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2019 Supreme(All) 2147
IN THE HIGH COURT OF ALLAHABAD
Jahangir Jamshed Munir, J.
Ram Dular - Appellants
Vs.
Deputy Director of Consolidation, Jaunpur and Ors. - Respondent
Civil Misc. Writ Petition No. 4488 of 1987
Decided On : 01-08-2019
For the Appellant : C.P. Srivastava, Adarsh Bhushan and Anil Bhusan
For the Respondents: Mahendra Pratap, R.P. Ram and S.C.
Headnote:
U.P. Consolidation of Holdings Act – Dispute relates to khasra that was entered in the name of petitioner and the third respondent when Chakbandi operations commenced a second time objection of the petitioner was that he was entitled to be recorded as sole tenure holder over said plots, that are hereinafter referred to as the 'property in dispute', to exclusion of third respondent. It was third respondent's case that name of petitioner had been wrongly recorded and was liable to be expunged. 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, had a son –Held, 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 estoppel or the other well-settled principles attracted – Petition allowed. (Para’s 15, 16).
Facts of The Case:
Dispute relates to khasra that was entered in the name of petitioner and the third respondent when Chakbandi operations commenced a second time objection of the petitioner was that he was entitled to be recorded as sole tenure holder over said plots, that are hereinafter referred to as the 'property in dispute', to exclusion of third respondent. It was third respondent's case that name of petitioner had been wrongly recorded and was liable to be expunged. 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, had a son.
Finding of The Court:
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 estoppel or the other well-settled principles attracted.
Result: Appeal Allowed.
JUDGMENT :
Jahangir Jamshed 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 16.2.1987, whereby he has restored an order of the Consolidation Officer dated 5.5.1984 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 21.8.1986, 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 alongwith 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 I 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 Laklian 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
