Allahabad High Court
Ruchha Son Of Raghubir And Ors. vs Deputy Director Of Consolidation And ... on 24 May, 2007
Author: Krishna Murari
Bench: Krishna Murari
JUDGMENT Krishna Murari, J.
1. Dispute in the present writ petition relates to Khata No. 6 which was recorded in the name of Raghunandan/Raghubir and Brijnandan, the predecessor-in-interest of the petitioners.
2. Admitted pedigree of the parties to the dispute is as under;
Gajadhar
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Parmeshwar Rameshwar
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Phunni Omprakash Mahendra Nagendra |
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Raghubir Raghunandan Brijnandan Chandi
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Prabhu Sargun Jant Jata
3. During consolidation operation, an objection under Section 9A(2) of U.P. Consolidation of Holdings Act was filed by contesting respondents claiming co-tenancy rights to the extent of half share on the ground that khata in dispute was ancestral and joint family property. The case was contested by the petitioners asserting that khata in dispute was neither ancestral nor joint family property but was acquired exclusively by their ancestor. Consolidation Officer vide order dated 3.10.1974 allowed the objection of opposite parties holding them to be co-tenure holders to the extent of half share. Appeal and revision filed by petitioners were dismissed by Settlement Officer Consolidation and Deputy Director of Consolidation vide order dated 21.5.1975 and 29.2.1980 respectively. All the three Courts have held that khata in dispute was acquired jointly and there was no evidence of partition in the family till the time khata in dispute was acquired as such the contesting respondents are entitled to co-tenancy rights to the extent of half share.
4. I have heard learned Counsel for the parties.
5. Sri H.O. K. Srivastava, learned Counsel appearing for the petitioners has urged that the view taken by all the three consolidation authorities that even though the khata in dispute was recorded in the name of petitioners' branch but since the family was in state of jointness as such contesting respondents are entitled to co-tenancy rights to the extent of half share is erroneous in law. It has further been urged that there being no revenue entries to demonstrate that khata in dispute ever recorded in the name of common ancestor, the claim of the contesting respondent of co-tenancy was liable to be dismissed. It has further been pointed out that even though Settlement Officer Consolidation and Deputy Director of Consolidation both found that identity of land in dispute had changed and it has not come down in identical form even then consolidation authorities wrongly and illegally gave co-tenancy rights to the contesting respondents.
6. In reply, it has been submitted by Sri M.D. Mishra, learned Counsel appearing for contesting respondents that since the name of Permeshwar was recorded over half share of khata in dispute in 1344 fasli and there was no evidence regarding his ejectment or resettlement with the petitioners and also the family being in the state of jointness, contesting respondents have rightly been held to be co-tenant to the extent of half share.
7. It is well settled principle that in order to entitle a party to claim co-tenancy rights in holding on the ground of it being ancestral, the unbroken identity of holding has to be established through the period and if the identity has changed the claim cannot succeed. Reference may be made to the following observations of the Hon'ble Apex Court in a recent judgment in the case of Dharamraj and Ors. v. Chhitan and Ors. 2007 (102) RD 73 wherein in paragraph 24, it has been observed as under;
24. Such being the position, it must be held that the respondent Nos. 1 to 3 being the successors in interest from the side of Adhin whose name was duly recorded in respect of the said land were entitled to succeed to the said land on the basis of identity and resettlement of the same. If the identity of the land had been changed, the appellants could not get the property on the basis that originally this land had been recorded in the name of Saltanati and that the said land was their ancestral property. Therefore, the pedigree set up at the instance of the respondent Nos. 1 to 3, even if it cannot be relied on, the respondent Nos. 1 to 3 were entitled, to succeed on the basis of the aforesaid-fact.
8. Equally well settled proposition is that even in the joint Hindu family a member of said family can acquire land for himself and unless it is proved that the land was acquired by him in the representative capacity out of joint family funds for the benefit of the family it cannot be held to be joint family land merely because it was acquired by him when he formed joint family with other members.
9. In the present case, there is no evidence on record to demonstrate that khata in dispute was ever recorded in the name of common ancestor Gajadhar. In Khatauni of 1333-1334 falsi. Plots No. 850, 864, 766, 767, 951 and 832 of Khata No. 87 are entered in the name of Permeshwar son of Gajadhar in Column 8. According to 'fard mutavikat' brought on record, the old and new numbers of plots are as follows;
Old Gatas New Gatas 850 950 864 939 766 787 767 787 832 906 951 1052, 1050, 1051, 1049 !
10. Disputed Khata No. 66 consists of plots No. 906, 939, 950,1036 and 1049. Thus, only three plots namely 906, 950 and 939 corresponding to old numbers 832, 850 and 864 are the same which were recorded in the name of Permeshwar in 1333-1334 fasli. In Khatauni of 1345 fasli said three plots are recorded in the name of petitioners in Column 8 which itself goes to show that the identity of land is not the same and is indicative of the fact that either there had been fresh settlement and it was fresh acquisition by the branch of petitioners.
11. All the three Consolidation Authorities wrongly proceeded on the assumption that since the family was in the state of jointness and in certain other villages the property was held jointly, the khata in dispute was also joint family property. The entry, in the name of petitioners had been continuing for last more than 50 years and there was no evidence to demonstrate that contesting respondents were ever in possession. Their claim of co-tenancy rights to the extent of half share has wrongly been allowed by all the Consolidation authorities. The view taken by the all the three consolidation authorities that since the name of Permeshwar was recorded in khatauni of 1333 fasli when the family was in the state of jointness and there being no evidence of his ejectment his branch would be entitled to half share. All the three consolidation authorities have committed a gross illegality in recording the said finding inasmuch as they have failed to consider the name of petitioners came to be recorded over the some of plots in 1345 fasli which clearly establishes that khata in dispute had not come down in identical form and there was a fresh settlement.
12. It is thus clear from the evidence brought on record that khata in dispute was never recorded in the name of common ancestor of the parties. Even though in 1333-1334 fasli the name of ancestor of contesting respondents was recorded but some of plots of khata in dispute came to be recorded in the name of petitioners in 1345 fasli which clearly goes to show that not only the identity of land was broken but there was a fresh settlement and in view of the aforesaid facts all the three consolidation authorities have committed gross illegality in holding that the property was ancestral. In the absence of any evidence to demonstrate that when the name of petitioners came to be recorded in 1345 fasli over plots in dispute, same was acquired out of joint family fund and for the benefit of the joint family, all the three courts below on a wrong assumption of law declared the contesting respondents to be co-tenant to the extent of half share only on the ground that in 1345 fasli when the land in dispute came to be recorded in the name of petitioners the family was in the state of jointness. The view taken by me finds support from a decision of a learned single judge of this Court in the case of Jagdamba Singh v. Deputy Director of Consolidation and Ors. 1985 RD 281.
13. In the end it was submitted by the learned Counsel far the contesting respondents that writ petition is concluded by finding, of facts concurrently recorded by all the three consolidation authorities which cannot be interfered by this Court in exercise of powers conferred by Article 226 of the Constitution of India and as such the petition is liable to be dismissed.
14. It is no doubt correct that this Court while exercising power conferred by Article 226/227 of the Constitution does not act as a court of appeal and does not ordinarily interfere with the concurrent finding of fact recorded by the courts below based on appraisal of evidence. However, that does not mean that in no case the court will intervene. In cases where the court exercising writ jurisdiction is faced with concurrent decision can interfere if the findings are based on wrong application of principle of law or relevant material has not been taken into consideration or the findings are otherwise arbitrary or perverse or the intervention is necessary for doing justice between the parties.
15. The Hon'ble Apex Court in a number of decisions has analyzed the situation wherein interference can be made by the court while exercising writ jurisdiction even in concurrent findings of fact. Reference may be made to the case of Chandravarkar Sita Ratna Rao v. Ashalata S. Guram wherein it has been observed by the Apex Court that in exercise of jurisdiction under Article 226 of the Constitution, the High Court can go into the question of facts or look into the evidence if justice so requires. But it should decline to exercise that jurisdiction in the absence of clear cut reasons where the question depends upon the appreciation of evidence. It should not interfere with a finding within the jurisdiction of the inferior Tribunal or court except where the finding is perverse in law in the sense that no reasonable person properly instructed could have come to such a finding or there is mis-direction in law or a view of fact has been taken in the teeth of preponderance of evidence or the finding is not based on any material or it has resulted in manifest injustice. Again in the case of Dharamraj and Ors. v. Chhitan and Ors. (supra), the Hon'ble Apex Court has observed as under;
18. It is well settled' position of law by catena of decisions of this Court that in the writ jurisdiction of the High Court, it is always permissible for it to correct the decision of the consolidation authorities or to declare the law on the basis of facts and proof of such facts. For this proposition, we may usefully refer to a decision of this Court in the case of Mukunda Bore v. Banshidhar Buragohain and Ors. in which this Court indicated as to when High Court can interfere with the orders of quasi-judicial authority. This observation may be quoted which is as follows:
While on facts the order of the Board under appeal is not impeccable, we must remember that under Article 226 of the Constitution a finding of fact of a Domestic Tribunal cannot be interfered with. The High Court in the exercise of its special jurisdiction does not act as a Court of Appeal. It interferes only when there is a jurisdictional error apparent on the fact of the record committed by the Domestic Tribunal. Such is not the case here. It is true that a finding based on no evidence or purely on surmises and conjectures or which is manifestly against the basic principles of natural justice, may be said to suffer from an error of law. In the instant case, the finding of the Board that the appellant does not possess the necessary financial capacity, is largely a finding of fact under Rule 206(2) of the Assam Excise Rules, an applicant for settlement of a shop is required to give full information regarding his financial capacity in the tender. Such information must include the details of sources of finance; cash in hand, bank balance, security assets, etc. Then, such information is verified by the Inquiry Officer.
16. From the aforesaid pronouncements of the Hon'ble Apex Court, it is clear that this Court is not to sit as a court of appeal when called upon to judge the findings recorded by competent authorities and does not embark upon reappraisal of evidence and substitute its own findings of fact in place of findings reached by fact-finding authorities. It is clearly outside the ambit of judicial review. However, this proposition is not without an exception. Findings of fact may be interfered with when they are based on wrong appreciation of principle of law relevant thereto or relevant material has not been taken into consideration or finding is otherwise arbitrary or totally perverse.
17. In the backdrop of above settled legal principle, I am not inclined to accept the argument advanced on behalf of the respondents that this Court should not interfere with the concurrent findings recorded by all the three consolidation authorities. From the discussions made above, it is clear that all the three consolidation authorities have proceeded on wrong assumption of law and the findings recorded are totally against the settled legal principle and thus not liable to be sustained.
18. For the aforesaid reasons and discussions impugned judgments dated 3.10.1974, 21.5.1975 and 29.2.1980 passed by respondents No. 3, 2, and 1 respectively cannot be sustained and are hereby quashed. Claim of the contesting respondents for co-tenancy rights in the khata in dispute stands rejected and the objection filed by them stands dismissed. The writ petition stands allowed.
19. However, there shall be no order as to costs.
20. After the judgment was delivered, an oral request has been made for grant of certificate of appeal to the Hon'ble Supreme Court. In my opinion, this case does not involve any substantial question of law of general importance which needs to be decided by the Hon'ble Supreme Court nor it involves any question as to interpretation of the Constitution, hence the request is rejected.
21. In the end, a prayer has been made to stay the effect and operation of judgment for a period of three months. I see neither any ground nor any reason to accept the prayer and the same stands rejected.