Allahabad High Court
Ram Asrey And Others vs Deputy Director Of Consolidation ... on 28 August, 2019
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R Reserved Court No. - 5 Case :- CONSOLIDATION No. - 909 of 2006 Petitioner :- Ram Asrey And Others Respondent :- Deputy Director Of Consolidation Sultnapur And Others Counsel for Petitioner :- A.P.Singh Vatsa,Ajay Kumar Singh Raj,Ajay Kumar Singh"Raj",Ravi Kumar Singh Vats,Ravi Nath Tilhari Counsel for Respondent :- C.S.C.,Abhinav N.Trivedi,D.C.Mukharjee,Harikesh Kumar Sharma,I D Shukla,R.N.Gupta,Ram,Ram Krishna Tripathi,S K Mehrotra Hon'ble Devendra Kumar Upadhyaya,J.
This petition filed under Article 226 of the Constitution of India challenges the order dated 26.08.2005 passed by the Settlement Officer of Consolidation, Sultanpur whereby the orders dated 18.03.1999 and 09.04.1999 passed by the Consolidation Officer, Sultanpur in respect of land in dispute comprising in khata nos. 24 and 200 of village Haripur, Pargana Aldemau, Tehsil Kadipur, District Sultanpur have been set aside and the land in said khatas has been ordered to be recorded in the names of Brij Bhushan, Lauhari Prasad and Ram Krishna to the extent of 1/2,1/4 and 1/4 shares of these persons. The petitioner has also challenged the order dated 28.08.2006 passed by the Deputy Director of Consolidation, Sultanpur whereby the revision petitions preferred against the order dated 26.08.2005 passed by the Settlement Officer of Consolidation, have been dismissed. Heard learned counsel for the parties. Since the dispute at hand has a long history and various parties to the proceedings drawn before the consolidation authorities/courts as also before this Court have died and in their place, their legal heirs and representatives have been substituted, the petitioners and their predecessors-in-interest will be referred to as petitioners and similarly the respondents and their predecessors-in-interest shall be referred to as the respondents in this judgment. The dispute raised in this petition relates to land comprised in two khatas , namely, khata nos.24 and 200, situate in village Haripur, Tehsil Kadipur, District Sultanpur. Khata no.24 comprised of gata nos. 151, 351, 151/4, 351/4, 151/3 and 351/5 whereas Khata no. 200 comprised of gata nos. 132/2, 132/4, 116 and 132. It is not in dispute that basic year entry in the revenue records in respect of land in dispute was in the name of Chandra Bhushan and Brij Bhushan. Chandra Bhushan is the father of respondent nos.3 and 4 whereas Brij Bhushan is the father of respondent no.5. On commencement of consolidation proceedings, the petitioners filed objections taking a plea that land in question was ancestral property both of the petitioners and the respondents and that the petitioners have been in possession over their shares of land since before abolition of zamindari. The claim of petitioners was also based on a Bahmi Bantwara (family settlement). Certain other objections were also filed by other individuals. In respect of land comprised in khata no.24, respondents filed objections regarding gata no.192 to the effect that name of Brij Bhushan be deleted from the said gata. The petitioners also filed objections regarding gata nos.351/4 and 154/4 with the prayer that names of respondent nos.3 and 4 and that of Brij Bhushan be deleted from the records and in their place, names of petitioners be recorded. Another objection in respect of khata no.24 was filed by Hari Prasad in relation to gata no. 351 and 352 with the prayer that he be recorded as co-tenure holder. In respect of gata nos. 151 and 351, another objection was also filed by the petitioners with the prayer that names of respondents be deleted and their names be recorded. In respect of gata nos. 151/3 and 351/5, one Param Sukh who was father of petitioner nos. 10 and 11 and Gayatri Prasad, Jayanti Prasad and Vans Raj also filed objections praying that names of respondent nos.3 and 4 and that of Brij Bhushan be expunged and in their place, names of the petitioners may be recorded. Similarly in respect of land comprised in khata no.200, the petitioners filed objection regarding gata nos. 132/1, 351, 132/2 and 132/4. Objection in respect of gata no. 132/2 was filed by Param Sukh, Gayatri Prasad, Jayanti Prasad, Vans Raj and Ram Ujagar as well. Brij Bhushan, father of respondent no.5, Lauhari Prasad and Ram Krishan also filed objections against Ram Awadh in respect of gata no.132 to the effect that his name be deleted and their names be recorded in his place. Regarding gata nos.116, 131 and 132, Param Sukh filed objection for getting his name recorded. One Hari Prasad also filed objections regarding gata nos. 116, 131 and 132 for claiming co-tenancy rights in these gatas. Sri R.N Tilhari, learned counsel appearing for the petitioners has submitted that certified copy of the family settlement executed on 01.05.1957 and registered on 15.05.1957 which was entered into between the predecessors-in-interest of the petitioners and those of respondents was filed before the Consolidation Officer whereby the land in dispute was settled between the petitioners and the respondents. He has also stated that in the family settlement, the circumstances in which the said settlement had taken place, were mentioned. He has further argued that in the First Settlement the land in question was recorded in the name of Matadin, son of Agnoo who undisputedly was the common ancestor of the petitioners and all the respondents. The land thereafter was recorded in the Second Settlement jointly in the name of predecessors-in-interest of the petitioners and those of the respondent nos. 3 to 5. However, in the Third Settlement, two separate khatas were constituted. Khata no. 390 was recorded in the name of Vasu Deo and others, who is the predecessor-in-interest of the respondent nos. 3 to 5 whereas khata no.390/1 was recorded in the name of Sahdeo and Sampatti, sons of Gauri, Murat and Nayak, sons of Mahant/Mathura and Kulwanti, who are the predecessors-in-interest of the petitioners. It has also been submitted by Sri Tilhari that on account of mistake committed by revenue authorities, name of Vasu Deo the predecessor-in-interest of the respondents was also entered in revenue records in respect of khata no.390/1. He has also submitted that in order to resolve the dispute which arose on account of mistake committed by the revenue authorities in the khatauni prepared during Third Settlement, a registered family settlement was entered into between the predecessors-in-interest of the petitioners and those of the respondents which was executed on 01.05.1957 and was registered on 15.05.1957. His submission is that parties to the said settlement were joint tenure holders and the land in question was ancestral. Certain oral evidences were also led by the parties and the Consolidation Officer on consideration of entire evidence available on record vide his order dated 18.03.1999 allowed the objections filed by the petitioners in respect of the land comprised in khata nos. 24 and 200 in terms of the registered family settlement dated 15.05.1957. On passing of the order by the Consolidation Officer on 18.03.1999, the said order was implemented by means of the order dated 17.04.1999 passed in proceedings drawn under Rule 109-A of U.P Consolidation of Holdings Rules framed under U.P. Consolidation of Holdings Act. Three appeals were thereafter filed; one by respondents against the order dated 18.03.1999, namely Appeal No. 2977 of 2004, second also by the respondents against the order dated 09.04.1999 passed under Rule 109-A of U.P. Consolidation of Holdings Rules, which was registered as Appeal No.66 of 2004 and the third by Diwamani and others challenging the order dated 18.03.1999 in respect of khata no. 200 and 262. The Settlement Officer, Consolidation vide order dated 26.08.2005 which is under challenge herein allowed the appeals filed by the respondents, namely Appeal No. 2977 of 2004 and Appeal No.66 of 2004 and set-aside the orders dated 18.03.1999 and 17.04.1999. Against the aforesaid order dated 26.08.2005, three revision petitions were filed before the Deputy Director of Consolidation under Section 48 of U.P. Consolidation of Holdings Act, namely, Revision Petition No. 447 and 448 by the petitioners and Revision No. 456 by Jayanti Prasad. The Deputy Director of Consolidation by passing the impugned order dated 28.08.2006 dismissed the revision petitions filed by the petitioners and has maintained the order dated 26.08.2005 passed by the Settlement Officer, Consolidation whereby he had set-aside the orders dated 18.03.1999 and 17.04.1999 passed by the Consolidation Officer. It is these two orders, the one dated 28.08.2006 passed by the Deputy Director of Consolidation and the other dated 26.08.2005 passed by the Settlement Officer, Consolidation which are under challenge herein. It has been argued by learned counsel for the petitioners that the reasons given by both the courts below for setting aside the order dated 18.03.1999 passed by the Consolidation Officer are not tenable. He has further stated that as a matter of fact, any family settlement arrived at between the members of a family is to be considered liberally as the idea of executing the family settlement is that if by consent of parties any dispute has been settled, it should not be allowed to be reopened by the parties to nullity it. He has further stated that there is nothing on record to establish that the respondents had ever raised any objection regarding filing of the certified copy of the registered settlement in evidence before the Consolidation Officer and further that the case set up by the respondents that since the land in dispute was not recorded as joint holding, no family settlement could have been arrived at, is erroneous and the correct legal position is that even a joint holding in the name of one member of the family can be mutually partitioned by way of a family settlement. He has further argued that the finding recorded by the courts below that the land in question could have been claimed only by filing a suit for partition under Section 176 of Uttar Pradesh Zamindari Abolition and Land Reforms Act (hereinafter referred to as ''Act') is also not legally tenable for the reason that it is not necessary to file a suit for partition in case of any private partition/arrangement between the members of a family. Sri Tilhari has thus forcefully argued that the order dated 18.03.1999 based on the family settlement was just, proper and completely lawful whereas the Settlement Officer, Consolidation and the Deputy Director of Consolidation while passing the impugned orders have clearly given wrong findings which are legally not tenable. Per contra, Sri I.D. Shukla, learned counsel for respondent nos. 3, 4, 5/1 and 5/2 has argued that the petitioners are claiming their right on the basis of family settlement which in respect of land situated in other villages has not been approved for claiming joint tenancy. He has further argued that in fact, the family settlement before the Consolidation Officer was filed surreptitiously. Sri Shukla has further stated that in the khatauni pertaining to 1356-1359 fasli, two separates khatas were constituted and further that there is a presumption of correctness of revenue entries pertaining to 1356 and 1359 fasli and it is for the other party to show that such an entry is wrong. He has also argued that entry in the revenue records in the year 1359 fasli confers right on the person recorded therein, correctness of which cannot be gone into. In support of his submission, Sri Shukla has placed reliance on the judgments in the case of Ramnath Singh and another vs. Deputy Director of Consolidation, Hardoi and others, 2014 (32) LCD 659 and Ram Naresh and others vs. Deputy Director of Consolidation, Sultanpur and others, 2016 (130) RD 356. Sri Shukla has further argued that a right which does not accrue to a party under any provision of law could not be recognized by any agreement or compromise in the consolidation proceeding and in this case since as per the khautani entries pertaining to 1356 and 1359 fasli, no right could be conferred upon the petitioners, hence on the basis of family settlement, no right can be said to have accrued in favour of the petitioners. For substantiating the said argument, Sri Shukla has placed reliance on judgment of this Court in the case of Shiv Prasad vs. Deputy Director of Consolidation, Ghazipur and others, 2006 (101) RD 624. He has further argued that in the instant case identity of the entire holding from the First Settlement till initiation of the consolidation proceedings are found broken and that the land has not come down in the records in identical form as such co-tenancy right cannot be claimed by the petitioners. In support of this submission he has placed reliance on a judgment of this Court rendered in the case of Jagdamba Singh and others vs Deputy Director of Consolidation and others, 1984 (2) LCD, 398. Lastly, learned counsel for the respondents has argued that the matter between the parties stands concluded by concurrent findings of facts recorded by the Deputy Director of Consolidation and the Settlement Officer, Consolidation and hence this Court would not interfere in the said orders in exercise of its jurisdiction under Article 226 of the Constitution of India. In support of his submission, he has placed reliance on judgment of this Court in the case of Ruchha and others vs. Deputy Director of Consolidation, Gorakhpur and others, 2007 (103) RD 72. The arguments made in detail by learned counsel representing the respective parties have been considered by the Court. The Court has also gone through the various judgments cited by the parties and has also perused the record available on this petition. On the basis of consideration of rival submissions made by learned counsel for parties and also on perusal of the orders passed by the courts below, the issue which has emerged for consideration in this case is as to whether the reasoning given by the Settlement Officer, Consolidation as also by the Deputy Director of Consolidation for upsetting the judgment and order dated 18.03.1999 passed by the Consolidation Officer whereby he has accepted the claim of co-tenancy, is legally tenable or not. The Consolidation Officer vide his order dated 18.03.1999 has considered the matter in detail and on consideration of the claims of the respective parties has come to the conclusion that on the basis of family settlement which has been described by the Consolidation Officer as taqseemnama and was executed on 01.05.1957 and registered on 15.05.1957, the petitioners are the co-tenants in the land comprised in khata nos.24 and 200. The Consolidation Officer has accordingly allowed the claim of the petitioners vide order dated 18.03.1999. The Settlement Officer, Consolidation, however, while setting aside the order passed by the Consolidation Officer has observed that the Consolidation Officer had erred in law in relying upon the family settlement. He has stated that the family settlement was executed on 01.05.1957 i.e. on a date after Uttar Pradesh Zamindari Abolition and Land Reforms Act came into force and as such on enforcement of U.P.Z.A & L.R.Act, parties ought to have sought partition of the holding by instituting a suit/proceeding under Section 176 of U.P.Z.A & L.R.Act. The Settlement Officer, Consolidation has also recited in his order that it is only the certified copy of the family settlement which was produced before the Consolidation Officer and if the said document was got registered, its original ought to have been produced which was not done by the petitioners and accordingly any order passed on the basis of such family settlement cannot be sustained. The Deputy Director of Consolidation while affirming the order passed by the Settlement Officer, Consolidation has recited in his order that on the basis of family settlement dated 15.05.1957, no claim was ever raised by the petitioners earlier i.e. before commencement of consolidation operation, neither the same was proved by the petitioners before the Consolidation Officer. He has also stated that though the family settlement relied upon by the petitioners is registered, however its original was not produced before the Consolidation Officer and the same cannot be proved by producing only its certified copy. Another reason assigned by the Deputy Director of Consolidation for rejecting the claim of petitioners is that the family settlement is a kind of partition, however any partition can be effected only if the khata is recorded jointly and that the name of petitioners were not recorded in the khatas in dispute. The Deputy Director of Consolidation has also stated in his order that in the Third Settlement all the gatas are not found recorded in the name of both the parties and that under the provisions of U.P. Tenancy Act, 1939, it was permissible for co-tenure holders to get the khata partitioned with the permission of Zamindar and accordingly names of co-tenure holders could be recorded in different khatas, however such provision does not exist in U.P.Z.A & L.R. Act. The Deputy Director of Consolidation was thus of the view that after coming into force of U.P.Z.A & L.R Act, Bahmi Bantwara is not recognized by the said Act. He further states that the U.P. Z.A. & L.R Act even does not bar Bahmi Bantwara or family settlement on the basis of some compromise, however such document should be registered but even such document cannot be entered into in case parties are not recorded as co-tenants in the khata concerned. In this view, the Deputy Director of Consolidation opined that any partition cannot be given effect to unless and until it is sanctioned in/by proceedings under Section 176 of U.P.Z.A & L.R.Act. So far as the validity of family settlement is concerned, the courts have always opined that a very liberal and broad view should be taken and an attempt should be made by the courts to uphold and maintain family settlement for the reason that if by consent of parties some matter has been settled, the same should not be allowed to be reopened. Reference in this regard may be made to judgment of Hon'ble Supreme Court in the case of Kale and others vs. Deputy Director of Consolidation and others, reported in (1976) 3 SCC 119. In the said case, Hon'ble Supreme Court has observed that family settlements or arrangements are governed by a special equity and should be enforced if they are honestly made. It has further been observed that ordinarily the Courts would lean in favour of family arrangements and technical or trivial grounds are to be overlooked and further that Rule of estoppel is to be pressed into service to prevent unsettling of a settled dispute. The said observations have been made by Hon'ble Supreme Court by recognizing the virtue of family settlement amongst members of a family descending from a common ancestor as such members by entering into family settlement make an attempt to bury their differences and resolve the conflicts or claims or disputes in titles once for all in order to buy peace of mind and to bring harmony and goodwill in the family. Accordingly, in view of the principles evolved by Hon'ble Supreme Court in the case of Kale and others (supra), while considering any family settlement, the courts should always act with a liberal approach. Hon'ble Supreme Court referring to case of Kale and others (supra) has, in the case of Hari Shankar Singhania and others vs. Gaur Hari Singhania and others, reported in (2006) 4 SCC 658, stated that family settlement should not be likely interfered with as such settlement are to be viewed a little differently from ordinary contracts. Reference in respect of family settlement may also be made to yet another judgment of Hon'ble Supreme Court in the case of Bhagwan Krishan Gupta (2) vs Prabha Gupta and others, reported in 2009 (11) SCC 33 wherein it has been held that when there is a family settlement, evidently, technicalities in the matter of construction should not be insisted upon. Thus, the Courts need to approach the issue between the parties in this case with a broader and liberal view as regards the family settlement executed on 01.05.1957 and registered on 15.05.1957. Reason indicted by the courts below for ignoring the family settlement is that it was not produced before the Consolidation Officer in original; rather it was only the certified copy of the original family settlement which was produced and hence it was not admissible in evidence. Another reason indicated by the courts below for not relying upon the family settlement is that by the said family settlement, the holding could not have been partitioned for the reason that it was not recorded jointly in the name of the petitioners and the respondents. The courts below have yet given the third reason for not relying upon the family settlement and the reason given is that after enforcement of U.P.Z.A & L.R.Act, no partition of holding through family settlement is permissible except by way of bringing a suit/proceeding under Section 176 of U.P.Z.A & L.R.Act. In respect of the first reason mentioned in the impugned orders that the family settlement is not filed in original; rather certified copy of the family settlement was filed by the petitioners before the Consolidation Officer, a reference may be made to judgment of Hon'ble Supreme Court in the case of Dayamathi Bai (Smt) vs. K. M.Shaffi reported in 2004 (7) SCC 107 wherein it has been held that objection as to the mode of proof of any document falls within the procedural law and therefore such objection could be waived and further that such objection needs to be taken before the court below. In the said case, reference was also made to yet another judgment in the case of R.V.E Venkatachala Gounder vs Arulmigu Vishwesarawami & V.P. Temple & another reported in (2003) 8 SCC 752 wherein the proposition of law that a document not admissible in evidence, though brought on record, has to be excluded from consideration, was not doubted. However it was further observed that an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. Hon'ble Supreme Court in the case of R.V.E. Venkatachala Gounder (supra) has clearly held that in a situation where objection as to admissibility of document is not in dispute in evidence but objection is in respect of mode of proof alleging the document to be irregular or insufficient, the objection should be taken when the evidence is tendered and once document has been admitted in evidence. The Hon'ble Supreme Court in the said case has further held that the objection that such document should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as exhibit. Para 20 of the said judgement in the case of R.V.E Venkatachala Gounder (supra) is extracted herein below;
"20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the above said case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court."
In the instant case, the objection as to the admissibility of certified copy of the family settlement was not taken by the respondents before the Consolidation Officer. There is no such recital in the order passed by the Consolidation Officer that any such objection was raised before him by the respondents. In view of this, merely because the Consolidation Officer while passing the order dated 18.03.1999 has placed reliance on the certified copy of the family settlement, in my considered opinion, the said order cannot be found to be vitiated.
The second reason given by the courts below for setting-aside the order dated 18.03.1999 is that since the holding was not jointly recorded, as such it could not have been partitioned mutually by entering into family settlement. The said reason given by the courts below for not believing the claim of the petitioners based on the family settlement executed on 01.05.1957 and registered on 15.05.1957 is also not tenable in view of the law laid down by this Court in the case of Ram Ashrey and others vs. Board of Revenue, U.P., Allahabad and others, reported in (1981) ALJ 1283. In the case of Ram Ashrey (supra), in more than clear words it has been held by this Court that joint holding which stands recorded exclusively in the name of one of the members of the family can be mutually partitioned by way of family settlement declaring it to belong to another or others members of the family. The Court in the said case has further held that if joint property has been partitioned in family settlement, parties to such family settlement would be estopped from resiling. The said principle has been laid down in paragraphs 13, 14, 15 and 16 of the said judgment which are extracted herein below:-
"13. There appears to be no specific bar under the provisions of the U.P. Zamindari Abolition & Land Reforms Act to the mutual partition of a joint holding by a tenure holder by way of family settlement which, if bona fide arrived at, would operate as estoppel between the parties. On the basis of the mutual partition of a joint holding made in a family settlement the parties are entitled to get their names mutated in the revenue records, as is provided in the Explanation appended to Section 34 of U.P. Land Revenue Act which reads as follows:
"The word "transfer" includes a family settlement by which the holding or part of the holding recorded in the record of rights in the name of one or more members of that family is declared to belong to another or other members (or in exchange of holding under Sec. 162 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950)"
The aforesaid Explanation clearly indicates that if a holding or part thereof which is recorded in the name of one or more members of the family, is declared to belong to another member in a family settlement arrived at between the parties it would, for the purpose of mutation in the revenue records, be deemed to be a transfer. It is well settled that a family settlement need not be in writing and may be arrived at orally between the parties and on the basis of such family settlement mutation application for recording their names as exclusive tenants of the same would be maintainable in view of the aforesaid explanation appended to S. 34. Any compromise or consent application filed in the mutation case admitting exclusive tenancy rights on the basis of family settlement and possession of the applicant in pursuance thereof would be binding on the party concerned and he would be estopped in resiling from it unless some fraud, misrepresentation, coercion or undue influence in filing of compromise or consent application is alleged and established.
14. It is thus evident that a joint holding, which stands recorded exclusively in the name of one of the members of the family can be mutually partitioned by way of family settlement declaring it to belong to another or other members of the family. In the absence of any provisions, contained in U.P.Z.A. & L.R. Act prohibiting mutual partition by way of family settlement of a holding and in view of the aforesaid explanation appended to S. 14 (or S. 34) recognising such family settlement for the purposes of mutation in the revenue records, I am of the opinion, that if a joint property has been partitioned mutually in family settlement the parties thereto acquire exclusive rights in the portion falling in their shares and once a joint property has been partitioned in family settlement and is acted upon the parties to such family settlement would be estopped in resiling from it. It can be avoided only on establishing that such family settlement or mutual partition was obtained by practising fraud misrepresentation, coercion or undue influence. It would be treated to be void if it is violative of some mandatory provisions of law.
15. The parties to the family settlement would be bound by it and cannot resile from it. Hon'ble Supreme Court in the aforesaid Kale v. Dy. Director of Consolidation (AIR 1976 SC 807 at pp. 817, 825) (supra) case has laid down that:
"A family arrangement being binding on the parties to the arrangement clearly operates as an estoppel so as to preclude any of the parties who have taken advantage under the agreement from revoking or challenging the same. Even if the family arrangement was not registered it could be used for a collateral purpose namely, for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement and also for the purpose, of applying the rule of estoppel which followed from the conduct of the parties who have taken benefit under the settlement keep their mouths shut for full seven years and later try to resile from the settlement."
In the present case, Sahdeo Pathak is said to have received the land in suit in his share exclusively and if the said family settlement was bona fide, voluntary and was not induced by fraud, coercion or undue influence, the plaintiff would be bound by it. But whether any such family settlement was, in fact arrived at or not and whether a compromise was arrived or not in the aforesaid correction of papers case admitting exclusive title of Sahdeo Pathak on the basis of mutual partition in family settlement are questions of fact which have got to be determined by the trial court and so I do not express any opinion about it.
16. In view of what has been said above, I am of the opinion that a joint holding can be mutually partitioned by way of family settlement provided such mutual partition and family settlement is genuine and has not been made to circumvent the provisions of any other enactment for the time being in force if the family settlement would be bona fide and genuinely made in recognition of pre-existing rights in the land in question it would be valid, effective and binding between the parties. It would however, be liable to be ignored by the landholder (State Govt.) in case it is found to have been arrived with mala fide intentions in order to circumvent some provisions of law, namely the U.P. Imposition of Ceiling on Land Holdings Act or such other enactment. Under the provisions of said Act even certain declaration and partition decrees of court are liable to be ignored."
So far as the other reason given by the courts below for not acting upon the family settlement executed on 01.05.1957 and registered on 15.05.1957 to the effect that after enforcement of U.P.Z.A & L.R Act, no family settlement could be entered into between the members of a family and for the said purpose partition can be effected only by instituting a suit under Section 176 of U.P.Z.A & L.R Act is concerned, the said view taken by the courts below runs contrary to the law laid down by this Court in the case of Binayak Singh vs. Board of Revenue, U.P. Allahabad and others, reported in 1983 RD 39 wherein it has clearly been held that the view that land cannot be partitioned without taking recourse to proceeding under Section 176 of U.P.Z.A & L.R Act, is erroneous. Relevant extract of the judgment in the case of Binayak Singh (supra) is extracted herein below:-
"In view of the above, it is clear that in present case the appellate courts are patently wrong in holding that Bhumdhari plots cannot be partitioned without taking recourse to proceedings under Section 176 of the U.P.Z.A and L.R Act.
To me it appears that recourse to a suit under Section 176 of the U.P.Z.A and L.R Act in the case of private partition would depend upon the facts and circumstances involved in each case. Suppose that a private partition has taken place between co-tenure-holders but the Gaon Sabha and the State of U.P does not accept the same and regarding a portion of the rent in private partition they raise objections, in that circumstance a suit under Section 176 of the U.P.Z.A and L.R Act despite private partition might be necessary but in the present case the State of U.P and the Gaon Saba" have not filed any objection and it appears that the parties are in separate possession over separate quras, hence the question of maintainability of the present suit should have been examined by the appellate courts from correct angle.
No doubt, there are conflicting views of the Board of Revenue that Sir right and Bhumidhari right cannot be partitioned without the aid of the Court but I think that taking recourse to law courts in cases of private partition in each case is not necessary. It all depends upon the facts and circumstances of a particular case."
In view of the discussions made and principles of law as laid down by this Court as also by Hon'ble Supreme Court cited above, I have no hesitation to hold that reasons given by the courts below by passing the impugned orders are legally not tenable. The family settlement dated 01.05.1957, registered on 15.05.1957 has to be given due weightage and some solemnity has to be attached to it.
So far as the submissions made by learned counsel representing the respondents that identity of the land stands broken is concerned, the said issue need not be gone into in view of the findings recorded above regarding the family settlement dated 01.05.1957, registered on 15.05.1957.
Submission of learned counsel for respondents made in respect of presumption of right on the basis of revenue entries in khatauni pertaining to 1356-1359 fasli also thus loses force. As far as the insistence of learned counsel for respondents that this Court would not interfere in concurrent findings of fact recorded by the courts below, it may only be stated that in the discussions made above this Court has found that the finding recorded by the Settlement Officer, Consolidation and also by the Deputy Director of Consolidation in respect of family settlement was erroneous inasmuch as the same is based on reasons which are legally not tenable.
Any illegality committed by courts below or findings based on erroneous application of legal principles can always be corrected by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.
The said argument made by learned counsel representing the respondents thus also merits rejection, which is hereby rejected.
Resultantly, the writ petition is allowed. The impugned order dated 28.08.2006 passed by the Deputy Director of Consolidation, Sultanpur, as is contained in annexure no.1 to the writ petition and the order dated 26.08.2005 passed by the Settlement Officer of Consolidation, Sultanpur, as is contained in annexure no.5 to the writ petition, are hereby quashed.
Consequences to follow.
There will be no order as to costs.
Order Date :- August 28, 2019 Renu/-