Allahabad High Court
Shiv Ram And Others vs Ram Lal And Ohters on 14 September, 2022
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved:-
Court No. - 20Case :- Writ-B No. -1870 of 1982 Petitioner :- Shiv Ram And Others Respondent :- Ram Lal and Others Counsel for Petitioner :- Jagdish Singh, Aditya Kumar Tiwari, Jagdish Singh Counsel for Respondent :- C.S.C., Banwari Lal, Brijesh Kumar Singh, K.N. Zaidi, Lavlesh Giri, S. Mirza
1. Heard Heard Sri Aditya Tiwari, learned counsel for the petitioner. The learned Standing Counsel for the State-respondents and Sri B.K. Singh, learned counsel for the private respondents.
2. The instant petition has been filed by the petitioner seeking quashing of the judgment dated 15.10.1971 passed by the SOC, Mainpuri, Cantt at Barabanki as well as the judgment dated 16.01.1982 passed by the DDC, Barabanki whereby it affirmed the order passed by the SOC, as a result the order of Consolidation Officer dated 06.07.1971 was set aside.
3. The property in dispute relates to Khata No. 104 situate in Village Dadera, Pargana Kursi, Tehsil Fatehpur, District Barabanki.
4. The said Khata was recorded in the name of the petitioners in the basic year. The private respondent no. 1 had filed his objections under Section 9-A(2) of the U.P.C.H. Act, 1953 claiming 1/3rd share in the disputed property. As per the case of the private respondent no. 1, it was alleged that the property comprising of Khata No. 104 belonged to Sri Ganga Deen. Sri Ganga Deen was survived by his son Niranjan from whose branch the petitioners nos. 1 and 2 are claiming their rights. The petitioner no. 3 namely Nattha is the son of Gangadeen and has joined hands with the petitioners while the respondent no. 2 is also the son of Ganga Deen who is contesting the said proceedings with a different claim.
5. It was also the case of the respondent no. 1 that since the property belonged to Sri Ganga Deen and upon his death the property would devolve on his sons and as such the petitioners no. 1 and 2 being the sons of Niranjan and Nattha being the son of Ganga Deen were entitled to the property having 1/3rd share therein.
6. The claim of the respondent no. 1 was contested by the petitioners on the ground that the property was recorded in their name in the basic year. It was further stated that the respondent no. 1 could not claim any right in the said property as it was the acquired property of the petitioners.
7. It was also alleged that the respondent no. 1 had already left the village in question to settle with his laws and where he had acquired the property and a separate Khata in the said village of his in-laws was already existing in the name of the respondent no. 1.
8. It was further urged that the respondent no. 1 could neither claim the property as a Joint Hindu Family Property nor to be treated as ancestral as he had been ousted from the property nor could claim a right in adverse possession as admittedly, the respondent no. 1 was not in possession, the claim of the respondent no. 1 was to be rejected.
9. The Consolidation Officer after permitting the parties to lead their evidence by means of his order dated 06.07.1971 rejected the objections of Ram Lal and maintained the entries in favour of Shiv Ram, Nattha and Ram Lal.
10. Being aggrieved against the said order, the respondent no. 1 Ram Lal filed an appeal before the Settlement Officer of Consolidation. The Settlement Officer of Consolidation after hearing the parties found that even though the respondent no. 1 had left and was residing in his Sasural (house of in-laws), however, there is nothing to indicate that the property was not ancestral, hence, the rights of the respondent no. 1 could not be extinguished. Thus, he set aside the order passed by the Consolidation Officer and allowed the claim of the respondent no. 1 for co-tenancy granting 1/3rd share by means of his judgment dated 15.10.1971.
11. The said order was assailed by the petitioners in Revision No. 864/251 before the DDC, Barabanki who after hearing the parties by means of its judgment dated 16.01.1982 dismissed the revision and it is in this view of the matter that the petitioners had assailed the orders passed by the SOC as well as the DDC by means of the instant petition.
12. The submission of learned counsel for the petitioner is that the claim of the petitioners is that the name of the petitioners were recorded in the base year. They have been in continuous possession. It is their specific case that the respondent no. 1 had already left the village Dadera and was residing with his in-laws where he had his separate land which was recorded in the Khatauni of 1364 Fasli wherein the period of tenancy has been shown as 5 years which clearly indicated that the respondent no. 1 was living separately even during the lifetime of Gangadeen.
13. It is further urged that the petitioners had also filed the Khara of 1356 to 1374 Fasli to establish that the respondent no. 1 was never in possession for all the aforesaid years. While the Khataunis in respect of the disputed properties from 1356 to 1357 Fasli indicating the name of the petitioners which was shown to be in their possession for a duration of 13 to 16 years.
14. It is thus urged that Ganga Deen had died some time in 1343-1344 Fasli and since thereafter the petitioners' name have been recorded without any objections and after a long time once the respondent no. 1 had been ousted, he has made his claim which has illegally and unlawfully been allowed by the SOC as well as the DDC.
15. The learned counsel for the respondent no. 1 has submitted that it is undisputed that the property belonged to Gangadeen. Thus, upon his death, the property would devolve as per succession that the respondent no. 1 being the son of a pre-deceased son of Gangadeen would be entitled to inherit and would have 1/3rd share in the property in question. It is further urged that even though the respondent no. 1 had acquired the property in the village of his in-laws but upon the death of Gangadeen, he would inherit the property which was ancestral and by operation of law, consequently, the petitioners could not deny the right of respondent no. 1 and thus the SOC as well as the DDC has appropriately granted 1/3rd share to the petitioners and this order requires no interference from this Court.
16. The Court has heard the learned counsel for the parties and also perused the material on record.
17. It appears that the property which has been claimed by the respondent no. 1 is based on his right of co-tenancy having succeeded to the interest after the death of Gangadeen. In order to test the aforesaid claim, it would first have to be ascertained that when did Gangadeen die and what was the law of inheritence in force at that relevant time.
18. It will not be out of place to mention here that earlier prior to the enactment of U.P.Z.A. & L.R. Act, 1950, the Uttar Pradesh Land Tenancy Act, 1939 was in operation and prior thereto the Oudh Rent Act of 1886 was in operation. The major difference between the Oudh Rent Act and the U.P. Tenancy Act was that the tenancy under the Oudh Rent Act was not heritable whereas the right of inheritance was granted only by the U.P. Tenancy Act. Thus, it will have to be seen as to what law was applicable when Gangadeen died.
19. In this regard, there is no clear evidence led by either of the parties to indicate the date of death of Sri Gangadeen, however, from the perusal of the record as well as the evidence led before the Consolidation Officer, there is a reference that respondent no. 4 had left the village prior to the death of Gangadeen.
20. The record further indicates that Gangadeen is said to have died sometime in between 1343-1344 Fasli. This would indicate that the said period would refer to around 1336-37 Gregarian Calender. At the said point of time, it was the Oudh Rent Act, 1886 which was in operation.
21. Another fact which needs to be noticed is that the evidence indicated that the respondent no. 1 had left the village which is also quite evident from the statements which were given by the respective witnesses and as noticed in detail by the DDC in its order dated 16.1.1982 which clearly indicated that the respondent no. 2 was not residing in the village Dadera.
22. The respondent no. 1 could not point out any evidence which indicated that he had been in possession of properties of the disputed Khata No. 104 of Village Dadera.
23. Thus, taking the aforesaid facts as emerging from the record, it would reveal that in the year 1936-37 when Sri Gangadeen is said to have expired then in terms of the Oudh Rent Act, 1886, the right of the heirs of a tenant has been provided and Section 48 of the Oudh Rent Act, 1886 which only entitled the heirs to retain the possession at the rent payable by the deceased tenant for a period of five years from the date of tenants death.
24. There is a proviso appended thereto which only permits the said heirs of the deceased tenant to be entitled to retain occupation of the holding on the rent payable by the deceased for the unexpired portion of the statutory period of the deceased tenant subject to Clause (e) of Sub Section (1) of Section 62-A.
25. From the perusal of the Section 62-A(1) (e) read with Section 48 of the Oudh Rent Act, 1886, it would reveal that the right to occupy the tenancy for a period of five years would be available only to heirs of the deceased tenant.
26. Admittedly, after the death of Gangadeen, if at all, any right accrued, the same was only for a period of five years which expired sometime in the year 1941-42. There is nothing on record to indicate that any point of time, the name of the respondent was recorded. After the period as mentioned in Section 48 of the Oudh Rent Act expired, if at all, the persons who remained in possession would amount to a new settlement made in their favour by the Zamindar concerned. Since there is no material on record to indicate that the respondent no. 1 was ever recorded or that there was any settlement in his favour also simultaneously noticing the fact that the respondent no. 1 has acquired his property in a different village and was residing with his in-laws and the entries continued to remain recorded in the name of the petitioners on the date of vesting as well as at the time when the consolidation operation commenced, hence, it cannot be said that the respondent no. 1 would have a right.
27. Even otherwise, if the case of the respondent no. 1 is seen as to whether he could claim any right of co-tenancy, it would have to be shown by the respondent no. 1 that the property which was recorded in the name of common ancestors throughout continued to be recorded as such and there was no change in the area or plot numbers and unless the aforesaid aspect is established, the claim of co-tenancy could not have been claimed. This issue has been considered by this Court in the case of Nand Lal and others Vs. Deputy Director of Consolidation, Faizabad and others reported in 2021 (153) RD 259 wherein this issue has been considered after relying upon the decision of this Court in the case of Jagdamba Singh Vs. DDC 1984 (2) LCD Page 398 (LB) wherein this issue has been clearly considered.
28. Having noticed the aforesaid position of law as it stands, the case of the respondent no. 1 for co-tenancy cannot be made out. The respondent no. 1 also cannot claim the property to be a joint family property since the respondent no. 1 had already separated and was living separately so therefore there was no commanility in mess or residence or the property between the parties. This aspect of the matter has also been considered by this Court in the case of Dropadi Devi and Others Vs. Shiv Chandra Dixit, 2020 SCC Online, All 104.
29. In view of the aforesaid, there can be no doubt that the claim of the respondent no. 1 either treating the property to be joint or as a co-tenant is not made out. The SOC as well as the DDC has not noticed the aforesaid aspect of the matter and merely has proceeded on the ground that the property was initially recorded in the name of Gangadeen and therefore after his death his legal heirs would succeed. As already noticed above, the succession would be different as per the law applicable on the date of death of Gangadeen, consequently, the findings returned by the SOC as well as by the DDC is patently illegal and erroneous, hence, cannot be sustained. Accordingly, the impugned judgments dated15.10.1971 passed by the SOC as well as the judgment dated 16.11.1682 passed by the DDC are set aside. The judgment passed by the C.O. dated 06.07.1971 is restored. The writ petition is allowed. The impugned orders are quashed and set aside. In the facts and circumstances, there shall be no order as to costs.
(Jaspreet Singh, J.) Order Date :-14th September, 2022 Asheesh Kumar