Allahabad High Court
Ashok Kumar (In-Person) And Ors. vs Deputy Director Of Consolidation ... on 10 February, 2025
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2025:AHC-LKO:8505 Reserved Court No. 8 Case :- WRIT - B No. - 290 of 2019 Petitioner :- Ashok Kumar (In-Person) And Ors. Respondent :- Deputy Director Of Consolidation Barabanki And Ors. Counsel for Petitioner :- Mohammad Ayub,Matri Datt Tripathi,Nishi Agarwal,Ravi Shanker Singh,Rudra Pratap Pal,Salma Bano,Shresth Agarwal,Vimlesh Kumar Kashyap Counsel for Respondent :- C.S.C Jaspreet Singh,J.
Ref:- C.M.A. Nos. 25 and 26 of 2024
1. The aforesaid applications have been moved by the petitioners to bring on record the heirs of deceased respondent no. 5 who is reported to have died on 20.05.2020.
2. Having considered the aforesaid application as well as its accompanying affidavit wherein it was mentioned that the petitioner did not have the knowledge regarding the death of respondent no. 5 but only when the office report dated 09.01.2024 was recorded in the order of this Court dated 21.02.2024 that the petitioner became aware and thereafter the application has been moved.
3. Having considered the aforesaid application and the ground shown therein, this Court finds that there is no legal impediment in allowing the application, moreover, the record also indicates that the notices were issued to the proposed legal heirs and despite the service being sufficient as indicated in the office report dated 22.08.2024, no objections have been filed, hence, the application is allowed and the petitioner who appears in person shall carry out the necessary amendment in the array of parties.
On merit/petition.
4. The dispute in question relate to Plot Nos. 416, 472, 427, 336, 425, 426 and 780 situate in Gram Mathura Pargana Bhituali, Tehsil Fatehpur District Barabanki.
5. As per the petitioner, the original plots bearing No. 396, 403, 404, 421, 422, 429, 439, 440 and 450 total 9 plots measuring 3.26 hectares was recorded as Sirdari plots in Fasli year 1363 to 1365 in the revenue records which were of the common ancestor of the petitioners and the private respondents namely Nankau who was granted the said property in 1359 Fasli.
6. Since the said plots were near the river, accordingly on account of alluvial and diluvial action of the river, the said land on many occasions used to be submerged. The said plots are currently bearing Plot numbers as mentioned above.
7. It is the case of the petitioners that the property as indicated above belonged to Nankau who had three sons namely Ram Deen, Ram Charan and Atma Ram.
8. It is also stated that after the death of Nankau, the aforesaid property devolved on his three sons, each having1/3rd share. Ram Deen was survived by his only son Hari and the petitioners are all sons of Hari belonging to the branch of Ram Deen.
9. Sri Ram Charan was survived by his son Bhola who is the private respondent no. 4. Whereas children of the third son, namely Atma Ram, are the private respondents no. 5 to 10.
10. It is also the case of the petitioners that Bhola was a clever person and he with the connivance of the Revenue Authorities got his name mutated in respect of the share relating to Ram Deen and accordingly usurped the rights of the present petitioners.
11. Since, Hari was in service and did not reside in the village, accordingly, he was not aware of the revenue entries which were manipulated by Bhola.
12. In the aforesaid backdrop, the petitioners staking their claim initially instituted a suit seeking declaration of their rights under Section 229-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, however, the same could not be taken to its logical conclusion as the Consolidation operations commenced in the village and as a consequence, the declaratory suit pending before the Revenue Court abated in terms of Section 5 (2) (a) of the Uttar Pradesh Consolidation of Holdings Act, 1953.
13. In consolidation proceedings, the present petitioners filed their objections under Section 9-A (2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 before the Consolidation Officer and staked their claim of co-tenancy in respect of the disputed plots.
14. The petitioners also furnished several documentary evidence before the Consolidation Officer indicating not only the family pedigree but also the record of rights of different years to establish its claim of co-tenancy rights.
15. The Consolidation Officer did not accept the contentions of the petitioner and by means of its order dated 12.09.2017 rejected the objections of the petitioners.
16. The petitioners being aggrieved filed an appeal under Section 11 (1) of the Uttar Pradesh Consolidation of Holdings Act, 1953 before the Settlement Officer of Consolidation which was also dismissed on 28.05.2018. Thereafter the petitioners filed a revision before the Deputy Director of Consolidation which was dismissed too, by means of order dated 30.11.2018. Accordingly, being aggrieved against the three orders passed by the Consolidation Courts, the petitioners filed the instant petition seeking quashing of the orders passed by the Consolidation Authorities.
17. The private respondents contested the proceedings before the three Consolidation Authorities and it was stated that the essential ingredients to establish a case of co-tenancy was not made out and it is for the aforesaid reason that the claim of the petitioners was rejected.
18. It was also stated before the Consolidation Authorities that even though the family tree as set up by the petitioners was not disputed yet in order to claim co-tenancy rights, it was essential to indicate that the property in question at any point of time was actually recorded in the name of common ancestor from whom the property devolved within different branches who were joint in family and mess and in absence of any cogent evidence regarding the plea of co-tenancy, the claim could not be sustained.
19. The Court has heard Sri Ashok Kumar the petitioner no. 1 in person for himself and other petitioners.
20. At the outset, it would be noticed that neither the counsel for the petitioners who had filed the petition despite being called and informed of the listing of the case, turned out to argue the matter. Moreover, despite service of the notice on the private respondents, none came forward to contest on their behalf as well.
21. The Court had called upon the petitioner no. 1 to submit his written submissions which has been placed on record and after hearing the petitioner no. 1 in person as well as the learned Standing Counsel for the State-respondents, this Court had reserved the judgment.
22. Considering the record in light of the submissions of the petitioner no. 1 in person, it is to be noticed that the claim of the petitioners is based on a claim of co-tenancy. The three Consolidation Authorities have categorically recorded a finding that the petitioners could not establish that the property was recorded in the name of their common ancestor from whom, with passage of time, the property devolved in the family and even though the family tree was admitted but the essential ingredients for consideration of claim of co-tenancy was not made out, hence, the claim was rejected.
23. Before proceeding further to examine the correctness of the said reason as contained in the orders of the respective Consolidation Authorities, it will be relevant to ascertain, what are the essential ingredients which are required to be established in order to succeed in raising a plea of co-tenancy. In this regard, this Court in Lalta Prasad and Others Vs. Haunsla Prasad and others; 2021 SCC Online All 712 after taking into consideration the earlier decisions on the aforesaid point including the case of Jagdamba Prasad (Supra) has held as under:-
61. At this stage, it will be relevant to note the decision of this Court in the case of Jagdamba Singh v. Dy. Director of Consolidation, reported in 1984 (2) LCD Page 398 [LB] wherein the ingredients for a claim of cotenancy and ancestral has been considered very lucidly and the relevant Paragraphs 14, 15, 22 and 23 will be apposite to resolve this controversy.
"....14. It is fairly well settled that in order to entitle a party to claim co-tenancy rights in the holding on the ground of its being ancestral the unbroken identity of the holding has got to be established throughout the period. If the identity has changed of the holding the claim cannot succeed. This view has been expressed in several decisions of Board of Revenue and also of this Court in the cases noted below:--
(1) 1943 RD 567 (BR) Jodhia v. Bhikwa.
(2) 1942 RD 379 (BR) Hamid Ali v. Benares Bank.
(3) 1942 RD 401 (BR) Mohd. Yasin v. Mohd. Shafi.
(4) 1945 RD 122 (BR) Rajaram v. Narain Singh.
(5) 1969 RD 175 (BR) Abhai Narain v. Ram Manorath.
(6) 1973 RD 242 (BR) Aminuddin v. Kamuruddin.
(7) 1975 RD 195 (BR) Ram Narain v. Buddhu.
(8) 1963 RD 37 (BR) Mahadeo Singh v. Sunder Kewat.
(9) 1979 RD 125 (BR) Balwanti v. Bhaiya Ram.
(10) 1983 (1) Lucknow Civil Decision, 40 (HC) Jhagroo v. The Deputy Director of Consolidation.
15. In all the aforesaid decisions it has been consistently held that in order to uphold the claim of co-tenancy rights on the ground of land being ancestral it is essential that the entire land of the holding of the common ancestor must have come down in the identical form an it must have remained unchanged and intact. It would, however, be correct to say that where as a result of survey made during settlements, the area of some plots might have decreased or increased or that some plot or plots are eliminated for some explained reason from the holding in question viz. having fallen in the bed of river due to the alluvial and deluvial action of the river or by the construction of the canal etc., then in such event it cannot be said that there is break in the identity of the holding in dispute. The slight change like elimination of certain plot or the increase or decrease in the area of certain plots for the aforesaid reasons shown would not operate to destroy the identity of the holding coming down in identical form in the family from the time of common ancestor. But in order to uphold the claim of co-tenancy rights on the ground of land being ancestral it must be established by the claimant that the holding has come down intact and in identical form that it has not been sub-divided or resettled with one or some of the heirs or with the strangers. Thus, where the disputed holding has not come intact in the identical form and only some of the plots of the holding belonging to common ancestor are found included as in the present disputed holding it would not make it ancestral holding so as to give a share in it to the claimants on that ground nor it would be permissible to pick up those plots from the holding and declare them to be ancestral property and give a share in those plots to the claimant.
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22. Learned counsel for the opposite parties Sri. Hargun Charan, however, urged that even if the claim of the opposite parties 5 to 8 cannot be sustained on the ground that the disputed holding is ancestral, yet their claim is sustainable on the ground that the entire land of the disputed Khata No. 36 is joint family property and the name of Mata Dihal Singh was recorded in the representative capacity as he was head and Karta of the joint family. His further contention was that even if it be held that the holding in dispute consisting of 84 plots with an area of 44 bighas, 9 biswas, 14 biswansis was settled afresh by the landlord with Mata Dihal Singh, the same would be deemed to be joint family property as at the time of acquisition he was head and Karta of the family being elder brother. Learned counsel pointed out that the opposite parties 1 to 3 have recorded a finding to the effect that at the time of second settlement in the year 1301 F., both these brothers Mata Dihal Singh and Ram Baran Singh formed joint family and on the basis of this finding learned counsel urged that even if land of the disputed holding was acquired by Mata Dihal Singh, but the same would be treated to be joint family property and the opposite parties 5 to 8 would get half share in all the plots of the disputed holding-Khata No. 36.1 am unable to agree with this contention as well.
23. It is well settled that the creation of tenancy in respect of agricultural land is a matter of contract between the landlord and the tenant. Even in the joint Hindu family a member of the joint family could acquire land for himself and unless it is proved that the land was acquired by him in the representative capacity and for the benefit of the family, it cannot be held to be joint family land merely because it was acquired by him when he formed joint family with other members. Even a Karta of joint Hindu family can acquire land in his name for his own benefit and it cannot be treated to be joint family property merely because he happens to be Karta of the family at the time of the alleged acquisition of the property. It has to be positively proved that when the land was acquired by the Karta of the joint family he had acquired it in the representative capacity for the entire body of coparceners and it is treated as such by the members of the family."..
24. If the material on record of the instant case is seen for the purposes of applying the aforesaid ingredients, it would be found that the case as setup by the petitioners relating to Plot nos. 336, 425, 426 Kha and 780 has to be established in context with the original plot numbers in the name of common ancestor Nankau and subsequent devolution of interests in the aforesaid plots, within the family in an unbroken chain of identity throughout the period.
25. Unless and until it is clearly established that the identity of the property which was first recorded in the name of common ancestors has throughout remained intact without any change in the area and the nature of the property as indicated in the case of Lalta Prasad (supra), the claim could not succeed.
26. Having considered the documentary evidence, it would reveal that the Khataunis for the Plot Nos. 336, 425, 426 Kha, 780, 416, 472, 427, they are in the names of Bhola son of Ram Charan and Plot Nos. 413, 472 and 427 was recorded in the name of Atma Ram son of Nankau.
27. The petitioner in person could not point out or demonstrate that in so far as plot nos. 416, 472, 427, 336, 425, 426 and 780 are concerned, they were ever recorded in the name of Nankau, the common ancestor. Unless and until, it could be shown clearly that the aforesaid plots were recorded in the name of Nankau only then a claim of co-tenancy can be considered subject to the evidence led in this regard.
28. It will be relevant to notice that in a Khatauni pertaining to Fasli year 1363 to 1365 relating to Khata No. 106 which was in the name of Nankau Son of Ishwari, the plots which were recorded are plot nos. 396, 403, 404, 421, 422, 438, 440, 455 and 429.
29. It was incumbent upon the petitioners to establish that the aforesaid plots and their identity continued to remain in the family intact with unbroken identity. However, the objections that were filed by the petitioners were not in respect of the aforesaid plots.
30. It will also be relevant to notice that the settlement relating to 1332 Fasli which was made on account of alluvial and diluvial action of the river relating to Plot Nos. 336, 425, 426 and 780 which related to Khata No. 16 which was recorded in the name of Bhagwan Dei wife of Isru who was of a different caste (Kurmi) whereas it is the case of the petitioners that they belonged to a different caste (gudia).
31. Similarly, in the settlement of Fasli year 1332, plot nos. 416, 472 was part of Khata No. 51 which was recorded in the name of Ram Baksh whereas plot nos. 427 was recorded as Parti.
32. Thus, the claim of the petitioners relating to Plot Nos. 336, 425, 426, 780, 416, 472 and 427 could not be established that it was any point of time recorded in the name of Nankau nor it could be established which were the original plot numbers and what new number was accorded to them and their respective area.
33. It is on the aforesaid account where the identity of the plots could not be connected with the plots recorded in the name of the common ancestor Nankau and that the area and identity the plots have not changed over the period of time could not be established. Thus, for the aforesaid reason that the claim of the petitioners was turned down by the Consolidation Courts.
34. Even before this Court, the documents which have been furnished on the record, do not connect and establish the unchanged or unbroken identity of the plots recorded in the name of Nankau and thereafter in the name of other members of the family to establish a case of co-tenancy as per the decision in Hausla Prasad (Supra).
35. In absence of any such clinching evidence, merely because the parties admittedly were part of a family would not give rise to any case of co-tenancy.
36. For the aforesaid reasons, this Court does not find that the petitioners have been able to establish their case of co-tenancy in respect of the disputed plots.
37. Accordingly, the petition being devoid of merits is dismissed. Costs are made easy.
Order Date:- 10th February, 2025 Asheesh/-
(Jaspreet Singh, J.)