Allahabad High Court
Ram Kripal Dubey vs Deputy Director Consolidation ... on 1 September, 2020
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on 04.03.2020 Delivered on 01.09.2020 Case :- CONSOLIDATION No. - 87 of 2004 Petitioner :- Ram Kripal Dubey Respondent :- Deputy Director Consolidation Pratapgarh And Others Counsel for Petitioner :- Ajay Kumar Singh,Akhand Pratap Singh,Brijesh Kr. Tewari,R.P. Singh,Vijai Bahadur Verma Counsel for Respondent :- C.S.C.,A.S. Chaudhary,Dhiraj Chaurasia,G.C.Sinha,Krishna Gopal,P.V. Chaudhary,Prem Narayan Mishra(Inper,Salik Ram Tiwari Hon'ble Mrs. Sangeeta Chandra,J.
1. The present Writ Petition was initially filed by Ram Kripal Dubey s/o Ram Charan, against the order passed by the Deputy Director of Consolidation Pratapgarh and the respondent nos.2 & 3- Jagat Pal s/o Ram Prasad and Sheetala Prasad s/o Basudev were arrayed as the contesting respondents respectively. Later on during pendency of the writ petition, both the petitioner and the respondents have been substituted by their legal heirs. An interim order was granted by this Court on 06.02.2004 for maintaining status quo on the land in dispute in terms of possession and also for maintaining of records. The writ petition was dismissed for want of prosecution thrice but was restored each time and the interim order in favour of the petitioner lapsed a long time ago, but a limited order restraining the parties from cutting trees on the land in dispute was operating thereafter.
2. It is the case of the petitioner, as stated in the writ petition, that he had been in possession of Khata no.31 Gata No.14, Area 0.559 ha situated in village Siyarabasi, Patti, Pratapgarh, since the time of his ancestors and the grove has trees planted by his ancestors. The opposite parties filed objections under Section 9 of the Consolidation of Holdings Act (hereinafter referred to as "the Act"). The Consolidation Officer after perusal of records and on the spot inspection had passed an order on 26.02.1973 rejecting the objections of opposite party nos.2 & 3. The Appeal filed by the opposite parties was also rejected by the Assistant Settlement Officer Consolidation on 24.12.1974. Two Revisions were filed by the respondents, namely, Revision no.1 (Jagat Pal vs. Ram Garib) and Revision no.2 (Sheetla Prasad vs. Ram Kripal). Both the Revisions were clubbed together and allowed by the Deputy Director of Consolidation, Pratapgarh, in an illegal and arbitrary manner ignoring findings of fact recorded by the two learned courts below. The petitioner claims right over the land in dispute on the basis of a compromise between Ram Garib, the uncle of the petitioner (now dead), and seven others executed on 20.06.1968, with Shiv Murat and others, the recorded tenure holders, wherein it was clearly mentioned that the land in question including grove land belonged to the ancestors of the petitioners for the past 150 years. This compromise was produced in the court of Judicial Officer Pratapgarh in Case No.606/74/438/77/11/4 of 1970. A true copy of the compromise has been filed as Annexure-5 to the writ petition. The second ground for claiming right over the land in question is copies of Khatauni maintained on the basis of First and Second Settlements i.e. of the year 1862 and 1892, filed as Annexure-6 & 7 to the writ petition. No other ground has been taken in the writ petition.
3. Initially, an application for dismissal of the writ petition on grounds of non-impleadment of necessary parties was filed by Sri Prem Narain Mishra, the son of opposite party no.3-Sheetla Prasad, on the ground that the writ petition was filed against dead persons as it is evident from a perusal of the order passed by the Revisional Authority that the revisionist had died and had been substituted by his heirs in the course of Revision. However, this application remained pending and in the meantime substitution application was filed by Ram Kripal Dubey which was allowed on 13.02.2006. An application for recall of order dated 13.02.2006 was filed by Prem Narain Mishra which has also been rejected by detailed order on 04.04.2012 with a direction to the respondent Prem Narain Mishra to file a counter affidavit to the writ petition. An application for impleadment was also filed by twelve persons which stated that these twelve persons were parties to the Revision and co-sharers to the land in dispute but had not been made the petitioners by Ram Kripal Dubey, as at the time of filing of the writ petition no one was available to sign to the power. This application has also been allowed on 12.4.2016 and these twelve persons were directed to be impleaded as respondent nos. 4 to 15 in the memo of the writ petition.
4. The counter affidavit has been filed on 17.04.2017 by respondent number 3/2- Prem Narain Mishra, who has also appeared in person to argue the matter on behalf of the contesting respondent.
5. In the counter affidavit, it has been stated that the dispute related to plot no.13 situated in Khata No.15 in Village Siyarabasi, which was recorded in the Basic year Khatauni in the name of 22 persons including opposite party no.3-Sheetla Prasad, the father of Prem Narain Mishra and the opposite party number 2- Ram Prasad, the father of Jagpal. A copy of the Basic year Khatauni has been filed as an annexure to the counter affidavit. It has been stated that no objections were filed by the recorded tenure holders but an objection was filed under Section 9 of the Act by Ram Garib and Ram Kripal praying that the said land be entered in their names along with the names of Shiva Murat, Ram Prasad, Udaipal, Paras Nath, Shambhu Nath and Ram Sumer, and for deletion of the names of all the 22 recorded tenure holders. Copy of the objections filed by the petitioner has been annexed as CA-2 to the counter affidavit. Another objection was filed by Nanku, Dukhi and Shiva Prasad, all sons of Pudan, praying for deletion of the names of the recorded tenure holders and entry of their names along with Rampal and others, objectors of the first set of objections. The copy of objections filed by sons of Pudan has also been filed as Annexure CA-3. It has further been stated that in the Basic year entry the disputed plot no.13 corresponded to plot no.15 of the Second Settlement, which corresponded to plot no.2 of the First Settlement. None of the two sets of objectors or their predecessors were recorded in any of the three Settlements on the said plot no.13. It was the predecessors of the recorded tenure holders i.e. the contesting respondents who had been recorded in all the three Settlements. The successors of persons recorded in the First Settlement were recorded in the Second Settlement and in the Third Settlement and these recorded tenure holders continued up to the Basic year. The Consolidation Officer and the Settlement Officer Consolidation recorded incorrect findings ignoring the entries made in the First Settlement, the Second Settlement, the Third Settlement and the Basic year. It has further been stated that the writ petition has been filed only against order passed in Revision No.1 (Jagat Pal vs. Ram Garib), and is not related to Revision No.2 (Sheetla Prasad vs. Ram Kripal). The disputed plot was never in possession of Ram Kripal Dubey or his ancestors, nor any crops were standing there on as it was a grove. The petitioner had filed Khatauni of 12.01.2004 which was prepared during pendency of the Revision. Plot no.14 as mentioned in the writ petition in paragraph-3, was originally plot no.13 of Basic year khatauni in Khata No.15, and was recorded in the name of Ram Prasad, Sheetla Prasad along with 22 other persons as joint grove holders and it was these persons who were in possession over the said grove planted by their common ancestors. It was denied that any objection was filed by the recorded tenure holders. While one objection was filed by Ram Garib and Ram Kripal along with six persons, the other objection was filed by Nanku and Dukhi, which objections were erroneously allowed.
In reply to paragraph-6 of the writ petition, it was stated that a Suit was initially filed by Ram Sumer and others against Ram Prasad and others under Section 176 of the U.P.Z.A.&L.R. Act in the Court of Judicial Officer for partition Pratapgarh on 04.12.1959. After eight years, Ram Garib and Ram Kripal along with others filed objections. Nanku and Dukhi also filed objections and prayed for impleadment. These objections were rejected by the Judicial Officer in 1965. Ram Kripal and Ram Garib along with six other persons thereafter filed a Suit under Section 229-B of the U.P.Z.A.&L.R. Act which was dismissed for want of prosecution. An application for restoration was filed and on the same day two persons out of 22 persons allegedly filed a compromise on 20.06.1968, which was directed to be kept on record by the Judicial Officer but no order was passed there on.
6. It has further been stated by the respondents that the disputed land is an old grove which was numbered as plot no.2, area 2-14-14 in the First Settlement in 1862 and recorded as ''Bagh' in the name of Ayodhya, Gayadeen and Madhav, all sons of Matadin, and Binda and Ramadin, both sons of Bhaktu, who were common ancestors of 22 persons including the contesting respondent nos.2/1 & 3/2 and who were recorded tenure holders in the Basic year. Also, these common ancestors had planted forty nine mango trees, one Aonla tree, two Jamun trees and one Goolar tree, i.e. a total of fifty three trees as is evident from the Khasra of the First Settlement filed as CA-4.
Plot no.2 corresponded to plot no.15 of the Second Settlement which was recorded as "Bagh Shamilat Deh" again in the name of Bhaktu and others, sons of Ayodhya, Kallu and others, sons of Gayadeen, Madhav, son of Matadeen, and Bihari and Ramswarup sons of Ramadhin. A copy of the Khasra of the Second Settlement has been filed as Annexure CA-5 to the counter affidavit. The entry of possession in the "Remarks" column in the Second Settlement in the name of Hanuman, Shiv Palat, Chandrika, Bhagwan Deen, Baijnath, was erroneous and on the basis of fraud played by the ancestors of the petitioner and the other set of objectors. There is also no evidence connecting the petitioners and other objectors as descendants and legal heirs of the persons who were recorded in the "Remarks" column in the Second Settlement. In the Third Settlement, the said plot became plot no.13 ad-measuring 2-14-14 again and recorded as "Bagh Shamilat Deh" in the Khata no.8 in the name of Ram Prasad and others. In 1359 Fasli, the disputed plot no.13 was recorded as a ''Bagh' in the name of Ram Prasad and Ram Prasad is one of the ancestors of the contesting respondents. The undisputed pedigree has been given on page no.3 of the judgement and order dated 26.02.1973 passed by the Consolidation Officer.
Copies of the Khatauni of the Third Settlement and the Khatauni of 1359 Fasli and Khewat of 1359 Fasli have been filed as Annexures-CA-6, CA-7 & CA-8.
It has been stated in the counter affidavit that the writ petition has been filed on misconceived grounds and the judgement and order dated 04.12.2003 passed by the Deputy Director of Consolidation is well reasoned and speaking order which ought not to be disturbed.
7. A Rejoinder Affidavit has been filed in February, 2019 in which although the contents of the Counter Affidavit have been denied as incorrect, certain statements have been made which in fact contradict the statements earlier made in the writ petition by the petitioners themselves. It has been stated that right from the First Settlement the plot in dispute was a grove. It was acquired in "gift" by the ancestors of the petitioner as well as respondent nos. 4 to 15, and after being gifted the land, the ancestors of the petitioner as well as respondent nos. 4 to 15 planted new trees and have been in possession over the plot in question continuously. It has been stated that objections were filed by the father of the deponent to the rejoinder affidavit i.e. Ram Kripal Dubey, and these objections were allowed by the Consolidation Officer and by the Settlement Officer Consolidation. It has been submitted in paragraph-11 of the said Rejoinder Affidavit that a Partition Suit was filed by Ram Sumer against Ram Prasad and others under Section 176 of the U.P.Z.A. & L.R. Act without impleading the respondent nos. 4 to 15 and the petitioner. An application for impleadment was filed which was rejected by the Judicial Officer as being highly belated. Therefore need arose to file a Suit for declaration under Section 229-B of the U.P.Z.A. & L.R. Act in which a compromise was entered into between the ancestors of the petitioner and respondent nos.4 to 15 and Ram Prasad and others the defendants therein, who were the recorded tenure holders. The compromise was filed before the Judicial Officer on 20.06.1968 but before any final order could be passed, due to consolidation operations having being notified under Section 4, the Suit stood abated. However, since the compromise had been filed lawfully, it is still binding between the parties.
In paragraph-13 of the Rejoinder Affidavit, it has been submitted that in the column of ''Remarks' the possession of the ancestors of the petitioner and the respondent nos.4 to 15 were mentioned in the Second Settlement. The name of the contesting respondent were wrongly recorded in the Basic year and therefore objections were filed by the ancestors of the petitioner and the respondent nos.4 to 15, which have rightly been allowed by the Consolidation Officer. In paragraph-17 of the Rejoinder Affidavit, it has been stated that during the pendency of the Revision, the brother of the contesting respondent Sri Umakant Mishra has purchased a share of one of the co-sharers of the petitioner, namely, Dukhi in the name of his wife Ashoki Mishra on 15.03.2002 which goes to show that the petitioner and other co-sharers i.e. the respondent nos.4 to 15, have been recognized as tenure holders of the plot in question by the contesting respondent himself.
A copy of the Second Settlement Khatauni has been filed of the year 1298 Fasli which shows that plot no.2 ad-measuring 2-14-14 is recorded as a grove with Mango, Jamun and Aonla trees, in the possession of Hanuman to the extent of one third, Bhagwan Deen and Chandrika to the extent of one third and Baijnath to the extent of one third. In the column meant for the same, the name of Kashtkars have been shown as Hanuman s/o Shiv Palat caste Dubey, one part, Chandrakant, Bhagwan Deen, both s/o Ramadhin on one part Shamilat Deh, and Baijnath son of not known on one part Shamilat Deh.
8. An application for impleadment as respondent nos. 4 to 20, namely, Application No. Nil of 2019 was filed in March, 2019 by Sri R.P. Singh, learned counsel for the petitioner with the averment that respondent nos.4 to 20 were inadvertently left out to be impleaded as respondents and they are necessary and proper parties and should be allowed to be impleaded. This court issued notice on the said application on 11.03.2019 and also allowed the application on the same date. However, as per the Order Sheet, this court was pleased to dismiss the said application by an order dated 17.12.2019, without noticing that the said Application had already been allowed on 11.03.2019. Thereafter, notices were issued twice to the newly impleaded respondent nos.4 to 20 by this Court and on 18.11.2019 a report has been submitted by the Joint Registrar, of service being sufficient upon all the respondents, and on the basis of said report of the Joint Registrar, an order has been passed on 20.11.2019 treating all notices to have been served on the newly impleaded respondents.
9. Sri Vijai Bahadur Verma, Advocate, has filed his power on behalf of the petitioners on 02.01.2020, Shri Prem Narayan Mishra son of Sheetla Prasad, appeared in person for the contesting respondent number 2/1 & 3/1 & 3/2. Nobody has appeared for the respondent nos.4 to 15 and it was stated by the counsel for the petitioner that they are formal parties.
10. It has been argued by the counsel for the petitioners that plot no.13 in Khata no.15 was earlier recorded as plot no.2 in the First Settlement i.e. 1861, and as plot no.15 in the Second Settlement in year 1892, and came to be recorded as plot no.13 in the Third Settlement of 1922 and in the Basic year Khatauni of 1970 when consolidation operations were started in the village concerned. After consolidation operations, the plot was given a new number as plot no.14. Since the very beginning, it had trees planted therein and was in the nature of a grove. A Suit was filed under Section 176 of the U.P.Z.A.&L.R. Act on 04.12.1959 by Ram Sumer against the father of the respondent no.3/2 i.e. Sheetla Prasad along with others for the partition of the shares. Ram Garib and Ram Kripal were not made parties in the said Suit. Ram Garib and the predecessor-in-interest of the petitioner filed an objection along with an application for impleadment on 20.02.1965 in the said Suit. Nanku and others also claimed a share in plot no.13 and filed an application for impleadment on 06.07.1965. Both the applications were rejected as being highly belated by the Judicial Officer, Pati, Pratapgarh. Thereafter, Ram Garib and Ram Kripal filed a Suit for Declaration under Section 229-B of the Act on 03.11.1965, This Suit was dismissed for non-prosecution on 03.11.1966. An application for Restoration was filed in August, 1967 which remained pending. During the pendency of such application for Restoration, another application was filed for disposing of the Suit in terms of a compromise entered into between the parties on 20.06.1968. A copy of the said compromise deed filed before the Judicial Officer on 20.06.1968 has been filed as annexure to the writ petition, which shows that it was agreed upon by the parties that Ram Garib and Ram Kripal be given one third share and Nanku and Dukki be also given one one third share of plot no.13, and the defendants would continue to hold one third share of the plot in dispute.
11. The Judicial Officer before whom the alleged compromise was filed on 20.06.1968 did not make any order thereon but only directed the same to be kept on the file. In the meantime consolidation operations started in the village concerned by a notification dated 04.02.1970. On 25.02.1970, Ram Garib, Ram Kripal, Nanku and others filed another Suit under Section 229-B of the Act for scoring out the names of the defendants Ram Prasad and others from the Record of Rights (Khatauni) for plot no.13. On 25.05.1970, an application for abatement was filed by the defendants on the ground that consolidation operations had begun in the village concerned. The Suit stood abated. During field to field spot inspection (Partal) by the Assistant Consolidation Officer, Ram Garib, Nanku and others were found to be in possession of plot no.13. An objection was filed by Nanku on 18.06.1971 before the Consolidation Officer claiming share over plot no.13. A similar objection was filed by Ram Garib. Both the objectors claimed that they were in possession of plot no.13 and the name of recorded tenure holders be expunged from the record and their names be entered as co-sharers. The Consolidation Officer considered documentary and oral evidence and framed issues of which issue no.6 and 8 related to plot no.13. The Consolidation Officer on examination of records found that in the Second Settlement the names of ancestors of Ram Garib and Ram Kripal were recorded in the "Remarks" column and on that basis came to the conclusion that the names of the ancestors of contesting respondents had been wrongly recorded in the Third Settlement and in the Basic year and directed that their names be expunged and the names of Ram Garib and Ram Kripal and that of Nanku and Dukhi should be recorded as Bhumidhar of plot no.13. In Appeal filed by the contesting respondent the order passed by the Consolidation Officer was affirmed. The findings of fact recorded by the two learned Courts below were wrongly set aside by the revisional court.
12. Sri Prem Narain Mishra on the other hand has argued that at the time when the First Settlement of 1861 took place, the ancestors of the contesting respondent were found to be in possession of the land in question which was even at that time recorded as a grove. The share of the ancestors of respondent no.3 was recorded in the Khewat of the First Settlement. The contesting respondents are ''Misras' by caste. However, inexplicably in the Second Settlement in the Khewat, the names of the ancestors of the petitioner, Ram Garib and others who are Dubey by caste have been entered. Later on when the Third Settlement took place in 1922 this error was corrected and the names of ancestors of the contesting respondent were again recorded in the Khatauni and the Khasra which continued up to the Basic year i.e. 1970. The Deputy Director of Consolidation has rightly passed the order in Revision based upon the Record of Rights maintained for the First Settlement, the Second Settlement and the Third Settlement.
13. It has also been argued that as is clear from paragraph-2 of the writ petition, that the same has been filed challenging the order passed in Revision no.2 connected with Revision no.1, all the parties in both the Revisions have not been arrayed as respondents in the writ petition, and the petitioner has not come with clean hands as he has failed to array the necessary parties. The writ Petition was filled against dead persons who had already been substituted in Revisions. However this Court finds that this objection raised by the counsel for the respondent had been considered twice by this Court and detailed orders were passed rejecting this contention on the ground that it was a curable defect. It is no longer open for the respondent no.3/2 to argue that the writ petition ought to be dismissed on grounds of non-joinder of necessary parties.
14. Sri Prem Narain Mishra has also argued that right from 1959 up to 1972 when objections were filed before the Consolidation Officer, the ancestors of the petitioner did not say anywhere that they had acquired the grove through gift made by the ancestors of the respondents in their favour. It is also clear from the record that since the First Settlement, the ancestors of the contesting respondent were recorded as ''Bagh Malikan'. In the rejoinder affidavit for the first time a claim has been made that the ancestors of the contesting respondent had gifted away the property to the ancestors of the petitioner. Even this statement cannot be believed as no documentary evidence has been filed to show that the plot in question was ever gifted. A completely new case has been set up in rejoinder affidavit by the petitioners and the writ petition should be dismissed on this ground alone.
15. Sri Vijay Bahadur Verma, learned counsel, in rejoinder has submitted that it is true that there is no mention of the ancestors of the petitioner in the First Settlement, however in ''Bandobast Doyum' i.e. the Second Settlement, the plot in question has been mentioned as a ''Bagh' in possession of Ram Garib, Bhagwandeen, Nanku and Dukhi. He has referred to page no.17 of the Rejoinder Affidavit to show that the ancestor of the petitioner, one Hanuman who was ''Dubey' by caste was admitted to be in possession of the grove. Learned counsel has also argued that once the ancestors of the contesting respondent had gifted away the grove to the ancestors of the petitioner, they could not have claimed any right over the same. He has referred to the practice being prevalent at the time of the First, the Second and the Third Settlement of recording the name of the Zamindars alone in the Khewat. He has argued that the Khatauni and Khasra mentioned the names of those in actual possession. It has also been argued that one third share of the Dukhi was bought by the Zamindars and therefore their names also came to be recorded in the Third Settlement. It has also been argued that one third share was mortgaged by Bhagwan Deen of Pedigree ''B' to Jagannath r/o another village, but it was later on redeemed by Ram Prasad the ancestor of contesting respondent. It has been argued that Pedigree ''A', ''B' & ''C' referred to in page number seven of the consolidation officer''s order dated 24.02.1972 related to Dubey family. Page number 3 of the Consolidation Officer's order contains another Pedigree relating to the Misra family. It has been argued that once in the Second Settlement the plot in question came to be recorded in the name of ''Dubey' family, it could not have reverted in the name of ''Misra' family in the Third Settlement without there being any order passed by any Competent Authority.
16. It has also been argued by Sri Vijay Bahadur Verma, learned counsel, that as is apparent from the compromise dated 20.6.1968, the ''Misra' family had admitted that ''Dubey' family were in possession and entitled to one third of the grove along with Nanku and Dukhi, both sons of Baijnath, who were also admitted to one third of the grove. Only one third remained with the ''Misra' family since before the Basic year Khatauni, but the names of ''Misra' family were wrongly recorded as the owners of the entire plot in question in the Basic Year and therefore objections were filed after dismissal of the Declaratory Suit under Section 229B of the Act as having abated, on the beginning of consolidation operations.
17. Sri P.N. Mishra has strongly disputed the contention that any kind of compromise was entered into between the defendants and the plaintiffs of the Suit as mentioned before the Judicial Officer on 20.06.1968. It has been submitted that even if such a compromise was filed before the Judicial Officer in the pending Suit under Section 229B of the Act, it could not have been said to have settled the rights of the parties as no order thereon was passed by the Judicial Officer and it was directed only to be kept on record.
18. This Court has perused the order passed by the Consolidation Officer. It is apparent from a perusal of the order passed by the Consolidation Officer that he was dealing with nineteen cases arising out of 16 Khatas. Six objections were filed in relation to Khata No.15 which had the disputed land i.e. the plot no.13, noted as ''Bagh' or ''grove', having Mango, jamun, Aonla and Goolar trees. One objection was filed by the Devta Deen and others, second objection was filed by Triyugi Narayan and others, third objection was filed by Smt. Karma Devi, fourth objection was filed by Uday Pal and others, fifth objection was filed by Sheomurti, and sixth objection was given by Ram Kripal. All the objectors stated that the plot no.13 was noted as ''Bagh' or ''grove' planted by their ancestors and prayed for being recorded as co-tenure holders. One objection was filed by Ram Garib also with respect to plot no.81 of Khata no.15, and another objection was filed by Ram Garib with respect to plot no.13 of Khata no.15, praying for deletion of names of recorded tenure holders and for recording of his name therein. Ram Garib in his objections mentioned three pedigrees. Pedigree ''A' related to Shiv Pal, Hanuman Prasad, Rambodh and others; Pedigree ''B' related to Ram Adhin, Chandrika, Bhagwan Deen and others; Pedigree ''C' related to Baijnath, Pudan, Nanku and Dukhi. Nanku had also filed an objection with regard to plot no.13 praying that his name should also be recorded as co-tenure holder.
19. The Consolidation Officer framed ten issues out of which, two related to plot no.13. First of these two issues relate as to whether Ram Garib and others were co-tenure holders in plot no.13 & 81?; and the other issue framed was whether Nanku was the Bhumidhar of plot no.13/2-14-4?
Before the Consolidation Officer, these objectors accepted as undisputed, the co-tenure holdership of Jagat Pal and others, Devta Deen and others, Uday Pal and others, Shiv Murti and others, Indra Pal and others as co-sharers of the property in question, except for that of Bhagwandei as it was argued that Bhagwandei was not the daughter of Tulsi Ram as according to them Tulsi Ram died issueless. On the basis of the oral and documentary evidence, the Consolidation Officer accepted the claim of Bhagwandei to the share of Tulsi Ram, in the Pedigree of Trijugi Narain, and of Devta Deen and Indra pal, Shambhu Nath And others, as belonging to the same branch.
Every one of the objectors accepted that plot no.81 had houses built on it and being Abadi land there was no necessity of declaration of rights by the Consolidation Officer.
20. With regard to plot no.13, Prem Narain Mishra got himself examined as a witness on oath and stated that his ancestors had possession of it since the First Settlement.
21. With regard to plot no.13, Ram Garib also got himself examined on oath to say that the said plot of land was the grove of his ancestors where they had planted trees and he was in sole possession thereof, and also claimed that Ram Prasad and others had no claim to the said plot. Nanku And Dukhi sons of Pudan claimed to be co-tenure holders and stated that they along with Ram Garib and Ram Kripal Dubey and others were also in possession of one third of plot no.13 which was a grove planted by their ancestors. It was claimed that the name of Sheetla Prasad, Ram Prasad and others had been fraudulently recorded in the Khatauni and to substantiate the claim, a Mortgage Deed dated 08.02.1915 i.e. of 1322 Fasli, made out in favour of Pudan s/o Baijnath s/o Bhavani Nandan, s/o Jagannath was produced. He also produced a copy of Khasra of Third Settlement of plot no.15/2-14-14, i.e. present plot no. 13; A copy of the Khasra of the Second Settlement showing the possession of Hanuman, and Baijnath to the extent of one third, and Bhagwan Deen and Chandrika to the extent of one third over plot number15; A copy of the Khatauni of Second Settlement showing Hanuman s/o Shiv Palat Dubey, Chandrika and Bhawani Deen s/o Ram Adhin and Baijnath s/o not known, as joint tenure holders to the extent of one third each on plot no.15, now plot no. 13; A copy of Khasra of the First Settlement showing plot no.2 as a grove in the possession of Nanku and others were produced before the Consolidation Officer, Patti, Pratapgarh. Ram Garib also produced copy of a compromise deed dated 20.06.1968 in Case No.656/74/438/77/1174 in the court of Judicial Officer, Patti, Pratapgarh, where the recorded tenure holders had accepted the share of Ram Garib on the disputed land. Ram Avtar and others also produced copies of Khatauni of the Second Settlement showing that some trees were planted by their ancestors and they were in possession thereof.
22. The Consolidation Officer then recorded on the basis of copy of Khasra of the Second Settlement that plot no. 13 was a grove in which trees were planted by the ancestors of Ram Garib and Nanku. He also stated that other co-tenure holders had also accepted the claim of Ram Garib to be a co-sharer only on the basis of the compromise deed. He then directed plot no. 13 to be recorded in the name of Ram Garib and Nanku only. At the same time the Consolidation Officer observed that it was not appropriate to decide the share of the parties on the basis of Khewat of the Second Settlement.
23. Thereafter by his order dated 26.02.1973, he directed the name of earlier recorded tenure holders to be expunged from plot no.13. Plot no.81 of Khata no.15, on the other hand was directed to be recorded as Abadi.
24. The Consolidation Officer in his order directed the name of Ram Garib and Mata Badal, both sons of Ram Bodh, Rajaram s/o Ram Lal, Ram Khilawan, Ram Anjore, both sons of Sheo Baran, and Ram Kripal, Ram Sajeevan, Ramdev, all sons of Ram Charan, be recorded along with Nanku and Dukhi sons of Pudan, i.e. a total of ten persons in place of earlier recorded tenure holders who were Ram Prasad s/o Amber, Ramdutt and Indra Pal, both sons of Arjun Prasad, Uday Pal, Sambhu Nath, Paras Nath, both sons of Mata Prasad; Jagroop and Sheo Murti, both sons of Sukhdev; Triyugi Narayan, Ramlal, Babulal, all sons of Jagannath; Bachcha and Ram Adhar, both sons of Prabhu Nath; Devta Deen son of Parmeshwar Deen; Sheetla Prasad son of Basudeo; and Ram Sumer son of Bihari whose names were directed to be expunged.
25. Six Appeals were filed against the order passed by the Consolidation Officer which were taken up together by the Assistant Settlement Officer Consolidation, Pratapgarh and rejected by his order dated 24.12.1974. He noted that in the Basic year the names of all the appellants were mentioned except that of Bhagwandei and Sheetla Prasad on Khata no.15. All the parties to the dispute had claimed that it was land held by their ancestors. In the Appellate Court, Paras Nath had produced a copy of Khatauni of 1353 to 1356 Fasli and copy of Khewat of 1352 and 1353 Fasli. Jagat Pal and others had produced Form-18A as also Form-27 and 28 of the U.P.Z.A.&L.R. Act and Rules, and the Khatauni of 1359 Fasli and the Khewat of 1356 Fasli. The Appellate Authority only looked into the various copies of Khasra filed with effect from 1352 Fasli to 1370 Fasli, and affirmed the order passed by the Consolidation Officer on the ground that the Consolidation Officer rightly did not rely upon the Khewat, but relied upon the pedigree to determine the shares of the various claimants. The Appellate Authority relied upon the statement made by Ram Garib and Nanku with respect to plot no.13 and the grove being in their possession throughout. The Appellate Authority also believed that as per Khatauni and Khasra of Second Settlement i.e. 1892, the names of ancestors of Ram Garib And Nanku were mentioned on Plot no.15, later referred to as Plot no.13.
26. This Court has carefully perused the order impugned passed in Revision Nos. 1 and 2 by the respondent no.1. It is apparent that the respondent no.1 first considered the facts as mentioned in the order passed by the Consolidation Officer dated 26.02.1973 with regard to Khata no.15 and the names of recorded tenure holders therein. He has noted after going through the record as placed before the learned court below, that on plot no.13 Khata number 15, the names of Ram Prasad and Sheetla Prasad and other twenty two persons of ''Misra' family who were the ancestors of the Revisionists, were recorded in the Basic year Khatauni. During the pendency of the Revision, Jagat pal and Sheetla Prasad, the revisionists died and had been substituted by their sons Surendra Nath, Ram Iqbal and Prem Narain Misra respectively. Similarly, the respondent Ram Garib had died and was substituted by his son Ram Lakhan. He recorded the submissions made by the counsel for the respondents that they had filed objections before the Consolidation Officer as the names of the revisionists and their ancestors had been wrongly recorded in the Khatauni of the Basic year. The respondents submitted three Pedigrees again before the respondent no.1 and said that all three Pedigrees related to three different family trees. Pedigree ''A' related to Shiv pal, Pedigree ''B' related to Ramadhin and Pedigree ''C' related to Baijnath. It was also reiterated that Hanuman, Chandrika, Bhagwan Deen and Baijnath continued to remain in possession of the disputed land during their lifetime and thereafter it was inherited by their legal heirs i.e. the respondents.
27. The respondents in the Revision relied upon the Khasra and Khatauni of ''Bandobast Doyum' i.e. the Second Settlement and stated that till date the Mango, Aonla, Goolar and Jamun trees mentioned in the Second Settlement were existing on the plot in question. In the Khatauni of the Second Settlement, the name of Hanuman s/o Shiv Palat Dubey is mentioned in possession of on one third, Chandrika and Bhagwan Deen are mentioned on one third and Baijnath son of not known, is also mentioned as in possession of one third of the plot in question. A copy of a mortgage deed dated 08.02.1915, along with its amendment /Tittama dated 03.02.1923, a copy of sale deed entered into between Ashoki Misra and Dukhi dated 15.03.2002 were also produced. It had been stated that there was no need for Ashoki Misra w/o the brother of Prem Narain Mishra to have purchased the share of Dukhi in case they were the owners of one third of the property in dispute.
28. On the other hand, the revisionists had argued that the ancestors of ''Misra' family i.e. Ayodhya, Gaya Deen, Madhav, sons of Matadin, Binda and Ramadhin, both sons of Bhaktu, were shown in possession of the plot in question in ''Bandobast Awwal' i.e. the First Settlement and Mango, Jamun, Aonla and Goolar trees were shown as existing at the time of the First Settlement also. The same entries continued in the Second and Third Settlement and in the Basic year Khatauni, although the names of original ancestors of ''Misra' family were replaced from time to time by their legal heirs. However, the respondent no.1 noted that it could not be explained by the respondents to the Revision that how the trees that were shown to be in possession of Hanuman and others in the Second Settlement had also been recorded in more or less the same number in the name of the ancestors of the Revisionist. It was also noted by the respondent no.1 that the names of the ancestors of the respondent was noted on one third of the plot in dispute even in the Khatauni of the Second Settlement, whereas there was no provision for mentioning the share of co-tenure holders in the Khatauni at the time. Respondent no.1 also noted the fact that a Partition Suit under Section 176 had been filed in which after several years an attempt was made by the ancestors of the respondents to be impleaded through application which application was rejected by the Judicial Officer. The respondents to the Revision had also filed a Suit under Section 229B of the Act on 03.11.1965 which was dismissed for want of prosecution on 03.11.1966. During pendency of restoration application a compromise said to have been entered into between Ram Prasad and Shambhu Nath was produced before the Judicial Officer on which no effective order was passed. The respondent no.1 also noted that Sale deed said to have been executed on 15.03.2002 by Dukhi in favour of Ashoki Misra Had been rejected as evidence by the erstwhile Deputy Director of Consolidation on 03.06.2002 on the ground that it had been executed during the pendency of the Revision.
29. The respondent no.1 thereafter came to a conclusion that the names of the ancestors of Revisionists being mentioned in the First Settlement, the Second Settlement and also in the Third Settlement and the Basic year Khatauni could not have been directed to be expunged by the Consolidation Officer. The respondent no.1 also considered the Khasra and Khewat of the Second Settlement and noted that the names of the ancestors of the revisionists continued on the plot in question although the names of Hanuman s/o Shiv Palat Dubey and Pudan had been entered on part of the plot in question i.e. one Salas. He therefore set aside the order passed by the Settlement Officer Consolidation and allowed the two Revisions on 04.12.2003. The order passed by the Consolidation Officer dated 26.02.1973 was directed to be modified accordingly.
30. Having gone through the orders passed by the Consolidation Officer, the Assistant Settlement Officer Consolidation and the Deputy Director of Consolidation and having heard the arguments from either side, I find that the claim of the petitioners is based on a compromise allegedly entered into between their ancestors and those of the contesting respondents. The compromise allegedly signed between plaintiffs and defendants in 1968 and filed in a Declaratory Suit under Section 229-B before the Judicial Officer, Patti, Pratapgarh, was never made an order of the court and suit was eventually dimissed as abated.
31. Order 23 Rule 3 and its Explanation may at this stage be extracted for ready reference:-
"3. Compromise of Suit.--Where it is proved to the satisfaction of the Court that a Suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the Suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far it relates to the parties to the Suit, whether or not the subject matter of the agreement, compromise, or satisfaction is the same as the subject matter of the Suit:
Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.
Explanation.--An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this Rule."
32. The Hon'ble Apex Court in the case of Banwari Lal Vs. Smt. Chando Devi (Through L.R.s) and another, reported in (1993) 1 SCC 581, has held as under:-
"6. ........Keeping in view the predicament of the courts and the public, several amendments have been introduced in Order 23 of the Code which contain provisions relating to withdrawal and adjustment of Suit by Civil Procedure Code (Amendment) Act, 1976. Rule 1 of Order 23 of the Code prescribes that at any time after the institution of the Suit, the plaintiff may abandon his Suit: or abandon a part of his claim. Rule 1(3) provides that where the Court is satisfied (a) that a Suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh Suit for the subject-matter of a Suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw such Suit with liberty to institute a fresh Suit. In view of Rule 1(4) if plaintiff abandons his Suit or withdraws such Suit without permission referred to above, he shall be precluded from instituting any such Suit in respect of such subject-matter. Rule 3 of Order 23 which contained the procedure regarding compromise of the Suit was also amended to curtail vexatious and tiring litigation while challenging a compromise decree. Not only in Rule 3 some special requirements were introduced before a compromise is recorded by the Court including that the lawful agreement or a compromise must be in writing and signed by the parties, a proviso with an explanation was also added which is as follows:-
Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.
Explanation-An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule.
7. By adding the proviso along with an explanation the purpose and the object of the amending Act appears to be to compel the party challenging the compromise to question the same before the Court which had recorded the compromise in question. That Court was enjoined to decide the controversy whether the parties have arrived at an adjustment in a lawful manner. The explanation made it clear that an agreement or a compromise which is void or voidable under the Indian Contract Act shall not be deemed to be lawful within the meaning of the said Rule......."
33. It has been held by the Supreme Court in Arjan Singh vs. Punit Ahluwalia; 2009 (107) RD 259, that "When a compromise is entered into, the court has a duty to see as to whether the same meets the requirements of law. A compromise decree which does not satisfy the requirements of law is not legal. It would be unlawful. It therefore cannot be recorded".
34. In Writ Petition No.459(Cons) of 2002:Jag Ram and Another Vs. Deputy Director of Consolidation and others, decided on 28.05.2020, this Court after referring to a Division Bench Judgement rendered in Surendra Narayan Dubey vs. Deputy Director of Consolidation; 1973 (3) RD 328, also referred to a Division Bench judgement rendered in Parsottam vs. Narottam; 1970 ALJ 505, where it was held that a suit for declaration of Bhumidhari or Sirdari rights is to be filed against the State Government and the Gaon Sabha and any other person who claims Bhumidhari or Sirdari rights, in such land has to be impleaded as a party. It was held that the State Government and the Gaon Sabha are necessary parties to such a suit and therefore any decree on the basis of compromise without their consent could be validly ignored by the Consolidation Authorities. The appellants claimed themselves to be Bhumidhars. The dispute whether the defendant respondents were still Sirdars had to be adjudicated only in a suit under Section 229-B where the State Government and the Gaon Sabha were also necessary parties. The Revenue Court was not competent to look into the agreement between the parties and to give effect to it in view of the clear provisions of sub-Section (3) of Section 229-B. It is well settled that there is no estoppel against the statute. If the statute requires that declaration of rights of a Sirdar can take place only in the presence of the State Government and the Gaon Sabha, then an agreement in the absence of these parties would be violative of such a statutory provision.
35. Now, even if the compromise as alleged to have been filed by the ancestors of the petitioners and the respondents were made a part of any Decree which would have been passed by Judicial Officer, Patti, Pratapgarh, in the Suit filed under Section 229-B of the U.P. Z.A. & L.R. Act before him, then also in view of the observations made hereinabove it would not be lawful or binding. In any case, the admitted position is that no orders were passed on the basis thereof and it was only directed to be kept on the record of the Suit. The Suit was ultimately abated due to start of consolidation operations.
36. In the Rejoinder affidavit, a plea has been taken for the first time by the petitioner that his ancestors' names came to be recorded in the "Remarks" column of Khatauni of Second Settlement on the basis of gift made by Misra family to the Dubey family. This argument is unacceptable as in the Third Settlement of 1922 the mistake, if any, in the records was corrected. The Grove, Plot No.13, now numbered as Plot No.14 continued as "Bagh" of the zamindars, the Misra family, therefore, this Court finds no illegality or infirmity in the order of the Revisional Court dated 04.12.2003.
37. The writ petition stands dismissed. No order as to costs.
Order Date:- 1/09/2020 Rahul [Justice Sangeeta Chandra]