Allahabad High Court
Raj Bahadur And Another vs Asstt Director Of Consolidation, ... on 17 September, 2019
Author: Rajan Roy
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 7 Case :- CONSOLIDATION No. - 2644 of 1980 Petitioner :- Raj Bahadur And Another Respondent :- Asstt Director Of Consolidation, Lucknow And Another Counsel for Petitioner :- P.L. Misra,Ankit Pande,D.C.Mukerjee,Digvijay Tiwari,Dr. Ramsurat Pande,Malkhan Singh,Rajesh Kumar Counsel for Respondent :- Suresh Chandra,Gaurav Misra,K.S. Bajpai,Sm Singh Royekwar,Surya Bhan Singh Hon'ble Rajan Roy,J.
Heard.
Dispute in this case relates to Gata Nos.2560 and 2298 of Khata No.113. During pendency of the writ petition original petitioner no.1 and opposite party no.2 died and their legal heirs have been substituted. The petitioners are represented through Sri R.S. Pandey, learned Senior Counsel assisted by Sri Malkhan Singh, Advocate, whereas the private opposite parties are represented through Sri S.M.S. Royekwar, Advocate.
The facts of the case in brief are that the aforesaid Gatas were exclusively recorded in the name of Laxmina W/o Ram Dayal in the Basic Year Khatauni. Ram Dayal was the uncle of Maiku, father of original opposite party no.2 and the grandfather of legal heirs of opposite party no.2 who have been substituted subsequently. Objections were filed by Maiku claiming sole tenancy rights in respect of the aforesaid Gatas.
At this place it is not out of place to mention that objections had been filed by Maiku in respect of another Gata also bearing Gata No.2298, however, at the D.D.C. stage when he filed a revision, he did not press his alleged rights in respect of the said Gata, when he was faced with documentary evidence belying the same, therefore, now the dispute is only with respect to the aforesaid remaining Gatas. The petitioners who claim to have acquired rights in the aforesaid two Gatas on the basis of a Gift Deed executed by Laxmina, recorded tenure holder, on 3.4.1969 also filed objections for striking off the name of Laxmina and for recordint their name in her place. The objection of Maiku was dismissed by the Consolidation Officer and the objection of the original petitioners Raj Bahadur and Rajkumar was also dismissed on the ground that though the Gift Deed was proved, they did not file any affidavit in terms of section 154 of U.P. Zamindari Abolition and Land Reforms Act 1950 to the effect that consequent to such transfer the total area of their holding did not exceed 12.5 Acres, consequently the name of Laxmina, recorded tenure holder was ordered to be maintained.
Being aggrieved, two appeals were filed- one by Maiku and the other by Rajbahadur and Rajkumar. At the appellate stage before the S.O.C. Maiku filed a Khatauni pertaining to 1356F in which both the aforesaid Gatas were exclusively recorded in his name with Muddat cast mentioned as 9 years. It is also not out of place to mention that before the Consolidation Officer Maiku had filed a Mortgage Deed of 1926 by which the land had been mortgaged in favour of Maiku S/o Madari and Ram Dayal, husband of Laxmina.
The S.O.C. dismissed the appeal of Maiku, but allowed the appeal of the petitioners who had a Gift Deed in their favour, as, the petitioners at that stage filed an affidavit in terms of section 154 of the U.P. Zamindari Abolition and Land Reforms Act 1950. The Khatauni in the year 1356F filed by Maiku was not given much credence by saying that merely filing the said Khatauni would not give any right to him in view of the fact that in 1359F Laxmina was recorded solely in respect of Gata No.2560 and continued to be so recorded till the Basic Year Khatauni without any objection from Maiku.
Maiku being aggrieved filed a revision before the D.D.C. under section 48 of the U.P. Consolidation of Holdings Act 1952. The D.D.C. set aside the order of the S.O.C. and held that no order was filed by Laxmina or her successors in interest by which it could be said that her name was admittedly recorded as sole tenure holder in respect of the Gatas in question. He recorded that the Lekhpal added the name of Laxmina fraudulently. The land was never recorded in the name of Ram Dayal. The D.D.C. found that in the Khatauni pertaining to 1360F.-1364F., Gata No.2560 (0-10-0) was recorded in the name of Laxmina. The other Gata bearing No.2311 (1-10-0) was recorded in the name of Maiku and Laxmina and this entry continued from 360F. till 371F. In 1373-1375F Gata No.2311 was changed to Gata No.2320 with the same area. According to the D.D.C. this was deliberately done and Gata No.2311 was added in another Khata bearing No.101 wherein Gata Nos.2298 and 2560 were also entered. Thus, the area of Gata No.2311 was mentioned twice i.e. it was a case of 'double entry'. This according to the D.D.C. was done to benefit Laxmina. Thereafter he has recorded the conclusion that it is the Lekhpal who made Laxmina as the owner of the land in dispute without there being any order of competent authority. Consequently he also found that she having no right in the land in dispute no right could accrue to Rajbahadur and Rajkumar to whom she had gifted the land. Accordingly, he ordered the name of Maiku to be entered in respect of Gata Nos.2311 and 2560.
Having perused the order of the D.D.C. this Court is of the view that the finding that the double entry was made to benefit Laxmina is without any basis, so far as Gata No.2311 is concerned, as the double entry was in respect of this Gata. No reason has been given as to how Laxmina would be benefited by this double entry. The D.D.C. himself has recorded a finding that Laxmina was recorded alongwith Maiku in respect of Gata No.2311 right from 2359F till 1371F. The entry under one of the Khata would still survive. Though Laxmina gave no explanation as to how her name came to be recorded in respect of Gata No. 2560 exclusively when Maiku was recorded with her till at least 1371F. i.e. 1964/1965 nor is there any explanation as to how it continued to be so recorded till the Basic Year Khatauni when the consolidation operation started sometime in the late 1960s or early 1970s., but the fact of the matter is that till 1371 name of Laxmina was recorded alongwith Maiku right from 1359F without any objection from Maiku. It is this Gata which was the subject matter of mortgage of the year 1926 in favour of Maiku and the husband of Laxmina, therefore, question as to how the name of Maiku came to be recorded in 1356F is also require to be considered, as there is no mention about the entries in this regard contained in the Khatauni pertaining to 1356F. in favour of Maiku nor about the class of tenure. All these aspects shall be re-examined by the D.D.C. Considering the long standing entry in Laxmina's name in respect of Gata No.2311 alongwith Maiku right from 1359F i.e. prior to the date of vesting till at least 1371F and even thereafter in one of the Khatas. As regards Gata No. 2560, the D.D.C. has not appropriately considered the import and purport of the entries in the said Khataunis. A Khatauni pertaining to 2560 of 1359F. is on record which refers to some Sanad of 26.12.1950. The revenue records pertaining to this Gata require a re-examination by the D.D.C. to ascertain the rights of the parties therein as this has not been appropriately done.
In view of the aforesaid, the order of D.D.C. is set aside. Revision filed by Maiku shall stand restored. The opposite parties herein who are the successors in interest of Maiku shall get themselves substituted in the revision in his place and the revision shall now be considered afresh by the D.D.C. The D.D.C. shall consider the rights of the parties afresh in respect of both the Gatas and he shall also see Form CH-2A to ascertain as to who was said to be in possession during Partal and thereafter take a fresh decision in the matter. Possession would be a relevant factor to be considered by the Courts below in the circumstances of the case, but there is no conclusive finding of any of the Courts below on this issue.
The D.D.C. shall conclude the proceedings within 8 months from the date a certified copy of this order is submitted.
Till disposal of the revision parties shall maintain status quo with regard to the possession and the entries in the revenue records and shall not alienate the property in question.
With the above observations/directions the writ petition stands disposed off in part.
All pleas are open for consideration by the D.D.C. independently and objectively in accordance with law and the observations herein, except those relating to 'double entry' shall not be treated as conclusive of the merits of the issues involved.
.
(Rajan Roy, J.) Order Date :- 17.9.2019 A.Nigam