Allahabad High Court
Ram Kedar And Others vs Dy. Director Of Consolidation, ... on 17 September, 1998
Equivalent citations: 1999(1)AWC710
JUDGMENT Dev Kant Trivedi, J.
1. By means of this petition under Article 226 of the Constitution of India, the petitioners pray for a writ of certiorari quashing the orders dated 15.11.1980 passed by the Assistant Settlement Officer, Consolidation and the order dated 30.6.1981 passed by the Deputy Director Consolidation, Faizabad.
2. The dispute in the present petition relates to Khata Nos. 6, 86, 87, 94, 143 and 230 of village Patahuwan Gandpur Pargana and Tahsil Akbarpur, district Faizabad. In the basic year, Khata No. 6 was recorded in the name of the petitioners. Khata No. 86 was recorded in the name of Ram Nihor, Bhagirathi and Durhai. Khata No. 87 was recorded in the name of Ram Prasad and Shiv Prasad, Khata No. 94 was recorded in the name of Ram Bahal. Khata No. 143 was recorded in the name of Sita Ram, Jai Ram and Sangram and Ramji Das while Khata No. 230 was recorded in the name of Ram Kumar and Ram Narain.
3. Objections were filed by some of the parties against the basic year entries claiming cotenancy on the basis of the land having been ancestral. The learned consolidation officer came to the conclusion that the entries in the basic year's records were correct. Some minor adjustments were made according to the spot. Feeling aggrieved from the said order of the Consolidation Officer, appeals were filed by Ram Bahal and others.
4. A pedigree was set up by the objectors showing Paljhan as common ancestor of the parties. Paljhan had 7 sons namely. Gaya. Shiv Balak, Shiv Tahal, Shiv Charan, Tilak, Jagai and Hari Charan. The petitioners belong to the branch of Shiv Tahal being his grandsons. The opposite parties are heirs of the other brothers of Shiv Tahal. The pedigree as given by the objectors, is admitted to the petitioners subject to their submissions that Paljhan had another brother namely Devi Deen. Both being the sons of Nurai alias Mural and Devi Deen had a son namely, Chhangoo whose ancestor had one son Jai Karan.
5. It appears that the land in Khata No. 6 recorded in the name of the petitioners in the basic year, was 16 Bhigha 14 Biswa and 19 Biswansi. It was more than double of the land of each Khata Nos. 86, 87, 94, 143 and 230. The main contention of the objectors was that since the petitioners are the heirs of one of the 7 sons of Paljhan, all the Khatas be amalgamated and be divided according to shares admissible to each branches. The objection was mainly by the side of the opposite party Nos. 13 to 17 who belong to the branch of Hari Charan, one of the sons of Paljhan. Since the learned consolidation officer did not a agree with the objectors and directed that the entries of the basic year will continue, the appeal was filed by Ram Banal and others. The case of the petitioners is that though Jai Karan had half of the share in the land inherited from the ancestors but in a partition he conceded to have one share and since Jai Karan was living with Shiv Tahal, one of the sons of Paljhan and since Jai Karan died issueless, his share devolved on the petitioners and thus, share of the petitioners was 2/7 while the rest 5 brothers had 1/7 share each in the 48 Bigha 9 Biswa 15 Biswansi land which was ancestral. The branch of Shiv Balak, and other son of Paljhan, also came to an end and the land belonging to that branch also devolved on the other 5 brothers. It was also alleged on behalf of the petitioners that the persons belonging to different branches except the branch of Gaya, deposited ten times rent and became Bhumidhars of their respective holdings while the branch of Gaya continued to have Sirdari rights in their holdings.
6. It was also alleged on behalf of the petitioners that Khata Nos. 376/1, 5/1, 5/2, 416. 454/2, 519/1. 651 and 652 were self acquired property of Ram Das father of the petitioners. It was further alleged on behalf of the petitioners that there has been a partition by family settlement between the ancestors of the parties and. therefore, it was not open either to the Settlement Officer Consolidation or to the Deputy Director Consolidation to decide the same again. The learned Settlement Officer Consolidation allowed the appeal holding that Khata Nos. 376/1, 5/1. 5/2. 416. 454/2. 519/1, 651 and 652 are the self-acquired property of Ram Das and, therefore, exclusively belong to the petitioners. The Assistant Settlement Officer. Consolidation, however, held that the rest of the land of Khata No, 6 and the land of Khata Nos. 86. 87. 94. 143 and 230. each of the branches has 1/6 share and he directed the partition accordingly.
7. Two revisions were filed by the parties. Both the revisions (Revision Nos. 1725 and 1925) were heard together. The Deputy Director Consolidation decided the said revisions on 30.6.1981 by a common judgment holding that all the branches were entitled to their respective share of 1/6 in the ancestral land. The learned Deputy Director Consolidation further held that 1/3 of Plot Nos. 5/1. 5/2,416/1. 416/2, 454/1. 452/2, 519/1 ; 519/2, 651 and 652 as recorded in Khata Nos. 86 and 87, shall not be disturbed.
8. Feeling aggrieved from the said two judgments, the present petition has been filed.
9. The main ground of challenge to the judgments is that even according to the Settlement Officer Consolidation, there has been a mutual partition of 129 ancestral plots of land. The judgment of the Settlement Officer Consolidation, on page 8 specifically makes a mention of this fact. It is mentioned in the judgments that the parties have divided the numbers in a mutual partition and plots are recorded separately in the name of the 6 branches in the 6 Khatas. It is specifically observed in this judgment that the parties are in possession by means of a private partition. It is also mentioned in the judgments itself that the parlies have admitted in their oral evidence that there has been a private partition and that parties have separated on the basis of a family settlement. Once the learned Settlement Officer Consolidation came to the conclusion that there has been a partition between the heirs of Paljhan and that Khatas were exclusively made in the names of the 6 branches, there was no occasion whatsoever, to the learned Settlement Officer Consolidation to have recorded a finding that the land was still joint and having come from Paljhan common ancestor, each of the branch had respective share on the basis of the private partition. The learned Settlement Officer Consolidation did not have the authority to consolidate six khatas together and then to divide the same as has been done by him. Once there was a partition between the parties as is admitted to the parlies themselves, there was no occasion whatsoever to make partition. The partition is possible during the consolidation operation only if there has been no partition prior to the commencement of the consolidation operation. It is apparent that parties had separate khatas and were in occupation of their shares to the exclusion of each other to the extent of the petitioners' father having acquired several plots which were accepted to be the self-acquired property by the parties and was also held exclusive property of the father of the petitioners. It was beyond the jurisdiction of the Settlement Officer Consolidation to have added the land of all 6 khatas and then to divide the same.
10. In the order passed by the Consolidation, it is specifically mentioned that from the year 1360 Fasli onwards, till the basic year, the parties had their own separate khatas and all of them were in exclusive possession of the land in their khatas. Ram Kumar and Ram Narain opposite party Nos. 5 and 6 as mentioned in the order of the Consolidation Officer, had filed a suit under Section 229B of U.P. Zamindari Abolition and Land Reforms Act and had specifically said in the plaint that there was a partition after the death of Paljhan and the parties had been living separately and had separate khatas. This fact was accepted by the other opposite parties in their written statement. The parties had admitted that there was a partition between them and, there was no jointness any more. Since it has been specifically held by the Consolidation Officer that right from the year 1360 Fasli to the basic year, the possession of the parties had been recorded on their separate khatas and they have been in possession and occupation of their land separately and, therefore, he rightly came to the conclusion that there was no occasion of any further partition during consolidation operation.
11. Counter-affidavit has been filed on behalf of the opposite party NOS. 3 to 19 alleging that there is no Jurisdictional error and findings recorded by the Deputy Director Consolidation, They also claimed that they were entitled to 1/6 share each. While the petitioners were also entitled to only 1/6 share. Earlier, the opposite party Nos. 3 and 4 filed a separate counter-affidavit contesting the writ petition claiming that they were entitled to 1/6 share in each of the khata and that the petitioners were not entitled to 2/7 shares.
12. It is urged on behalf of the opposite parties that erroneous admission regarding the quantum of share will not be binding in the present case. The question is regarding jolntness of the land and not the claiming or otherwise for a larger share by the co-tenure-holders. In the present case, the petitioners were the exclusive and recorded tenure-holders of Khata No. 6 while the other 5 branches of sons of Paljhan were recorded as exclusive tenure-holders of Khata Nos. 86. 87, 94, 143 and 230. Since the opposite parties were not co-tenure-holders with the petitioners, they cannot claim any share whatsoever in Khata No. 6 which has been recorded in the petitioners' name and in the name of their father right from the year 1360 Fasli to the basic year. The benefit of the law laid down in Shiv Nath v. Deputy Director Consolation. 1983 RD 107, wherein it was held that admission made by a party with regard to the share, would not be binding nor he would be stopped from claiming for larger share, does not help the opposite parties inasmuch as the admission is with regard to the partition and not with regard to the shares. Since the opposite parties admitted as a fact that there has been a partition long back between the heirs of Paljhan, the said admission is binding on the opposite parlies and they cannot be permitted to resile therefrom.
13. Reliance has also been placed on behalf of the opposite parties on Sri Krishna v. Kurukshetra University, AIR 1976 SC 376, wherein, it has been held that any admission made in ignorance of legal rights or under duress, cannot be of a binding nature. This authority also does not help the opposite parties inasmuch as the admission is of a fact that there has been a family settlement and private partition between the parties long back and, therefore, it cannot be said that it is either made under duress or made in ignorance of legal rights.
14. It is evident from the above discussion that there has been a partition between the parties to the suit long back and, it was not there sic to the Assistant Settlement Officer Consolidation or for that matter, the Deputy Director of Consolidation to have set aside the order of the Consolidation Officer without giving any valid reasons whatsoever. The order passed by the Consolidation Officer was a wholly justified order and the jurisdiction vested in the Settlement Officer Consolidation was illegally exercised in setting aside the order passed by the Consolidation Officer and in disturbing the status of parties with regard to the land recorded in their names of which they were in exclusive possession and occupation for a long time. The learned Settlement Office/ Consolidation did not give any reasons for arriving at the conclusion nor the Deputy Director Consolidation gave any reasons for arriving at the conclusion.
15. It is immaterial whether any person of the name of Jai Karan was ever living or not as it does not change the position in any manner whatsoever. Merely because in a family settlement the share allotted to the petitioners was almost double to that of the other branches, no onus was cast upon the petitioners to establish as to how they could get a larger share when the partition was amongst the ancestors of the parties, was given effect to in the revenue records and was admitted to the parties as well. The doubt raised on the basis of larger sharer by the Assistant Settlement Officer, Consolidation and the Deputy Director Consolidation was wholly misconceived and the question was not considered by them in right perspective. There can be no dispute that mere deposit of 10 times of rent will not confer any right to a co-tenure-holder over the land and share of the, co-tenure-holders cannot stand reduced or extinguished. In the present case, however, the petitioners who were not the co-tenure-holders of the opposite parties, do not claim any interest in the land of the alleged co-tenure-holders because they deposited 10 times rent for acquiring Bhumidhari rights in the larger chaks of the land, in respect of Khata No. 6 which was their exclusive land and, therefore, it cannot be said that they are in any manner, claiming rights on account of Bhumidhari sanad. The fact remains that they were exclusively tenure-holders of Khata No. 6 which also included self-acquired land of the father of the petitioners and ten times rent was deposited for acquiring Bhumidhari rights in the said khata. The acquisition of Bhumidhari rights on Khata No. 6 are relevant to the extent that the petitioners' father deposited ten time rent because he was exclusive tenure-holder of the Khata No. 6.
16. Looking into all the above circumstances, it is evident that the Settlement Officer Consolidation committed a grave error in setting aside the order passed by the Consolidation Officer as the order passed by the Settlement Officer Consolidation was beyond all reason and was based on no valid grounds. The learned Deputy Director Consolidation also fell in grave error in upholding the Judgment of the Assistant Settlement Officer Consolidation.
17. It has been urged on behalf of the petitioners that the jurisdiction of High Court to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it. Is not entitled to act as an appellate court and the findings of facts reached by the inferior court or the Tribunal as a result of apprehension of evidence, cannot be reopened and questioned in these proceedings.
18. In the present case, however, the learned Assistant Settlement Officer Consolidation recorded findings incorrectly on the point of law holding that the admission regarding the partition was not binding on the opposite parties which has resulted in grave miscarriage of justice. Similarly, the Settlement Officer Consolidation wrongly addressed itself on the acquisition of Bhumidhari rights on account of deposit of ten times rent and held against the petitioners without looking into the question of law that the petitioners were opposing the claim of the objectors opposite parties only on the ground that they were living separately holdings the land separately on account of a private family settlement and recorded as exclusive tenure-holders to the exclusion of the opposite parties and, therefore, they deposited ten times rent of their holdings and acquired Bhumidhari rights. The Settlement Officer Consolidation thus, committed a grave error of law when it rejected the contentions of the petitioners in appeal.
19. The learned Deputy Director Consolidation also committed grave error of law as the question of fact was not at all considered in right perspective nor were considered on the correct legal basis. Both the Courts below failed to consider that once there was a partition between the parties and once the parties excluded each other from their respective holdings, it was not open to consolidate the six khatas into one and then to make a division afresh. Whatever might have been the reason for arriving at a particular family settlement and there can be many considerations for being given a larger shares and it will not be open to any authority to undo the family settlement, amalgamate the shares and to divide the same. Settlement Officer Consolidation and also the Deputy Director Consolidation had committed a grave error 1n disturbing the long standing arrangement made by the co-tenure-holders in a mutual private partition. This Court is duty bound to set aside the palpably illegal exercise of jurisdiction and to quash the illegal orders.
20. Even otherwise, it appears that the opposite parties had not challenged the family settlement arrived at long back. The petitioners obtained a larger share of the land and had been in possession which were acquired from the petitioners' father and the objections lodged against it were illegally accepted by the Settlement Officer Consolidation and by the Deputy Director Consolidation which illegality committed by the two authorities, has to be rectified in exercise of writ Jurisdiction and this power has to be invoked in the present case as it is the only legal and equitable course open.
21. In view of what has been stated above, the judgment dated 15.11.1980 passed by the Assistant Settlement Officer Consolidation and the Judgment dated 30.6.1981 passed by the Deputy Director Consolidation in Revision Nos. 1725 and 1925 are bound to be quashed. The impugned orders contained in Annexure-2 and Annexure-3 are hereby quashed and the order passed by the Consolidation Officer contained in Annexure-1 is restored.
22. The petitioners will be entitled to their costs of the proceedings which are assessed at Rs. 5.000. The same will be payable to the petitioners by the contesting opposite parties.
23. The petition is decided accordingly.