Allahabad High Court
Ram Dular vs D.D.C. on 1 August, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 18 Case :- WRIT - B No. - 4488 of 1987 Petitioner :- Ram Dular Respondent :- D.D.C. Counsel for Petitioner :- C.P. Srivastava,Adarsh Bhushan,Anil Bhusan Counsel for Respondent :- Mahendra Pratap,R.P. Ram,S.C. Hon'ble J.J. Munir,J.
1. This writ petition has been filed originally by one, Ram Dular S/o Bharos a native of village Akkipur Post Chhatai Kala (Shahganj), District Jaunpur challenging an order of the Deputy Director of Consolidation dated 16.02.1987, whereby he has restored an order of the Consolidation Officer dated 05.05.1984 made on an objection under Section 9A(2) of the U.P. Consolidation of Holdings Act (for short the 'Act'), setting aside the order dated 21.08.1986, passed by the Settlement Officer of Consolidation.
2. Heard Sri Neelabh Srivastava, Advocate holding brief of Sri Adarsh Bhushan, learned counsel for the petitioner and Sri Ram Prakash Ram, learned counsel appearing on behalf of respondent no. 3, Ram Lakhan, now represented by his heirs and legal representatives, numbering six.
3. These proceedings have commenced on an objection under Section 9A(2) of the Act filed by a third respondent before the Consolidation Officer. The dispute relates to khasra nos. 77 and 385 of Khata No. 100 that was entered in the name of the petitioner and the third respondent when Chakbandi operations commenced a second time in the year 1983-84. The objection of the petitioner was that he was entitled to be recorded as the sole tenure holder over the said plots, that are hereinafter referred to as the 'property in dispute', to the exclusion of third respondent. It was the third respondent's case that the name of the petitioner had been wrongly recorded and was liable to be expunged. The petitioner contested third respondent's objection and claimed that it was a joint holding that had been inherited from the parties' common ancestor one, Chikhur. According to the petitioner, Chikhur had two sons, Shivraj and Bujha. Bujha had a son, Bharos. The petitioner is the son of Bharos. He had two brothers, Matai and Satai, who died issueless. According to the petitioner, the property came from Chikhur and went by way of succession with a half share each in the branches of Shivraj and Bhuja. What came to the petitioner was the half share that went to the branch of Bujha. During the life time of the petitioner's brothers, Matai and Satai, the petitioner along with two brothers had a 1/6th share each. Since, Matai and Satai, the two brothers of the petitioner died during his life time and issueless, their share was inherited by the petitioner enlarging it to a complete half. It was urged that in the branch of Shivraj, his half share was inherited by his only son Hichhu, and from him by his son, Ram Lakhan (respondent no. 3). The contention of the petitioner is that in his reply to the objections of the third respondent was that half share over the land in dispute was rightly recorded in the basic year khatauni of the second round of Chakbandi operations, and that, that was the position which remained throughout. The first round of chakbandi operations commenced in the year 1955. He contended that during the first round of chakbandi operations, no issue about the petitioner's share was raised by Ram Lakhan or his predecessor-in-interest and those chakbandi operations were concluded with the de-notification under Section 52 of the Act. It was contended that the present chakbandi operations, that had commenced in the year 1983-84, therefore, correctly recorded in the basic year, a half share for the petitioner and the third respondent, regarding which no objections could now be raised. Bar of Section 49 of the Act was also pleaded on the basis of the first round of chakbadi operations, where this objection was not at all raised.
4. The Consolidation Officer, while deciding objection framed issues to the following effect:
1. Whether the name of Ram Dular, Satai and Matai are liable to be expunged from the khata in dispute?, and;
2. Whether the name of Ram Lakhan deserves to be recorded exclusively?
5. The third respondent in support of his objection filed a khatauni for the Fasli year 1334, which shows the name of Hichhu S/o Shivraj to be recorded there, exclusively. A further khatauni for the fasli year 1309 was filed which shows the name of Chikhur to be recorded. In another khatauni for the Fasli year 1356, has been filed on behalf of the third respondent, where name of Hichhu finds record. There is a copy of the khatauni for the Fasli year 1362 filed by the objector-respondent no. 3, where the name of Hichhu, his father is exclusively recorded.
6. Lateron, during mutation, the name of Hichhu has been expunged, and in his place, the name of Ram Lakhan has been recorded as his heir. The Consolidation Officer has recorded that in the khatauni for the Fasli Year 1362 there is a note that the name of Ram Lakhan has been rubbed off and in the order of the ACO, dated 23.05.1956 the name of one, Bharos has been entered. The name of petitioner's father has been recorded as Sirdar and co-tenure holder along with Ram Lakhan. The aforesaid entry does not mention the case number wherein the ACO passed that order. CH Form 41 has also been noticed to be filed amongst other documents on behalf of third respondent. On behalf of the petitioner, by way of documentary evidence, a copy of khatauni for the Fasli year 1362 has been filed. CH Form 20 relating to the last chakbandi operations and the record of proceedings under Section 8 of the Act has been filed. There is also a copy of a judgment passed in Case No. 58/2971 ''State vs. Ram Dular' decided on 16.12.1971, which the Consolidation Officer has noted, has been filed to show that a criminal litigation was persued between Ram Lakhan and Ram Dular, under Section 313 IPC. The Consolidation Officer has mentioned in the passing in his judgment that extracts of khatauni and the revenue recipets, have also been filed. It must be remarked here that the Consolidatin Officer has not elaborated as to what those khataunies are, or what is detailed there, or what the revenue receipts filed indicate. There is no reference to the contents of any of these documents, including the revenue receipts or the khatauni that have been filed on behalf of the petitioner. Oral evidence on behalf of Ram Lakhan figures as as the testimony of Ram Lakhan himself and his witness Vanshu that was recorded in the witness box, whereas in support of Ram Dular's case, Ram Dular himself and his witness Rampyare's deposition. The Consolidation Officer held that in the old khatauni for the Fasli year 1309, name of Chikhur finds record and, thereafter, in the khatuani for the fasli year 1334, name of Hichhu S/o Shivraj has been recorded. It has been observed by the Consolidation Officer during the course of his decision that the petitioner, Ram Dular has not filed any documentary evidence to show that Chikhur had two sons. He observed that in case Chikhur had two sons, names of both would have figured in the khatauni for the fasli year 1334. It has been reasoned that no documentary evidence has been brought on record to show that Hichhu was the only son of Chikhur or he had another son. The Consolidation Officer has also held that in the fasli year 1362, name of Hichhu finds record and after him, the name of Ram Lakhan has been entered on the basis of succession. From all this, the Consolidation Officer has inferred that Chikhur had no son by the name of Bujha; instead, it is inferable that he had one son, Shivraj, whose lone son is Hichchu. The Consolidation Officer further held that Ram Dular, his father Bharos and his father, Bhuja have nothing to do with the property in dispute.
7. The Consolidation Officer has addressed the question as to what is the effect of non objection during the previous chakbandi, Bharos being recorded as a co-sharer. His name has entered in the khatauni for the fasli year 1362, but the mutation made under an order of the ACO does not mention any case number, which shows that the entry is fictitious. No copy of the decision rendered by the ACO, on the basis of which the said entry has been made, has been filed. The Consolidation Officer also recorded that during the old Chakbandi CH Form 4-7 would carry these kinds of orders but there is no certification of the said forms also.
8. The Consolidation Officer has also reasoned in support of his conclusions that in fasli year 1362, the mutation that has been made, there is an endorsement in red ink and also a note in red Ink, where the name originally entered has been erased, and, the name of Bharos has been added there. Nothing about this objection was said during the first round of Chakbandi. The Consolidation Officer has held that the third respondent was a minor at that time and that Bharos got his name recorded, illegally. In order to reassure himself about his conclusions, he has recorded the fact that the petitioner, Ram Dular would be aged about 36 years during the first round of Chakbandi in the year 1955-56, whereas third respondent would be aged about 8 years. As such, the Consolidation Officer has concluded that the name of first petitioner has been recorded without any basis, and, is the result of a fictitious entry on the foot of which the petitioner now claims a half share. Accordingly, the objections of third respondent were allowed and the name of the petitioner was ordered to be expunged with regard to his half share in the land in dispute.
9. The petitioner appealed the decision of the Consolidation Officer, under Section 11 of the Act to the Settlement Officer of Consolidation. The Settlement Officer of Consolidation undertook a plenary review of the evidence on record. A perusal of that judgment shows that the Settlement Officer of Consolidation took into consideration the khatauni for the fasli year 1309 in relation to which he has said that the said khatauni shows that on some part of the land in dispute, during the fasli year 1309, Chikhur is recorded for the past 26 years. From the said entry and its age relative to the point of time to which it relates, the Settlement Officer of Consolidation concluded that this entry relates to the time of the last bandobast, and, that it shows the property in dispute to be a self acquired property of Chikhur. The Appellate Court has then considered the khatauni for the fasli year 1354-1356, where the name of Hichhu S/o Shivraj is recorded. He has further taken note of the entry that finds place in 1362 fasli (basic year relating to the first round of chakbandi), where the land in dispute is recorded in the name of Hichhu S/o Shivraj. There is an order of the Sub Divisional Officer, dated 07.01.1955 where in place of Hichhu(deceased), the name of Ram Lakhan, respondent no. 3 is recorded as his heir. The Settlement Officer, Consolidation has gone on to note that on 19.03.1955, chakbandi operations were notified in the gazette and the Assistant Consolidation Officer passed an order dated 23.05.1956 on the basis of which the name of Bharos has been entered over the land in dispute (Khata no. 45), as a co-sharer along with the third respondent. It is also noted here that in relation to Khata no. 123 which is not the property in dispute, the name of Bharos has been recorded under orders of the Consolidation Officer, in fasli year 1362 as a co-sharer in that khata. The Consolidation Officer noted in the order impugned that in accordance with the rules applicable to chakbandi operations during that time, that is to say, when the first round of chakbandi operations went through, the Assistant Consolidation Officer did a partal (survey) under Section 8 of the Act. He verified in that exercise as to what the dispute between the parties was all about. He issued a provisional notice to both parties, that is to say, to Bharos, the predecessor-in-title of the petitioner on one hand and to Ram Dular, respondent no. 3, on the other.
10. Dealing with the third respondent's case that the entry claimed by the petitioner in the fasli year 1362 was the result of a forgery, the Settlement Officer of Consolidation took note of the draft khatauni, CH Form 30, relating to another khata no. 95, where names of Ram Lakhan and Bharos have been entered together as co-sharers. He has also taken note of like entries as co-sharers between the petitioner and the third respondent, in relation to the land at village Sadpur, where in CH Form 20, the name of both, Bharos and the the third respondent, Ram Lakhan find place. In particular, the Settlement Officer of Consolidation took into consideration, some 40 odd revenue receipts. The order of the Settlement Officer of Consolidation shows that the land was co-shared by Bharos and Ram Dular.
11. The Settlement Officer, Consolidation has specifically noted the fact that the pedigree propounded by Ram Dular in his written statement has not been dispelled by Ram Lakhan, respondent no. 3, on the basis of evidence led in the case. He has taken note of the family register relating to the year 1983, which shows that in the house no. 45, Ram Lakhan has been indicated to be the head of the family, living along with one Bhikaiya and another Bhagwandei. Bhikaiya is the widowed mother, whereas Bhagwandei is the third respondent's wife. The Court has recorded for a fact that on the basis of oral evidence of Ram Lakhan where he has testified himself, besides his witness, Vanshu, it has been acknowledged by Vanshu in his cross-examination that he does not know that Bujha and Shivraj were brothers, and the number of sons that Chikhur had. The witness has also said that he does not know about the family tree of parties. It is also said by him that land in dispute is very old. He does not know about the khata number. The witness also said that he has no animosity against Ram Dular. He has denied testifying in the criminal case on behalf of Ram Dular. The witness has been opined by the Settlement Officer of Consolidation to be one not acquainted with important and material facts. It is also observed by the Court that this witness has refuted documentary evidence. The Appellate Court has noticed that on the basis of proceedings of a criminal case between parties, the details of which have been recorded in the judgment, it has proven that criminal litigation between Ram Dular and Ram Lakhan at some point of time was there. The testimony of Ram Dular in the witness box has also been taken note of. It has been remarked by the Appellate Court that in his evidence Ram Dular has sought to prove the pedigree propounded by him with the aid of own evidence in the witness box and that of his witness, Rampyare. It is observed by the Trial Court that Ram Dular has supported the pedigree pleaded by him in his written statement, whereas Ram Lakhan has said nothing about this pedigree in oral evidence, recorded in the witness box. Here, it is remarked by the Appellate Court that not only Ram Lakhan has not said anything to disprove the pedigree in his oral evidence, but he has also not disputed Ram Dular's pedigree in his oral evidence. This Court must remark here that by this the Appellate Court does not mean that Ram Lakhan has accepted for a case Ram Dular's pedigree, which he has disputed in all his objections, filed before the Court of first instance. All that, the Appellate Court has remarked is that in his evidence, Ram Lakhan has not disputed Ram Dular's pedigree, by words patent.
12. It is also remarked by the Settlement Officer of Consolidation that when the co-sharers were recorded in the basic year khatauni during the first round of chakbandi, Ram Lakhan was a minor, and, therefore, those entries do no bind him. He has perused the family register to find that the date of birth of Ram Lakhan, recorded there, is 12.07.1947. It is a matter of arithmetical calculation that going by the said date of birth, Ram Lakhan was a minor in the year 1956. In the year 1965, he would have turned a major. He did not object during the entire period of limitation from 1965 to 1968, which he could and ought to have done, if he were aggrieved by the entry made in the basic year, in the year 1962. It has also been recorded that Ram Lakhan has not filed in his documentary evidence, even a single receipt evidencing payment of land revenue paid by him whereas Ram Dular has filed numerous such receipts, which indicate him to be a co-tenure holder along with Ram Lakhan, since the previous round of chakbandi. It has been inferred from these facts that the land appears to be ancestral, where the name of Ram Dular's predecessor was left out, but recorded in the basic year, before commencement of first round of chakbandi operations. The Settlement Officer of Consolidation has also taken note of a submission advanced on behalf of the petitioner, Ram Dular that Ram Lakhan got a reference made by the Consolidation Officer, regarding his claimed rights to exclusive tenure of the land in dispute which was made to the Deputy Director of Consolidation, behind the petitioner's back. It was also accepted by the Deputy Director of Consolidation without notice to the petitioner. The submission of learned counsel for the petitioner also is that the Appellate Court took into account that this exercise of a reference being made and decided behind the petitioner's back, shows that Ram Lakhan knew well that the basic year entry in favour of Ram Dular was not wrong, and that these were only stray entries in his favour, that showed him as the exclusive bhumidhar. The Settlement Officer of Consolidation here also noticed that submission advanced on behalf of Ram Dular that both parties knew that the name of Bharos has been recorded as a co-tenure holder during the first round of chakbandi, but no steps were taken to undo that entry, while the said chakbandi was current. This feature made it clear that the case of the third respondent is hindered by an estopple, besides the statutory bar of Section 49 of the Act. Thus, the entries in the first round of chakbandi could now not be challeged. The Settlement Officer of Consolidation also took into account the submission of learned counsel for the third respondent, Ram Lakhan that during the last bandobast, once the name of Hichhu S/o Shivraj has been recorded after the last bandobast in the fasli year 1334, that continued for a long period of time, in case Shivraj and Bhuja were brothers, Bhuja ought to have filed a suit under the U.P. Tenancy Act, seeking to get himself declared and recorded as a co-sharer. The Settlement Officer of Consolidation after going through all these evidence very carefully took note of the fact that during the last chakbandi in the CH Form 20 and 25, on the basis of valid orders, entries of co-sharer's rights were made in favour of the petitioner's predecessors' which Ram Lakhan or his predecessor never challenged. They have also not produced any revenue receipts to establish that they have been in exclusive possession of the land in dispute, paying land revenue to the Government in token of such exclusive possession. On the basis of all this analysis the Settlement Officer of Consolidation held the petitioner to be a validly recorded co-tenure holder, along with the third respondent, Ram Lakhan, to the extent of half share and allowed the appeal.
13. Aggrieved, the third respondent, Ram Lakhan preferred a revision to the Deputy Director of Consolidation. The Deputy Director of Consolidation by means of the impugned order set aside the order of the Settlement Officer, Consolidation and restored that of the Consolidation Officer. In doing so, the reasoning adopted by the Deputy Director of Consolidation is this. According to him chakbandi in the village had commenced, in the second round, in the fasli year 1309. The land in dispute was recorded in the name of Chikhur. Subsequently, in the khatauni for the years 1334, 1356 and 1362, Hichhu S/o Shivraj was recorded. In the fasli year 1362 that was the basic year for the first round of chakbandi, there were three mutation orders recorded. The first was a mutation under orders of the Sub Divisional Officer dated 07.01.1955, relating to the succession in favour of Ram Lakhan, whereby the name of Hichhu was mutated out and on the basis of inheritance, the name of Ram Lakhan was entered. The second and the third mutation orders were those of the Assistant Consolidation Officer, dated 23.05.1956, whereby over khata no. 439, the name of Bharos was recorded as a sirdar. By the second mutation order carried out over khata no. 45 (land in dispute), the name of Bharos was recorded as a sirdar. From these mutation orders, the Deputy Director of Consolidation has remarked that it is clear that during the previous round of chakbandi, the present dispute had been raised and these orders in relation to that dispute were passed and recorded. Here, he has noted the contention of the third respondent, Ram Lakhan that the order of Assistant Consolidation Officer dated 23.05.1956 relates to khata no. 439 alone, by which the name of Bharos has been directed to be entered as a sirdar over the said khata, whereas according to the petitioner, Ram Dular, by the order of the Assistant Consolidation Officer dated 23.05.1956, he has been directed to be recorded as a co-sharer over the land in dispute also. The Settlement Officer of Consolidation has identified the issue as one where he had to find out that out of the two orders, which of these are correct. In his reasoning, the Deputy Director of Consolidation has held that in the khatauni of 1362 fasli, it is clear that the mutation carried out pursuant to the order of the Assistant Consolidation Officer, does not bear signatures of the officials carrying out the mutation and verifying it. The mutation entry also does not bear the case number. It is also recorded that the names of tenure holders also show that there is erasure somewhere and overwriting, all of which make it clear that these mutations are fictitious. It has then been remarked that this Court in its various authorities has expressed judicial opinion in favour of construing such fictitious entries as not conferring any title. The Deputy Director of Consolidation has then held that so far as the question of parties belonging to the same family is concerned, when the question was not raised or determined during the first round of chakbandi, the same cannot be raised now, in view of the bar under Section 49 of the Act. The order of the Settlement Officer, Consolidation has been held to be flawed and that of the Consolidation Officer to be valid. The entries in the khatauni of 1362 Fasli have been held to be fictitious by the Deputy Director of Consolidation.
14. Now, the question to be considered by this Court is whether truly speaking the Deputy Director of Consolidation is right in his conclusions, about the entries in favour of the petitioner being fictitious. A perusal of the order of the Deputy Director of Consolidation would show that he has gone straight to the entries made in the basic year, that is to say, 1362 fasli and viewed it in the same manner as the Consolidation Officer has done. Sitting as a Court of revision above the appellate determination made by the Settlement Officer of Consolidation, the Deputy Director of Consolidation has not dealt with or reversed well considered and reasoned findings, recorded by the Settlement Officer of Consolidation. These findings are based not only on documentary evidence, or the way the entries have appeared to the eyes of the Deputy Director of Consolidation and the Consolidation Officer, but also on the basis of other relevant documentary evidence, that prima facie corroborate the petitioner's case, besides oral evidence of parties, which the Settlement Officer of Consolidation has considered and evaluated in great detail to reach his conclusions.
15. No doubt, the Deputy Director of Consolidation with all his wide powers under Section 48 of the Act, that have become wider after the additon of explanation (3) could have reversed the Settlement Officer of Consolidation, but that he could do, provided he reversed all those findings that the Settlement Officer, Consolidation has recorded on the basis of evidence, and for prima facie good reasons assigned. Reversal also has to be made for cogent reasons, may be different from those recorded by the Settlement Officer of Consolidation. There could not be just reversal of the Settlement Officer's findings, without assigning reasons. These are various findings that the Settlement Officer Consolidation has recorded about the pedigree of the parties, the inheritance of the joint tenancy, the record of proceedings during the first round of chakbandi, and, particularly, non raising of objections during the first round of chakbandi, where entry in favour of the petitioner was made in the basic year relative to the first round of chakbandi. Here, it must be remarked that an entry that is forged and fictitious, no doubt can and ought to be ignored where it is found to be so and expugned, but at the same time, an entry that has not been objected to for years together and allowed to continue in the revenue records, so much so that it was there at the commencement of the first round of chakbandi, and travelled to the second round of chakbandi, without any objection by the person who claims it to be forged now, is a circumstance which ought to be considered before an inference about that entry being forged is drawn. So far as the submission that during the first round of chakbandi the third respondent was a minor, the Settlement Officer of Consolidation has recorded detailed findings that evidence prima facie shows that though he was a minor at the time of commencement of those operations, pending those opereations, the third respondent came of age and could have very well raised this objection that the entries were forged, which he did not do. These are the factors which the Settlement Officer of Consolidation took into the consideration, but the Deputy Director of Consolidation while upturning the Settlement Officer of Consolidation's orders has not bestowed any consideration to this finding of the Settlement Officer of Consolidation. This and the other findings, as already said ought to have been reversed if the order had to be set aside by the Deputy Director of Consolidation, for cogent reasons assigned. There could be no upsetting of the appellate order by the order impugned scripted across two pages, but in substance, one that does not effectively reverse all those detailed findings that the Settlement Officer of Consolidation has recorded. Even if the reversal of the findings by the Deputy Director of Consolidation is to be inferred, it is no more than an ipse dixit of the Officer, without any reason assigned for the reversal. This Court at this stage makes it clear that there is no expression of opinion about the validity of the findings, either recorded by the Settlement Officer of Consolidation, or the Deputy Director of Consolidation. It is all about the manner in which the Deputy Director of Consolidation has reversed the order of Settlement Officer of Consolidation, without adhering to the fundamental requirements of writing a judgment of reversal. It is also made clear that Deputy Director of Consolidation, when he re-determines this matter, pursuant to the order being hereby made will be free to record his findings without being influenced by anything said in this order, but certainly in accordance with the standard and requirements of writing a judgment of affirmation, reversal, or a remand further down, whatever he determines. It goes without saying that while taking his decision Deputy Director of Consolidation will be guided by relevant evidence, and, of course, by the provisions of law that create or support rights of parties, such as the bar under Section 49 of the Act, if inferable, or the principle of estopple or the other well settled principles attracted.
16. In the result this petition succeeds in part and is allowed to the extent that the impugned order passed by the Deputy Director of Consolidation dated 05.05.1984 is hereby quahsed. The matter is remanded to the Deputy Director of Consolidation where Revision No. 1347 shall stand restored to the file of the Deputy Director of Consolidation to be determined afresh in accordance with law after putting both parties to notice. Since, both parties are represented before this Court, it is directed they will appear before the Deputy Director of Consolidation on 30.08.2019, whereafter the Deputy Director of Consolidation will fix a date for hearing. The Deputy Director of Consolidation will proceed to determine the revision afresh, within a period of three months next from the date of first appearance by the parties.
17. Until decision by the Deputy Director of Consolidation the status-quo regarding possession over the land in dispute as exits today shall be maintained by both parties.
18. Costs easy.
Order Date :- 1.8.2019 Deepak