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2008 Supreme(All) 1239
[2008(5) ADJ 611]
ALLAHABAD HIGH COURT
BEFORE : ASHOK BHUSHAN, J.
Smt. CHINTA DEVI AND OTHERS ...........Petitioners
Versus
DEPUTY DIRECTOR OF CONSOLIDATION, VARANASI AND OTHERS .......Respondents
(Civil Misc. Writ Petition No. 43571 of 1998, decided on 23rd May, 2008)
Counsel :
V.K.S. Chaudhary and P.C. Pandey for the Petitioners; Namwar Singh for the Respondents.
Headnote:U.P. Consolidation of Holdings Act, 1953—Sections 48 and 9-A(2)—U.P. Zamindari Abolition and Land Reforms Act, 1950—Sections 175, 202, 172(2)(b) and 171—Evidence Act, 1872—Sections 32(5), 50, 59 and 60—North West Provinces Tenancy Act, 1901—Section 22—Agra Tenancy Act, 1926—Sections 24 and 25—U.P. Tenancy Act, 1939—Sections 35 and 36—Proceedings under Section 9-A(2) of U.P.C.H. Act of 1953—Dispute relating to different Khatas—Objections filed by petitioners, claiming on basis of gift-deed—Findings regarding pedigree of parties as held to be proved—Based on consideration of evidence—No interference in writ proceedings—As regards succession, on death of G., D.N. (daughters’ son) to succeed—In settlement entries of 1291 Fasli, names of all branches were recorded in different Khatas—Hence, findings of consolidation authorities that land was ancestral and all branches have 1/4th share, was based on materials on record and cannot be faulted with—Petitioners’ case themselves was that family was joint and there was no partition—Land was specifically pleaded by petitioners to be sole acquisition of B.—No benefit can be taken by petitioners from submission that identity of land was not same throughout—When no such plea was raised before Consolidation Courts, submission of petitioners cannot be accepted that identity of holding has been changed names of different persons in different Khatas—Land was ancestral and compromise was not challenged—Hence, no interference—Held, subject to modification with regard to Khata No. 340, order of D.D.C. was affirmed. [Paras 15, 22, 24, 26, 28, 29, 31, 32 and 35]
Hon’ble Ashok Bhushan, J.—Heard Sri V.K.S. Chaudhary, Senior Advocate, assisted by Sri P.C. Pandey for the petitioners and Sri Namwar Singh appearing for the contesting respondents.
2. Counter and rejoinder affidavits have been exchanged between the parties and with the consent of the parties, the writ petition is being finally decided.
3. By this writ petition, the petitioners have prayed for quashing the judgment and order dated 9th December, 1998 passed by Deputy Director of Consolidation deciding the revisions filed under Section 48 of U.P. Consolidation of Holdings Act, 1953 as well as the order of Settlement Officer of Consolidation dated 20th February, 1990 allowing the appeal filed by the respondents partly.
4. Brief facts necessary to be noted for deciding the writ petition are; the dispute between the parties arose in proceedings under Section 9A(2) of U.P. Consolidation of Holdings Act, 1953. The dispute relate to different Khatas of six villages, namely, Dalipur, Ahrak, Pooran Patti, Nihalpur, Banaita and Pashchimpur. In Khata No. 171 of village Pashchimpur, the names of Srineta widow of Srinarain along with Ram Murat, Ram Ji and Ram Pyarey were recorded. Over all other villages the name of Srineta alone was recorded in the basic year record. A objection was filed by the petitioners claiming that a gift deed dated 29th March, 1972 has been executed by Srineta in their favour, hence their names be recorded. The objections were also filed by Amraji wife of late Arjun Singh, Hubraji, Mangal Prasad, Lalji, Banshraj, Hanshraj, Doodhnath, Virendra, Surendra, Mahendra, Narendra, Rajendra sons of Ram Bali, Adya Prasad and other respondents claiming co-tenancy right in the land in dispute with Srineta. Certain other disputes with regard to correction of the area of various plots was raised. Both the parties filed documentary evidence and led oral evidence also before the Consolidation Officer. The Consolidation Officer vide his order dated 29th June, 1976 allowed the objection of the petitioners on the basis of gift deed dated 29th March, 1972 except Khata No. 340 on the ground that Khata No. 340 being Sirdar, the basic year records be maintained. The claim of the contesting respondents for co-tenancy right was rejected. An appeal was filed by Adya Prasad and others against the order of Consolidation Officer dated 29th June, 1976. The appellate authority allowed the appeal partly holding that Amraji and Hubraji daughters of Shiv Gulam be recorded as co-tenant. The appeal of Adya Prasad and rest of the appellants was dismissed. The 3/4th share was given to Srineta and 1/8th and 1/8th was given to Amraji and Hubraji each. Against the order of Settlement Officer of Consolidation revisions were filed both by Srineta and by Adya Prasad and others. All the revisions have been decided by order dated 9th December, 1998. The share of Srineta was held to be 1/4th on which names of the petitioners were directed to be recorded. The 1/4th share was given to Jeet Bahadur, Dharmsen, Tej Bahadur sons of Lalji, Banshraj and Hanshraj sons of Devi Dutt. The 1/4th share was given to Virendra, Surendra, Mahendra, Rajendar, Nagendra sons of Rambali, Adya Prasad son of Vibhuti, Lalbahadur, Dinesh son of Sita Ram, Kamta, Harishchandra sons of Roopnarain and 1/4th share was given to Mangal son of Doodh Nath. In Khata No. 340 of Pashchimpur name of Srineta was directed to be expunged and in accordance with Section 175 of U.P. Zamindari Abolition and Land Reforms Act, 1950 the respondents as mentioned at Item No. 2 to 4 in the impugned order (except the petitioner) were given share. This writ petition has been filed by the petitioners challenging the orders of Deputy Director of Consolidation and Settlement Officer of Consolidation.
5. Before considering the submissions of learned Counsel for the parties, it is useful to notice the respective case of the parties before the Courts below. The petitioners’ case before the Courts below was that Srin
