Allahabad High Court
Bhagwati (D) Through L.R. vs Deputy Director Of Consolidation And ... on 27 September, 2004
Equivalent citations: 2005(2)AWC1749
Author: S.N. Srivastava
Bench: S.N. Srivastava
JUDGMENT S.N. Srivastava, J.
1. The dispute in the instant petition which has been preferred assailing the judgment and order dated 12.5.1975 passed by Deputy Director of Consolidation, Sultanpur in Revision No. 3537, revolves round land comprising in plot No. 420 admeasuring 1.19 acres situated in village Poore Jaddu Pargana Miranpur, district Sultanpur.
2. A bare perusal of the record would reveal that in the basic year entry, the petitioner was recorded as bhumidhar. On publication of record, an objection came to be filed by contesting opposite parties claiming their rights as bhumidhars on the premises that the property in question being their ancestral property devolved upon them as successors. On the other hand, the petitioner repudiated their claims and claimed that his name was rightly entered in the basic year and the entry should not be interfered with. The Consolidation Officer who initially dealt with the matter, rejected the objection and allowed the name of the petitioner to continue on record in the basic year entry. This led the opposite parties to prefer appeal in which Assistant Settlement Officer, Consolidation came with the verdict that the names of opposite parties be recorded as sirdar while directing to expunge the name of the petitioner from the basic year entry. In revision, the revisional court allowed the revision and modulated the order to the extent that petitioner's name be recorded as asami while the names of opposite parties be recorded as sirdar. It is in the above backdrop that the present petition came to be filed in the year 1975.
3. I have heard the learned counsel for the petitioner. There is no appearance for the contesting opposite parties.
4. Before delving into the merit of the case, it would be useful to have glance through the pedigree, which can be gleaned from paragraph 4 of the supplementary counter-affidavit of contesting opposite parties.
Nokal alias Ramdin
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/ /
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/ Ram Charan
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| Ram Swarup
Kaladin
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/ / /
Mahabir Rati Pal Bhagwandin
/
Ramsamujh
/
/
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/ / /
Sheoram Sheonarain Ram Sahai
5. A perusal of the record particularly para 4 of the supplementary counter-affidavit leaves no manner of doubt that the property in question was acquired by Ratipal, Mahabir and Bhagwandin through registered Will dated 25.6.1903. It would further transpire that Bhagwandin and Mahabir breathed their last during the life-time of Ratipal and Ram Samujh (son of Mahabir) and as a consequence Ratipal and Ram Samujh came to be recorded as co-tenure-holder in the year 1356 fasli. From a perusal of Annexure-S.C.A. 1 to the suppl. counter-affidavit, it would appear that petitioner happens to be the son of daughter of Ratipal. It has not been disputed in paragraph 4 of the suppl. counter-affidavit that Ram Samujh died during the life-time of Ratipal. It has not been repudiated that Bhagwati is the son of daughter of Ratipal which fact is borne out not only from Annexure-SCA 7 to the supplementary counter-affidavit filed by contesting opposite parties but also from paragraph 11 of the written statement filed in the suit. Annexure-SCA 8 containing statement of Bhagwati reinforces the fact that Bhagwati is the son of daughter of Ratipal.
6. In the above conspectus, there are no indicia on the record to repudiate the fact that on the date of vesting, Ratipal and Ram Samujh were recorded as co-tenure holders. Besides, from the pedigree the authenticity of which has not been disputed, it is borne out that petitioner is the son of daughter of Ratipal and by this reckoning, being the son of daughter of Ratipal, he had rightly inherited the land of Ratipal. On the other hand, it is on record to indicate that opposite parties are the sons of Ram Samujh and by this reckoning, they would be deemed to have inherited the rights in the disputed land by virtue of being sons of Ram Samujh. In connection with this Section 171(h) of the U.P.Z.A. and L.R. Act may also be referred to in order to ascertain the order of succession. From a punctilious reading of this section, it would appear that daughter's son would be preferred to brother's son's son. It would thus be eloquent that Bhagwati who is son of daughter of Ratipal would have precedence over opposite parties and he would be deemed to have inherited the property on the date of death of Ratipal in preference to contesting opposite parties who are sons of father's son's son namely, Mahabir from whose loins was born Ram Samujh who also died during life-time of Ratipal. It brooks no dispute that petitioner is in possession over the land in dispute but in view of what has been held above that the contesting opposite parties would be deemed to have inherited the rights in the disputed land by virtue of being sons of Ram Samujh, and by reason of their being co-tenants along with the petitioner, they would also be deemed to be in possession and therefore, both the parties would be entitled to be recorded as co-sirdars over the property in dispute to the extent of one-half share each.
7. From a scrutiny of the decision rendered by the Deputy Director, Consolidation, it; would appear that the authority concerned declined to grant the status of co-tenants to the contesting respondents merely on the ground that they did not plead to this effect in their respective written statements. Having considered the matter, I am of the view that the view taken by the Deputy Director of Consolidation militates against the settled position in law. The well-enunciated position in law is that if parties are claiming sole tenancy rights but Court, in the ultimate analysis, converged to the view that the parties were co-tenants, it can modulate the relief and grant co-tenancy rights which is a shorter relief as claimed. There is no gainsaying the fact that Mahabir, Ratipal, Bhagwandin jointly acquired the property by means of a sale deed and when at the same of acquisition of the property, the aforestated three brothers were co-tenure holders, the status of co-tenure holders would perpetuate and cannot be altered at the stage of parties who have rightly acquired their respective rights in the property in view of what has been discussed above. In the instant case, it brooks no dispute that the petitioner was in possession over the land in question, but regard being had to settled position in law, the opposite parties would also be deemed to be in possession as co-tenants on the reckoning that they inherited their rights in the disputed land being sons of Ram Samujh. The above view I am taking, receives reinforcement from a decision in Dallu v. D.D.C. Lucknow Camp at Varanasi and Ors., 1971 RD 507 and Sheo Balak v. Baiju and Ors., 1995 RD 521.
8. In the above conspectus, the judgment of the Deputy Director of Consolidation is liable to be modified to the extent that petitioner as well as contesting opposite parties will be deemed to be co-tenants and they would be deemed to be in possession to the extent of one-half share each.
9. The petition is dismissed subject to the above modification as stated supra, in the judgment and order of Deputy Director of Consolidation.