son of Inder, Satyapal son of Lala Baburam, Mahendra son of Ghasitu, Ahsan Ali son of Deen Mohammad and Satya Prakash were examined. On behalf of the respondents Badarban son of Wahid, Yusuf son of Idu, Jameel Ahmad son of Imam Ali and Taj Mohammad son of Imam Ali were examined. The Consolidation Officer, by order dated 20.11.2002, held that on the basis of affidavit of Jameer Hasan, F.I.R. lodged against Aas Mohammad and Settlement made in this case by the parties and House Tax Assessment in the name of Aas Mohammad, it was proved that Aas Mohammad was alive. It was not proved by the respondents that Aas Mohammad was not heard for more than seven years. Oral evidence of Taj Mohammad in this respect is not reliable, in the light of above documentary evidence. The respondents may file a civil suit for declaration of civil death of Aas Mohammad. As Aas Mohammad was alive as such name of Smt. Vakeela could not be mutated. Execution of registered Power of Attorney dated 25.09.1986 could not be proved to be forged document. On these findings the Consolidation Officer by order dated 20.11.2002 directed for mutating the names of true brothers, Taj Mohammad, Sher Mohammad and Aas Mohammad over the land in dispute.

The respondents filed an appeal (registered as Appeal No. 1782) from the aforesaid order. Before Settlement Officer Consolidation, an affidavit alleged to be sworn by Aas Mohammad was filed on 6.10.2003. The appeal was heard by respondent-2, who by order dated 15.9.2004 held that as Aas Mohammad himself has filed his affidavit before the Court as such the arguments that Aas Mohammad was absconding and was not heard for more than seven years, was not liable to be accepted. The order of Consolidation Officer does not suffer from any illegality. On these findings the appeal was dismissed by order dated 15.9.2004.

In the meantime, the heirs of Taj Mohammad and Sher Mohammad executed sale-deeds dated 28.5.2003 and 6.7.2004, in favour of the petitioners. Ved Prakash and others (petitioners-1 to 3) and Smt. Kirti Agrawal (petitioner-4) filed two revisions (registered as Revision No. 1578 and 1646) from the aforesaid orders. Both the revisions were consolidated and heard by Deputy Director of Consolidation (respondent-1) who by his order dated 26.12.2005 found that findings of Settlement Officer Consolidation and Consolidation Officer that Aas Mohammad was not absconding and was not unheard for more than seven years, do not suffer from any illegality. The sale-deed executed in favour of the petitioners, in excess of the share of Taj Mohammad and Sher Mohammad was invalid. On these findings, orders of Settlement Officer Consolidation and Consolidation Officer were upheld and it was held that the sale-deed executed in favour of the petitioners, was valid for 2/3 share of Taj Mohammad and Sher Mohammad in the land in dispute and revisions were dismissed by the order dated 26.12.2005. Hence this writ petition has been filed.

The Counsel for the petitioner submitted that Settlement Officer Consolidation, while passing the remand order dated 10.1.1990 directed the three brothers Taj Mohammad, Sher Mohammad and Aas Mohammad to appear before the Consolidation Officer on 21.1.1990. Aas Mohammad never appeared before the Consolidation Officer, either on the date fixed or on any subsequent date. A fabricated statement of Aas Mohammad (allegedly recorded on 2.2.1991) was placed on record behind the back of Taj Mohammad and Sher Mohammad, due to which they filed an application for summoning Aas Mohammad for cross-examination, which was allowed by Consolidation Officer by order dated 18.2.1999. Even then Aas Mohammad was not produced for cross-examination before the Consolidation Officer. To fill up the lacuna, an affidavit of Aas Mohammad, alleged to have been sworn on 6.10.2003 was filed behind the back of the respondents, before the Appellate Court, although the affidavit was not the evidence and no reliance could be placed on it. From above circumstances, it was proved that Aas Mohammad was not heard for more than seven years and on his behalf, Jameer Hasan (respondent-5) was filing fabricating affidavit and papers. The Consolidation Officer has illegally not examined all these relevant circumstances and held that the respondents may get a declaration from Civil Court in respect of civil death of Aas Mohammad. He submitted that as the issue relating to civil death of Aas Mohammad was arising, in relation to the mutation of his name over the agricultural land before the Consolidation Officer as such it was within his jurisdiction to decide this issue and he was bound to decide this issue. The appellate authority and revisional authority have merely reproduce the order of Consolidation Officer and neither applied their mind nor recorded their own independent findings. The orders of respondents-1 to 3 are illegal and liable to be set aside.

In reply to the aforesaid arguments the Counsel for respondents-4 and 5 submitted that Aas Mohammad was shifted to Chandigarh in connection with his livelihood, where he was permanently settled. House Tax Assessment of Aas Mohammad was filed to prove that he owned a house in his name in Chandigarh. Taking advantage of his absence in the village, his two brothers Taj Mohammad and Sher Mohammad took false plea before Consolidation Officer that Aas Mohammad was absconding and was not heard for more than seven years. The proclamation issued by Consolidation Officer was not come to the knowledge of Aas Mohammad as he was permanently residing in Chandigarh. The Consolidation Officer relying upon the false statements of Taj Mohammad and Sher Mohammad, by order dated 21.1.1986, directed for mutation of their names. On coming to know about the order dated 21.1.1986, Aas Mohammad, himself, filed Appeal No. 193/140 of 1987, through Sri Mohd. Saleem Khan, Advocate. He himself signed the memorandum of appeal and vakalatnama on 14.1.1987. Aas Mohammad duly executed a registered Power of Attorney dated 25.9.1986 in favour of Jameer Hasan, for doing pairavee as it was not convenient for him to attend every dates at Muzaffarnagar. His statement was recorded by the Consolidation Officer on 2.2.1991. The photograph of Aas Mohammad was affixed on his affidavit of sworn on 6.10.2003, before Public Notary at Muzaffarnagar, filed by him in person before Settlement Officer Consolidation. Relying upon all these evidence, the consolidation authorities have held that civil death of Aas Mohammad was not proved. Concurrent finding of facts recorded by the consolidation authorities do not suffer from any illegality. The writ petition has no merit and is liable to be dismissed.

I have considered the arguments of Counsel for the parties and examined the record. The issue relating to civil death of Aas Mohammad arose, in relation to the mutation of his name over the agricultural land before the Consolidation Officer as such it was within the jurisdiction of Consolidation Officer to decide this issue and he was bound to decide this issue. Section 108 of the Evidence Act, 1872, provides that when the question is whether a man is alive or dead and if it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. In this case, Taj Mohammad, who is real brother of Aas Mohammad, appeared in the witness box and stated that Aas Mohammad was not heard for more than seven years. Thus the burden to prove that Aas Mohammad was alive was shifted upon respondents-4 and 5. Aas Mohammad did not appear before the Consolidation Officer either in compliance of remand order dated 10.1.1990, by which he was directed to appear before the Consolidation Officer or in compliance of the order dated 18.2.1999 passed by Consolidation Officer, by which he was directed to appear from cross-examination. In such circumstances, the presumption of his civil death was liable to be raised u/s 108 of the Evidence Act, 1872, as the presumption remained un-rebutted. Supreme Court in L.I.C. of India Vs. Anuradha, held that the presumption stands un-rebutted for failure of the contesting party to prove that such man was alive either on the date on which the dispute arose or at any time before that so as to break the period of seven years counted backwards from the date on which the question arose for determination. Thus under the law, the consolidation authorities were liable to raise presumption of law in favour of Taj Mohammad and others.

The Consolidation Officer based his findings on the basis of affidavit of Jameer Hasan, F.I.R. lodged against Aas Mohammad and Settlement made in this case by the parties and House Tax Assessment in the name of Aas Mohammad and registered power of Attorney dated 25.9.1986 allegedly executed by Aas Mohammad and held that it was proved that Aas Mohammad was alive and it was not proved by the respondents that Aas Mohammad was not heard for more than seven years. The Consolidation Officer illegally ignored the relevant circumstances that Aas Mohammad was never produced before him inspite of the fact that he was directed to appear. Supreme Court in Sudha Devi Vs. M.P. Narayanan and Others, and Ayaaubkhan Noorkhan Pathan Vs. The State of Maharashtra and Others, held that affidavit is not an evidence and no reliance can be placed on it, unless the other party is given an opportunity of cross-examination. The consolidation authorities have illegally placed reliance on the affidavit of Aas Mohammad. In case, Aas Mohammad is alive and residing in Chandigarh, then he could appear before the Consolidation Officer.

Taj Mohammad through out stated that Jameer Hasan was producing fabricated papers to prove that Aas Mohammad was alive. In case Aas Mohammad was alive then he should appear before the Court and support the papers produced by Jameer Hasan. Although, it is alleged that he had come to Muzaffarnagar, where his affidavit was sworn but no reason has been given why he had not appeared for cross-examination. In such circumstances findings of consolidation authorities are not based upon legal evidence but based upon affidavit which was no evidence. In view of the aforesaid discussion, the orders of consolidation authorities are illegal. The writ petition succeeds and allowed. The orders of Consolidation Officer (respondent-3) dated 20.11.2002, Settlement Officer Consolidation (respondent-2) dated 15.9.2004 and Deputy Director of Consolidation (respondent-1) dated 26.12.2005 are set aside. The matter is remanded to the Consolidation Officer, where Aas Mohammad will appear for cross-examination. The Consolidation Officer will decide the matter afresh, in the light of statement of Aas Mohammad or any other evidence adduced by the parties.