Rishi Pal And Anr. vs D.D.C. Additional Collector Haridwar ... on 1 August, 2017

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Uttarakhand High Court

Rishi Pal And Anr. vs D.D.C. Additional Collector Haridwar ... on 1 August, 2017

The controversy and inter se claim between the parties is in relation to the property which is lying in khata No. 84 which constitutes of two khasras 11 and 83. The property, in question, was recorded with Manohar and Kripa, who were bhumidhars. Both Manohar and Kripa died issueless, leaving behind respective wives, Smt. Vidyawati wife of Manohar and Smt. Bohati wife of Kripa. Both Vidyawati and Bohati remarried. Consequently, the case of the petitioners is that once after the death of Manohar, his widow Vidyawati, since has remarried with Hardeva, in view of clause (m), sub-section (2) of Section 171 of the U.P. Z.A. & L.R. Act, the rights by way of succession will devolve upon the sister of Manohar, i.e. Mukundi, since falling in class of successor under Section 171 (2) of the Act. Mukundi met with the sad demise and all rights of Mukundi was 2 succeeded by petitioner No. 1 Rishipal and petitioner No. 2 Narendra Pal.

__________________________________________________________________________ Manohar Kripa Mukundi Vidyawati (wife) Bohati (wife) (sister of Manohar and Kripa) (remarried) Remarried Hardeva Rishipal Narendra Pal (petitioner 1) (petitioner 2) Bala (born from Vidyawati & Hardeva) Respondents.

According to the respondent No.2, she contends that Bala @ Saroj Bala, respondent No. 2, is the daughter of Manohar as calimied, who was born out of the wedlock of Manohar and Vidyawati. This fact is denied by the petitioners contending that Saroj Bala was born out of the wedlock of Vidyawati and Hardeva and, hence, she will not have any right of succession over the property flowing from Manohar. The predecessors of the present petitioners, executed a deed of conveyance on 10th February, 1964, are said to have executed sale deed in relation to khasra 83 of khata No. 84.

The contention of the petitioners is that their rights stood admitted by the respondent because when they executed the sale deed dated 10th February, 1964, in relation to khasra No. 83, lying in khata No. 84, no objection, whatsoever, till date has been raised by her as against the said conveyancing. Meaning thereby, the case of the petitioners is that the respondent admits the ownership and title of the petitioners in relation to khata No. 84, which has devolved on them under Section 171 of Zamindari Abolition Act.

The respondent filed a suit for declaration of the right in relation to the property, in question, under Section 229-B ZA & LR Act, in relation to the khasra No. 11 and 83 of khata 3 No. 84. According to the respondent, the said suit under Section 229-B was decreed and, subsequently, a First Appeal, which was preferred by the present petitioners, was allowed by the judgment dated 3rd December, 1987 of the Additional Commissioner Against which, a Second Appeal was filed by respondent and when the Second Appeal was pending consideration before the Board of Revenue, the village was brought under consolidation and a fresh cause of action was arisen to be agitated with the enforcement of the consolidation proceedings, by filing objection under Section 9A (2) by the respondent.

On reading of the objection filed by the respondent, under Section 9A(2), she has confined her relief only in relation to the khasra No. 11, lying in khata No. 84 of the property in dispute. Even on the perusal of the judgment of Consolidation Officer dated 27.12.2000, it shows that the dispute of declaration under Section 9A (2) filed by the respondent No. 2 was in relation to khata No. 84, ghata No. 11 only, having an area of 18-15-0 pukhta.

Before the learned Consolidation Officer, various issues were framed and one of the issues which was of prime consideration was issue No. 3 as to whether the controversy claimed over property inter se between the parties would be barred by estoppel and acquiescence or not, the reason being according to the petitioners, that when the principal suit under Section 229-B, it was in relation to khasra No. 11 and 83 of gata No. 84 which has abated with the enforcement of the consolidation proceedings, if subsequently, the proceedings are revived before the Consolidation authorities and the applicant to the objection under Section 9, chooses to agitate a cause as against a specific part of the land, it would 4 be deemed that his action would be barred by estoppel and acquiescence, in relation to land left by applicant, since having consciously not raised the issue pertaining to khasra No. 83, it will amount respondent has acquiesced her right over the land, thus, left out in the objection.

Another contention which has been agitated by the learned counsel for the petitioners is that in the proceedings for mutation, initiated under Section 33 read with Section 34 of the Land Revenue Act, as decided by the judgment dated 30th November, 1958, in that mutation proceedings, Saroj Bala was being represented through guardian, meaning thereby, way back since the proceedings of 1958, the respondent No. 2 was conscious of the settlement of rights in relation to khasra No. 81 and 83, and, hence, the judgment dated 30th November, 1958, will too operate as an obstacle for the purposes of attracting the provisions of estoppel and acquiescence against the respondent.

Learned counsel for the petitioners has drawn attention of this Court to the contents of para 2 of the order dated 30th November, 1958, wherein, it shows that respondent No. 2 was being represented in the proceedings of 1958 under the guardianship of Sukha and has filed her objection.

The case of the petitioners further is that as a matter of fact, the respondent No. 2, will not have any right in relation to khasra No. 11 of khata No. 84, for the reason, she claimed to be a daughter born out of the wedlock of Manohar and Vidyawati, however, this fact has been specifically denied by the petitioners in his pleadings, that she is the daughter, who was born out of the wedlock of Vidyawati from her second husband Hardeva. Though, the respondent tried to deny the 5 aforesaid facts but the learned counsel for the petitioners has placed reliance and has taken this Court to the para of the supplementary affidavit dated 30th November, 2006, wherein, she has described herself to be daughter of Hardev. Para 2 of the affidavit, pleads as under :

"That the deponent is the daughter of late Hardeva, who died in the year 1958 at that time the deponent was infant of two or three months, when the father of deponent late Hardeva was died."

From the facts as narrated, one aspect which is quite clear is that in view of her own case, pleaded in affidaivt, though the respondent No. 2 has tired to wiggle out the mistake in the affidavit, by filing supplementary counter affidavit, but on 27th June, 2011, which was filed by way of superseding the contents of pleading raised in the supplementary affidavit filed earlier wherein, in fresh supplementary counter affidavit, she has contended that she is daughter of late Manohar. This plea, taken by the respondent in supplementary counter affidavit, this Court feels is an afterthought. Besides this, on reading of this plea, there is no such assertion that the plea of being the daughter of late Maonhar as pleaded in the affidavit filed on 30th November, 2006, is not being denied so far it relates to the parentage given in para 2 of the supplementary counter affidavit dated 27th June, 2011. Para 2 reads as under:-

"That the deponent is the daughter of late Manohar R/o Village Boodpur Chauhan, Tehsil Roorkee, District Haridwar."

Under Section 171 sub-section (2) clause (i), (k) and (n), the right of succession in an event, if tenure holder dies issueless will be succeeded in accordance with the provision 6 contained under sub-section (2) of Section 171 and the mother of the petitioners would fall to be within sub-clause

(i) of Section (2) of Section 171. Thus, under the general order of succession, it would be the petitioners who would be succeeding through mother Mukundi over the estates of Manohar.

The respondent No. 2 since has not established rather failed before the Court below that she is the daughter born out of the wedlock of Manohar with Vidyawati, she will not fall within the ambit of Section 171 to claim succession, since Vidyawati re-married with Hardeva from whom the respondent No. 2 was born. To attract the estoppel, the onus is casted upon the person who tries to attract the estoppel, which according to the petitioners, they have succeeded to do so for the reason already given above.

When the village was notified under the consolidation and the fresh proceedings were revived on issuance of notification under Section 9 of publication of records mentioned under Section 8 and 8A invited objections, the respondents filed an objection under Section 9 (A) (2) claiming to be recorded in the revenue records on the premise that she is the Sankramanya Bhumidhar, as referred in Pka 11, since she is claiming the rights from Mukundi, wife of late hagwan.

The Consolidation Officer, on the exchange of the pleadings, had framed the following issues:-

1- D;k oknhuh fookfgr Hkwfe dh ladze.kh; Hkwfe/kj dkfct dk"r gSA 2- D;k fj'khiky vkfn fookfnr Hkwfe dk ladze.kh; Hkwfe/kj gSA 3- [kkrs esa i{kksa ds va"k D;k gSaSA 4- D;k euksgj fookfnr Hkwfe dk ladze.kh; Hkwfe/kj FkkA vkSj mldh e`R;q ds ckn mldh okfj"k mldh iq=h ckyk mQZ ljkst gSA 7 fnukad 12-2-96 dks fuEufyf[kr vfrfjDr okn fcUnq fojfpr fd;s x;sA 1- D;k okn /kkjk 49 pdcUnh vf/kfu;e ls ckf/kr gSA 2- D;k okn esa fu;e jsl twMhdsVk ls ckf/kr gSA 3- D;k okn fu;e bLVksisy ,oa ,sDohtsUl ls ckf/kr gSA 4- D;k okn dky ckf/kr gSA 5- D;k Jhefr eqdUnh dks fookfnr Hkwfe dh ckcr nl xquk yxku tek dj Hkwfe/kjh vf/kdkj izkIr fd;s tkus gSa] ;fn gkaW rks izHkkoA Additional issue No. 3 as framed on 12th February, 1996, in which, one of the issues was pertaining to the estoppel and acquiescence. Thus, the argument extended by Mr. Tapan Singh, learned counsel for the respondent that the issue of estoppel and acquiescence was never agitated before the Consolidation Authorities, hence, the argument which has been sought developed by petitioner over here, cannot be permitted to be agitated for the first time under Article 227 of the Constitution of India.

The learned counsel for the respondents has placed reliance in the case of Smt. Atri Devi Vs. Bal Krishna, reported in RD 1995 p/317, in which, it has been held by the Board of Revenue (judgment which do not have binding effect before High Court) that mother is the best proof of evidence of a child, having born in the family. There are two reasons for not accepting this proposition, the first one is that, this is a judgment which has been rendered by the Board of Revenue which will not have binding effect on the High Court and secondly, in this case, there is no such evidence brought on record by the respondent No. 2 to show that she was born out of the wedlock of Manohar or Vidyawati, since, she claims to be daughter of Member and right thereof by succession, burden of proof is on her to 8 show that she is daughter of Manohar from Vidyawati. Hence, this judgment is of no help to the respondents.

This Court is not in agreement with the argument raised by Mr. Tapan Singh, learned counsel for the respondent for the reason that learned Trial Court has consciously framed issue No. 3 and finding to the said effect has been recorded by the Consolidation Officer, while dealing with the issue No. 2. The learned Consolidation Officer, while dealing with the order passed in Second Appeal No. 71 of 1987-88, Saroj Bala Vs. Mukundi, dated 29th January, 1993, had arrived at a conclusion that during the pendency of the Second Appeal, when it abated on 21st January, 1993, under Section 4 sub-section (2) of Consolidation and Holdings Act, the bar of estoppel and acquiescence will not come into play. The finding of Consolidation Officer, while dealing with the issue No. 3 pertaining to estoppel and acquiescence, is perverse because before the Consolidation Officer specific plea was taken with regard to the finding pertaining to the sale deed which was executed way back in 1964, and it also cannot be disputed that to athwart the plea of estoppel and acquiescence in co- relation to the sale made in 1964 and mutation order dated 30th December, 1958, which admittedly, the respondent had the knowledge of the same. The appeal, as preferred by the petitioners, was allowed by the order dated 21st February, 2002 by Assistant Settlement Officer, Consolidation, and the order of the Consolidation Officer dated 27th December, 2000, was set aside.

Against this order, the Assistant Settlement Officer Consolidation dated 21st February, 2002, a revision has been 9 preferred which has been dismissed by Deputy Director Consolidation.

The argument of the learned counsel for the petitioners is that the revisional court could not have exercised the powers of re-scrutinizing the evidence and substituting its reasons without reversing the findings of facts and reasons assigned by the appellate Court, which is the first Court of Appeal which has got the right to appreciate the evidence and fact both. The finding of the revisional Court may not be so intricate as to deal with the issues decided by the Appellate Court and on that score, this Court should not hold itself for long, the reason being that on an overall scrutiny of rights being sought for by the parties in dispute, is confined on few vital issues of law, i.e. whether in the light of the judgment dated 30th December, 1958; whether in the light of the participation made by the respondent No. 2 in the proceedings under Sections 33/34 of Land Revenue Act in which respondent No. 2 participate, through guardians; whether in the light of the sale deed executed in 1964; whether their claim under the consolidation proceedings pertaining to khasra No. 81 and 83 in the first phase of consolidation proceedings would attribute their knowledge to the property in dispute being devolved upon petitioner under Section 271 of ZA & LR Act and then renouncement made in the subsequent proceedings, whether would attract estoppel and acquiescence.

The learned counsel for the petitioners to bring the controversy within ambit of estoppel and acquiescence, for an effort to oust the claim of the respondent No. 2 by attracting the principle of estoppel and acquiescence, has placed reliance in the case of Ramhit Vs. D.D.C. and others 10 reported in RD 1981 (2) p/191, wherein the Court has held as under :-

"Hon'ble Supreme Court in Swig Rallan Thirani Vs. Azmbal Tea Co. Ltd., AIR 1965 SC 295, wherein it was held that failure to raise objection against sale deed could not be taken adversely. There is no finding that petitioner had knowledge of these sale deeds. An effort has been made by learned counsel for opposite parties to distinguish the Supreme Court decision and it was urgent that in that case, there was a finding of fact that if respondent had made the least inquiry it would have come to his knowledge that Ismail was not the full ownere which finding was not challenged in Supreme Court and that the case before Supreme Court was not a case of co-sharer and further Ismail was recorded over the property in dispute as Manager on behalf of other co-sharers. According to learned counsel all these circumstances are absent in this case. I may be that facts which were before Supreme Court are not exactly similar in this case yet the law laid down by Supreme Court is quite clear. Under Section 41 of Transfer of Property Act, the burden to prove that transferee was a bona fide purchaser is on transferee himself. It is for him to establish that despite all efforts it was not possible for him to find out whether petitioner had any share or not. The Deputy Director on the other hand appears to be of the view that it was petitioner's responsibility to prove that opposite parties were not bona fide purchasers. In doing so, he obviously committed manifest error of law."

In the case of Babu Singh and another Vs. Deputy Director of Consolidation and others, reported in RD 1976 (2) p/93, the Court has held as under :-

"The learned counsel for the opposite parties then argued that estoppel is only a rule of evidence and cannot confirm any substantive right. It is true that some times it is thought that an estoppel is a rule of procedure precluding a party from asserting of denying the existence of certain state of facts, and it cannot form the basis of any substantive right, of course an estoppel cannot have the effect of conferring upon a person status expressely denied to him by statute, but where such is not the case rights can be 11 claimed as having come into existence on the basis of estoppel and it is capable of being enforced and defended as against the person precluded from denying it. It is well settled that estoppel may be said to be a foundation of a right as against the person estopped and if it was not so it is difficult to see what protection the principle of estoppel can afford to the person by whom it may be invoked and conversely what disability it can create in the person against whom it operates in cases affecting rights. It appears to me that where rights are involved estoppel may with equal justification be described both as a rule of evidence and as a rule creating or defeating rights In the instant case there is nothing on record to show that the opposite parties for over more than 20 years had taken any steps against Surjan Singh for holding possession by virtue of co-tenancy rights in the disputed Khata. What being so I am of the opinion that the order passed by the Deputy Director of Consolidation suffers from manifest error and cannot be sustained in the eyes of law ."

The learned Single Judge of Allahabad High Court, while dealing with the issue of claim of ½ share in the proceedings under Section 9 has held that, once a party to the litigation renounces his or her rights in relation to the part of total holding claimed to have devolved upon him or her, he or she, simultaneously, held to be barred by estoppel vis-à-vis against the remaining holding because the claim by virtue of the succession or in any other mode of devolvement can be as a whole of assets not in a part until and unless segregated by bequeath.

In answer to this argument, this Court finds that the sale deed of 1964, where the petitioners has transferred khasra No. 83, there is no doubt and there is nothing on record also brought by the respondent that the respondent had questioned or raised any objection against the deed of transfer dated 10th February, 1964, which too, constituted to be part of holding of Manohar.

Acceptance of the title of the petitioners in relation to khasra No. 83, accepting the propriety of the sale deed will consequently also affect their claim on khasra No. 11 and hence, at this juncture, when in other co-lateral proceedings since 30.11.1958, claim of same tenure holder in relation to other part of land other than that involved in the sale deed is under consideration, it goes without saying that by implication, the principal of estoppel and acquiescence will come into play.

On this score, it is yet to be scrutinized from another aspect that under 229-B proceedings were almost dealing with both khasra Nos. 11 and 83 together. However, in the second Appeal that was abated, under Section 4 of the Consolidation and Holdings Act. May it be that the findings of the same will not have any affect due to the abatement, but still the fact remains that in the proceedings under Section 229-B, khasra No. 11 and 83 of Khata No. 84 were not under consideration.

After abatement when the petitioners chose a particular khasra for initiating the proceeding under Section 9 and confined his relief to khasra No. 11, it tantamount to be estoppel and acquiescence as against khasra No. 83. Thus, the petitioners have acquiesced their rights, because under Section 9, proceedings were only after abatement of proceedings under Section 229, which was both khasra 11 and 83 of Khata 84.

The next issue is pertaining to the entitlement of respondent under Section 171 sub-section (1) (i). In the pleadings of the respondent, which is contradictory in the nature at the behest of the respondent as she herself was not sure to her parentage, which in the affidavit, she has 13 deciphered herself to be daughter of Hardev. Admittedly, Vidyawati had married Hardeva, the fact which has not ben denied by respondent and there was no supporting document filed by the petitioners showing that she was born out of the wedlock of Vidyawati and Manohar. As per her own pleadings, she would be taken as to be the daughter, having born out of the wedlock of Vidyawati and Hardeva. Hence, by implication of this relationship, she will be ousted as per the provision under sub-section 2 of Section 171 of the Act, as she will not inherit any property by the said provision, belonging to Manohar.

Even otherwise also, looking to the averments and the findings recorded by the Court below and looking to the contradiction as pointed in the pleadings pertaining to the age of respondent No. 2, she has got no right and interest over the estates left behind by Manohar.

Thus, the findings recorded by the Revisional Court, that too, without reversing the findings recorded by the Appellate Court, is absolutely perverse without application of mind and, thus, the writ petition succeeds and is allowed. The impugned order dated 29th November, 2003, passed by Deputy Director Consolidation / Additional Collector, Haridwar is quashed. No order as to costs.

(Sharad Kumar Sharma, J.) 01.08.2017 Shiv

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Uttarakhand High Court