Allahabad High Court
Sher Bahadur And Others vs Dy.Director Of Consolidation And ... on 2 November, 2022
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 18 Case :- WRIT - B No. - 189 of 1994 Petitioner :- Sher Bahadur And Others Respondent :- Dy.Director Of Consolidation And Others Counsel for Petitioner :- U.K.Srivastava,H.S.Sahai,Hemant Kumar Mishra,Sudhir Kr. Chaudhary,Umesh Singh Counsel for Respondent :- D.C.Dubey,A.Husain,C.S.C.,Mohd. Ali,R.A.Misra,Shilpi,Vinod Mishra Hon'ble Jaspreet Singh,J.
1. Heard Sri Hemant Kumar Mishra, learned counsel for the petitioners and Sri Mohd. Ali, learned counsel for the respondent no. 2 and Learned Standing Counsel for the State-respondent.
2. Under challenge in the instant petition is an order dated 16-02-1994 passed by the Deputy Director of Consolidation, Lucknow in Revision No. 414/1248(Ram Asrey Vs Sher Bahadur & Others), whereby the said revision preferred under section 48 of the U.P. Consolidation of Holdings Act,1953, was allowed.
3. The petitioners assail the said revisional order and state that the property in question belonged to one Sri Lekhai. Sri Lekhai was survived by his daughter, Smt. Dulara and the present petitioners being the sons of Smt. Dulara inherited the property in question and they have right in the said property.
4. The private-respondent no. 2, Ram Asrey, contested the aforesaid claim and set up title in himself by submitting that Smt. Dulara was not the daughter of Lekhai rather she was daughter of Smt. Batasha and Bhawani(Bhawani being the elder brother of Lekhai). It is thus urged that upon the death of Bhawani,(eldest brother) his wife and daughter started residing with Lekhai and as such, upon the death of Lekhai, the property would devolve on respondent no. 2(son of Gurudeen and not on sons of Dulara).
5. The prime controversy revolves around the devolution of interest which was considered by the Consolidation Officer who did not find favour with the contention of the petitioners and rejected their claim.
6. The present petitioners preferred an appeal under section 11 of the U.P. Consolidation of Holdings Act, 1953 before the Settlement Officer, Consolidation,who relying upon the registered will said to have been executed by Lekhai, wherein he had spelled out that he had a daughter namely Dulara and it also relied upon a judgment given by the competent court under section 145 Cr.P.C., wherein a dispute has arisen regarding the possession wherein there is a mention of Dulara being the daughter of Lekhai. The Settlement Officer, Consolidation further found that though the registered will of Lekhai was not duly proved in accordance with section 68 of the Evidence Act, however, it found that even though said will may not be useful for deciding the right, title and interest but, nevertheless, it can be relied upon in so far as the recital made by Lekhai regarding Dulara being the daughter and also combining it with the recital in the judgment delivered under section 145 Cr.P.C., came to the conclusion that Dulara was the daughter of Lekhai and allowed the appeal.
7. The private respondent no. 2 being aggrieved against the order passed by the Settlement Officer, Consolidation, preferred a revision wherein primary contention was that since the will was not duly proved in accordance with law, hence, it could not be taken note of for any purpose whatsoever. Thus, even the recital regarding the relationship of Lekhai and Dulara is concerned, the same could not have been noticed and was redundant and being a waste piece of paper upon which no finding could have been based by the Settlement Officer, Consolidation.
8. The other contention before the revisional court was that since the proceedings under section 145 Cr.P.C.are of summary and limited nature where only the issue regarding possession viz-a-viz the issue of law and order is germane, the same is to be considered and it could not have been made the basis for deciding right which was based on relationship and had to be proved like any other fact in accordance with the Evidence Act. Aforesaid contention raised before the revisional court found favour and the revision has been allowed by means of order dated 16-02-1994 and the revisional court arrived at a finding that Smt. Dulara is not the daughter of Lekhai and held that the property accordingly devolved on respondent no. 2.
9. Being aggrieved against the aforesaid judgment passed by the Deputy Director of Consolidation, the instant petition has been preferred before this court.
10. During pendency of the instant petition, the petitioner no. 2, namely, Om Shanker and respondent no. 2, Ram Asrey expired. However, upon making an application, their legal heirs have been brought on record.However for the sake of convenience, the court shall be referring to the parties as they originally were impleaded.
11. Sri Hemant Kumar Mishra, learned counsel for the petitioners while assailing the impugned order passed by the Deputy Director of Consolidation submits that there was ample evidence to indicate that Smt. Dulara was the daughter of Lekhai. He has further submitted that even though the will which was a registered document was not proved in accordance with law, but, that could have only limited effect in so far as devolution of rights in terms of will is concerned. But, it is urged that in so far as statement and recital in the will made by Lekhai and stating that Smt. Dulara was his daughter is concerned, same was an admission which could very well be utilized in order to arrive at a finding and the Settlement Officer, Consolidation having done that did not commit any error which could have prompted the Deputy Director of Consolidation to have intervened in the matter.
12. It is also argued by the learned counsel for the petitioners that even the proceedings under section 145 Cr.P.C. were the proceedings of judicial nature where a statement was recorded wherein Lekhai admitted Dulara to be his daughter and to that extent, the judgment under section 145 Cr.P.C.may not have a binding effect on the basis of title nevertheless in so far as the limited statement is concerned, same was amply corroborated and to that extent, the Settlement Officer, Consolidation had rightly relied upon, which has been interfered by the Deputy Director of Consolidation, which has given rise to the instant petition and has resulted in sheer miscarriage of justice.
13. Sri Mohd. Ali, learned counsel for the respondent no. 2 submits that in so far as the family tree is concerned, it is not disputed that the property in question belonged to one Sri Gangadeen. Upon the death of Sri Gangadeen, the same was inherited by his three sons namely Bhawani, Gurudeen and Lekhai. It was the case of the respondents that Bhawani was married to Smt. Batasha and from the said wedlock, daughter, Smt. Dulara was born. Upon the death of Bhawani, Smt. Dulara alongwith her mother Smt. Batasha started residing with Lekhai and it is in this fashion that Smt. Dulara could not be treated to be the daughter of Lekhai.
14. It is also urged that upon the death of Lekhai, Ram Asrey, being the only son of Gurudeen was entitled to inherit the property and in any case, he already had half share having taken the same from his father, Gurudeen and upon the death of Lekhai, his share would also devolve on Ram Asrey.Thus, he was the sole owner of the property in question.
15. Learned counsel for the respondent no. 2 has further pointed out that there were other collateral proceedings, which were contested by the respective parties before the Panchayat, wherein Lekhai himself had stated that he had a son, who had already expired. He had also indicated that Smt. Dulara was already married in another village, but, on account of certain domestic violence which occurred in the matrimonial home of Smt. Dulara, she had come back and was residing with Lekhai. However, it is submitted that the fact remains devolution of interest can either take place in terms of section 171 of the U.P.Z.A. & L.R. Act or could be diverted by execution of a will. Though, the petitioners had initially set up a case on the basis of a registered will of Lekhai, but, once the said will was not proved in accordance with law as provided under section 68 of the Indian Evidence Act readwith section 63 of the Indian Succession Act, the said will lost its relevance and the only provision that governs the devolution of interest would be in terms of section 171 of the U.P.Z.A. & L.R. Act.
16. It is thus, submitted that since Smt. Dulara was not the daughter of Lekhai, accordingly, the property of Lekhai would devolve on the brother son i.e. respondent no. 2 and he would be entitled to the same and this aspect of the matter has appropriately been considered by the Deputy Director of Consolidation while allowing the revision and thus, this writ petition lacks merits and it deserves to be dismissed.
17. The court has heard learned counsel for the parties and also perused the material on record.
18. In so far as the factual aspect of the matter is concerned regarding the acquisition of the property and the pedigree, uptil the stage of Gangadeen there is no dispute. The dispute which has been crystallized is only to the extent regarding the share of Lekhai and that too, based on the question as to who will be legal heir of Lekhai. The three consolidation courts have concurrently found that the case set up by the petitioners on the basis of will said to have been executed by Lekhai was not proved in accordance with law. Accordingly, the case of the petitioners cannot be considered on the basis of the will rather it can only be seen in terms of general order of Succession in terms of section 171 of the Act, 1950.
19. It is in this context that if the contentions as well as the evidence available on record are perused, it would be found that both the contesting parties had led both oral as well as documentary evidence to buttress their respective submissions. On one hand, the predecessor in interest of the petitioners namely, Smt. Dulara had examined herself as well as other witnesses who went on to depose before the Consolidation Officer that she was daughter of Lekhai. However, on the contrary, Ram Asrey led evidence as well his witnesses have deposed that Smt. Dulara was not the daughter of Lekhai, but, was the daughter of Bhawani and Smt. Batasha.
20. Be that as it may, this court finds that in so far as the judgment passed by the Consolidation Officer dated 23-05-1985 is concerned, it takes into consideration the respective issues and the evidences led by the parties and it recorded a finding that Smt. Dulara failed to establish her relationship with Lekhai and therefore, rejected the claim of the present petitioners.
21. The petitioners filed an appeal. The appellate court has merely allowed the appeal without taking note of the oral evidence led by the respective parties including other documentary evidence and has based his findings only on the will said to have been executed by Sri Lekhai as well as the judgment under section 145 CrP.C. In this backdrop, if the judgment passed by the Deputy Director of Consolation is examined, it would be found that the Deputy Director of Consolidation has also merely considered this aspect of the matter regarding the effect of the will as well judgment under section 145 Cr.P.C., but, the revisional court has also not taken note of the oral as well as other evidences which were available on record to arrive at a conclusive finding regarding the relationship of Dulara and Lekhai.
22. This court had the occasion to consider the scope of section 48 of the U.P. Consolidation of Holding Act,1953 in the case of Chit Bahal Singh v. Joint Director of Consolidation, Faizabad and Others (Writ-B No. 2430 of 1979, decided on 29-04-2022), wherein section 48 of the Consolidation of Holding Act, 1953 alongwith its legislative amendments made from time to time has been considered alongwith pronouncements of this court as well as the Apex Court on the scope of revision under section 48 of the U.P. Consolidation of Holding Act, 1953 and considering the same, it was held that the Deputy Director of Consolidation being the final court under the Consolidation of Holdings Act, 1953 is both invested in power to look into the questions of law and facts and idea being that the matters may be decided finally and the persons may not have to indulge in protracted litigation.
23. Noticing the dictum as aforesaid in Chit Bahal Singh(Supra) the court finds that it would have been more appropriate for the revisional court to have taken on overall view of the matter by considering the entire oral as well as the documentary evidence available on record, but, it did not enter into said area and confined itself only to two documents i.e. registered will of Sri Lekhai and the judgment under section 145 Cr.P.C.
24. Being the final court, it ought to have considered the relevant oral evidences as well as the statements which were filed which also related to evidences which were led in some proceedings of the Panchayat which were taken note of by the Consolidation Officer. This aspect has neither been touched by the Settlement Officer of Consolidation nor by the Deputy Director of Consolidation.
25. To the extent the findings recorded by the Deputy Director of Consolidation that a will which has not been proved in accordance with law ought to have been ignored, this court finds that there is no error in so far as this proposition is concerned and accordingly, the contention of learned counsel for the respondent no. 2 that even though the will was not duly proved and may not be useful for deciding the title, yet it could be utilized for relying upon the recital in the will, does not find favour with this court.
The other contention regarding the statement under section 145 Cr.P.C. is concerned that prima-facie, may not be the sole conclusive evidence, but, even though if it contained the avermnent or recital regarding Dulara being the daughter of Lekhai, the same ought to have been considered in juxtaposition to the other evidences both oral and documentary available on record. However, this has also not been done.
26. This court while exercising its jurisdiction under Article 226 of the Constitution of India is not equipped to enter into the disputed questions of fact or to reappraise the evidence to arrive at the conclusive findings. Accordingly, in the absence of proper consideration by the Deputy Director of Consolidation of the oral and documentary evidence led by respective parties on record, which was available before him and had already been noticed by the Consolidation Officer in the first instance, it would have been appropriate for Deputy Director of Consolidation to have entered into the aforesaid aspects to scrutinize the evidence and return a categorical finding in the light of the evidence available on record. In this view of the matter, this court has no option, but, to allow the writ petition, set aside the judgment passed by the Deputy Director of Consolidation dated 16-02-1994 and remit the matter to the Deputy Director of Consolidation, Lucknow, who shall on the basis of material evidences available on record, shall re-dermine the issue regarding inheritance of the property of Lekhai.
27. It is made clear that no fresh evidence would be permitted to be introduced by either of the parties and the Deputy Director of Consolidation shall re-determine the aforesaid issue considering the oral as well as documentary evidence admissible in law and available on record.
28. Since the matter is quite old and is being remanded, accordingly, this court deems it appropriate to direct the parties to appear before the Deputy Director of Consolidation, Lucknow on 05-12-2022 and the Deputy Director of Consolidation, Lucknow, after affording full opportunity of hearing to the parties, but, without granting any unnecessary adjournments, shall endevour to decide the revision preferably within a period of six months from the date of appearance of the parties before him on the date fixed.
29. With the aforesaid, writ petition is allowed. There shall be no order as to costs.
Order Date :- 2.11.2022 AKS