Allahabad High Court
Ram Prasad And Others vs Deputy Director Of Consolidation, ... on 15 March, 2019
Author: Rajan Roy
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Judgment reserved on:30.01.2019 Judgment delivered on:15.03.2019 Court No. - 7 Case :- CONSOLIDATION No. - 2205 of 1980 Petitioner :- Ram Prasad And Others Respondent :- Deputy Director Of Consolidation, Pratapgarh And Others Counsel for Petitioner :- A.S. Srivastava,U.S.Sahai Counsel for Respondent :- C.S.C.,A.K.Verma,S.C.Misra,Santosh Kumar Pandey,Vijaybahadur Verma Hon'ble Rajan Roy,J.
Heard Shri U. S. Sahai, learned counsel for the petitioners and Shri Vijay Bahadur Verma, learned counsel for the private opposite parties.
This is a writ petition under Article 226 of the Constitution of India challenging the order of the Deputy Director of Consolidation dated 01.08.1980 passed under Section 48 of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as ''the Act, 1953') thereby setting-aside the order dated 26.10.1979 passed by the Assistant Settlement Officer Consolidation, Pratapgrah.
This Court on 14.08.1980 had suspended the operation of the order of the Deputy Director of Consolidation dated 01.08.1980 and had provided that it shall not be given effect.
The facts of the case in brief are that on the start of consolidation operations, in the basic year Khatauni pertaining to Khata No. 259 comprising of 24 Gatas/Plots, the petitioners were recorded as bhoomidhar and Jagannath etc. were recorded in the remarks Column i.e. Part 2 of the Khatauni, as Class-9 occupants. An objection was filed by Jagannath and others claiming 2/3 share in the land in dispute on the ground that it was ancestral property coming down from the common ancestors Ram Tahal and Hanuman. It was also their case that partition had taken place sometimes prior to the birth of Jagannath.
It is not out of place to mention that the parties herein are successors of common ancestors Ram Tahal and Hanuman.
The petitioners herein also filed objections stating that the property had been acquired by Shiv Bheekh their predecessor in interest and they had sole rights in respect thereof as also that the opposite parties herein did not have any right and the entries as alleged in their favour were fraudulent and illegal.
Be that as it may, the Consolidation Officer vide his order dated 24.02.1979 accepted the objections of the opposite parties herein and determined their share as half, the other half belonging to the petitioners. Being aggrieved the petitioners herein filed an Appeal under Section 11 of the Act, 1953 before the Assistant Settlement Officer Consolidation, who allowed the same. Being aggrieved the opposite parties herein filed a revision before the D.D.C., who allowed the same in toto and it is this order which is under challenge.
The contention of Shri U.S. Sahai, learned counsel appearing for the petitioners was that the Deputy Director of Consolidation had exceeded his revisional jurisdiction under Section 48 of the Act, 1953 by substituting his own findings after himself appreciating the facts and evidence without pointing out any illegality and without setting-aside the findings recorded nor reasons given by the A.S.O.C. In this regard he relied upon various decisions reported in AIR 2001 SC 386; Gaya Din (D) Through Lrs. and Ors. Vs. Hanuman Prasad (D) Through Lrs. and Ors.; (2002) 93 RD 35; Jangi Lal Vs. Deputy Director of Consolidation, Allahabad and Ors.; Judgment dated 05.07.2018 passed in Writ Petition No. 2287(Cons.) of 1979; Babu Ram Vs. State of U.P. and Ors.; 2017 (7) ADJ 650; Nathu Ram Vs. Deputy Director of Consolidation and Ors. He further contended that the findings of the Deputy Director of Consolidation are based on conjecture, surmises and presumptions bereft of any basis on facts and evidence, therefore, they are unsustainable. The petitioners have been recorded in respect of land in question as tenants ever since the second settlement which started in 1301 fasli and was over by 1306 fasli and even after the coming into force of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as ''the Act, 1950') they continued to be recorded as bhoomidhar i.e. for the past more than 70 years without any challenge being made by the opposite parties to their rights in respect of the land in question in which they had sole rights and the S.O.C. after considering the facts and evidence on record had given cogent reasons to set-aside the order of the Consolidation Officer and to reject the claim of the opposite parties herein of having a share in the property as co-tenants. Consolidation operations started in the early 1970s. The Deputy Director of Consolidation, like the Consolidation Officer, failed to consider the purport and meaning of "Marfat" entry recorded in the Khasra in respect some of the Gatas. The petitioners had filed as many as 95 Lagan receipts in respect of land in question in support of their rights. No evidence was led to show that the family was joint at the stage of the sons of Ram Tahal nor that the property was joint. Jagannath had himself stated that partition had taken place prior to his birth, therefore, the claim based on joint property was unsustainable, apart from the fact that the claim based on partition was also without any factual and evidentiary basis. The entries continuing since the Second Settlement should not have been interfered lightly by the Deputy Director of Consolidation. It was also stated by him that the opposite parties have other Gatas recorded in their name separately.
Shri Vijay Bahadur Verma, learned counsel appearing for the private opposite parties contended that the Deputy Director of Consolidation, though he did not specifically and in so many words consider the findings of the A.S.O.C. and upturned the same but in essence the findings recorded by him are in the context of the findings recorded by the A.S.O.C. and the documentary evidence considered by him, therefore, a hyper technical approach should not be adopted in this regard as was being suggested by Shri Sahai. He also contended that it is not in dispute that the Gatas, which were recorded in the name of Ram Tahal and Hanuman, had come down to Shiv Bheekh after the death of Ram Tahal, as Hanuman had pre-deceased him. The total holding of Ram Tahal and Hanuman was 10 Bigha 8 biswa and 19 biswansi as separately recorded in their names in the First Settlement and the land which came down to Shiv Bheekh was 9 bigha 6 biswa and 15 biswansi, therefore, at best there was a difference about only 1 bigha and few biswansi's, which was insignificant. There was enough documentary evidence to show that the land which was in the name of the common ancestors Ram Tahal and Hanuman had come down to Shiv Bheekh, one of the sons of Ram Tahal, intact.
He also contended that under the Oudh Rent Act although the tenancy was not inheritable under Section 48 of the Oudh Rent Act, the heirs of the statutory tenants were entitled to retain occupation of the holding on the rent payable by the deceased tenant, for a period of five years from the date of death of the statutory tenants and to receive compensation under the provision of the Act for improvements made, if any, on the holding by his predecessor in interest, but, they were not entitled to renewal of tenancy. The landlord after expiry of five years, could settle the land with the heirs of deceased tenants or with any one of them or with a stranger. If fresh settlement of land was not made by the landlord and the heirs continued to remain in possession even after the expiry of the said statutory period of five years and they were not ejected within three years thereof by the landlord, they were to be deemed to be statutory tenants as provided under sub-section (18) of Section 3 of the Oudh Rent Act. He also submitted that in these circumstances Shiv Bheekh got recorded in respect of the lands which had come down from the common ancestor and his possession constituted possession of all the other three brothers including Durga Prasad the predecessor in interest of private opposite parties herein. In this regard he relied upon the decision of this Court reported in 1984 (2) LCD 398; Jagdamba Singh and Ors. Vs. Deputy Director of Consolidation and Ors.; 1983 (1) LCD 160; Ram Bhajan and Ors. Vs. Assistant Director of Consolidation and Ors.
He further contended that the identity of the land in dispute had not changed while coming down from Ram Tahal and Hanuman to Shiv Bheekh and difference of 1 bigha and some biswansi was negligible. This difference was on account of one of the plots having been settled by the Zamindar either to somebody else or because of surveys during settlement, therefore, the assertion that the property was joint family was clearly established by this fact. In this regard he relied upon the decision reported in 1985 (3) LCD 330; Sanehi and Anr. Vs. D.D.C., Faizabad and Ors.
He also contended that partition had taken place prior to the birth of Jagannath- opposite party no. 3, who died during the pendency of this writ petition. The petitioners' witness Satya Narain had himself deposed about the possession of the petitioners only in respect of half share of the land in dispute, which was considered by the Consolidation Officer and accordingly the opposite parties were held entitled to the remaining half share as co-tenants in view of the fact that they had remained in possession of their share. He also submitted that revenue receipts had been filed by the opposite parties since 1915 which amply demonstrated the partition and possession of the opposite parties on their share. It was also his contention that no evidence was led by the petitioners herein to establish any fresh settlement by the Zamindar in favour of Shiv Bheekh, therefore, the inference was that the property was joint family property and as was the custom it was recorded in the name of one of the brothers Shiv Bheekh but other three brothers also had a share therein and, as, after the death of Shiv Bheekh the other two brothers pre-deceased Dugra Prasad, therefore, Durga Prasad had 2/3 share in the lands although possession and Lagan in respect of only one half share was found in the consolidation. As regards the "Marfat" entry he relied upon a decision reported in 2004 (22) LCD 865 (Para 7); Trilochan and Ors. Vs. Deputy Director of Consolidation, Ambedkar Nagar and Ors. to contend that even if "Marfat" entry did not confer any right by itself, irrespective of it, if, opposite parties had proved their possession coupled with payment of land revenue for quite long time, confirmation/acquisition of right of co-tenancy on the basis of estoppal and acquiescence could be claimed. It was also his submission that the petitioners had filed a suit under Section 229 read with Section 176 of the U.P. Z.A. and L.R. Act for division of shares and the D.D.C. had rightly found pleadings therein as an admission on their part of the property being joint family property in which the opposite parties were entitled to their share and merely because the proceedings had abated it would not takeaway the admission contained in the pleadings of the said proceedings. The fact that the petitioners were not in possession of the entire land in dispute as had been held by the C.O. and the D.D.C. was itself proof of partition and the parties being in possession of their one half share each.
After hearing learned counsel for the parties and perusing the records, the Court finds that in the basic year Khatauni the petitioners were recorded in respect of entire holding of Khata No. 259.
It has come in the orders of all the three Authorities that the opposite parties had a "Marfat" entry in their favour in respect of 5 plots, as is mentioned in the order of the Consolidation Officer bearing No. 168, 181, 186, 541 and 1037 in the Khasra of 1346 fasli. In the Khasra of 1358 fasli a similar "Marfat" entry existed in respect of 10 plots i.e. 181, 183, 186, 190, 209, 542, 1037/1, 1038/2. There is no explanation as to the difference in the number of plots as noticed hereinabove. In 1367 fasli they were recorded as Class-9 and continued to be so recorded in the basic year Khatauni also. No explanation has been offered either before the Courts below or before this Court as to how the nature of possession/ entry changed from "Marfat" entry to Class-9 entry, but, as already stated earlier Class-9 entry which as per Para A-124 of the Land Records Manual is regarding possession without consent of rightful tenants/owners had been found to be erroneous by the Consolidation Officer. Moreover, Adverse possession was not the basis of the claim of the opposite parties herein, therefore, this Class 9 entry had no significance so far as claim of opposite parties to title is concerned. What was the nature of their possession is another aspect which shall be dealt hereinafter.
The objection/ claim of the opposite parties under Section 9-A(2) of the Act, 1953 was that the property comprising Khata No. 259 was joint, having come down from the common ancestor Ram Tahal and Hanuman to the four sons of Ram Tahal but was recorded in the name of one of the sons i.e. Shiv Bheekh and that prior to the birth of Jagannath- opposite party no. 3 herein partition had taken place but the names of the opposite parties and/or their predecessor in interest could not be recorded. It was said that the sons of Ram Tahal having predeceased Durga Prasad and some of them, namely, Polad and Shiv Prasad having died issue-less, their share came to Durga Prasad i.e. after the death of Shiv Bheekh and therefore, a claim was raised of 2/3 share in the property, which was not accepted even by the Consolidation Officer and the Deputy Consolidation Officer, who have accepted their share as only half.
At no point of time Durga Prasad or his successors in interest, who are the opposite parties herein, were recorded in the Khatauni as tenants in their own right or as bhoomidhar after the date of vesting. The only entry as noticed hereinabove was firstly a "Marfat" entry in 1346 fasli and secondly as in possession (Class 9 entry) which in the absence of any claim of adverse possession is irrelevant as already mentioned earlier.
Now, the Consolidation Officer as also the Deputy Director of Consolidation have conveniently ignored the purport and meaning of "Marfat" entry which has been the subject matter of consideration by this Court in a catena of decisions. This aspect was appropriately considered by the Assistant Settlement Officer Consolidation in his judgment wherein he held that "Marfat" entry implies a possession on behalf of or through the rightful owners and such possession does not confer any rightful possession or title nor can it be treated as co-tenancy. This aspect of the matter, as was considered by the A.S.O.C., was neither considered nor the finding in this regard by the A.S.O.C. was set-aside by the D.D.C., yet, ignoring this aspect, and based on these "Marfat" entries and the Class-9 entry and the Lagan receipts, he found the alleged partition and alleged possession consequent thereto of opposite parties in respect of half share of the land, as proved. The D.D.C. failed to consider the nature of possession of the opposite parties, which was ''through or on behalf of' the rightful owners. The ''Marfat' entry did not confer any independent right of possession or title upon the opposite parties.
The Class-9 entry was of no avail for the reasons already mentioned hereinabove and even in this regard the D.D.C. did not notice the finding of the Consolidation Officer that the said entry was erroneous.
With regard to the purport of ''Marfat' entry this Court may refer to the decision reported in 1983 (1) LCD 372; Bhikhu Vs. Assistant Director of Consolidation and Ors. wherein it was held that ''Marfat' is an Arabic word which translated into English would mean ''through or on behalf of' a person in whose favour their exists such an entry can not be said to be in possession in his own right and such possession would not mature into Adivasi and Sirdari rights. Reference may also be made to another decision reported in 1993 (11) LCD; Ram Lakhan Vs. Deputy Director of Consolidation, wherein, it was held that a ''Marfat' entry does not indicate possession by virtue of right as laid down in Bhikhu's case (supra). The ''Marfat' entries are made in Khasra and not in Khatauni. This aspect of the matter was considered by a Division Bench of this Court in the case of Jagdish Prasad Vs. Board of Revenue and Ors. reported in 1956 ALJ 317 All., wherein after considering paragraph 83 of the Land Records Mannual and various decisions on this point it was held that ''Marfat' is defined in paragraph 83 of the Land Records Manual as a person put by a tenant in cultivating possession of the holding on his behalf. Sometimes a ''Marfatdar' is treated as a pure agent 1953 R.D. 273; Pati Ram Vs. Hira Lal, sometimes he is treated as a licensee 1939 R.D. 533; Hari Nath Singh Vs. Satyadeo Singh and Ors. The relevant extract of the judgment in Jagdish Prasad (supra) is quoted hereinbelow:-
"A ''Marfat' is defined in paragraph 83 of the Land Records Manual as a person put by a tenant in cultivating possession of the holding on his behalf. Sometimes a ''Marfatdar' is treated as a pure agent 1953 A.L.J. (Revenue) (203); Pati Ram Vs. Hira Lal, sometimes he is treated as a licensee (1939 R.D. 533 and 1953 R.D. 273).
If he is purely an agent he cannot be considered to be an occupant because he is merely a custodian on behalf of the tenant. He Cultivates the land as a servant or agent of the tenant at the expense of the tenant and for the benefit of the tenant. The fruits of cultivation go to the tenant. He may or may not charge for his services. He cannot be said to be in occupation of the land.
If he is a ''licensee' and not merely an agent, even then he cannot be said to be an ''occupant' of the land. A licensee is a person who is allowed to make use of a thing in a certain way under certain terms, possession and control over the thing remaining with the owner (see Halsbury's Laws of England, Hailsham Edition, Vol. 20, paras 5 and 6 pp. 8 and 9). "A mere licence does not create any estate or interest in the property to which it relates; it only makes an act lawful which without it would be unlawful" (ibid). A license is a permission under which the licensee takes only the right to use the premises without exclusive possession thereof. Since a licence lacks the quality of exclusive possession, it falls short of true possession or occupancy.
In Part II of the Khatauni are to be mentioned tenants deriving their title from other tenants, or from Sir holders, khudkasht holders, rent-free grantees, grantees at a favourable rate of rent, or lessees under Sec. 252 of the U.P. Tenancy Act. Under this Part, in class (20) are to be mentioned "occupiers" of lands without the consent of the tenant-in-chief. In the Khatauni, no mention is made of persons holding as ''Marfatdars' of ''Sajbidars'. The names of these persons find place in the Khasra only.
Paragraph 83 of the Land Records Manual provides that if the recorded tenant has permitted any person to share in the cultivation of his holding or any part thereof as a partner or ''sajbi', or has put any person "in cultivating possession on his behalf," the name of the sharer or the cultivator will be shown only in the remarks column of the Khasra, the former with the word "Sajbi" and the latter with the word "Marifat". The relationship, if any, with the recorded tenant will also be shown, e.g., "Marfat Ramcharan Bhatija". The name of the Sajbi or Marifat is not to be shown in columns 5 and 6 of the Khasra.
As already stated, Sajbidars or Marfatdars do not claim an interest in the land and are not in exclusive occupation in their own right."
Reference may also be made in this regard to another decision of this Court reported in 1995 (13) LCD 1121; Bodh Raj Vs. Joint Director of Consolidation, wherein referring to the earlier decision in Ram Lakhan and Bhikhoo's case (supra) it was held that the Joint Director of Consolidation had not correctly understood the meaning of ''Marfat' as it did not indicate possession by virtue of right and had wrongly held the plots to be joint family property of the parties. In the said case also certain revenue receipt had been filed.
This important and material aspect of the matter as to the purport of "Marfat' entry has been totally ignored by the D.D.C. in the present case also who did not even consider the finding and reasoning given by the A.S.O.C. in this regard what to so of any consideration of its correctness, legality etc. and without upsetting it, he recorded his own independent findings thereby incorrectly exercising the jurisdiction vested in him under Section 48 of the Act, 1940, exceeding it, and completely misdirecting himself in this regard. In this regard it is necessary to refer to the revisional powers bestowed upon the D.D.C. vide Section 48 of the Act of 1953 as existing on the date of his decision i.e. 01.08.1980 which were as under:-
"48. Revision and reference.-(1) The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings ; or as to the correctness, legality or propriety of any order passed by such authority in the case or proceedings and may, after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit.
(2) Powers under sub-section (1) may be exercise by the director of Consolidation also on a reference under sub-section (3).
(3) Any Authority subordinate to the Director of Consolidation may after allowing the parties concerned an opportunity of being heard, refer the record of any case or proceedings to the Director of Consolidation for action under sub-section (1).
Explanation.- For the purposes of this section, Settlement Officers, Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation."
While exercising his power under Section 48 of the Act, 1953 as existing at the relevant time, what was required of him was to consider the correctness, illegality or propriety of the orders passed by the A.S.O.C. and if in this process he found any impropriety, illegality or incorrectness he chould have pointed it out by giving cogent reasons based on facts, evidence and law and thereafter, he should have remanded the matter back to the A.S.O.C. for reconsideration, but, he could not have given his own independent finding based on the evidence on record without considering the findings and reasons recorded by the A.S.O.C. Section 48 was amended by U.P. Act No. 3 of 2002 w.e.f. 10.11.1980 by inserting explanation No. 3 in it but the D.D.C.'s decision is dated 01.08.1980 and is not affected by such amendment.
Reference may also be made in this regard to the decision of the Supreme Court in the case of Ram Dular Vs. Deputy Director of Consolidation, Jaunpur and Ors. reported in 1994 Suppl. (2) SCC 198, wherein, it was held that in considering the correctness, legality or propriety of the order or correctness of the proceedings or regularity thereof the D.D.C. can not assume to itself the jurisdiction of the original authority as a fact finding authority by appreciating for itself of those facts de-novo. It had to consider whether the legally admissible evidence had not been considered by the authorities in recording a finding of fact or law or the conclusion reached by it is based on no evidence, any patent illegality or impropriety had been committed or there was any procedural irregularity, which goes to the root of the matter, had been committed in recording the finding.
This court in the case of Smt. Baijnath and Anr. Vs. Deputy Director of Consolidation, Varanasi and Ors. reported in 1997 RD 433 has held that the Deputy Director Consolidation in exercise of powers under Section 48 of the U.P. Consolidation of Holdings Act, 1953 can interfere with the findings of fact recorded by the authorities below and can set-aside the said findings if they are found to be erroneous, perverse not based on any evidence or illegal, but he can not substitute his own findings after reappraisal of the evidence on the records. The Deputy Director of Consolidation could at the best remand the case to the Settlement Officer, Consolidation or the Consolidation Officer, as the case may be, for decision afresh.
Even at the cost of repetition it needs to be pointed out that the judgment of the D.D.C. is dated 01.08.1980, therefore, it is not saved even by the U.P. Act No. 3 of 2002 by which an explanation was inserted to Section 48 with retrospective effect from 10.11.1980, although, even after this amendment, in the case of Puran Singh Vs. D.D.C. reported in 2003 (9) RD 382 it has been held that even after addition of explanation 3 to Section 48 the D.D.C. can not substitute its own finding in place of that of the subordinate authority. The D.D.C. thus exceeded his jurisdiction.
As regards the claim of the opposite parties that the property was joint, the A.S.O.C. recorded a categorical finding after appreciating the evidence on record that the identity of the holding did not come down as it is from the common ancestor. The area as well as the rent was different at the stage of Shiv Bheekh. The D.D.C. did not appropriately consider nor set-aside this finding and the reasons given in support thereof, instead, ignoring it, he recorded his own finding on the basis of his own independent appraisal of evidence that the property was joint and a partition in respect thereof had also taken place, thereby he again exceeded his powers under Section 48 as already discussed hereinabove. No explanation was offered by the opposite parties before the Courts below for the difference in the identity of land and rent as was necessary in view of the decision of this Court in Jagdamba Singh' case (supra).
As, it is the opposite parties who were asserting that the land recorded in the name of Shiv Bheekh was joint family property, therefore, it was for them to demonstrate that it was acquired from Joint Family Funds and rent was also paid from the said fund, but, no such evidence was led.
Further more, as already noticed earlier, as per the statement of the opposite parties themselves, Durga Prasad, their predecessor in interest, was the last to expire amongst the four sons of Ram Tahal, therefore, after the death of Shiv Bheekh his brother Durga Prasad should have been recorded in the revenue records, being the eldest surviving member of the alleged joint family, instead, it is the sons of Shiv Bheekh, who were recorded as tenants. Moreover, they continued to be so recorded for 70 years without any challenge, while the opposite parties had only a ''Marfat' entry in their favour, that too in the Khasra of 1346 and 1358 fasli. In this view of the matter, the opposite parties had failed to prove the factum of the property being joint.
If the contention of Shri Vijay Bahadur Verma, learned counsel for the opposite parties that the identity of land had not changed much is accepted and based thereon a finding of fact that the property was joint family property is recorded, ignoring the fact that the opposite parties were never recorded as having any independent right in respect of the lands for more than 70 years as co-sharers and the ''Marfat entry was indicative of a possession through or on behalf of rightful owners, it would be too presumptuous and beyond the scope of writ jurisdiction, to do so, just as, it was presumptuous for the D.D.C. to have passed the impugned order on this count ignoring the findings and reasoning given by the A.S.O.C. and without upsetting the same, thereby exceeding his jurisdiction under Section 48.
Moreover, at the relevant time when the name of Shiv Bheekh was recorded, the Oudh Rent Act, 1886 was in force under which tenancy was not inheritable per se except that the heirs could continue for the remaining period to which the tenant was entitled to occupy the land.
In this context, as regards the contention of Shri Verma that even under the Oudh Rent Act, 1886 though the tenancy was not heritable per se but on death of the statutory tenant his heir was entitled to retain occupation of holding for a period of five years from such death without any entitlement to renewal of tenancy and, further more, even after expiry of the said five years, if, for further period of three years the landlord did not eject the heir of the statutory tenants then the heir would acquire status of statutory tenant and the reliance place in this regard upon the decision of this Court in Ram Bhajan's case (supra) specially para 6 thereof, as also the decision of this Court in Jagdamba Singh's case (supra), specially para 11 thereof, is concerned, with respect, the concept of Statutory Tenant and whatever plea has been raised based thereon by Shri Verma, was introduced for the first time in the Oudh Rent Act, 1886 by the amending Act No. 4 of 1921. In the original Act of 1886 there was no such provision. This is relevant as in this case Shiv Bheekh was recorded in the second settlement which were of the year 1893 and 1901. The Oudh Rent Act, 1886 as it originally stood did not contain Clause 18 in Section 3 and it contained only up to Clause 16 in which there was no mention of any Statutory Tenant. The definition of statutory tenant was introduced in 1921 and the entitlement of an heir of a statutory tenant to become statutory tenant on expiry of three years from the period of five years mentioned in Section 48 was also introduced by the said Act No. 4 of 1921. Prior to it there was no such provision and prior to 1921 Section 48 read as under:-
"48. (1) The heir of a tenant who dies during the currency of the tenancy of a holding shall be entitled to retain occupation by the deceased for the unexpired portion of the period for which the deceased tenant might have held without liability to enhancement or ejectment, and to receive compensation under the provisions of this Act for improvements, if any, made on the holding by himself or his predecessor in interest, but shall not be entitled to a renewal of the tenancy.
(2) Subject to any rights which he may have under section 22 as a representative of the deceased, a collateral relative who did not at the date of the death of the deceased share in the caltivation of the holding shall not be deemed to be an heir of the deceased within the meaning of this section."
A bare reading of the aforesaid makes it clear that tenancy was neither inheritable nor renewable and the heir to the tenant on the latter's death, was only entitled to retain occupation of the holding at the rent payable by the deceased for the unexpired portion of the period for which the deceased tenant might have held without liability to enhancement or ejectment.
Now, it is not the case of the opposite parties represented through Shri Verma, Advocate that Ram Tahal or Hanuman died after 1921. It is also not known as to whether the family and the property was joint in their time, as, the holdings were recorded separately in their names but even if it was so the fact is that at that time the Act No. 4 of 1921 had not come into force and the Oudh Rent Act as it existed in 1886 was in force under which tenancy was neither inheritable nor renewable. In fact under Section 53 of the said Act, 1886 a tenant not having a right of occupancy and not holding under special agreement or decree of Court could be ejected by notice, application or suit under Sections 54, 55, 56, 58, 59, 60, 61 and 62 of the said Act. It is not in dispute that Ram Tahal and Hanuman or even Shiv Bheekh were not having right of occupancy as referred in Chapter-II, Section 5 of the said Act 1886 and were tenants without such right, therefore, they could have been ejected by any of the aforesaid modes, including by notice.
The provisions of Section 53 as existing prior to 1921 in original Act, 1886 read as under:-
"53. A tenant hot having a right of occupancy and not holding under a special agreement or decree of Court, may be ejected by notice, application or suit under the following sections of this Chapter."
Section 36 and 37 of the original Act were also different to the one which came into force after the amendment of 1921. They were as under:-
"36. Every tenant, not being a tenant with a right of occupancy or a sub-tenant, shall be entitled to retain possession of the holding occupied by him at the time of the passing of this Act, at the rent then payable by him, for a period of seven years from the date of the last change in his rent or of the last alteration in the area of the holding, or, where no such change or alteration has taken place, from the date on which the tenant was admitted to the occupation of the holding.
37. Every such tenant who may be admitted to the occupation of a holding after the passing of this Act shall be entitled to retain the same for a period of seven years from the date of his admission at a rent agreed upon with the landlord in accordance with the provisions of this Act; and every such tenant, in the area of whose holding or in the amount of whose rent any change is made by the landlord subsequently to the passing of this Act, shall be deemed to be admitted to the occupation of a holding within the meaning of this section.
Explanation I.- "Holding" meanings a parcel or parels of land held by a tenant and forming the subject of a separate engagement. The engagement may be express or implied.
Explanation II.- This section and section 36 have effect subject to the provisions of Section 4, sub-sections (3) and (4), relating to land not previously cultivated, and subject also to section 157, excluding certain classes of land from the operation of certain sections of this Act."
There was no concept of Statutory Tenant or any protections available to them prior to 1921 even into these provisions. The decisions relied upon by Shri Verma in this regard in support of his contention are obviously based on Post 1921 provisions of the Act, 1886 which are not applicable in the facts of this case.
In view of the aforesaid facts, to ask the successors of Shiv Bheekh, after lapse of more than 70 years, to prove as to whether any fresh settlement had been made in favour of Shiv Bheekh at the time of Second Settlement or not, is rather asking for too much. It is the opposite parties who asserted the claim of joint family property, therefore, it was for them to plead and prove that the property recorded in the name of Shiv Bheekh was a joint family property acquired through joint family funds, but, neither there is any such pleading before the Court below nor any evidence in this regard. The facts of the case point towards a fresh settlement in favour of Shiv Bheekh in view of the provisions of law existing at that time as referred and quoted hereinabove. The burden was upon the opposite parties to show that this fresh settlement was acquired from joint family funds and that not only four sons of Ram Tahal lived jointly i.e. the family was joint but, there was also a joint family fund or nucleus from which the settlement was acquired and the rent in respect thereof was paid, which has not been done, therefore, the plea of joint family property was unacceptable. Even the date of death of Shiv Bheekh is not known. Thus, the contention of Shri Verma on this count based on the decisions referred hereinabove can not be sustained, certainly not before the writ Court. The D.D.C. has completely lost sight of these relevant aspects of the matter and has recorded his finding in this regard on basis of conjectures and surmises. Even the factum of partition had not been proved by any direct evidence.
As already stated earlier, if, the contention of Shri Verma was correct, then, after the death of Durga Prasad, who was the last of the four sons of Ram Tahal to expire, his name would have been recorded, but, it is undisputed that the name of the sons of Shiv Bheekh was recorded in the second settlement itself and continued to be recorded till the basic year Khatauni without any challenge, which also goes to show that the aforesaid contention is not acceptable certainly not at this belated stage.
The "Marfat" entry does not support the claim of the opposite parties regarding the property being joint nor regarding the partition and share of opposite parties based thereon. Even the Class 9 entry which was found to be erroneous by the Consolidation Officer and which is of occupation by one other than rightful tenant/owner and without consent of the rightful owner, does not support this story. Nor does the absence of unchanged identity of land coming down from a common ancestor with corresponding revenue and absence of any plausible explanation for the change in this regard. The legal provisions contained in the Oudh Rent Act, 1886 prior to 1921 i.e. the period to which the controversy relates, also do not support the contentions of Sri Verma, learned counsel for the opposite parties and in fact they raise a reasonable presumption that a fresh settlement took place in favour of Shiv Bheekh who, and his successors, had been recorded for the past 70 years upto the consolidation operation without any demur from opposite parties. If it was joint family property and as claimed by opposite parties partition had taken place prior to birth of Jagannath, then, the "Marfat" entry and thereafter the Class 9 entry would have been got corrected by the opposite parties or their predecessors at some stage during the period of 70 years preceding the consolidation and as this was not done then it raised a valid presumption of exclusive title of the petitioners as against that of opposite parties. The burden of proof was on opposite parties to prove that the property, was joint family property which could not be discharged by them.
If claim of opposite parties is based on partition of joint family property prior to birth of Jagannath the original opposite party no. 3, who was about 50 years of age when he deposed, it means such partition took place prior to 1929 although there is no other proof of such partition. Even if it was so, why the predecessors in interest of the opposite parties or opposite parties themselves did not get themselves recorded as tenants based on such partition and allowed the entries in favour of petitioners to continue since the Second Settlement which took place between 1901 to 1906, as accepted by the parties' Counsel, till 1973, when consolidation operation started. No legal proceedings were undertaken by the opposite parties and their predecessors in interest during this long period of 70 or more years. Moreover, if there was a partition of the alleged joint family property, then, any claim thereafter would not be on the basis of co-tenancy in the alleged joint family property but would be based on its partition. The approximate date of partition has not been pleaded nor proved. Their alleged possession was as per the "Marfat" entry which is on behalf of rightful tenants and not on the basis of their own right and it did not prove co-tenancy or possession consequent to alleged partition. "Marfat" entry in the Khasra defines nature of possession. It is the entries in the Khatauni, which are more relevant in matters of title.
The long standing "Marfat" entries and absence of any challenge to the same by Opposite Parties for more than 49 years itself belies the claim of joint family property, partition and consequential possession considering the nature of alleged possession as disclosed by the "Marfat" entry in the Khasars of 1346 and 1358 fasli.
The A.S.O.C. considered the plea based on the alleged admission of the petitioners in the suit filed by them initially under Section 229 read with Section 176 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 and found that the pleadings had subsequently been amended giving appropriate explanation for the incorrect recitals made earlier and the alleged admission and the said amendment was allowed on 15.07.1970 and Section 176 mentioned therein regarding division of shares and the pleadings in this regard, was/were deleted. Moreover, according to the A.S.O.C. on a challenge being made to the said order by the opposite parties it failed, therefore, it attained finality. The D.D.C. considered this aspect of the matter. While it is correct that once the said proceedings abated at the revisional level the order which according to the A.S.O.C. had attained finality was rendered superfluous and could not be read in evidence, it is equally true that the original pleading based on Section 176 of the Act, 1950 could also not be read as an admission, specially as, subsequent amendment application was on record explaining the error and the alleged admission. It is trite that an admission can be explained and sufficient explanation was given by the petitioners as is also mentioned in the order of the D.D.C. while mentioning the case of the petitioners that it is the opposite parties who had misled them in getting a suit for partition and division of shares filed by the petitioners and as and when the fault came to their knowledge an application for amendment was filed seeking quashing of the Class-9 entry in respect of the opposite parties, therefore, the D.D.C. erred on this count also when he treated the statement made in the unamended pleadings in the earlier proceedings as an admission of the petitioners.
Further more, this Court finds that the A.S.O.C. had considered another aspect of the matter i.e. the filing of a suit for ejectment by the Zamindar-Thakur Dev Narain Singh, wherein, the opposite parties or their predecessors in interest were not arrayed as opposite parties nor any relief was sought against them. He rightly concluded that had the opposite parties been in possession in their own right or had any independent right of their own as co-tenants or based on partition or otherwise, they would have certainly been impleaded by the Zamindar. This finding of the A.S.O.C. has not been upset by the D.D.C., in fact it has not been considered at all.
On a perusal of the judgment of the D.D.C. the Court finds that he has proceeded on the basis of presumptions, conjectures and surmises ignoring the parameters of his jurisdiction under Section 48 of the Act, 1953. This Court finds that the order of the A.S.O.C. is a well considered and reasoned one, based on proper appreciation of facts, evidence and appropriate application of the law, except with regard to the finding regarding the order dated 15.07.1970 allowing the amendment of the pleading in the suit filed by the petitioners as having attained finality, which has already been discussed and clarified hereinabove.
In view of the above, specially considering the decisions of the Supreme Court and this Court with regard to the scope of Section 48 of the Act, 1953 this Court is of the view that the judgment of the D.D.C. is not sustainable. It is accordingly, quashed. The order of the A.S.O.C. stands restored. Consequences shall follow accordingly as per law. The Consolidation Authorities/ Revenue Authorities, as the case may be, shall correct the records, accordingly. Possession shall be given to the petitioners accordingly, unless they are already in possession.
The writ petition is allowed.
Order Date :- 15.03.2019
R.K.P. (Rajan Roy,J.)