Allahabad High Court
Smt. Dhan Raji vs Deputy Director Of Consolidation And ... on 3 March, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 6 Reserved A.F.R. Case :- WRIT - B No. - 14278 of 1986 Petitioner :- Smt. Dhan Raji Respondent :- Deputy Director of Consolidation and others Counsel for Petitioner :- Mr. Shashi Kumar Dwivedi and Mr. Hanuman Kinkar, Advocates for the petitioners Counsel for Respondent :- Mr. Triveni Shanker, Advocate along with Mr. Awadesh Kumar and Mr. R.K. Pandey, Advocate for respondent Nos. 4/1, 4/2/1, 4/2/2, 4/2/3, 4/2/4 and 4/2/5 Hon'ble J.J. Munir,J.
The petitioners, who are eight in number, impugn the validity of the orders dated 05.06.1986, 05.09.1985 and 02.11.1979 passed by the Deputy Director of Consolidation, Varanasi, Camp Gyanpur, the Assistant Settlement Officer of Consolidation, Varanasi (West) and the Consolidation Officer, Gyanpur, District Varanasi (now Bhadohi), respectively, rejecting the petitioners' claim for mutation of their rights over land, which shall be hereinafter morefully described.
2. The facts giving rise to this petition are required to be noticed about their salient features, which are these:
One Balraji, widow of Chandra Shekhar, was the recorded tenure holder of the following plot numbers, which are shown below in tabular form indicating the old numbers and the new:
Old Number New Number Chak Number 292, 293/1, 293/2, 345, 346, 347, 348/1, 349, 363, 364, 521, 1161/347, 1162/346 366 68 196, 197, 198, 199, 200, 201, 202, 203 331 457, 475, 476, 479, 480 (mi.), 481 306अ 482/1, 482/2, 483, 484, 485, 488/1, 569, 570, 571, 572, 573/2, 474, 475, 481 (mi.) 306ब
3. Apart from the land, above mentioned, that was agricultural and, therefore, consolidated into a chak in Smt. Balraji's name, bearing Chak No.68, Smt. Balraji also owned certain plot numbers that did not qualify as land under the Act of 1953 and were, therefore, excluded from the consolidation scheme. Plots of land, that were not included as part of Chak No.68, belonging to Balraji, are shown below, also in tabular form:
Land excluded fron consolidation operations Old Number New Number 102 799 167ङ 899 150ङ 847 156ग 879 212क 53(min.) 218ई.
66(min.) 378ख 382
4. The dispute is with regard to land recorded in the basic year in the name of Smt. Balraji, comprising Chak No.68. It is the petitioners' case that the land in dispute was sold in favour of petitioner Nos.1 to 7 by petitioner No.8, Smt. Balraji vide registered sale deed dated 29.05.1974. Later on, a deed of rectification dated 12.07.1974 was excuted by Smt. Balraji, inasmuch as in the sale deed dated 29.05.1974, one of the plots transferred in favour of petitioner Nos.1 to 7 was mentioned as Plot No.161/347, admeasuring 2 biswa 17 dhoor by an inadvertent clerical error, whereas the correct number of the plot sold was 1161/347 for the same area.
5. It is the petitioners' further case that by time the sale deed dated 29.05.1974 came to be executed, the chak carved out had been confirmed and the tenure holders delivered possession over their respective chak. Through the sale deed dated 29.05.1974, therefore, the entire area of Chak No.68 was transferred by Balraji to petitioner Nos.1 to 7. In addition, the sale deed also transferred certain other plots of land, that were outside the consolidation scheme. The old plot numbers no longer remained in existence and Chak No.68 had become identifiable in terms of the four new numbers as renumbered during the consolidation operations. Therefore, it is the petitioners' case that a typographical error in the mention of one of the plots, comprising the chak with reference to its old number would not affect the identity of the property transferred through the sale deed dated 29.05.1974 (for short, 'the sale deed').
6. It is also the petitioners' case that though in the basic year Smt. Balraji was recorded over a large tract of land, one Smt. Devraji, a half sister of Balraji's deceased husband, Chandra Shekhar and another Ram Jag, an uncle of the late Chandra Shekhar, filed objections during the consolidation operations much before the sale deed was executed, claiming a share in Chandra Shekhar's land, that had come to be recorded in Balraji's name. The said objections were compromised and Smt. Devraji given a share in the holding inherited by Smt. Balraji from Chandra Shekhar. It is the petitioners' case that nobody else filed objections under Section 9-A of the Act of 1953.
7. At the end of the consolidation, Chak No.68 was carved out in the name of Smt. Balraji out of land comprising plots, which were already recorded in Balraji's name. The petitioners' Chak No.68 largely comprised of land that was held as bhumidhari and some of it comprised sirdari holding also. The sale deed under reference, apart from transferring all that comprised Chak No.68, also conveyed Balraji's land, that was excluded from consolidation operation, and shown as excluded plots, detailed in the sale deed. The dispute in this petition is with regard to land comprising Chak No.68, which shall hereinafter be referred to as 'the land in dispute'.
8. It is also the petitioners' case that petitioner Nos.1 to 6 are members of one family, whereas petitioner No.7, Rudra Prasad son of Khilodhar Pandey is Balraji's brother. All of them having acquired interest in the land in dispute through the sale deed executed by Smt. Balraji, filed an application under Section 12 of the Act of 1953, seeking mutation of their name on the basis of the sale deed. The application for mutation was filed before the Consolidation Authorities under Section 12 of the Act last mentioned, because at the relevant time, consolidation operations in the Village had still not been denotified. The petitioners' application under Section 12 was registered as Case No.611.
9. It is the petitioners' case that proclamation was issued, but no objections filed. At the hearing of the application, Smt. Balraji, petitioner No.8, gave testimony before the Assistant Consolidation Officer supporting transfer of title in favour of petitioner Nos.1 to 7 through the sale deed that she had executed. The Assistant Consolidation Officer allowed the application by his order dated 16.07.1974. The order of mutation was carried out in the consolidation records on 07.08.1974.
10. It appears that one Kamla Shankar, who was the Village Pradhan, filed an appeal on 12.09.1974 against the order dated 16.07.1974 passed by the Assistant Consolidation Officer, granting the mutation application made by petitioner Nos.1 to 7. No appeal was carried by any other person aggrieved. The Assistant Settlement Officer of Consolidation allowed the appeal vide his order dated 12.09.1974 and remanded the case to the Consolidation Officer for decision afresh. The petitioners appeared before the Consolidation Officer, but they say that the case was adjourned at the instance of Kamla Shankar, the Village Pradhan, who was inimically disposed towards them.
11. On 24.11.1975 another set of objections were filed by Asharam under Section 12 of the Act of 1953 claiming bhumidhari rights on the basis of some kind of an agreement to sell between him and Smt. Balraji. In the alternate, Asharam claimed sirdari rights to the land in dispute on the basis of possession. It must be remarked here that in the objections filed by Asharam, a copy of which is annexed as Annexure No.4 to the writ petition, there is no case of an heirship pleaded by him, entitling him to inherit the land in dispute from Balraji upon the latter's demise intestate. Though, Asharam has said that Balraji was issueless and an aunt of his, it is not indicated by any precise description of relationship through bloodline or marriage, how Asharam was an heir of Balraji's, entitling him to inherit the land in dispute. There is no pedigree also propounded by Asharam in his objections/ application under Section 12 filed before the Consolidation Officer, connecting him to Balraji as an heir. All that Asharam says in his objection is that about 7 or 8 years ago, Smt. Balraji expressed her wish to go on a pilgrimage. Asharam thereupon paid her a sum of Rs.5000/- in order to enable her to perform the pilgrimage. Smt. Balraji in lieu of aforesaid money that she received, put Asharam in ownership possession of the land in dispute and said that once back from pilgrimage, she would execute a sale deed in Asharam's favour, after receiving a further consideration of Rs.10,000/-. The objections proceed that Smt. Balraji never returned from her pilgrimage to Village Duhia.
12. It is also pleaded in the application/ objections filed by Asharam that he had come to know that some persons had set up an imposter for Balraji and got a forged sale deed executed on her behalf relating to the land in dispute (in order to cause wrongful loss to Asharam). The further objection is that Asharam is in possession of the land in dispute and no one else has any right, title or interest therein.
13. In substance, as already remarked, the application for mutation or objection to the petitioners' claim for mutation on behalf of Asharam, is based on a right arising from an oral agreement of sorts between Balraji and Asharam, and in the alternate, upon possession of the land in dispute being given to the latter, entitling him to sirdari rights under the U.P. Z.A. & L.R. Act.
14. Apart from the objections/ application moved by Asharam, objections were also filed on behalf of the Gaon Sabha by the Pradhan, Kamla Shankar, saying that Balraji went to pilgrimage 10 years ago and has not returned till date nor has she been heard of. It was also the Gaon Sabha's case that she has no heir entitled to inherit, and, therefore, her land would vest in the Gaon Sabha. The Gaon Sabha, therefore, prayed that after expunging Smt. Balraji's name from the revenue records, the said land be recorded in the Gaon Sabha's Khata.
15. On the pleaded case of parties, the Consolidation Officer framed the following issues (translated into English from Hindi):
"1. Whether Dhan Raji and others, on the basis of the sale deed executed by Mst. Balraji, are bhumidhars in possession of the land in dispute?
2. Whether Smt. Balraji went to pilgrimage and until the present time has not returned; and, she has not executed the sale deed? If yes, its effect?
3. Whether the sale deed in favour of Dhan Raji and others is valid?
4. Whether Mst. Balraji has died issueless and the land is vested in the Gram Sabha?
5. Whether the objections filed by the Gram Sabha are valid?
6. Whether Asharam is bhumidhar in possession over the land in dispute in accordance with his objections?"
16. The Consolidation Officer has dealt with Issues Nos.1, 2 and 3 together. The Consolidation Officer has remarked that the sale deed has been executed in favour of seven persons by Smt. Balraji or the woman claimed to be her, and all these persons are residents of different districts, to wit, Varanasi, Mirzapur and Jaunpur. In her testimony, Balraji, who has appeared, has said that she does not know the vendees and that she has not executed any sale deed in their favour. It has also been remarked that none of the vendees has been produced as a witness. It is then observed by the Consolidation Officer that the sale deed shows payment of a sale consideration of Rs.35,808/-, out of which Rs.17,200/- are shown to be paid to some creditor on a pronote, but no pronote or receipt has been produced. Rs.3700/- are said to have been paid earlier, but no witness about this transaction has been produced. It is then remarked that witness, Surendra Nath has identified his signatures on the sale deed, but has not identified Smt. Balraji's thumb mark.
17. It is then noticed by the Consolidation Officer that Smt. Balraji, who has been produced, has been called an imposter by Asharam and not the real Balraji. Smt. Balraji, who has testified, has said that her eyesight is weak, and has further said that two years ago when she executed the sale deed, her eyesight was weak at the time. Balraji has been noted to have said in her testimony that no permission for execution of the sale deed had been secured by her. She has said that she came once to the Registrar's office. Coming once to the Registrar's office has been frowned upon by the Consolidation Officer, because there is also a deed of rectification said to be executed by Smt. Balraji.
18. The Consolidation Officer has picked up disjunct pieces of evidence from the testimony of Balraji's father, Khilodhar to say that Khilodhar has stated that Balraji's brother did not attend the Registrar's office on the date the sale deed was executed, whereas Balraji says that all the seven vendees were present in the Registrar's office when the deed was executed and registered. It has also been noticed that Balraji says that she had received Rs.35,000-36,000/- before the Registrar and had affixed her thumb mark twice.
19. It is also noticed that Balraji has testified that she had spoken to the vendees about the proposed sale, but has said at the same time that she had not executed the sale deed in favour of Visheshwar Barhai's son or in favour of Kaluram Barhai. She has also said that she does not know Jai Shankar or Vinod Kumar (petitioner Nos.4 and 5) and had not executed any sale deed in their favour. From these facts, the Consolidation Officer has opined that the sale deed is not one executed by Balraji.
20. About a certain witness, Rama Shankar, the Consolidation Officer has observed that though this witness is one, who has identified Smt. Balraji, but Smt. Balraji has testified that she does not know him, nor has the said witness witnessed the sale deed. It is then observed that Khilodhar in his testimony has testified that he is Balraji's father and further said that he did not know that Balraji, who had executed a sale deed in favour of Dhan Raji and others, was the same person, who had executed a sale deed in his son Rudra Prasad's favour. He has also said that on the date of execution of the sale deed, he was accompanying Balraji. It is then remarked by the Consolidation Officer that there is no reason why he has not identified Balraji. It is observed that this gives rise to suspicion about the petitioners' case.
21. There is a reference to the testimony of the petitioners' witness, Doodhnath, who has said that on the date of the sale deed, the petitioners were in possession. The witness has further been noticed to have said that none of the vendees was present, whereas Balraji has said that on the date of execution of the sale deed, all the vendees were present in the Registrar's office. It is remarked by the Consolidation Officer that there is no sale deed executed in favour of Doodhnath and, therefore, there is no question of possession being delivered to him. His testimony has been discarded as untrustworthy. It is remarked that no evidence has been led on behalf of Smt. Dhan Raji and others (the petitioners), which may prove that they are in possession of the land in dispute. It is also observed that some of the plots comprising the land in dispute were held as sirdari by Smt. Balraji, about which it is said that she paid 20 times the land revenue on the date she executed the sale deed, but no bhumidhari sanad has been placed on record. On the basis of the aforesaid findings, it is concluded that the sale deed executed by Smt. Balraji is not valid.
22. The Consolidation Officer then proceeded to observe that on behalf of Asharam, Jagdamba, Sabhajeet, Girdhari Yadav and Mahendra Nath, the Panchayat Secretary, Village Duhia have testified. They have produced the Family Register relating to the Village and in the said register, Balraji's name is not entered. The Consolidation Officer has drawn an inference that the absence of Balraji's name in the Family Register of the Village shows for the 10 years past, she did not live in Village Duhia. It is then noticed that Jagdamba Prasad, Vijay Nath and Sabhajeet in their testimony have said that Smt. Balraji had proceeded on pilgrimage, but never returned. It is held by the Consolidation Officer that there is no reason to disbelieve the testimony of these witnesses. There is then an abrupt remark by the Consolidation Officer that from these facts, it is proved that Smt. Balraji is missing (laapata) for more than seven years and her civil death has to be presumed. On 29.07.1974, the presence of Balraji is not established. The said fact has also been acknowledged by Kamla Shankar, Pradhan that Smt. Balraji had proceeded on a pilgrimage and her whereabouts are not known since. The conclusion reached by the Consolidation Officer from these facts is that Smt. Balraji was not alive on 29.05.1974, and, therefore, could not have executed the sale deed in favour of Dhan Raji. Smt. Dhan Raji does not, therefore, derive any title under the sale deed. It is in this manner that Issues Nos.1, 2 and 3 were answered by the Consolidation Officer.
23. Issues Nos.4 and 6 were dealt with together by the Consolidation Officer with the opening remark that the two issues being inter-related, were being answered at once. It is noticed by the Consolidation Officer that Kamla Shankar, the Village Pradhan, Village Duhia has said that Smt. Balraji had proceeded on a pilgrimage 10 years ago and her whereabouts are not known since. As such, her civil death has to be presumed. It is further noticed that the Village Pradhan has said that Smt. Balraji has left no heir. Therefore, according to the Pradhan, the land in dispute would vest in the Gaon Sabha. The Consolidation Officer has noticed on the other hand, that Asharam, respondent No.4 here, has claimed himself to be Balraji's lawful heir, entitled to inherit the land in dispute. In his objections, he has propounded a pedigree, that has been set out by the Consolidation Officer in his findings on Issues Nos.4 and 6. The said pedigree is to the following effect:
Bal Bhaddar Devi Das Ram Sundar Ram Manorath Ram Khelawan Matabodh Mst. Dhura Asha Ram Moolchandra Shivmurti Chandra Shekhar Rama Kant Ram Singh Krishna Kant Lutur Mst. Balraji Kashi Prasad Ram Asrey Seetaram
24. It has then been observed that Asharam saying that Chandra Shekhar pre-deceased his father, Ram Manorath and further that at the time of Ram Manorath's demise, his brother, Ram Sundar was alive, the pedigree propounded being proved by Jagdamba Prasad, a native of Village Duhia as well as by Kamla Shankar, the Pradhan, there is no reason to disbelieve the pedigree. It is also observed that Sabhajeet and Girdhari Yadav, witnesses for respondent No.4, Asharam, have said that Asharam is in possession of the land in dispute and further that Smt. Balraji is Asharam's aunt (Chachi). This assertion has also been read in aid of believing the pedigree. It is then held on the basis of the pedigree that by virtue of Section 171 of the U.P. Z.A. & L.R. Act, Asharam would be Smt. Balraji's heir, entitled to inherit. The Gaon Sabha's claim based on escheat and that of the petitioners founded on the sale deed, has been discarded by the Consolidation Officer. At the same time, the claim of Asharam, respondent No.4, based on heirship founded on the pedigree, entitling him to inherit the land in dispute, presuming a civil death for Balraji, has been accepted by the Consolidation Officer. He has, therefore, ordered that name of Balraji be expunged from the land in dispute and that of Asharam, respondent No.4, be recorded in her stead as her heir. The objections of the Gaon Sabha and those of petitioners Nos.1 to 7 were ordered to be rejected.
25. The order passed by the Consolidation Officer was questioned by petitioner Nos.1 to 6 by means of Appeal No.319, under Section 11(1) of the Act of 1953. Another appeal was preferred by Gaon Sabha from the same order, which was numbered as Appeal No.329.
26. The petitioners filed an application for additional evidence at the stage of appeal, seeking to bring on record the following documents:
(i) A copy of the Patwari's report in connection with deaths and mutations relating to Village Duhia for the year 1288 Fasli;
(ii) A copy of the Dakhal Dehani in Case No.12 of Village Duhia, decided on 12.06.1901; and,
(iii) A certificate dated 05.08.1985 issued by the Union Bank of India, Branch Koirauna, certifying that there was a deposit of Rs.15,000/- in the name of Smt. Balraji, the certificate being one dated 28.01.1981.
27. The first of the two documents were produced in additional evidence to show that the name of Ram Sundar's father was not Devi Das, but Jai Mangal, a fact incorrectly testified to on behalf of the respondents; also, incorrectly introduced through a pedigree, that was mentioned in the testimony on behalf of Asharam. The certificate from the Bank was produced to show that the money held in deposit in Smt. Balraji's account by the Bank were proceeds of the sale that she had received after paying off her creditor. These documents if considered could prove many other things regarding the petitioners' case. The Assistant Settlement Officer of Consolidation, who heard the two appeals, treating Appeal No.319 by the petitioners as the leading case, proceeded to dismiss both by his order dated 05.09.1985, affirming the Consolidation Officer. Amongst many others, the petitioners make a grievance that the documents that were produced and admitted in additional evidence by the Assistant Settlement Officer of Consolidation were not at all considered by him while rendering judgment in the appeal.
28. The petitioners and the Gaon Sabha, both preferred revisions from the orders of the Consolidation Officer and the Assistant Settlement Officer of Consolidation under Section 48(1) of the Act of 1953. The petitioners' revision was numbered as Revision No.795/874, whereas that of the Gaon Sabha as Revision No.892. Here, again the petitioners' revision was heard by the Deputy Director of Consolidation as the leading case and decided by means of a common judgment and order dated 05.06.1986. The Deputy Director of Consolidation dismissed both the revisions, affirming the Authorities below.
29. Aggrieved, this writ petition has been preferred.
30. Pending the writ petition, the first petitioner, Smt. Dhan Raji has passed away and was represented on record by her sons, Chandu Lal and Dudhnath, petitioner Nos.1/1 and 1/2, respectively. Further on, during the long pendency of the writ petition, Dudhnath also passed away and is represented on record by his seven sons, Anoop, Raj Kumar, Prem Kumar Chaurasiya, Vijay Chaurasiya, Ashish Kumar, Ravi Shankar Chaurasiya and Nand Kumar Chaurasiya, petitioner Nos.1/2/1, 1/2/2, 1/2/3, 1/2/4, 1/2/5, 1/2/6 and 1/2/7, respectively. The fourth respondent, Asharam also passed away pending the writ petition and his heirs too were brought on record, to wit, Karta Ram Shukla and Ram Abhilash Shukla, both sons of Asharam. Ram Abhilash Shukla also passed away meanwhile and, therefore, Ram Abhilash's interest and ultimately that of Asharam was represented by the latter's sons, Jai Prakash Shukla, Sada Nand Shukla, Shailesh Shukla, Rajesh Kumar Shukla and Pawan Kumar Shukla. Karta Ram Shukla has been substituted as respondent Nos.4/1, whereas the late Ram Abhilash Shukla is shown in the array as deceased respondent Nos.4/2, represented by his five heirs and LRs, numbered as respondent Nos.4/2/1 to 4/2/5.
31. Heard Mr. Shashi Kumar Dwivedi, learned Counsel appearing for petitioner Nos. 1/1, 1/2/1, 1/2/2, 1/2/3, 1/2/4, 1/2/5, 1/2/6, 1/2/7, 2, 3 and 5, Mr. Hanuman Kinkar, learned Counsel appearing on behalf of petitioner No.4 and Mr. Triveni Shanker, Advocate along with Mr. Awadesh Kumar and Mr. R.K. Pandey, learned Counsel appearing on behalf of respondent nos. 4/1, 4/2/1, 4/2/2, 4/2/3, 4/2/4 and 4/2/5.
32. It is argued by Mr. Shashi Kumar Dwivedi and Mr. Hanuman Kinkar, learned Counsel appearing for the petitioners that Asharam in his objections under Section 12 never came up with a case of inheritance as an heir of Balraji's. It was after the petitioners' evidence had closed in support of their case based on the sale deed that Asharam in his evidence in support of a case that was never about heirship, propounded a pedigree for the first time and laid claim on its basis. It is urged that the Consolidation Officer committed a manifest error in holding Asharam to be Balraji's heir while Smt. Balraji was alive and testified before the Consolidation Officer. It is also argued that the finding of the Consolidation Officer that Balraji was an imposter is perverse, because there is overwhelming testimony on record by Balraji's father, whose identity has not been doubted, identifying Balraji as his daughter, testifying in Court.
33. It is urged on behalf of the petitioners that the sale deed has not been cancelled till date by a Court of competent jurisdiction and no one has challenged the deed of rectification. It is, particularly, argued that the Consolidation Authorities have concurrently erred in holding it to be a case of transfer of a part of the holding by Smt. Balraji, attracting the consequences under Section 5(c)(ii) of the Act of 1953 as the transfer embodied in the sale deed was one made without permission from the Settlement Officer of Consolidation. It is argued that the deed of rectification is not about a plot that was left out in the sale deed, but about the incorrect mention of a plot number, going by the old numbering. The sale deed conveyed the whole of Chak No.68, which would include every part and all plots therein, including the one that was rectified from one mentioned as Plot Nos.161/347 to 1161/347, both of which bear reference to the same plot with an identical area of 2 biswa 17 dhur. According to the learned Counsel, there is, thus, no case of part transfer of the holding so as to render the sale deed executed by Smt. Balraji, admittedly without permission from the Settlement Officer, void under Section 5(c)(ii) of the Act of 1953.
34. It is also argued that the Authorities below have perversely concluded that Smt. Balraji, who appeared before the Consolidation Officer was an imposter, inasmuch as she was identified, amongst other witnesses by Khilodhar, her father and Rudra Prasad, her brother, both of whom testified in support of the petitioners' case. Their identity was not doubted.
35. It is also submitted that the Deputy Director of Consolidation has incorrectly remarked that Balraji had not affixed her thumb impression on all pages of the sale deed, which runs into a number of seven. It is submitted that Balraji's testimony has been perversely read by the Authorities below to conclude that she affixed her thumb impression on two pages alone, whereas what Balraji said in her evidence was that she twice thumb marked the sale deed. The only inference from Balraji's testimony is that she once thumb marked the document at the time of execution, and a second time, before the Sub-Registrar, when it was registered. It is urged that every page of the sale deed is thumb marked.
36. It is also argued that Surendra Nath Srivastava, who is the Scribe of the sale deed as well as the deed of rectification, was examined on behalf of the petitioners as PW-1. The witness has said that he knew the parties well before hand and testified to the fact that the deed was executed by Balraji. It is also argued that the presumption about Balraji's death has been wrongly drawn, because she was admitted to be alive within 30 years and no one had seen her die. There is absolutely no evidence of her reputed or acknowledged death, and the presumption about the death of a person, who has not been heard of for seven years would only arise, if it is proved that he/ she has not been heard of for the period of seven years by those who would have naturally heard of him/ her, if alive. It is argued that Balraji's father and brother, who have testified, are persons, who would have naturally heard of her and they have said that Balraji, who was before the Court, was the same person. There is evidence of witnesses that Balraji was staying with her father at Gopalpur. Asharam or his witnesses in Village Duhia are not men, who would naturally hear of Balraji, if she was staying with her father at Gopalpur. The submission of the learned Counsel for the petitioners is that no presumption about Balraji's death under the circumstances can arise. Rather, there is a presumption of her being alive in view of Section 107 of the Evidence Act. It is argued that all the Authorities below have committed a manifest error in raising a presumption about Balraji's death and then accepting it. The findings on the state of evidence, according to the learned Counsel for the petitioners, is perverse.
37. The learned Counsel for respondent No.4, Mr. Triveni Shanker has argued that the Consolidation Officer has recorded findings to the effect that the sale deed was not in respect of the entire holding owned by Balraji and, therefore, void under Section 5(c)(ii) of the Act of 1953. It is pointed out that the sale deed is void, because admittedly no permission was secured from the Settlement Officer of Consolidation to transfer a part of the holding. It is further argued that the Consolidation Officer has held that the woman, who appeared before the Consolidation Officer, was not Balraji, but an imposter. It was observed by the Consolidation Officer that the woman, who appeared for Balraji, stated that she had not executed the sale deed in the petitioners' favour nor were the petitioners known to her. The further finding, according to the learned Counsel for respondent No.4 recorded by the Consolidation Officer, is that payment of sale consideration was not proved. Also, Surendra Nath could not prove Smt. Balraji's thumb impression, supporting the inference that the Balraji produced to prove the sale deed, was indeed an imposter. The most crucial finding that has been emphasized by the learned Counsel for respondent No.4 is that the Consolidation Officer, the Assistant Settlement Officer of Consolidation and the Deputy Director of Consolidation have unanimously held the sale deed relied upon by the petitioners to be one not executed by Balraji.
38. It is also pointed out that the Consolidation Officer has observed that Ram Chandra, who was the sole attesting witness of the sale deed and the one who had identified Smt. Balraji at the time of execution of the said deed, was not identified by Balraji before the Consolidation Officer. Balraji, who was produced before the Consolidation Officer, stated that she did not know Ram Chandra. There is much contradiction, according to the Consolidation Officer, between the statements of witnesses, who appeared for the petitioners regarding the execution of the sale deed. It is also a finding recorded by the Consolidation Officer that no reliable evidence was produced by Smt. Dhan Raji and others, to wit, the petitioners to prove that they were in possession of the land in dispute. No bhumidhari certificate was obtained for the plots that were sirdari. As such, the sale deed was void. Much emphasis has been laid on the fact that Balraji was unheard of for more than seven years, and, therefore, her civil death has to be presumed.
39. The Consolidation Officer has recorded the fact that in the Family Register of the Gaon Sabha Duhia since Balraji's name was not there, it has to be inferred that Smt. Balraji was not present on 29.05.1974 in the village. It is most importantly emphasized by the learned Counsel for respondent No.4 that the Consolidation Officer has recorded a finding that the person, who appeared in the witness-box impostering as Balraji, stated that she did not know any of the purchasers nor had she executed any sale deed in their favour. None of the purchasers were examined in support of the sale deed. The sale deed does not mention the manner of payment of consideration, where it is not said that a part of the sale consideration was paid to the creditor to discharge Balraji's liability on the alleged pronote. No receipt about payment to the creditor has been filed. It is emphasized that the Consolidation Officer has observed that Surendra Nath, one of the witnesses for the petitioners, identified his signatures on the sale deed, but did not identify Smt. Balraji's thumb impression.
40. About Asharam's claims, it is pointed out by the learned Counsel that the Consolidation Officer has held that he had proved his pedigree. The pedigree propounded by Asharam was also proved by the testimony of his witnesses, Jagdamba as also that of Kamla Shankar, the Pradhan of the Village, who testified to the fact that Asharam belongs to Balraji's family. It was also held, according to the learned Counsel, by the Consolidation Officer that Asharam was proved by the testimony of Sabhajeet and Girdhari to be in possession of the land in dispute. It has also been held by the Consolidation Officer that Asharam was Balraji's heir under Section 171 of the U.P. Z.A. & L.R. Act and the Gaon Sabha had no right therein.
41. Most of these findings have been affirmed by the Settlement Officer of Consolidation and the Deputy Director of Consolidation. Learned Counsel for the respondent, Mr. Triveni Shanker, submits that these findings recorded by the three Authorities below consistently are pure findings of fact, which cannot be disturbed by this Court in exercise of our jurisdiction under Article 226 of the Constitution. In support of his contention, learned Counsel for respondent No.4 has relied upon the decisions in E. Mahboob Saheb v. N. Sabbarayan Chowdhary and others, (1982) 1 SCC 180, Narayanan Rajendran and another v. Lekshmy Sarojini and others, (2009) 5 SCC 264 and also on the decision of the Supreme Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others, (1999) 3 SCC 722.
42. It is also urged with much emphasis that execution of the sale deed on 29.05.1974 and a later deed of rectification dated 12.07.1974 make both a case of transfer of a part of Balraji's holding, which being done admittedly without a permission by the Settlement Officer of Consolidation, brings the transfer within the mischief of Section Section 5(c)(ii) of the Act of 1953. In support of this contention of his, Mr. Triveni Shanker has placed reliance upon the Full Bench Decision of this Court in Smt. Ram Rati and Ors. v. Gram Samaj, Jehwa and Ors., AIR 1974 All 106. Reliance has also been placed upon the decision of this Court in Foran Singh and others vs. Deputy Director of Consolidation and others, 1993 (1) AWC 192.
43. I have carefully considered very detailed submissions advanced by the learned Counsel on both sides and perused the record.
44. The foremost point that was mooted was that Balraji having transferred a part of her holding by means of the sale deed, and later on, transferred another part of it, albeit a single plot, in the garb of the deed of rectification, all the Authorities below have construed in manifest error the sale deed and the deed of rectification to constitute two different transactions, each transferring a part of Balraji's holding and, therefore, void under Section Section 5(c)(ii) of the Act of 1953. The consequence of the transfer being void has been inferred in view of the admitted fact of the absence of previous permission obtained by Balraji from the Settlement Officer of Consolidation. In this case, there is no quarrel about the fact that on the date the sale deed was executed, the provisions of the Act of 1953, as they stood, were those as amended by U.P. Act No.38 of 1958, where it was provided by Section 5 as under:
"4. Amendment of Section 5 of the U. P. Act V of 1954.-For Section 5 of the Principal Act, the following shall be substituted:
"5. Effect of Declarations.-Upon the publication of the notification under Section 4 in the official Gazette, the consequences, as hereinafter set forth; shall, subject to the provisions of this Act, from the date specified thereunder till the publication of notification under Section 52 or Sub-section (1) of Section 6 as the case may be. ensure in the area to which the declaration relates; namely-
(a) the district or part thereof, as the case may be/ shall be deemed to be under consolidation operations and the duty of maintaining the record-of-rights and preparing the village map, the field book and the annual register of each village shall be performed by the District Deputy Director of Consolidation, who shall maintain or prepare them, as the case may be, in the manner prescribed;
(b) (i) all proceedings for correction of the records, and all suits for declaration of rights and interests over land, or for possession of land, or for partition, pending before any authority or court, whether of first instance, appeal, or reference or revision, shall stand stayed, but without prejudice to the right of the persons affected to agitate the right or interests in dispute in the said proceedings or suits before the consolidation authorities under and in accordance with the provisions of this Act and the Rules made interest :
(ii) the findings of consolidation authorities in proceedings under this Act in respect of such right or interest in the land, shall be acceptable to the authority or court before whom the proceeding or suit was pending which may, on communication thereof by the parties concerned, proceed with the proceeding or suit, as the case may be;
(c) notwithstanding anything contained in the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U. P. Act I of 1951), no tenure-holder, except with the permission in writing of the Settlement Officer, Consolidation, previously obtained shall-
(i) use his holding or any part thereof for purposes not connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming: or
(ii) transfer by way of sale, gift or exchange any part of his holding in the consolidation area :
Provided that a tenure-holder may continue to use his holding or any part thereof, for any purpose for which it was in use prior to the date specified in the notification issued under Section 4."
(emphasis by Court)
45. There is little quarrel about the law obtaining at the point of time when the sale deed was executed. The law as then stood forbade any transfer of a part of the bhumidhar's holding without the previous permission in writing of the Settlement Officer of Consolidation in a consolidation area, that is to say, an area where a notification under Section 4 of the Act of 1953 was in force. There is also no issue about the fact that the land at the relevant time fell in a consolidation area. The issue is whether Smt. Balraji by the sale deed transferred a part of her holding; and another part of it by the deed of rectification. A perusal of the sale deed shows that Balraji transferred the whole of her Chak No.68 by the sale deed and also transferred some land that was placed outside the consolidation scheme. The deed of rectification was executed to correct an apparent clerical error in the sale deed, where for the old Plot No.1161/347, Plot No.161/347 was mentioned. It is equally true that at the time when the sale deed was executed, the old plot numbers had been renumbered and their old numbers obliterated. The old numbers were mentioned in the sale deed ex abundati cautela. The mention in the sale deed of old Plot No.1161/347 as 161/347 was, therefore, a matter of no consequence.
46. There were already new numbers assigned and the sale deed was explicit about the vendor's intent that by her conveyance, she intended to transfer the whole of Chak No.68 in favour of the petitioners; not any part of it. The deed of rectification was nothing more than a correction of a clerical error in the sale deed, which would relate back to the sale deed. The deed of rectification can by no means be regarded as an independent conveyance in itself or a transfer of a different plot of land, not mentioned in the sale deed. The deed of rectification did not transfer anything that was not part of the sale deed. It only removed through rectification a clerical error about the quondam number of one of the plots transferred by the sale deed. There is absolutely no requirement of a previous written permission from the Settlement Officer of Consolidation in transferring the entire holding by a bhumidhar during time that a consolidation scheme is in force. That is the clear purport of Section 5(c)(ii) of the Act of 1953. This has been eloquently held in the Full Bench decision in Smt. Ram Rati (supra), where it has been observed:
"11. This being the position we are clearly of the opinion that in the present case it is the English text which shall prevail over the Hindi version and according to the English text the expression "any holding" occurring in clause (ii) of Section 5(1)(c) of the Act does not include the "Whole holding" so that it is not necessary to obtain the permission of the Settlement Officer (Consolidation) for the transfer of the holding as a whole."
47. In the opinion of this Court, the Authorities below have, therefore, committed a manifest error of law in holding the sale deed to be void for violation of Section 5(c)(ii) of the Act of 1953.
48. The Authorities below have prima facie wrongly held that Smt. Balraji who was produced before the Consolidation Officer in support of the sale deed was an imposter, or the person who executed the sale deed was an imposter. The witnesses who appeared along with Balraji in support of the petitioners' case was Khilodhar, PW-6, Balraji's father and her brother, Rudra Prasad, besides Pradhan of Village Gopalpur, Sharda Prasad. He is also an attesting witness of the sale deed executed in favour of the petitioners. These witnesses have stated that the person who executed the sale was Smt. Balraji. Smt. Balraji in her testimony also stated that she sold her property. At this stage, it would be important to notice Balraji's examination-in-chief recorded on 14.07.1976 before the Consolidation Officer, where she testified as PW-2. It reads:
"वहलफ बयान किया कि मैं डुहिया में चन्द्रशेखर की वेवा हूँ मेरा नाम वलिराजी है। हमारी जमीन जो डुहिया में थी सब हमारे नाम चक कटा है। चक कटने के पहले मैं अपनी सम्पूर्ण जमीन कास्त करती थी। चक कटने के बाद भी सम्पूर्ण जमीन पर हमारा कब्जा है। चकबंदी में मैंने अपनी जमीन के बारे में मुकदमा लड़ाया। सब मुकदमा जीतने के बाद हमारे नाम चक कटा। चकबंदी में हमारी ननद को खड़ा करके आशाराम ने हमारे खिलाफ लड़ाया था। आशाराम शुक्ल डुहिया के है। ननद हार गयी थी। ननद का नाम देवराजी था। हमारी उस ननद देवरानी के लड़के के साथ आशाराम ने अपने लड़की की शादी किया है। चक कटने के बाद हमने अपने भाई और चन्दू, दूधनाथ के औरत व लड़के के हक में बैनामा लिखा दिया। बैनामा रजिस्ट्री में आकर मैंने लिखवाया था। बैनामा लिखाने के बाद लिखाने वाले ने हमें पढ़कर सुनवाया था। तब मैंने शारदा प्रसाद व सूरज प्रसाद के सामने निशान अंगूठा बनाया। मेरे सामने शारदा प्रसाद व सूरज प्रसाद ने दस्तावेज की गवाही किया। तब मैंने रजिस्ट्रार साहब के सामने दस्तावेज पेश किया तब दस्तावेज की रजिस्ट्री हुई गवाह ने दस्तावेज बैनामा इक्स क-2 को देखकर अपने निशान की पुष्टि की।
दस्तावेज का एक नम्बर गलत लिखा गया था। फिर उसको ठीक करने के लिए दूसरा दस्तावेज टिटिम्मा उसके दो माह के बाद लिखा गया मुझे बैनामा में नकद रूपया भी दिया जिसका रूपया लिया उसका हवाला भी दिया था। रजिस्ट्री के समय रूपया लिया था। एक वीघा अपने भाई को लिखा था उसका रूपया पहले पा गयी थी। मुझको ऑख से कम दिखाई देता है। करीब दो साल से बैनामा लिखने के बाद नैहर में रहती हूँ। बैनामा इसलिए लिख दिया क्योंकि कम दिखाई देता है। अपने नैहर में रहने लगी थी। पहले मैं यही रहती थी। आशाराम से पैसा न कभी लिया और न ही जमीन जोतने को दिया। और न ही आशाराम को हमने लिखा पढ़ा है। आशाराम ने हमारी ननद को उभार कर लडाया था। उसी के कारण आशाराम से दुश्मनी भी थी।
यह कहना गलत है कि चन्द्रशेखर की वेवा वलिराजी तीर्थ करने गयी। और लौट कर नहीं आयी। मैं कभी तीर्थ करने नहीं गयी थी। बराबर अपने घर पर और नैहर में रहती हूँ। मेरे भाई रूद्र प्रसाद है। मेरे पिता का नाम विलोधर ग्राम गोपालापुर है।
यह कहना गलत है कि बनावटी बलिराजी बनकर बैनामा लिखा है। यह कहना गलत है कि मैं चन्द्रशेखर की स्त्री बलिराजी नहीं हूँ। और वनावटी बलिराजी बनकर बयान कर रही हूँ। बैनामा की भूमि पर बैदारान चन्दू, दूधनाथ की औरत और लड़के तथा मॉ का कब्जा है। हमारा नाम काट कर उनका नाम दर्ज किया जाय। जो पैसा बैनामा से पाया था वह मैंने कोईरौना बैंक में जमा कर दिया है। एक विघा जो भाई को लिखा है। वह हमारा नाम काटकर हमारे भाई को दर्ज किया जाय।
x x x x x x x (जिरह) बैनामा लिखने के दो वर्ष पहले से हमें कम दिखाई देता है, बैनामा मैंने अपनी मर्जी से लिखा था। बैनामा मैंने दूधनाथ व चन्दू और दूधनाथ, चन्दू के औरत व लड़के को लिखा है। बैनामा ज्ञानपुर में लिखा गया था। रजिस्ट्रार साहब के सामने वारह बजे दस्तावेज पेश हुआ था मैं कातिव को पहचानती हूँ। नाम नहीं जानती हूँ। डूहिया का मकान मेरा मौजूद है वह चार पॉच घर की वखरी है। जब मैं डुहिया में रहती थी तो खुद खेती करती थी, हमारे हरवाह गिरधारी अहिर थे जो जिन्दा हैं। ग्राम डुहिया के रहने वाले है। हमारे पास एक हल की खेती तथा एक जोड़ा वैल था। ग्राम सिहपुर में मेरे सास का मैहर है। पं० राजजग मुख्तार के यहॉ। मेरी सगी सास का नाम सुभवत्नी है। मेरी सौतेली सास का नाम घूरा था। सुभवन्ती को एक लड़की थी। व एक लड़का था। लड़की का नाम देवराजी था। इसी देवराजी से चकबंदी में मुकदमा चला था। देवराजी व मेरा चक अलग-2 हो गया है। चकबंदी से पहले मुझसे व देवाजी से एक मुकदमा चला था। इसे राजजग मुख्तार ने सुलह करा दिया था, देवराजी पं० रामजगमुख्तार की भॉजी लगती थी। बैनामा लिखने के लिए मैंने चकबंदी विभाग से मैंने परमीशन नहीं लिया था। रजिस्ट्री में मुझे एक बार आना पड़ा था। एक बार बैनामा करने नैहर से आयी थी बैनामा का नं० गाटा नहीं बता सकती हूँ। चक नं० कागज में होगा मैं नहीं बता सकती हूँ जिसका मैंने बैनामा किया है, बैनामें वाले भूमि की चौहददी हमें नहीं मालूम। जिसके-2 नाम लिखा था वे व शारदा प्रसाद, सूरज और हमारे भाई रजिस्ट्री में आये थे। जिसके-2 नाम बैनामा हुआ है वे लोग भी रजिस्ट्री के समय मौजूद थे, रजिस्टार साहब के सामने नगद रूपया 3500/-3600/-मिला था दस्तावेज बैनामा पर मैंने दो जगह निशान दिया है। इसके अलावा मुझसे कही भी किसी ने निशान अंगूठा नहीं लिया है। जिसके नाम बैनामा हुआ है। उसी से हमारी बातचीत हुई थी। बैनामा लिखाने के एक माह पूर्व बात तय हुई थी। बातचीत के समय रूपये का लेन देन नहीं हुआ था। सब रूपये का लेन रजिस्टार साहब के सामने हुआ था।
बयान गवाही के समय चन्दू, दूधनाथ जिसको मैंने बैनामा लिखा है। ले आये थे। मैं विशेषर चौरसिया को नहीं जानती हूँ। क्यों कि मैंने नहीं देखा है। विशेषर के लड़की लड़का के हक में मैंने बैनामा नहीं किया है। राम सरन चौरसिया के हक में मैंने बैनामा नहीं लिखा है।
कालूराम के लड़की के हक में मैंने बैनामा नहीं किया है मैं कालूराम बरई को नहीं जानती हूँ। अनूप कुमार को नहीं जानती हूँ। अनूपकुमार के हक में कोई बैनामा नहीं लिखा है। जयशंकर बरई को नहीं जानती हूँ और न उनको बैनामा लिखा है। विनोद कुमार को नहीं जानती और न बैनामा लिखा है। चन्दू दूधनाथ ने कहा था कि चलकर बयान दे दों। इस मुकदमें में मैंने कोई दरख्वास्त नहीं दी है। यह जमीन टॅयूबेल से सीची जाती है। टॅयूबेल के सिंचाई की रसीद मेरे पास जरूर होगी। वह रसीद मैंने चन्दू दूधनाथ को नहीं दिया है। डुहिया के प्रधान कमला शंकर है। आशाराम को मैं जानती हूँ वे मेरे गॉव के है। मैं नहीं जानती की आशाराम और मेरे सौहर की कुर्सीनामा एक है। आशाराम पहले चाची कहते थे अब नहीं कहते।
यह कहना गलत है कि मेरी सेवा करते थे। मैं कहीं तीर्थ करने नहीं गयी थी। कभी-2 प्रयाग राज गयी हूँ। मैं बेचने के बाद जमीन के पास नहीं गयी हूँ। यह कहना गलत है कि बैनामे वाले जमीन पर आशाराम का कब्जा है। चन्दू हमकों बताये थे कि आशाराम इस मुकदमें में लड़ रहे है। मुझसे गवाही के लिए चन्दू ने 10 दिन पहले से कहा था। आज चन्दू मुझको लाने नहीं गये है। मैं खुद ही आयी हूँ। आज की तारीख चन्दू ने बताया था आज 14 तारीख है। यही बताया था। चन्दू ने यह नहीं बताया था कि कमला शंकर प्रधान लड़ रहे है।
यह कहना गलत है कि बलिराजी तीर्थ यात्रा को गयी है। यह कहना गलत है कि बलिराजी वेवा चन्द्रशेखर सा० डुहिया नहीं हूँ। यह भी कहना गलत है कि जमीन निजाई पर आशाराम का कब्जा है। मैं राम चन्द्र राय सा० चक हर वंशपुर को नहीं जानती हूँ। उन्होंने मेरे बैनामा या टिटिम्मा दस्तावेज पर गवाही नहीं किया है।
जिरहः- ग्राम सभाः- शारदा प्रसाद द्विवेदी एडवोकेट यह कहना गलत है कि मु० बलिराजी नहीं हूँ और यह भी कहना गलत है कि मुसम्मात बलिराजी तीर्थ को गयी और लौट कर नहीं आयी और यह भी कहना गलत है कि आराजी निजाई ग्राम सभा की हो गयी है। यह भी कहना गलत है कि आराजी निजाई को मैं जोते वोये नहीं हूँ। बयान सुनकर तस्दीक किया।"
49. In her cross-examination, Balraji has supported the factum of executing the sale deed and its registration by the Registrar in her presence. She has also spoken about the name of her mother-in-law and her step mother-in-law, as well as her step mother-in-law's daughter. She has also mentioned about the case that her step mother-in-law's daughter, Devraji instituted against her relating to her holding and claimed a share therein. She has largely supported the execution of the sale deed except in one aspect of her cross-examination, where she has suddenly said that she did not know the vendees, Anoop Kumar, Vinod Kumar, Jai Shankar and had not executed any sale deed in their favour. Apparently, the said discordant utterance in her cross-examination has been given too much of credence by the Authorities below.
50. The evidence of a witness has to be read as a whole, and if Balraji's testimony in her examination-in-chief is read along with her cross-examination, it is largely consistent. This aspect of the matter has not at all been considered by the Authorities below, who have read the evidence torn out of context, doing a truncated appraisal of it. It is not this Court's province to reappreciate evidence, but to ensure that the Authorities of fact below do not omit relevant evidence by basing their findings on stray statements here and there. It is also to be borne in mind that Balraji was identified by her blood relatives, who were none else, but her father and brother. They were before the Consolidation Officer. Their evidence carries great weight about Balraji's identity and cannot be trifled with. The evidence on the point may have to be reconsidered by the Authorities below in the right perspective.
51. The Authorities below have also faltered in doubting the execution of the sale deed by Balraji and attributing it to an imposter by finding flaws in the manner of passage of consideration. The recitals in the sale deed clearly state that she had received a sum of Rs.15,000/- in cash before the Sub-Registrar, whereas Rs.17,200/- were paid to Surya Narain Mishra to discharge her liability on a pronote dated 25.05.1971 that Surya Narain held. There is also a description of receipt of the sum of Rs.1005 towards consideration from her brother, Rudra Prasad, petitioner No.7 and a further sum of Rs.2603/-, also received from her brother, Rudra Prasad. This makes for a total consideration of Rs.35,808/-. The Authorities below have ignored from consideration the testimony of Surya Narain, PW-2, Balraji's creditor, besides ignoring the endorsement of the Sub-Registrar and a certificate by the Bank, that is to say, Union Bank of India, Koirauna Branch, where Balraji was certified to hold a sum of Rs.15,000/- in her account. The said sum of money was the consideration of Rs.15,000/- that Balraji received in cash at the time of registration of the sale deed before the Sub-Registrar or as she asserts. All this evidence, that was duly admitted, particularly the bank certificate, was ignored from consideration both by the Settlement Officer and the Deputy Director of Consolidation. Thus, the findings of doubt about passage of consideration recorded by the Authorities below, in the opinion of this Court, are based on ignorance of material evidence on record.
52. There are some other very important issues that have been approached from a manifestly erroneous vantage by the Authorities below. The chief amongst these is the finding holding Balraji, who appeared before the Consolidation Officer, to be a imposter raising a presumption about her civil death. The entire presumption about her civil death is based on the assertion in the objections filed by Asharam, respondent No.4 that Balraji went on a pilgrimage 7-8 years ante-dating the date of the objections, that is to say, 22.11.1975 and ever since not returned to Village Duhia; and, her whereabouts are not known. A case of civil death has been built on the edifice of Balraji going on a pilgrimage 6-7 years before the objections were heard by the Consolidation Officer and some evidence about 10 years before that date, and not being heard of ever since at Duhia or by respondent No.4. The case about Balraji's civil death has been too readily accepted by all the Authorities below; and accepted on manifestly illegal premises. The Consolidation Officer has recorded the following finding about Balraji's civil death based on a presumption, under Section 108 of the Indian Evidence Act:
"द्वितीय पक्ष की तरफ से आशाराम, जगदम्बा, सभाजीत, गिरधारी यादव तथा महेन्द्र नाथ पंचायत सचिव और उन्होंने ग्राम डुहिया के कुटुम्ब रजिस्टर को सावित किया है इस रजिस्टर में मु० बलिराजी का नाम दर्ज नहीं है इससे यह सिद्ध होता है कि श्रीमती वलिराजी कम से कम10 साल से ग्राम डुहिया में नहीं रहती है जगदम्बा प्रसाद विजय नाथ तथा सभाजीत गवाहो ने अपने बयानों में कहा है कि मु० बलिराजी तीर्थ करने गयी थी किन्तु लौटकर नहीं आयी है गवाहो के बयान पर अविश्वास करने का कोई कारण नहीं है अतः तथ्य सिद्ध हो जाता है कि बलिराजी सात साल से अधिक समय से लापता है और उनकी मृत्यु कानूनी तौर पर मानी जायेगी दिनांक 29.7.74 को मु० बलिराजी का रहना सिद्ध नहीं होता इस तथ्य को कमलाशंकर प्रधान ने भी स्वीकार किया है कि मु० बलिराजी का तीर्थयात्रा जाने के बाद से उनका पता नहीं चला।""
53. The Assistant Settlement Officer of Consolidation has written a outrageously cryptic finding accepting the Smt. Balraji's civil death in the following few words:
"बलिराजी तीर्थयात्रा करने गयी और वहां से वापिस नहीं आयी इसलिए उसकी सिविल डेथ हो गयी है।"
54. The Deputy Director of Consolidation has not written any finding of his own on the said issue. Since he has affirmed the judgments of the two Authorities below in toto, it has to be held that if the view of the two Authorities below is erroneous, the Deputy Director of Consolidation has failed to exercise his jurisdiction and rectify it about this finding. The cryptic findings inferring Balraji's civil death are manifestly illegal and vitiated. Sections 107 and 108 of the Evidence Act, which are relevant to the issue, are extracted hereinbelow:
"107. Burden of proving death of person known to have been alive within thirty years.--When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.
108. Burden of proving that person is alive who has not been heard of for seven years.--Provided that when the question is whether a man is alive or dead, and 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."
55. Section 107 raises a presumption that a person is alive if it is shown that he/ she was alive within thirty years, and the burden of proving that he/ she is dead is on the person who asserts the fact. Balraji was admittedly alive, even according to respondent No.4, Asharam 6-7 years ago when she proceeded on pilgrimage. Therefore, if the presumption under Section 108 is not attracted, the burden would lie upon respondent No.4 to show by positive evidence that Balraji was dead on the date of execution of the sale deed. Here, however, the fourth respondent has invoked the provisions of Section 108 to plead a case of Balraji's whereabouts not being known within the last seven years. Section 108 is in the nature of a proviso to Section 107. Though an independent Section, it opens with words 'Provided that when". Harmoneously construed, Sections 107 and 108 form an integral scheme on the question, who in the normal course of events is to be presumed alive and who can be presumed dead, that is to say, at the time when this question arises. The general rule is that a person, who is shown to be alive within thirty years from the date when the question arises, the presumption would be that the person lives. Section 107, therefore, raises a presumption about life, whereas Section 108 as a proviso engrafts a rule of presumption about death. It would be noticed that Section 107 is based on the sound experience of life that given the life span of a human being, a person who is shown to be alive within thirty years of the date when the question arises, can be presumed to be alive with burden on the person, who asserts that he/ she is dead, to prove it by affirmative evidence.
56. The fourth respondent has invoked the presumption under Section 108 on the foot of facts and evidence that 7-8 years ante-dating the filing of his objections before the Consolidation Officer, Smt. Balraji borrowed a sum of Rs.5000/- from Asharam, respondent No.4 and proceeded on pilgrimage. He has then said that she has not been heard of in Village Duhia eversince. The Consolidation Officer, as already remarked, has readily accepted a case of civil death by holding that witnesses Jagdamba Prasad and Sabhajeet in their testimony have said that Balraji proceeded on pilgrimage, but never returned. From this testimony, an inference has been readily drawn by the Consolidation Officer that looking to the evidence of these witnesses, there is no reason to disbelieve it.
57. The inference drawn is that it is proven that Balraji is missing for the past 7 years and would be presumed to be dead under the law on 29.05.1974, that is to say, the date of the sale deed. Also taken into account is the fact that the Family Register of Village Duhia produced by Mahendra Nath, the Panchayat Secretary, does not show Balraji's name recorded therein. The Consolidation Officer has concluded that absence of Balraji's name in the Family Register of Village Duhia would show that Balraji does not live in Duhia for the last 10 years. It is almost impossible on these facts or state of evidence to invoke the provisions of Section 108 of the Indian Evidence Act. The facts and evidence noticed by the Consolidation Officer at best can lead to the inference that the whereabouts of Balraji are not known in Village Duhia and nothing more. A presumption of civil death under Section 108 cannot be drawn merely because some persons of acquaintance have not heard of the missing person in the span of seven years last. The sine qua non to attract the presumption under Section 108 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", to borrow the phraseology of the Statute.
58. Balraji in this case was married into a family in Village Duhia, where her husband, Chandra Shekhar passed away long ago. She inherited the land in dispute from her husband, wherein her step sister-in-law, Devraji laid a claim before the Consolidation Authorities and secured a share for herself in a compromise with Smt. Balraji. This happened in 1966. Thereafter, if Balraji went away and settled in her father's Village Gopalpur, where her father was still alive, it can hardly be said that anyone in Duhia would have "naturally heard of her". There is positive evidence to show that Balraji was living with her father at Gopalpur. There is no one in Duhia, entitled to say that he or she ought to have naturally heard of Balraji during the past seven years, ante-dating 1974, if she were alive. The presumption under Section 108 about Balraji being dead cannot be raised, because she was not heard of by anyone in Duhia. It would arise only if those persons did not hear of her, who ought to have naturally heard of her. Asharam, Jagdamba Prasad, Sabhajeet, all natives of Village Duhia are not persons, who would have naturally heard of Balraji, if she had gone and settled with her father at Gopalpur. It is a case, where the Authorities below have completely misapplied the presumption under Section 108 of the Indian Evidence Act to infer a civil death for Balraji.
59. The issue as to how important it is to the rule in Section 108 of the Evidence Act that who are the persons who would naturally have heard of the person during the period of seven years if he had been alive, fell for consideration of the Punjab High Court in East Punjab Province v. Bachan Singh and others, AIR 1957 Punj 316. In that case, the issue arose in the context of extreme facts which present a remarkable situation to bring out the rule in its fullest effect. In Bachan Singh (supra), a man called Mal Singh was to be charged with murder. He absconded. His property was attached and possession taken under Sections 87 and 88 of the Criminal Procedure Code then in force. The facts as disclosed in the report of the case show that all this happened several years ago before action commenced at the instance of Mal Singh's reversioners. In 1946, Bachan Singh and Tara Singh, claiming to be reversioners of Mal Singh, brought a suit for possession of the attached property on the ground that Mal Singh must be presumed dead and they being his heirs were entitled to succeed to his estate. The two plaintiffs aforesaid also impleaded Mal Singh's widow, who had remarried in the meantime, as a party to the suit. The sole question before the Court was whether Mal Singh could be presumed dead. And if so, its effect. The suit was decreed by both the Courts below, accepting the absconder dead on a presumption raised under Section 108 of the Evidence Act. Speaking for the Division Bench on a second appeal carried by the Government, which was allowed and the reversioners' suit dismissed, it was held by Khosla, J.:
"4. Section 108 is nothing more than a proviso to Section 107 and the two sections must, therefore, be read together in order to appreciate their full import. The sections read :
"107. When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.
108. Provided that when the question is whether a man is alive or dead, and 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."
5. The important phrase in Section 108 is "those who would naturally have heard of him if he had been alive." In the present case Mal Singh was absconding from justice in order to evade a trial upon a charge of murder. He would, therefore, not communicate with any relation in the natural course of events because to do so would reveal his whereabouts and he might be apprehended by the police and prosecuted. It is in evidence that after the alleged commission of the murders he ran away and remained in hiding. In a case of this nature no presumption, therefore, can arise because it is Section 107 and not S. 108 which would apply.
Shifting of the onus under Section 108 would have taken place only if the plaintiffs "would naturally have heard of him if he had been alive.'' Now, the plaintiffs being the reversioners, Mal Singh would not communicate with them. Indeed, he would not communicate with anyone in the village. One of the witnesses examined by the plaintiffs is the father of the two men who are alleged to have been murdered by Mal Singh, and this man would be the last person to whom Mal Singh would reveal his whereabouts or with whom he would communicate."
60. The principles regarding invocation of the presumption under Sections 107 and 108 of the Evidence Act has been enunciated by the Supreme Court in LIC of India v. Anuradha, (2004) 10 SCC 131. In Anuradha (supra), their Lordships have held:
"14. On the basis of the abovesaid authorities, we unhesitatingly arrive at a conclusion which we sum up in the following words: the law as to presumption of death remains the same whether in the common law of England or in the statutory provisions contained in Sections 107 and 108 of the Indian Evidence Act, 1872. In the scheme of the Evidence Act, though Sections 107 and 108 are drafted as two sections, in effect, Section 108 is an exception to the rule enacted in Section 107. The human life shown to be in existence, at a given point of time which according to Section 107 ought to be a point within 30 years calculated backwards from the date when the question arises, is presumed to continue to be living. The rule is subject to a proviso or exception as contained in Section 108. If the persons, who would have naturally and in the ordinary course of human affairs heard of the person in question, have not so heard of him for seven years, the presumption raised under Section 107 ceases to operate. Section 107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. Section 108, subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person whose life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died. The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it. An occasion for raising the presumption would arise only when the question is raised in a court, tribunal or before an authority who is called upon to decide as to whether a person is alive or dead. So long as the dispute is not raised before any forum and in any legal proceedings, the occasion for raising the presumption does not arise."
61. There is another facet about raising the presumption of death under Section 108 of the Evidence Act, which has been misunderstood by the Authorities below. The presumption under Sections 108 arises at the time when action commences and the issue raised in the suit whether a particular person can be presumed dead on account of him/ her not being heard of in the past seven years by those, who would have naturally heard of him/ her. The rule does not foster a presumption about the time of the presumed death, precise or approximate. It cannot, therefore, be presumed that a person, who has not been heard of for the past seven years, or even more when action commences, can be presumed dead at the beginning of the period of seven years or at a particular point of time. If a party desires to prove that a person was dead on a particular date in the past, may be unheard of for seven years or more, it has to be proved by the person so claiming by affirmative evidence. The only presumption that can be raised in this case, if at all, and subject to the other things that have been said, is that on the date when action commenced before the Consolidation Officer, Balraji was dead. There can be no presumption that she was dead seven years prior to the year 1974 or on the date she executed the sale deed.
62. There is a wealth of authorities on the point that the presumption under Section 108 of the Evidence Act cannot be invoked to prove the death of a person at a particular point of time or period of time in the past. One of the early authorities on the point is Fani Bhusan Banerjee v. Surja Kant Roy Chowdhury and another, 1907 SCC OnLine Cal 20 : (1906-07) 11 CWN 883, where their Lordships of the Division Bench wrote concurring opinions. The more eloquent expression of the rule in Fani Bhusan (supra) is to be found in the concurring opinion of Geidt, J., where His Lordship held:
"........ The question for which provision is made in that section is the question whether a man is alive or dead, that is, whether he is alive or dead when the question is raised, not whether he was alive or dead at some antecedent date, and the presumption that may, in certain circumstances, be raised is a presumption that the man is dead when the question is raised, and not a presumption that he was dead at some antecedent date....."
63. The rule was again reiterated by the Bombay High Court in Jeshankar Revashankar v. Bai Divali, AIR 1920 Bom 85 (2), where also their Lordships, constituting the Division Bench, wrote concurring judgments. The rule in Jeshankar Revashankar (supra) was stated thus by Macleod, C.J.:
"...... But the earliest date to which the death can be presumed can only be the date when the suit was filed. It cannot have a further retrospective effect..."
(emphasis by Court)
64. The principle was eloquently discussed in a Full Bench decision of this Court in Muhammad Sharif and another v. Bande Ali and others, (1911) 8 ALJ 1052, where Richards, C.J. held:
"The plaintiffs rely on the case of Dharup Nath v. Gobind Saran [(1886) I.L.R., 8 All., 614.]. It was decided in that case that the presumption which the plaintiffs contend for did arise. With all respect to the learned judge who delivered the judgement in the case, I think that he misinterpreted and misunderstood the passage from Taylor on Evidence, which he quotes. The period of seven years which the learned author there speaks of, is in my opinion, the minimum period during which it is necessary for the plaintiff to show that the person whose life or death is in question has not been heard of, and that if the evidence shows the person had not been heard of for 14 or 15 years instead of seven, the presumption would not be carried one bit farther. There would be merely the presumption that the man was dead; but there would be no presumption that he died at any particular moment of the period during which he has not been heard of. In the last edition of Taylor on Evidence the passage is as follows:--"although, however, a person who has not been heard of for 7 years is presumed to be dead, the law raises no presumption as to the time of his death, and if any one who seeks to establish the precise period during those seven years at which some person died, he must do so by actual evidence." It is said that the anomalous position is created that if Dildar had sued during his lifetime, he would have succeeded, and that now his heir is not entitled to succeed. It seems to me that this argument proceeds upon the assumption that if Dildar had sued during his lifetime, the evidence as to the disappearance of Madad Ali would have been exactly the same. This would be a very rash assumption. Seven or eight years ago there must have been many persons who might have heard of the existence of Madad Ali who are now dead and gone.
X x x x x The view I take in the case of Narayan Bhagwant v. Shriniwaa Trimbak [(1905) L.R., 8 Bom., 226.] and in the case of Fani Bhushan Banerji v. Surjya Kanta Roy Chowdhry [(1907) I.L.R., 35 Calc., 25.]. This last ruling was cited with approval in the case of Srinath Das v. Probodh Chunder Das [(1910) 11 C.L.J. 580.] . Mookerjee, J., says at page 585:--
"The only presumption which is enacted by section 107 of the Indian Evidence Act, is, that the party is dead at the time of the suit, but there is no presumption as to the precise time of his death.""
65. In Muhammad Sharif (supra), the short and concurring opinion of Banerji, J. reads:
"I am of the same opinion. The case turns upon the construction of section 108 of the Indian Evidence Act. Under that section there is no doubt a presumption that a person who has not been heard of for seven years should be deemed to be dead, but there is no presumption as to the time of his death. The true construction of the section has, in my opinion, been correctly laid down in the note to section 108 in Ameer Ali and Woodroffe's edition of the Evidence Act. The learned authors say:--
"The rule is the same whether only seven years or more than seven years have elapsed. There is no presumption either as to the time of death within the period of seven years, or that the person died at conclusion of the period. * * * The only presumption enacted by the section is that the party is dead at the time of suit, but there is no presumption in any case as to the time of his death.""
66. There is to be found in Narayana Pillai v. Velayuthan Pillai, AIR 1963 Mad 385 valuable guidance about the presumption postulated under Section 108 of the Evidence Act. In Narayana Pillai (supra), it has been observed:
"Section 108 lays down a presumption when the question as to a person's existence is raised in issue before the Court. If the question is raised before the Court at a particular point of time, and more than seven years had elapsed by that time from the time when a man was last heard of, the presumption will be that he had died before the date when the question was raised. That is not the same thing as saying that when such a question is raised long after the seven years period is over there is a further presumption that he had died at any particular time during that period or at the end of seven years from the date of disappearance. In Halsbury's Laws of England, 3rd Edn., Vol. 15, dealing with this question, it is stated (at page 345):
"There is no legal presumption either that the person concerned was alive up to the end of the period of not less than seven years, or that he died at any particular point of time during such period, the only presumption being that he was dead at the time the question arose if he has not been heard of during the preceeding seven years. If it is necessary to establish that a person died at any particular date within the period of seven years, this must be proved as a fact by evidence raising that inference............"(the italics are mine).
This question is put beyond doubt by the Privy Council in Lalchand Marwari v. Ramrup Gir, 50 Mad LJ 289: (AIR 1926 PC 9):
"Now upon this question there is, their Lordships are satisfied, no difference between the law of India as declared in the Evidence Act and the Law of England.........and, searching for an explanation of this very persistent heresy their Lordships find it in the words in which the rule both in India and in England is usually expressed. These words taken originally from In re Phene's Trusts, 1870-5 Ch. A-139 runs as follows: ''If a person has not been heard of for seven years, there is a presumption of law that he is dead; but at what time within that period he died is not a matter of presumption but of evidence and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential.' Following these words, it is constantly assumed--not perhaps unnaturally--that where the period of disappearance exceeds seven years, death, which may not be presumed at any time during the period of seven years, may be presumed to have taken place at its close. This of course is not so. The presumption is the same if the period exceeds seven years. The period is one and continuous; though it may be divisible into three or even four periods of seven years. Probably the true rule would be less liable to be missed, and would itself be stated more accurately, if instead of speaking of a person who had not been heard of for seven years, it described the period of disappearance as one ''of not less than seven years'."
It is implicit in the observations stated above that the presumption can arise only when the question for determination, whether a man or woman is alive or dead, is raised.
In re Seshi Ammal, 1958-2 Mad LJ 53: (AIR 1958 Mad 463), Subrahmanyam J. referred to the presumption under Sec. 108 and stated that it would extend to the fact of death and not to the time of death at any particular period. The learned Judge observed that the exact time of death was not a matter for presumption but of proof by evidence by a person who claims a right for the establishment of which the fact is essential. In a more recent case Gnanamuthu v. Anthoni, AIR 1960 Mad 430, Ramaswami J. after a full analysis of the provisions of Ss. 107 and 108 observed that the presumption under S. 108 would only be as to the fact of death at the time the question is raised and not at any particular antecedent time."
67. The question fell for consideration of the Supreme Court in Anuradha, where it has been held by their Lordships:
"12. Neither Section 108 of the Evidence Act nor logic, reason or sense permit a presumption or assumption being drawn or made that the person not heard of for seven years was dead on the date of his disappearance or soon after the date and time on which he was last seen. The only inference permissible to be drawn and based on the presumption is that the man was dead at the time when the question arose subject to a period of seven years' absence and being unheard of having elapsed before that time. The presumption stands unrebutted 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. At what point of time the person was dead is not a matter of presumption but of evidence, factual or circumstantial, and the onus of proving that the death had taken place at any given point of time or date since the disappearance or within the period of seven years lies on the person who stakes the claim, the establishment of which will depend on proof of the date or time of death."
68. Of particular relevance to the issue that arises in this are the observations of the Supreme Court in Saroop Singh v. Banto and others, (2005) 8 SCC 330. In Saroop Singh (supra), it has been observed:
"22. There is neither any doubt nor dispute that the date of death of Indira Devi is not certain. By reason of the aforementioned provision, a presumption of death can be raised. In this case, however, death of Indira Devi is not in question, the date of death is. In the instant case, both the parties have failed to prove the date of death of Indira Devi. However, having regard to the presumption contained in Section 108 of the Evidence Act, the Court shall presume that she was dead having not been heard of for a period of seven years by those who would naturally have heard of her, if she had been alive, but that by itself would not be a ground to presume that she had died seven years prior to the date of institution of the suit."
69. There is, thus, not the slightest of doubt that the presumption under Section 108 of the Evidence Act is not available to Asharam to prove that Smt. Balraji was dead in the year 1974, when she executed the sale deed.
70. In the circumstances, it is for the Authority, before whom the matter now comes up to determine on the basis of evidence led by the party, who affirmatively asserts the fact of Balraji's death on the date that the sale deed was executed, whether Balraji was in fact dead on the said date. This question has to be gone into while examining the wider issue if Balraji, who executed the sale deed and proved it in Court, was in fact an imposter.
71. Considering the next submission advanced on behalf of the petitioners, this Court finds that it is true that in the objections filed by Asharam under Section 12 of the Act of 1953, there does not appear to be a case of heirship to Balraji's estate pleaded by him. No pedigree of the family is pleaded in the objections filed under Section 12 before the Consolidation Officer. Instead, the case there appears to be about an oral agreement to sell by Balraji taking an earnest from Asharam in the sum of Rs.5000/- before proceeding on pilgrimage and delivering possession of the land in dispute to him. There is no case of inheritance even remotely pleaded.
72. The pedigree, which the Authorities below have taken into consideration in accepting Asharam's case, has figured for the first time in his evidence led after the petitioners had closed their evidence. It would indeed be impermissible to look into a case, even for a Consolidation Authority trying a title matter, which is never pleaded, but figures for the first time in the parties' dock evidence. This is again a matter, which may require some further examination by the Consolidation Officer, if indeed apart from the objections annexed to the writ petition as Annexure No.4, there is no other pleading before the Consolidation Officer putting forward a claim based on heirship, about which evidence has been led at the trial by Asharam.
73. This Court must also notice that some additional evidence in these proceedings was admitted before the Assistant Settlement Officer of Consolidation and is part of the record. That evidence was also required to be looked into by the Authority, which determines the case under Section 12 of the Act of 1953 afresh. The submissions of Mr. Triveni Shanker, all of which are directed to say that the findings of the three Authorities below are concluded by the findings of fact, cannot be accepted because there are manifest illegalities, vitiating the approach of all the three Authorities below in judging the parties' case. Since findings purely of fact would have to be recorded on issues arising between parties on a correct perspective of the law, this Court does not consider it appropriate to enter those findings here in a writ petition, where all the three Authorities below have held otherwise, may be on an approach erroneous in law. The findings in the correct legal perspective have to be recorded by the Authorities of fact below. It is unfortunate indeed that there is no option with this Court, despite the long lapse of time that this litigation has consumed, but to remand the matter to the Consolidation Officer for hearing and determination afresh in accordance with the guidance in this judgment.
74. In the result, this petition succeeds and is allowed in part. The impugned order dated 05.06.1986 passed by the Deputy Director of Consolidation, Varanasi, Camp Gyanpur, the order dated 05.09.1985 passed by the Assistant Settlement Officer of Consolidation, Varanasi (West) and the order 02.11.1979 passed by the Consolidation Officer, Gyanpur, District Varanasi are hereby quashed and the matter is remitted to the Consolidation Officer with a direction to decide afresh. The Consolidation Officer shall proceed to hear and decide the application/ objections under Section 12 of the Act of 1953 on the existing evidence of parties and such other evidence which the parties may wish to lead bearing in mind the guidance in this judgment.
75. It is further directed that the Consolidation Officer shall hear the case afresh in the manner that two dates of effective hearing shall be fixed every week and the case decided, as far as possible, within a period of six months of the date of receipt of a copy of this order by the Consolidation Officer.
76. Let a copy of this order be communicated to the Consolidation Officer, who would now have jurisdiction through the Collector/ District Deputy Director of Consolidation, Bhadohi by the Registrar (Compliance). A copy of this order will also be communicated to the Collector/ District Deputy Director of Consolidation, Varanasi, who formerly had jurisdiction for the purpose of transmission of records etc., if any, available at Varanasi.
Order Date :- 3.3.2023 Anoop