Allahabad High Court
Triveni Singh vs Deputy Director Consolidation Gonda ... on 9 January, 2025
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2025:AHC-LKO:1483 Reserved Court No. - 8 Case :- WRIT - B No. - 113 of 1983 Petitioner :- Triveni Singh Respondent :- Deputy Director Consolidation Gonda And Others Counsel for Petitioner :- Satish Chandra Sitapuri,D.C. Mukerjee,J.P.Srivastava,Jai Krishna Sinha,Mohammad Aslam Khan,S.K.Gupta,Vijay Kumar Tiwari Counsel for Respondent :- C.S.C.,Ashok Kumar Mishra,Hari Om Singh,Parmanand Sharma,S.Mirza,S.N. Goswami,Satish Chandra Kashish,Vijai Bahadur Verma Hon'ble Jaspreet Singh,J.
1. Heard Shri Mohammad Arif Khan, learned Senior Counsel alongwith Shri Mohammad Aslam Khan for the petitioner and Shri Vijai Bahadur Verma, learned counsel for the private respondents, Dr. Krishna Singh, learned counsel for the State and Shri Pankaj Gupta, learned counsel for the Gaon Sabha.
2. The petitioner has approached this Court assailing the order passed by the Settlement Officer of Consolidation dated 31.10.1981 and the order passed by the Deputy Director of Consolidation dated 30.09.1982 whereby the claim of the petitioner has been turned down which was initially allowed by the Consolidation Officer vide his order dated 04.03.1978.
3. The fact in between the parties is not much in dispute. Primarily, the dispute related to the property of Khata No.237, situate in village Barhya Fard Khan, Pargana Sahadullah Nagar, Tehsil Utraula, District Gonda. The property in question was recorded in the name of Mahadev Singh, Jagdev Singh, Zamadar Singh and Taliqudar Singh, who are the respondents in the instant petition.
4. The petitioner claimed rights over the property in question being the nephews of Hirdai Singh. It has been the case of the petitioner that upon the death of Hirdai Singh who died issueless, the petitioner being the nephew would inherit the rights on the basis of succession. Moreover, the private respondents also claimed rights on the basis of succession.
5. It is not disputed between the parties that Hirdai Singh, whose property and share is the subject of dispute, died prior to the promulgation of the U.P. Z.A. & L.R. Act, 1950 (hereinafter referred to as the Act of 1950). It is also the admitted position that the succession would open on the death of Hirdai Singh and apparently since Hirdai Singh had died prior to the promulgation of the Act of 1950. The succession to the share of Hirdai Singh would be governed by the provisions of the United Provinces Tenancy Act, 1939 (hereinafter referred to as the Act of 1939).
6. The petitioner claimed that in terms of Section 35 of the Act of 1939, the petitioner would fall within the category of Section 35 (l) which relates to the order of succession and is applicable to brother sons, the brother having been a son of the same father as the deceased.
7. It is further contended by the petitioner that the private respondents are lower in the order of succession being father's brother's son, hence upon the death of Hirdai Singh, the property devolved and vested with the predecessor-in-interest of the present petitioner and the private respondents would have no right.
8. On the other hand, the private respondents submits that since upon the death of Hirdai Singh who died in the year 1950, he was survived by his cousin brother who was the son of Sanuman Singh hence the respondents would inherit the property.
9. The Consolidation Officer vide its judgment dated 04.03.1978 ruled in favour of the petitioner granting half rights in the share of Hirdai Singh. Against the order passed by the Consolidation Officer dated 04.03.1978, four appeals were filed which have been allowed by the Settlement Officer of Consolidation vide order dated 31.10.1981, as a consequence, the order of the Consolidation Officer was set aside. The petitioner has preferred a revision before the Deputy Director of Consolidation who also by means of order dated 30.09.1982 affirmed the order passed by the Settlement Officer of Consolidation, negativing the claim of the petitioner and in this view of the matter, the petitioner has approached this Court by filing the instant writ petition.
10. Shri Mohammad Arif Khan, learned Senior Counsel alongwith Shri Mohammad Aslam Khan for the petitioner has submitted that the date of death of Hirdai Singh was 24.11.1951 whereas Shambhu Singh (predecessor-in-interest of the private respondent) died on 28.06.1951 that is prior to the death of Hirdai Singh.
11. The thrust of the submission is that once the date of death of Hirdai Singh was ascertained and proved as per law and on the date of death of Hirdai Singh, the predecessor-in-interest of the petitioner was alive, hence as per provision of Section 35 of the Act of 1939, the petitioner being the brother son would be a preferential heir and would inherit the property.
12. It is further submitted that in so far as the pedigree is concerned, there is no dispute between the parties. It is stated that the common ancestor of the petitioner and the private respondent was Baldev Singh. He was survived by his two sons, namely, Mahaveer Singh and Sanuman Singh. Mahaveer Singh had two sons, namely, Hirdai Singh and Bodhar Singh. The petitioner is the successor of Bodhar Singh. It is further stated that since Hirdai Singh and Bodhar Singh were real brother from the same father, hence upon the death of Hirdai Singh, the petitioner being the nephew and falling in the category as indicated in Section 35 (l), being preferential heir would inherit the property. It is urged that the private respondents are coming from the branch of Sanuman Singh who had four sons, inter alia, the private respondents who are the sons of Shambhu, son of Sanuman Singh.
13. It is further urged by the learned Senior Counsel that even otherwise the petitioner on the basis of survivorship would also have a the better case to succeed to the estate of Hirdai Singh and in no situation the sons of Shambhu Singh, namely the private respondents would inherit the share and estate of Hirdai Singh.
14. Attention has also been drawn by the learned Senior Counsel to the provision of Sections 35 and 38 of the Act of 1939 as well as it has been urged that upon the promulgation of the Act of 1950 which came into effect from 01.07.1952, similar order of succession was provided in Section 171 and even in the Act of 1950, there was a similar provision of inheritance by survivalship in Section 175 of the Act of 1950.
15. It is further submitted that the Consolidation Officer had taken note of the evidence filed by the respective parties and came to the conclusion that the rights of the petitioner was made out being the nephew, hence the said findings were based on proper appreciation of evidence and law. However, the Settlement Officer of Consolidation and the Deputy Director of Consolidation misconstrued the same by interfering in the order passed by the Consolidation Officer which has resulted in sheer miscarriage of justice. It is, thus, submitted that the writ petition deserves to be allowed and the order passed by the Consolidation Officer be maintained whereas the order of the Settlement Officer of Consolidation and the Deputy Director of Consolidation deserves to be set aside.
16. Shri Vijai Bahadur Verma, learned counsel appearing for the private respondents has refuted the aforesaid submissions and has urged that in so far as the pedigree is concerned, no doubt, the respondents are the sons of Shambhu Singh who was the cousin brother of Hirdai Singh. However, he submits that the date of death of Hirdai Singh has been incorrectly informed as 24.11.1951 whereas Hirdai Singh had died in the month of September 1950 whereas Shambhu Singh died on 28.06.1951.
17. It is also urged that Hirdai Singh died prior to Shambhu Singh and at the time of death of Hirdai Singh in September 1950, Shambhu Singh being the father's brother's son was covered in the order of succession in Section 35 (n) of the Act of 1939.
18. It is urged that another fact which is not disputed that at the time of death of Hirdai Singh, his own real brother, namely, Bhodar Singh had already expired. Accordingly, on the date of death of Hirdai Singh, the property would devolve on Shambhu Singh being the father's brother's son.
19. It is further urged by the learned counsel for the respondents that in order to prove the correct date of death of Hirdai Singh reliance has been placed on Register No.8 (maintained at police station which relates the criminal history and particulars of the accused). It is submitted that the constable of the police station concerned was summoned by the Consolidation Authorities and Register No.8 was perused and it was proved in accordance with law wherein the date of death of Hirdai Singh was shown as 08.09.1950.
20. It is also urged that the said Register No.8 has probative value as it is not susceptible to interpolation and manipulation. The Settlement Officer of Consolidation and the Deputy Director of Consolidation while taking note of the aforesaid entry relating to the date of death of Hirdai Singh have rightly applied the law in terms of Section 35 of the Act of 1939 and the said findings being a finding of fact, it is not liable to be interfered with in exercise of power under Article 226 of the Constitution of India.
21. It is further urged that the submission made by the learned Senior Counsel for the petitioner that the petitioner would inherit on the basis of survivorship is not quite correct; inasmuch as survivorship would only come into the picture if there was no legal heir as mentioned in the order of succession contained in Section 35 of the Act of 1939.
22. It is also urged that the Consolidation Officer misdirected itself and went on to consider the dispute and applied the law of succession as applicable in terms of the Act of 1952 whereas at the time of death of Hirdai Singh it was the Act of 1939 which was applicable and since the private respondents were the preferential heir hence the Settlement Officer of Consolidation and the Deputy Director of Consolidation have rightly upheld the claim of the private respondents and set aside the order passed by the Consolidation Officer and the same requires no interference.
23. The Court has heard the learned counsel for the parties and also perused the material on record.
24. It is not in dispute that the controversy in question relates to the share of Hirdai Singh. It is also not disputed that the petitioner is the successor of Bodhar Singh, who was the real brother of Hirdai Singh. It is also not in dispute that the private respondents are the successor of Shambhu Singh (son of Sanuman Singh) and as per the admitted pedigree, Hirdai Singh and Bodhar Singh are the sons of Mahaveer Singh whereas Shambhu Singh was the son of Sanuman Singh and Mahaveer Singh and Sanuman Singh were real brother, being sons of Baldev Singh the common ancestor.
25. In order to ascertain the veracity of the respective contentions, it will have to be seen as to what was the date of death of Hirdai Singh. At this stage, it will be relevant to point out that in so far as the date of death of Shambhu Singh is concerned, there is no dispute between the parties as both warring parties admit that Shambhu died on 28.06.1951. However, the dispute is in respect of the date of death of Hirdai Singh. As per the petitioner, he died on 24.11.1951 i.e. after the death of Shambhu Singh whereas the private respondents states that Hirdai Singh died in September 1950 i.e. prior to the date of death of Shambu Singh.
26. The Consolidation Officer while recording his finding relied upon the Parivar Register to indicate the date of death of Hirdai Singh in the year 1951 whereas the Settlement Officer of Consolidation as well as the Deputy Director of Consolidation have relied upon the Register No.8 maintained at the police station as well as the oral evidences of the witnesses and making an overall assessment concluded that Hirdai Singh died in the year 1950 and not in the year 1951 i.e. prior to the death of Shambhu Singh.
27. This would be an important link to reach the right conclusion as once the date of death of Hirdai Singh is fixed that would be the determinative factor when the succession would open and at that given point of time who were the preferential heirs entitled to inherit in terms of Section 35 of the Act of 1939.
28. Having considered the submissions and from the perusal of the material on record, the Settlement Officer of Consolidation and the Deputy Director of Consolidation have relied upon the Register No.8. It cannot be disputed that the Register No.8 as maintained in the police station contains the full particulars, details and history of the accused and it also records the status of the proceedings against such accused if pending in the court including recording the date of death. On the other hand, the Consolidation Officer has relied upon the Parivar Register which may not always be maintained as per law as it is mentioned as per the information given by the parties regarding the date of death or birth as the case may be.
29. Fact remains that both the records i.e. Register No.8 as well as the Parivar Register are maintained and are public documents. In law, there is presumption that the public records are maintained in accordance with law unless the contrary is proved. In the case at hand, it would reveal that apart from the statement of the Pradhan relating to the date of death of Hirdai Singh no categorical proof could be placed before the Consolidation Authorities. The said entries in the Parivar Register were also not proved by summoning the same or the witnesses on whose information the entries was recorded, whereas on the other hand, the constable was summoned from the police station concerned where the Register No.8 was maintained and he was examined as the witness who proved the same wherein the date of death of Hirdai Singh was recorded as 08.09.1950.
30. The Settlement Officer of Consolidation as well as Deputy Director of Consolidation have further noticed that the witnesses which were examined also gave their evidence indicating that Hirdai Singh had died about 24 years ago and considering the time when their deposition was recorded going back by 24 years would relate to the year 1950. The revenue entries were also noticed to indicate that upon the death of Hirdai Singh there was no occasion for the name of Shambhu Singh being recorded if he had died prior to Hirdai Singh. Moreover, had the father of the petitioner, namely, Subedar been alive then there was no occasion for the name of Triveni (the petitioner) to be recorded alongwith Hirdai Singh as shown in 1356 fasli. Moreover, Triveni Singh had initiated proceedings for correction of entries which was dismissed in 1955 and his appeal was dismissed in 1957 and since then upto 1976 there was no challenge to the said entries i.e. for a period of about 19 years and for which no explanation was furnished by Triveni Singh.
31. Noticing the aforesaid aspect of the matter both the Settlement Officer of Consolidation and the Deputy Director of Consolidation found that Hirdai Singh died in the year 1950 and at that point of time Shambhu Singh was alive and being the father's brother's sons, he inherited the estate of Hirdai Singh.
32. The entire thrust of the submission of the learned Senior Counsel for the petitioner is based on the date of death of Hirdai Singh treating it to be 24.11.1951 but he could not demonstrate as to how the said date would prevail where there was no supporting evidence in this regard.
33. On the other hand, not only the entry contained in Register No.8 but even the statement of the witnesses noticed and considering the same the Settlement Officer of Consolidation and the Deputy Director of Consolidation concluded that Hirdai Singh had died on 08.09.1950. The finding recorded by the Settlement Officer of Consolidation and the Deputy Director of Consolidation as far as the date of death concerned is primarily a finding of fact which is based on evidence and material on record and this Court in exercise of power under Article 226 of the Constitution of India is not inclined to interfere with such a finding of fact.
34. The findings recorded by the Settlement Officer of Consolidation and the Deputy Director of Consolidation, it cannot be said to be perverse in the sense that it could not be shown that the findings are not based on any evidence or it is based on inadmissible evidence or on the basis of evidence, the Consolidation Authorities have come to such conclusion which no prudent person, can come to.
35. In this view of the matter where the date of death of Hirdai Singh has been taken to be of the year 1950 and admittedly on the date of death of Shambhu Singh being alive, would have right of preferential succession in preference to the claim of the petitioner and this aspect has been rightly decided by the Settlement Officer of Consolidation and the Deputy Director of Consolidation and this Court is not impressed with the submissions of the learned Senior Counsel to come to any different conclusion.
36. In so far as the submission of the learned Senior Counsel for the petitioner regarding the claim of the petitioner on the basis of survivorship is concerned, it is also not sustainable as the issue of survivorship does not come into the picture as there were heirs in the order of succession as provided under Section 35 of the Act of 1939.
37. For all the aforesaid reasons, this Court does not find that there is any merit in the petition which is, accordingly, dismissed. The order passed by the Deputy Director of Consolidation is affirmed. Costs are made easy.
Order Date :- January 9, 2025 ank