Allahabad High Court
Fauzdar Ali & Others vs D.D.C.Bahraich & Others on 20 December, 2019
Author: Rajan Roy
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?RESERVED JUDGMENT RESERVED ON- 03.12.2019 DELIVERED ON- 20.12.2019 Court No. - 7 Case :- CONSOLIDATION No. - 571 of 1998 Petitioner :- Fauzdar Ali & Others Respondent :- D.D.C.Bahraich & Others Counsel for Petitioner :- Salil K.Srivastava,Ajai Kishor Pandey,D.C.Tiwari,M.A. Siddiqui,Mohd. Hamid Khan,Naveen Chandra Upadhyay,Rahul Mishra Counsel for Respondent :- C.S.C.,B.R.Tripathi,D.C .Tewari,Rajeev Kumar Mishra Rudra Hon'ble Rajan Roy,J.
By means of this writ petition, the petitioner has challenged the order dated 02.05.1998 passed by the Deputy Director Consolidation under Section 48 by which he has allowed the revision of the opposite party no. 2 & 3 and has set aside the order of the Consolidation Officer and the Settlement Officer Consolidation, thereby accepting the claim of the opposite party no. 2 & 3 regarding co-tenancy rights.
The case at hand has a chequered history. In the first consolidation operation's the name of Mohabbat Ali and Sohabat Ali was recorded in respect of the land in dispute. An objection was filed by Museebat Ali and Rahmat Ali which was allowed by the Consolidation Officer and title based on adverse possession of Museebat Ali and Rahmat Ali was accepted by the order dated 29.09.1964. This order was however set aside in appeal by the order of SOC dated 26.12.1964. The revision of Museebat Ali and Rahmat Ali was also dismissed by DDC on 25.11.1966. Two writ petitions were filed in this regard bearing no. 161 of 1967 and 204 of 1967 both of which were dismissed on 29.09.1970 and 09.11.1970 respectively. Thus, the claim of Museebat Ali and Rahmat Ali came to an end. Both the writ petitions were by Museebat Ali and Rahmat Ali but in one Sohabat Ali was arrayed as an opposite party and in the other Mohabbat Ali, Sohabat Ali and Usmaan Ali, all three were arrayed as opposite parties.
It is an admitted factual position that the aforesaid order's passed during consolidation operation's were not given effect in the final records, as a consequence of which names of Museebat Ali and Rahmat Ali which had been recorded based on the order of the Consolidation Officer passed on 29.09.1964 continued to be recorded and the name of aforesaid three brother's could not be recorded.
On 28.03.1990 that is almost after 16 years of passing of the order by SOC in the consolidation operations in favour of the aforesaid three brother's, proceedings for mutation were initiated by the petitioner's who are the son's of Mohabbat Ali by filing an application on 28.03.1990 based on the order passed in consolidation operations. It is said that on 01.06.1990 the Naib Tehsildar passed an order in their favour in respect of the land in dispute, but even this could not be given effect. In the meantime, second consolidation operations were set in motion. On account of non-implementation of the earlier order's passed in the consolidation operations as also the subsequent order of Naib Tehsildar, the name of Museebat Ali and Rahmat Ali continued to be recorded in respect of the land in dispute and was so found to be recorded in the basic year Khatauni, although, during partal, the possession of the petitioner's was found. This led to the filing of an objection under Section 9-A(2) of the U.P. Consolidation of Holdings Act, 1953 (herein after referred as Act, 1953) by the petitioners for correction in the basic year entry by striking off the name of Museebat Ali and Rahmat Ali and incorporating their names in respect of the land in dispute. These objections of the petitioners were allowed by the Consolidation Officer vide order dated 24.04.1993 based on the order's passed in the earlier consolidation operations. As regards the order of the Naib Tehsildar dated 01.06.1990, it was observed that the order's passed in the earlier consolidation operations could only be given effect through proceedings under Rule 109(A) of the U.P. Consolidation of Holding Rules, 1954 and not through any proceedings before the Naib Tehsildar under Section 34 etc. However, the Consolidation officer observed that considering the factual scenario and the order's passed in the earlier consolidation operations, issues could be dealt with by him also in the second consolidation operations, he, accordingly, ruled in favour of the petitioner's herein. Against the aforesaid order, Museebat Ali and Rahmat Ali filed an appeal before the SOC, Bahraich under Section 11(1) of the Act, 1953. Another appeal was filed by Maqsood Ali claiming himself to be the son of Mohabbat Ali who was allegedly left out by the other sons of Mohabbat Ali from the proceedings. Both the appeal's were dismissed by the SOC on 25.08.1994.
In the interregnum, on 03.05.1993, the opposite party no's. 2 & 3 herein, namely, Razzak Ali and Changur Ali, claiming themselves to be the son's of Sohabat Ali and Usmaan Ali, respectively, filed time barred objections under Section 9-A(2) of the Act, 1953 before the Consolidation Officer, which came to be dismissed on 04.09.1993 on the ground that the matter had earlier been decided on 24.04.1993, i.e. the objections of Museebat Ali and Rahmat Ali, against which an appeal was pending before the SOC and that a recall/review of the said verdict was not permissible, as such, the application of Changur Ali and Razzak Ali was liable to be rejected on the ground of limitation. Against this order, an appeal was filed by opposite party no's. 2 & 3 before the SOC which was also dismissed on 25.08.1994 i.e. on the same date on which the appeal of Maqsood Ali and Museebat Ali was dismissed, as already referred.
Against both these orders dated 25.08.1994 revision's were filed before the DDC. These revision's were filed by Maqsood Ali and others; Razzak Ali and others; & Museebat Ali and others. The revision's filed by Maqsood Ali, Razzak Ali and Changur Ali were accepted and the order's passed by the CO on 24.04.1993 and by the SOC on 25.08.1994 were set aside. Though, the order passed by the CO on 04.09.1993 in respect of opposite party no's. 2 & 3 was not specifically set aside, considering the reason's given therein and the nature of the said order, the same also stood nullified. The DDC's order is dated 02.05.1998.
Against this order of DDC, the four son's of Mohabbat Ali, the brother of Sohabat Ali and Usmaan Ali, filed this petition in 1998 wherein on 23.03.1998 proceedings before the Consolidation Officer consequent to the order of the DDC were ordered to remain in abeyance.
It is not out of place to mention that the DDC vide his order dated 02.05.1998 decided the rival claims of the parties to rights and interest in the land in dispute and sent the records to the Consolidation Officer for taking consequential action for determining the shares with consequential requisite entries and allotment of Chaks etc. It was not a remand for deciding any issue after leading evidence but only for taking action consequential to the decision of the DDC.
Before the CO and SOC the dispute was between the petitioners, the sons of Mohabbat Ali and Museebat Ali and Rahmat Ali. The CO and SOC ordered for striking off the name of Rahmat Ali and Museebat Ali from the basic year Khatauni in view of the orders passed in the earlier consolidation operations by which their claims to the land in dispute were declined. Accordingly, they ordered the mutation of names of the son's of Mohabbat Ali. Up to this stage, Razzak Ali and Changur Ali, the alleged son's of Sohabat Ali and Usmaan Ali were not in the picture before the CO and SOC in the aforesaid proceedings. Instead, as already stated, they had filed separate time barred objections which were dealt with as already referred herein above. It is at the stage of proceedings before DDC that the dispute, which was earlier between Rahmat Ali, Museebat Ali on the one side and the petitioners, the son's of Mohabbat Ali, on the other side, as also Maqsood Ali who was claiming to be the brother of the petitioner's, got transformed by addition of the dispute of the petitioner's viz-a-viz Razzak Ali and Changur Ali.
Before the Court's below, the case of the petitioner's herein, was that Changur Ali and Razzak Ali are the sons of Maula Ali and Farjad Ali, brother's of Budh Ali the father of Mohabbat Ali, Sohabat Ali and Usmaan Ali. They were not the son's of Sohabat Ali and Usmaan Ali, as was their claim. Razzak Ali and Changur Ali, however, claimed that they were son's of Sohabat Ali and Usmaan Ali respectively. The DDC while accepting the claim of Maqsood Ali also accepted the claim of Changur Ali and Razzaq Ali on the ground that the pedigree or family tree which was considered in the earlier consolidation operation could not be disputed in the second consolidation operation. He found, on the basis of evidence on record, that Maqsood Ali was the brother of the petitioners.
It is not out of place to mention that while challenging the order of DDC, petitioner's have not arrayed Maqsood Ali as an opposite party in this writ petition, therefore, they have obviously accepted the order of the DDC so far as his claim is concerned.
As against the aforesaid, the case of the opposite party no's. 2 & 3, Razzak Ali and Changur Ali is that they are not the son's of Maula Ali and Farzad Ali whose name did not even figure in the family tree which was considered in the first consolidation operation, in fact, they were the son's of Sohabat Ali and Usmaan Ali. The learned counsel for the opposite party no's. 2 & 3 invited the attention of the Court to various documents filed by him before this Court to show that it was so. The learned counsel for the petitioner on the other hand invited the attention of the Court to photocopies of extracts of family register to show that it was not so and that the parentage of Razzak Ali and Changur Ali was different from what was being claimed.
The Court finds that the DDC also observed that in a case of succession based on co-tenancy adverse possession is irrelevant.
The contention of Shri Salil K. Srivastava, learned counsel for the petitioner that the proceedings which have been held are under Rule 109(A), are belied from the records as the order's have been passed in proceedings under Section 9-A(2) in the second consolidation operations. It is true that in normal circumstances the proceedings should have been initiated under Rule 109(A) for giving effect to the orders passed in the consolidation operations but the petitioner's who are claiming benefit of the order's passed in the first consolidation operation never initiated such proceedings, therefore, they cannot raise this plea. It is not out of place to mention that Sohabat Ali and Usmaan Ali through whom opposite party no's. 2 & 3 are claiming rights were parties in the earlier consolidation operations along with Mohabbat Ali, the father of the petitioners and the consolidation Court's had ruled in favour of all the three brother's. Therefore, even if these proceedings are taken as one under Rule 109(A), although it is not so, it does not make much of a difference as ultimately the question is about the parentage of opposite party no's. 2 & 3 which has to be considered.
As regards the plea of Shri Srivastava that the issues already decided in the earlier consolidation operations cannot be re-agitated in the subsequent consolidation operations, there is no doubt about it, but, the question of parentage of opposite party no's. 2 & 3 was not an issue in the earlier consolidation operations as is borne out from the facts discussed herein above. Therefore, this plea is also not tenable.
On a perusal of the order passed by the DDC, while the finding that, the family tree/pedigree which was considered in the first consolidation operation, wherein Maula Ali and Farzad Ali are not mentioned as being brother's of Budh Ali and Peer Ali (father of Rahmat Ali and Museebat Ali), cannot be permitted to be disputed by the petitioners, whose predecessors in interests were parties in the earlier proceedings, in the subsequent consolidation operation, cannot be faulted, the Court finds that in the earlier consolidation operations, the Consolidation Courts did not decide the issue of parentage of Razzak Ali and Changur Ali, i.e. whether they were son's of Sohabat Ali and Usmaan Ali respectively or not. This relevant aspect was not correctly appreciated by the DDC. This reasoning of the DDC based on the family tree which was considered in the earlier consolidation operations would have, at best, led him to the conclusion that there was no mention of Maula Ali and Farzad Ali in the said family tree, consequently, the claim of the petitioners that Changur Ali and Razzak Ali were sons of Maula Ali and Farzad Ali, was not acceptable for this reason but, it still remained to be decided by the Court's below as to whether Razzak Ali and Changur Ali were the son's of Sohabat Ali and Usmaan Ali respectively as was being claimed by them i.e. opposite parties herein. As, only if it was found to be so, they would have any rights and interests in the land in dispute based on the order's passed in the earlier consolidation operations, where, all the three brother's including Mohabbat Ali were party. There could not be any presumption in this regard. However, the DDC's order does not disclose consideration of this issue based on any evidence nor does it disclose any discussion based on evidence in this regard.
As already stated earlier in the two separate proceedings of the second consolidation operation, one in which Razzak Ali and Changur Ali were the claimants and the other in which the petitioner's herein were the claimants, this issue was neither considered nor decided. In proceedings under Section 9-A(2), at the behest of petitioners, opposite party no's. 2 and 3 were not parties and this issue did not arise as the dispute was between the petitioners viz-a-viz Museebat Ali and Rahmat Ali and at a later stage, Maqsood Ali was also involved. The proceedings at the behest of opposite party no's. 2 & 3, were rejected on the ground of limitation by the CO and SOC and it is only at the level of DDC that their claim was accepted, however, as stated earlier, without adjudicating the issue of their parentage, which was necessary, as it went to the root of the matter.
The delay in filing the objections by the opposite party no's. 2 & 3 does not appear to be inordinate. Moreover, in consolidation matters where parties are rural folks, a liberal view is taken by Courts, as such, this Court is of the view that delay in filing objections by them deserved to be condoned, unless of course, they were barred by Section 11-A of the Act, 1953 which does not find mention in any of the order's as the cause for rejection.
In this view of the matter, considering the fact that an essential issue has not been decided by DDC, i.e. the parentage of Razzak Ali and Changur Ali, the order of DDC dated 25.08.1994 is liable to be set aside. It is accordingly set aside.
All the revisions, except that of Maqsood Ali, shall now stand restored before the DDC for consideration afresh. While undertaking such consideration, DDC shall allow the parties to lead evidence on the question of parentage of Razzak Ali and Changur Ali as per law. This Court is conscious of the fact that the matter is being remanded to the Revisional Court under Section 48 but considering the fact that the dispute is a very old one and also the wide powers vested under Section 48, it would be appropriate that the DDC should form a prima facie opinion on the basis of evidence adduced before him as to whether the opposite party no's. 2 & 3 herein, Razzak Ali and Changur Ali have a genuine and triable case in their favour or not. If he finds on the basis of documentary evidence adduced before him that they are not at all admissible or reliable as per the Indian Evidence Act then he shall pass an order in this regard and decide the issue finally. However, if he finds that the issue is triable he shall remand the matter back to the Consolidation Officer with a stipulation to decide the issue of parentage of opposite party no's. 2 & 3 herein within a specified period which shall not be more than one year, in accordance with law.
Till disposal of the matter by the DDC which shall be done within eight months from the date a certified copy of this order is submitted before him, status quo shall be maintained by the parties with regard to possession of the land in dispute, the entries in the revenue records and none of them shall alienate the property in question.
With these observations/directions the writ petition is allowed in part.
Order Date :- 20.12.2019 Lokesh Kumar