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Udai Narain Rai, Abhai Narain Rai, ... vs Deputy Director Consolidation And Ors. on 22 August, 2006
cites
Lakkireddi Chinna Venkata Reddi vs Lakkireddi Lakshmama on 4 March, 1963
5. Sri Sankatha Rai then submitted that the findings of the courts below that the properties in dispute had been blended with the Hindu Undivided Family property is erroneous and vitiated in law. It is submitted that in order to apply the doctrine of blending there must be in existence at the time of the blending other Hindi Undivided Family property into which the separate property of a coparcener is to be blended. The preposition finds support from , Lakkireddi Chinna Venkata Reddy and Ors. v. Lakkireddi Lakshmama. There is evidence on record to indicate that the family was possessed of land in other villages. The existence of such joint family land is borne out from the evidence. From the khewat batwara of 1910, Annexure I to the supplementary counter affidavit, it appears that Gangoo Rai the common ancestor of the parties was having lands in mauza Kalyanpur Reotipur. In the khatauni 1910 certain plots are recorded in the name of Gangoo Rai in village Narainpur @ Hariharpur. Some of these plots are also entered in the khatauni of 1356F. Udai Narain Rai in his deposition before the Consolidation Officer has admitted that the family has 50-60 bighas of land in Mauza Kalyanpur, Reotipur, Hardwarpur. Gopenanpur etc. There is thus ample material in proof of the fact that the Joint Family possessed land in other villages. Tunnu Rai in his deposition has stated that when Vibhuti Rai became major he blended the lands of village Gauda Maqsoodpur into the Hindu Undivided Family property. After the compromise in the year 1957, the names of all the branches were recorded in the revenue records and they continued to be so recorded until the basic year. The Deputy Director of Consolidation has found that the petitioners had knowledge about those entries as the khataunies were filed by Bhola Rai in another case. All these findings which have been recorded by the courts below are findings of fact.
Section 117 in The Transfer Of Property Act, 1882 [Entire Act]
Section 229C in The U.P. Zamindari Abolition and Land Reforms Act, 1950 [Entire Act]
Surwan Prasad Tiwari And Anr. vs Basdeo Narain Singh And Ors. on 20 November, 1922
7. It was then submitted by Sri Sankatha Rai that the law of blending can not be applied to fixed rate tenancy land. He relies upon Section 20 of the North-West Provinces Tenancy Act of 1901 whereunder the rights of a permanent tenureholder and of a fixed rate tenant are heritable as well as transferable. It was submitted that the transfer which is contemplated under Section 20 is transfer in accordance with the provisions of the Transfer of Property Act and blending is not a transfer contemplated therein. In my opinion the submission does not have any force. Section 117 of the Transfer of Property Act exempts agricultural leases from the operation of Chapter V of the Act( which relates to leases of immovable property) unless Government notifies otherwise. That fixed rate tenancy is property to which concepts of Hindu Law apply has been held by a Division Bench of this Court in I.L.R. 6, Alld. 234, Mahabir Prasad and Anr. v. Basdeo Singh. In that case the concept of Hindu law that interest by birth is created in ancestral property was applied to fixed rate tenancy. Under the North-West Provinces Tenancy Act permanent tenure-holders and fixed rate tenants have been given heritable as well as transferable rights. To other tenants heritable rights alone have been given but even in the case of such other tenants co-tenancy rights could be created by acquiescence or estoppel or cooption with the consent of the landholder. The creation of co tenancy rights by estoppel, acquiescence or cooption is not one of the modes of transfer contemplated in the Transfer of Property Act. Nevertheless decided cases held that even in case of tenancies which were not transferable co-tenancy rights could be created by acquiescence and estoppel. A fixed rate tenancy was transferable and therefore it can be said with greater force that a fixed rate tenant could also take in a cotenant. That a Hindu Undivided Family could possess tenancy lands also is a proposition which does not admit of doubt. There is no provision either under the North-West Provinces Tenancy Act, 1901 or under the Agra Tenancy Act prohibiting application of the doctrine of blending in the Hindu personal law to agriculture tenancies.
Ram Gati Chaube vs Ran Adhar Chaube on 17 May, 1961
8. Sri Sankatha Rai submitted that the compromise application was inadmissible for want of registration. He placed reliance upon 1961 A.LJ 440, Ram Gati Chaubey v. Ram Adhar Chaubey. In that case it was held that a compromise declaring the parties to be absolute owners of their shares worth more than Rs. 100 being unregistered was ineffective and inadmissible in evidence. The case is distinguishable as a declaration of absolute ownership of the parties was made in the compromise application in that case. Rights were thus sought to be declared by the compromise which was therefore compulsorily registrable under Section 17(1)(b) of the Indian Registration Act. In the present case the compromise was a mere statement of the existing state of affairs that the property was joint and an order for mutating the names of all the branches was passed on the basis of the application. Such an admission of the existing state of affairs is not a declaration. It was also submitted by Sri Sankatha Rai that the compromise was not signed by parties and they never entered into it. The issue raises a question of fact. The court below have negatived this contention and it was found that such a mutation case was indeed instituted and ended in a compromise. The Deputy Director of Consolidation has also found that the compromise was acted upon and the names of all the parties on the strength of that order were recorded in the revenue records and continued to be so recorded over a long period of time without any objection by the petitioner Bhola Rai who had knowledge about the said entries.
Smt. Rama Dubey (Dead) By Lrs vs Deputy Director Of Consolidation & Ors on 13 September, 1994
Sri Sankatha Rai also relied upon 1973 RD page 328, S.N. Dubey v. Deputy Director of Consolidation in which it was held that a compromise in proceedings under Section 229C of U.P. Zamindari Abolition & Land Reforms Act is not binding as the suit was not under Section 229 B of the Act and the Gaon Sabha and State were not impleaded as parties. The decision is distinguishable. In that case declaration of adhivasi rights was sought in a suit filed after the adhivasi tenure had by amendment of the U.P. Zamindri Abolition & Land Reforms Act become sirdari. It was held that there can be no estoppel against the statute and the decree was without jurisdiction. In the present case the compromise application admitted the possession of all the three branches and of the fact that Vibhuti Rai's name was recorded in representative capacity. The mutation case was filed on the death of Vibhuti Rai. The order for recording the names of descendants of all the branches passed by the mutation court in such circumstances was valid one and not without jurisdiction. The Consolidation authorities have relied upon the compromise signed by Bhola Rai and others. The compromise is an admission of preexisting frights and as to the representative character of the entry in the name of Vibhuti Rai and of the possession of all the branches and such an admission made even in mutation proceedings is binding as an admission and could be relied upon by the courts below. For all these reasons, the writ petition lacks merit and is accordingly dismissed.
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