Allahabad High Court
Bajrangi vs Joint Director Cons. Raebareli on 5 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 208
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 7 Reserved AFR Case :- CONSOLIDATION No. - 301 of 1999 petitioner :- Bajrangi Respondent :- Joint Director Cons. Raebareli Counsel for petitioners :- S.C.Padney,Ashok Kr. Mishra,Maneesh Kumar Singh,Miss Navita Sharma,Navita Sharma,V.D. Sharma Counsel for Respondent :- C.S.C.,Vimal K. Verma Hon'ble Rajnish Kumar,J.
1. Heard, Ms. Navita Sharma, learned counsel for the petitioner, learned Standing Counsel and Shri Vimal Kishore Verma, learned counsel for the opposite parties no.4 and 5.
2. This writ petition has been filed challenging the judgment and order dated 11.03.1999 and 22.06.1987 passed by the opposite parties no.1 and 2 respectively.
3. The brief facts of the case for adjudication of the case in hand are that the petitioners had filed the objections under Section 9-A (2) of the U.P. Consolidation of Holdings Act, 1953 (here-in-after referred as the Act of 1953) on 16.09.1985 alleging therein that the land of the alleged Khata No.414 is their ancestral property. It was earned jointly by three real brothers namely Lachhiman, Bhagwati and Raj Bahadur. Lachhiman was the eldest and Karta of the family therefore his name was recorded. It was submitted that they have 1/3rd share, upon which they are in possession and are cultivating the same. They are co-sharers in the aforesaid Khata No.414 having numbers 1389 and 1045 situated at Gram Chilauli, Pargana Mohandganj, District- Raebareli. The opposite parties no.4 and 5 had also filed their objections under Section 9-A (2) of the Act of 1953 alleging therein that the disputed land was self acquired by Lachhiman from his own income after separation. His brothers have no share in the said land. They have received the said land through a sale deed from Lachhiman and they are in possession after the sale deed and mutation and are Bhumidhar. Accordingly, they denied the rights and title of the petitioners and others and prayed for the rejection of the request for partition and to continue the entry in the name of the opposite parties no.4 and 5.
4. The statement of witnesses examined on behalf of the petitioners Lal Pratap Singh as PW-1 on 24.12.1995, Ram Baran Singh as PW-2 on 27.01.1986 and Bajrangi as PW-3 on 23.04.1986 were recorded. On behalf of the opposite parties no.4 and 5 also three witnesses were examined namely Devi as DW-1 on 27.05.1986, Kodau as DW-2 on 01.07.1986 and Satya Narain as DW-3 on 23.02.1987. The consolidation officer after hearing the parties and considering the evidence and records rejected the objections of the petitioners and provided that it shall remain entered in the name of Satya Narain etc. by means of the order dated 22.06.1987. The petitioners preferred an appeal number 1558/893/616/378 under Section 11 (1) of the Act of 1953 before the Settlement Officer Consolidation, Raebareli. He, after hearing the learned counsel for the parties and examining the evidence available on record, allowed the appeal and set-aside the order dated 22.06.1987 by means of the judgment and order dated 08.03.1990. It was further provided that in Khata No.414 the names of the petitioners be also recorded alongwith the opposite parties no.4 & 5.
5. Being aggrieved the opposite parties no.4 and 5 preferred a Revision No.930/301 under Section 48 of the Act of 1953 before the Joint Director Consolidation. The Joint Director Consolidation, after hearing the learned counsel for the parties and considering the material available on record, allowed the revision and set-aside the order passed by the Settlement Officer Consolidation dated 08.03.1990 and maintained the order dated 22.06.1987 passed by the Consolidation Officer with observation of correction of records by means of the judgment and order dated 11.03.1999. Hence the present writ petition has been filed under Article 226 of the Constitution of India challenging the orders dated 11.03.1999 and 22.06.1987.
6. Submission of learned counsel for the petitioners was that the grandfather of the petitioners nos.2 and 3 and great grandfather of the petitioners nos.1/2 and 1/3 namely Lala had three sons; Lachhiman, Bhagwati and Raj Bahadur. After death of Lala, all the three sons of Lala inherited the property jointly however Lachhiman was the karta of the family. He, with the intention that all property may not be divided among his brothers, executed a registered will of plot Nos.1389 and 1405 in favour of their grand sons i.e the opposite parties no.4 and 5 while the said land was allotted to him as karta of the Joint Hindu Family being eldest brother. Since the said property was allotted to him as karta of the Joint Hindu Family, therefore the same was also liable to be divided equally. But all the properties were divided and recorded in their names according to their shares except the aforesaid property in despute. Since the shares of the petitioners in the said land was not recorded in their names therefore, the petitioners had filed objections under Section 9-A (2) of the Act of 1953 in regard to the land Nos.1389 and 1405 having Khata No.414. Lal Pratap Singh, who was examined as PW-1 on 24.12.1985, had stated in his evidence that the partition had taken place before 24-25 years while the said land was allotted in the name of Lachhiman prior to that, therefore it was a property of the Joint Hindu Family and was liable to be partitioned equally.
7. She had further stated that the opposite party no.4 has also stated in his evidence that Lachhiman had died in 1980 and he had no knowledge that how he had acquired the said property but it was a self acquired property. He has stated this on the basis information given by villagers. The witnesses have also stated that Lachhiman was residing in the village while Bhagwati and Raj Bahadur lives out and they used to send money to Lachhiman, out of which he had acquired the property. She had further stated that since the opposite parties no.4 and 5 are claiming that it was the self acquired property of Lachhiman, therefore the burden was on them to proof that it is a self acquired property of Lachhiman and he had some other source of income but their burden has not been discharged. She had also submitted that the opposite party no.5 was minor at the time of sale deed and the proof of the payment of the consideration has also not been submitted. Therefore the circumstances also indicate that the sale deed was executed by late Lachhiman just to save the land in dispute from being partitioned. The learned Consolidation Officer and Joint Director Consolidation failed to consider the evidence and the material on record in its correct perspective and wrongly rejected the objection and the revision. The learned Settlement Officer Consolidation had rightly considered the evidence of Lal Pratap Singh, PW-1 and considering that the opposite parties no.4 and 5 are the legal successor of late Lachhiman, therefore there was no occasion for executing the sale deed even then the sale deed has been executed in regard to the land in dispute with cleverness to remove his doubt that it may not be divided among all treating it to be ancestral properly.
8. On the basis of above, learned counsel for the petitioners has submitted that the judgment and orders dated 11.03.1999 and 22.06.1987 passed by the opposite parties no.1 and 3 respectively are liable to be quashed and the names of the petitioners are also liable to be recorded in Khata No.414 (Supra) alongwith opposite parties no.4 and 5. She had relied on a judgment of this Court passed in the case of (Smt.) Dharmawati Tiwari and Others Vs. Prem Shanker Tiwari and Others; 1999 (17) LCD 81.
9. Per contra, learned counsel for the opposite parties no.4 and 5 does not dispute the pedigree given by the learned counsel for the petitioners. However he had submitted that the land in dispute was a self acquired property of late Lachhiman. He had acquired the land in dispute from the Zamindar and one of the receipt dated 10.12.1948 has been filed as CA-1.
10. Subsequently, the said land was allotted to late Lachhiman as is apparent from the allotment order of old Gata No.2006-2007. During consolidation operations the land in dispute were changed and new Gata Nos.1389 and 1405 respectively were allotted which is apparent from CH form 41 of the land in dispute. Late Lachhiman had deposited 20 times of rent on 19.08.1976 and became Bhumidhar of land in dispute with transferable rights. Thereafter, late Lachhiman had executed a registered sale deed in favour of the opposite parties no.4 and 5 on 24.08.1976 and the mutation was also made in their favour. He also submitted that it is also apparent from the perusal of the Khatauni of the 1382 to 1384 that the names of the opposite parties no.4 and 5 were recorded in the year 1976. As such the opposite parties no.4 and 5 had rightly filed objection under Section 9-A (2) of the Act of 1953. He had also invited the attention of the Court towards CA-7 and CA-8 Khasra barasala of 1372 to 1883 fasli and 1378 to 1389 Fasli to show that the late Lachhiman and thereafter the opposite parties no.4 and 5 are in possession of the land in dispute. The opposite parties no.4 and 5 have also deposited the rent of the land in dispute in regard to which the rent receipt and the Kisanbahi have also been filed.
11. On the basis of the above, the learned counsel for the opposite parties no.4 and 5 submitted that they have filed ample evidence to show that it was self acquired property of late Lachhiman and after the registered sale deed executed by him the names of opposite parties no.4 and 5 are recorded and they are in possession and cultivating. But the petitioners have failed to file any documentary evidence such as khasra and the receipts etc. of the land in dispute to show that it was a joint family property and as claimed by them they are in possession of the part of the land. While as per the evidence adduced by the petitioners the two brothers of late Lachhiman namely Bhagwati was residing in Pakistan and thereafter in Bombay and Raj Bahadur was residing in Bombay, therefore there was no question of their being entered into possession.
12. Lastly he submitted that it was not a property owned by a Joint Hindu Family and purchased from a joint nucleus of the joint family because it was a self acquired property of late Lachhiman. Therefore he has rightly executed sale deed of the property in favour of the opposite parties no.4 and 5. The opposite parties no.1 and 3 have rightly decided the objections in favour of the opposite parties no.4 and 5 but the opposite party no.2 has wrongly and in an illegal manner, merely on the basis of presumption had allowed the objections filed by the petitioners. The writ petition has been filed on misconceived and baseless grounds which is not tenable in the eyes of law and is liable to be dismissed with costs.
13. Learned counsel for the opposite parties had relied on 1983 RD page 107; Sheo Nath Vs. Deputy Direction of Consolidation and Others, 2010 (109) RD 679; Sonu & Rahul Vs. Board of Revenue and Others, 2014 (123) RD 323 Shiva Nath Vs. Deputy Director of Consolidation, Varanasi and Others and 2007 (25) LCD 1420; Ruchha and Others Vs. Deputy Director of Consolidation, Gorakhpur and Others.
14. I have considered the submissions of learned counsel for the parties and perused the records.
15. The pedigree as given by the Deputy Director of Consolidation in his judgment and order dated 11.03.1999 passed in Revision No.9301/301 (Satya Narain and Another Vs. Bajrangi & Others) under Section 48 of the Consolidation of Holdings Act and the Consolidation Officer in his order dated 22.06.1987 is not disputed to the parties. As per pedigree Lala had three sons namely Lachhiman, Bhagwati and Raj Bahadur. As stated in the evidence by the witnesses of the petitioners Bhagwati was residing in Pakistan and Raj Bahadur in Bombay. Subsequently Bhagwati came back to India and was residing in Bombay. But the Lachhiman, undisputedly was residing in the village where the land in dispute being Gata No.1389 and 1405 is situated and recorded in his name and thereafter in the names of the opposite parties no.4 and 5 in the Khatauni of basic year. The old Gata number of the aforesaid land was 2006 and 2007 which is apparent from the CH form 41 of village Chiluli, Pargana- Mohandganj, Tehsil Salon, District- Raebareli contained in Annexure No. CA-3 to the counter affidavit. Undisputedly the said land was allotted to late Lachhiman by the Zamindar. Subsequently the same was allotted to him which is apparent from annexure No.CA-2 which has also not been disputed by the petitioners. It is also not in dispute that late Lachhiman had got the land in dispute converted into Bhumidhari with transferable rights after depositing 20 times rent on 19.08.1976, a copy of the receipt has been filed as annexure No.CA-4.
16. The dispute which has been raised is that the land in dispute was acquired by late Lachhiman being karta of a Joint Hindu Family as he was eldest among three sons of Lala therefore it should also be divided. But the petitioners, though filed objections during the Consolidation Operations on 16.09.1985 with a prayer for recording their names as co-sharers, but failed to produce any evidence that there was Joint Hindu Family and any joint nucleus from which the land in dispute was acquired.
17. One of the witnesses produced by the petitioners namely Lal Pratap Singh has stated that whatever evidence he is giving it is on the basis of information gathered from others in the village. But he had not clarified as to whether all the three brothers were living together as a Joint Hindu Family and the land in dispute was acquired from any joint nucleus. He had also stated that he has no knowledge of being any patta in favour of Lachhiman etc. He had also stated that Bhagwati was earlier residing in Karanchi, Pakistan thereafter he came to Bombay and Raj Bahadur was residing in Bombay. The learned Consolidation Officer had rightly recorded that this witness had no knowledge about acquiring the land in dispute and his evidence is not reliable. Other witness Bajrangi had also stated that the separation of the three brothers had not taken place before him. He also could not prove that the land in dispute was acquired by the joint family from any joint nucleus for the benefit of the family. He had also stated that Bhagwati and Raj Bahadur were living out and they used to send money to late Lachhiman but no proof thereof has been filed.
18. One of the arguments was that the family was a joint Hindu family and the said property was acquired by Lachhiman as karta of family. For treating a property to be a Joint Hindu Family property it was required to be proved that there was a Joint Hindu Family and some joint nucleus from which the land in dispute was acquired for welfare of the family but no such evidence was adduced or pointed out during argument before this court. All the three brothers were also living separately when the property was acquired by Lachhiman as the two brothers were living out. No proof or reliable evidence has also been adduced that they used to send money. A plea was also raised that the petitioners are in possession on their part of land in dispute and paying land revenue but no evidence in proof thereof has also been filed.
19. On the other hand, from the evidence and material on record it is apparent that the land revenue of the land in dispute was paid by the Lachhiman to Zamindar. Subsequently the same was allotted to him by means of the allotment order. The land in dispute was got converted by late Lachhiman after depositing 20 times of rent on 19.08.1976 and he had become Bhumidhar with transferable rights of the land in dispute. Thereafter, he had executed a registered sale deed on 24.08.1976 in favour of the opposite parties no.4 and 5 for a consideration of Rs.5000. In pursuance thereof the names of the opposite parties no.4 and 5 were also recorded in the revenue records which is apparent from Khatauni of 1832 to 1834 contained in annexure No.CA-6. It is also apparent from the documents of 12 years filed by the opposite parties no.4 and 5 that earlier the name of Lachhiman was recorded and subsequently the names of opposite parties no.4 and 5 has been recorded and they are paying the land revenue. No objection was raised in the first consolidation operations and the sale deed was also not challenged as admitted by the learned counsel for the petitioners .
20. It was submitted that even if the objection was not raised in the first consolidation that can be raised subsequently. But for that it was required to be proved by cogent evidence that the land in dispute was acquired living in the Joint Hindu Family and from joint fund and for the welfare of the joint family but no such evidence could be adduced by the petitioners. They also could not adduce any evidence in regard to their alleged possession on the part of the land in dispute. One thing is also very material that admittedly Raj Bahadur was alive at the time of filing of objections and PW-1; Lal Pratap Singh had admitted in his evidence on 24.12.1985 that he is alive but Raj Bahadur had neither filed any such objection before the Consolidation Officer nor he was produced in evidence by the petitioners to prove that it was a Joint Hindu Family and the property in dispute was acquired from any such joint fund for the welfare of the family. He could be a material witness for proving the contention of the petitioners but he was not produced.
21. The Consolidation Officer, after considering the pleadings and the evidence, had rejected the objections of the petitioners in regard to Khata No.414 as the petitioners had failed to prove their case. But the learned Settlement Officer Consolidation, wrongly interpreting the evidence of Lal Pratap Singh PW-1 and merely on presumption, that since the opposite parties no.4 and 5 would have acquired land in dispute otherwise also being legal heirs of Lachhiman therefore there was no need of executing sale deed in their favour and it has been executed on the apprehension that the land in dispute may also not be divided, treated it to be an ancestral property and directed to record the names of the petitioners alongwith opposite parties no.4 and 5. But failed to consider that if it was a property of the Joint Hindu Family then the name of Raj Bahadur should also have been recorded and if he was not alive it should have been recorded and his share should have been divided among others.
22. On challenge being made to the order passed on appeal by the Settlement Officer Consolidation the Deputy Direction of Consolidation after considering the evidence and material on record has rightly recorded that if the petitioners were claiming to be a joint Hindu property then the burden was on them to prove that there was any joint fund of family from which the land in dispute was acquired for the interest of the joint family and rightly allowed the revision in accordance with law and set-aside the judgment and order passed by the Settlement Officer Consolidation dated 08.03.1990 and maintained the order dated 22.06.1986 passed by the Consolidation Officer. Learned revisional court has also recorded that the copies of the Khasra etc. filed by the respondents are in their favour.
23. This court in the case of Sheo Nath Vs. Deputy Director Consolidation and Others (Supra) has held that if a holding is entered in the name of one or more members of the family and another member claims a share in the holding the burden of proving that the holding was joint family property and the name of recorded person or persons was in the representative capacity lies heavily on the claimant. It has further been held that the law is fairly settled that the member of the joint family or even a Karta of the joint family can acquire property himself and own his name and the other members of the family would have no interest or share in it if he has acquired it from his own fund.
24. This Court in the case of Sonu & Rahul Vs. Board of Revenue and Others (Supra) has held that rights of a Bhumidhar are transferable and this power of transfer is only subject to the provisions of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 and under the said act the principles of coparcenary property are not applicable to Bhumidhari rights. It has also been held that in absence of any material it could not be shown that the family had any nucleus or Joint Hindu Family fund. The relevant paragraphs 3, 4, 5 are reproduced as under:-
"(3) The only point urged by the learned counsel for the petitioners is that the land in dispute was purchased by Chandra Shekhar out of Joint Hindu Family fund and as such the petitioners were not even born on the date of the sale deed. There is no material on record to show that the said family had any nucleus or Joint Hindu Family fund. The sale deed stands in the name of Sri Chandra Shekhar alone.
(4) A Division Bench of this Court in the case of Mahendra Singh Vs. Attar Singh and Others, has held that the Bhumidhari rights are special rights created by Act I of 1951 and these new rights are solely to be governed by the provisions of the Act. The notions of Hindu Law or Mohammedan Law which would be applicable to other property not governed by any special law can not be imported into the rights created by this Act.
(5) By Section 152 of the U.P. Zamindari Abolition and Land Reforms Act, rights of a Bhumidhar are transferable and this power of transfer is only subject to the provisions of this Act, Under the Act the principles coparcenary property are not applicable to Bhumidhari rights."
25. This Court in the case of of Shiva Nath Vs. Deputy Director of Consolidation, Varanasi and Others (Supra) after considering the judgments of the Hon'ble Apex Court has held that the initial burden is on the person who claims that it was joint family property but after initial discharge of the burden it shifts to the party who claims that the property has been acquited by him through his own source without the aid of the joint family property and there can be no presumption in law that a property purchased in the name of a member of a family had ipso facto the character of Joint Hindu Family property unless it could be shown that the family possessed a nucleus for the purchase of the same.
26. The Hon'ble Apex Court in the case of Shrinivas Krishnarao Kango Vs. Narayan Devji Kango; AIR 1954 SC 379 has held that so far as the proposition of law is concerned, the initial burden is on the person who claims that it was joint family property but after initial discharge of the burden, it shifts to the party who claims that the property has been purchased by him through his own source and not from the joint family nucleus.
27. The Hon'ble Apex Court in the case of Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade;(2007) 1 SCC 521 after considering other decisions has held that on survey of the aforesaid decisions what emerges is that there is no presumption of a Joint Hindu Family but on the evidence if it is established that the property was Joint Hindu Family property and the other properties were acquired out of that nucleus and if the initial burden is discharged by the person who claims Joint Hindu Family, then the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property by cogent and necessary evidence.
28. The Hon'ble Apex Court in the case of K.V. Narayanaswami Iyer Vs. K.V. Ramakrishna Iyer;AIR 1965 SC 289 has held that it is well settled that in case on the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring it, the property in the name of any family member of the joint family should be presumed to be acquired from out of family funds and so form part of the joint family property.
29. The Hon'ble Apex Court in the case of Rukhmabai Vs. Lala Laxminarayn; AIR 1960 SC 335 has held that there is a presumption in Hindu law of jointness of family but there is no presumption that any property whether movable or immovable held by a member of a Joint Hindu Family is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact and if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family who is claiming to have acquired without any assistance of the joint family property. The same view has been taken by the Hon'ble Apex Court in the case of Achuthan Nair vs Chinnamu Amma; AIR 1966 SC 411 and Surendra Kumar vs Phoolchand (Dead) Through Lrs.; (1996) 2 SCC 491.
30. The Hon'ble Apex Court in the case of D.S. Lakshmaiah & Another Vs. L. Balasubramanyam & Another; AIR 2003 SC 3800 has observed that a property could not be presumed to be Joint Hindu Family merely because of the existence of a Joint Hindu Family and raised an ancillary question in paragraph-7 and answered the same in paragraph-18. The same are extracted below:-
"7. The question to be determined in the present case is as to who is required to prove the nature of property whether it is joint Hindu family property or self-acquired property of the first appellant.
18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available."
The same has also been followed by the Hon'ble Apex Court in the case of Makhan Singh (D) By Lrs vs Kulwant Singh; (2007) 10 SCC 602.
31. This Court in the case of Ruchha and Others Vs. Deputy Director of Consolidation, Gorakhpur and Others (Supra) has held that it is well settled proposition 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 can not be held to be joint family land merely because it was acquired by him when he formed joint family with other members.
32. In the present case since the petitioners were claiming that land in dispute was acquired by the Joint Hindu Family, therefore initial burden was upon the petitioners to prove that it was acquired from the joint nucleus of the Joint Hindu Family. But the burden could not be discharged by the petitioners and they could not prove that it was purchased from the joint nucleus for the welfare of the family.
33. The judgment relied by the learned counsel for the petitioners in the case of (Smt.) Dharmawati Tiwari and Others Vs. Prem Shanker Tiwari and Others (Supra) is not of any assistance to the case of the petitioners because in that case also the trial court after considering all relevant aspect of the controversy viz. continuity of jointness till the house in dispute is acquired, availability of nucleus of the joint family for purchase of the house in dispute, treatment and conduct of the parties with respect to the property in dispute while raising a presumption of jointness of the family had placed the burden upon the shoulder of the contesting respondents to prove that jointness of the family came to an end from the property in dispute as it was alleged to have been self acquired. But in the present case the petitioners have failed to discharge their initial burden,therefore, the plea of the petitioners that the opposite parties no.4 and 5 were required to prove that the jointness of the family has come to an end is misconceived and not sustainable in the eyes of law.
34. In view the aforesaid discussions this Court is of the considered opinion that the judgment and order dated 22.06.1987 passed by the Consolidation Officer and dated 11.03.1999 passed by the Joint Director Consolidation have rightly been passed in accordance with law after considering the material and evidence on record. This Court does not find any illegality or error in the orders. The writ petition has been filed on misconceived grounds having no substance which is devoid of any merit and is liable to be dismissed.
35. The writ petition is accordingly dismissed. No order as to costs.
.............................................................(Rajnish Kumar,J.) Order Date :- 05.02.2020 Haseen U.