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IN THE HIGH COURT OF ALLAHABAD
SANGEETA CHANDRA, J.
Jag Ram and Another – Petitioners
Versus
Deputy Director of Consolidation, Gonda and Others – Respondents
Consolidation No. 459 of 2002
Decided On : 28-05-2020
U.P. Tenancy Act – Sections 21, 59, 33 – Consolidation of Holdings Act – Section 9A (2) – United Provinces Tenancy Act, 1939 – Indian Evidence Act, 1872 – Sections 56, 57 – U.P.Z.A & L.R. Act – Sections 229B, 209– Consolidation – Petition has been filed by petitioners challenging order passed by Deputy Director of Consolidation in Revision – By order impugned, Deputy Director of Consolidation has set aside order passed by Settlement Officer (Consolidation), in Appeal – Held, Court held that position under Tenancy Act was that a person could also become a co-tenant by estoppel or acquiescence – Reason was that although transfer of tenancy holding was prohibited, letting was permitted with consent of the landlord under section 33 of U.P. Tenancy Act 1939. Interpreting those provisions, this Court in earlier decided cases had held that it was not exhaustive and a person could become a co-tenant by acquiescence or estoppel –Interest of a Sirdar on his executing a transfer becomes extinguished under section 190 (1) (cc) – There was an absolute prohibition against transfers – No exception like Section 33, Tenancy Act – If a Sirdar could not transfer or permit another to be a co-sharers in the Sirdari holdings directly, he could not do it indirectly also by acquiescence or estoppel – Compromise decree thus could not have been relied upon by Deputy Director of Consolidation and order impugned being misconceived is set aside – Writ Petition Allowed (Paras 48, 49, 51)
Facts of the Case:
Aggrieved by the order passed by the Consolidation Officer and claiming the whole of Gata No. 93, the predecessor of respondent nos. 2 to 5 filed Appeal No. 621 against Raj Dei. The Appeal No. 983 was also filed by Smt. Raj Dei aggrieved by the order of the Consolidation Officer dated 22.11.1973. The Settlement Officer (Consolidation) clubbed both the Appeals together as they were filed against the same order of the Consolidation Officer and decided the same by his order dated 09.02.2001.
Finding of the Court:
Court held that position under Tenancy Act was that a person could also become a co-tenant by estoppel or acquiescence – Reason was that although transfer of tenancy holding was prohibited, letting was permitted with consent of the landlord under section 33 of U.P. Tenancy Act 1939. Interpreting those provisions, this Court in earlier decided cases had held that it was not exhaustive and a person could become a co-tenant by acquiescence or estoppel –Interest of a Sirdar on his executing a transfer becomes extinguished under section 190 (1) (cc) – There was an absolute prohibition against transfers – No exception like Section 33, Tenancy Act – If a Sirdar could not transfer or permit another to be a co-sharers in the Sirdari holdings directly, he could not do it indirectly also by acquiescence or estoppel – Compromise decree thus could not have been relied upon by Deputy Director of Consolidation and order impugned being misconceived is set aside.
Result: Writ Petition Allowed
JUDGMENT :
SANGEETA CHANDRA, J.
1. This petition has been filed by the petitioners Jag Ram and Ram Deo S/o Raj Dei W/o Mehi Lal, challenging the order passed by the Deputy Director of Consolidation dated 20.05.2002 in Revision Nos. 318, Bechai and Others vs. Jag Ram and Others and in Revision No. 319, Bechai and Others vs. Jag Ram and Others. By the order impugned, the Deputy Director of Consolidation has set aside the order dated 09.02.2001 passed by the Settlement Officer (Consolidation), Gonda in Appeal Nos. 621 and 983 of 1973.
2. It has been submitted by Sri. R.K. Saini, learned counsel for the petitioner, that the dispute relates to Khata No. 93 in Village Sohans, Pargana Tehsil and District Gonda ad-measuring 13.23 acres. It has been submitted that the land in dispute was recorded in the name of Jagannath, maternal grand father of the petitioners in 1345 Fasli i.e. in the year 1938 in Category-III in the Third Settlement. After the death of Jagannath, Mst. Bachauna, the widow of Jagannath was recorded in the Khatauni as Sirdar of the land in dispute in 1360 Fasli i.e. in the year 1953. Thereafter, the names of Nageshwar, Rameshwar, Ram Samujh and Sunder, all sons of Ganesh, were recorded along with the name of Mst. Bachauna in the Khatauni of 1369 to 1371 Fasli.
3. After 1372 Fasli the name of Smt. Bahauna was surreptitiously removed and only the names of the sons of Ganesh came to be recorded. This wrong entry continued in the Basic Year Khatauni and when consolidation operations began in the village concerned, Smt. Rajdei, the daughter of Smt. Bachauna and the mother of the petitioners filed an objection under Section 9A-2 before the Consolidation Officer.
4. The Consolidation Officer after hearing the parties, on the basis of compromise decree passed by the Munsif, Gonda dated 07.01.1954 by an order dated 22.11.1973 directed the land in dispute to be recorded in the name of Raj Dei as heir of Jagannath and Bachauna, as well as Ram Samujh and others the four sons of Ganesh the brother of Jagannath, to be divided equally Per Stirpes.
5. Feeling aggrieved by the order passed by the Consolidation Officer and claiming the whole of Gata No. 93, the predecessor of respondent nos. 2 to 5 filed Appeal No. 621 against Raj Dei. The Appeal No. 983 was also filed by Smt. Raj Dei aggrieved by the order of the Consolidation Officer dated 22.11.1973. The Settlement Officer (Consolidation) clubbed both the Appeals together as they were filed against the same order of the Consolidation Officer and decided the same by his order dated 09.02.2001. The Settlement Officer (Consolidation) dismissed the Appeal No. 621 filed by Ram Samujh and others and allowed the Appeal No. 983 filed by Raj Dei and others.
6. It has been submitted by learned counsel for the petitioners that during the pendency of Appeal, Smt. Raj Dei died and was substituted by her two sons i.e. petitioner nos. 1 and 2.
7. In the order dated 09.02.2001 passed by the Settlement Officer (Consolidation), it was held that Jagannath was the sole tenant of the land in dispute. On his death, the land devolved upon his widow Bachauna and on the death of Smt. Bachauna, her daughter Raj Dei was entitled to be recorded as sole tenant of the land in dispute.
8. It has been submitted by learned counsel for the petitioner that the Settlement Officer (Consolidation) had recorded the finding that the name of Ram Samujh, Nageshwar and others had been wrongly recorded in Khatauni of 1369 to 1371 Fasli, which continued also in the Basic Year khatauni. It was also found by the Settlement Officer (Consolidation) that the name of Smt. Bachauna had been tried to be removed by the respondent nos. 2 to 5 by filing a case for correction of papers before the Tehsildar, which was rejected by him in 1963. The Settlement Officer (Consolidation) held that the Consolidation Officer had wrongly placed reliance upon the compromise decree dated 07.01.1954 passed by the Munsif Gonda, which compromise was doubtful as t
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