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2019 Supreme(All) 2744
IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)
D.K. Upadhyaya, J.
Ram Asrey and Ors. - Appellants
Vs.
Deputy Director of Consolidation Sultnapur and Ors. - Respondent
Consolidation No. 909 of 2006
Decided On : 28-08-2019
For the Appellant : A.P. Singh Vatsa, Ajay Kumar Singh Raj, Ravi Kumar Singh Vats and Ravi Nath Tilhari
For the Respondents: C.S.C., Abhinav N. Trivedi, D.C. Mukharjee, Harikesh Kumar Sharma, I.D. Shukla, R.N. Gupta, Ram, Ram Krishna Tripathi and S.K. Mehrotra
Headnote:
U.P.Z.A. & L.R. Act – Section 176 – U.P. Consolidation of Holdings Rules – Rule 109-A – Constitution of India, 1950 – Article 226 – Settlement – Petition filed under Article 226 of the Constitution of India challenges the order dated 26.08.2005 passed by the Settlement Officer of Consolidation, whereby the orders passed by the Consolidation Officer, Sultanpur in respect of land in dispute comprising in khata nos. 24 and 200 of village Haripur, Pargana Aldemau, Tehsil Kadipur, District Sultanpur have been set aside and the land in said khatas has been ordered to be recorded in the names of Brij Bhushan, Lauhari Prasad and Ram Krishna to the extent of 1/2, 1/4 and 1/4 shares of these persons. – The petitioner has also challenged the order passed by the Deputy Director of Consolidation, Sultanpur whereby the revision petitions preferred against the order passed by the Settlement Officer of Consolidation, have been dismissed. – Held, Objection as to the admissibility of certified copy of the family settlement was not taken by the respondents before the Consolidation Officer. – There is no such recital in the order passed by the Consolidation Officer that any such objection was raised before him by the respondents. – In view of this, merely because the Consolidation Officer while passing the order has placed reliance on the certified copy of the family settlement, in my considered opinion, the said order cannot be found to be vitiated. – Second reason given by the courts below for setting-aside the order is that since the holding was not jointly recorded, as such it could not have been partitioned mutually by entering into family settlement. – Said reason given by the courts below for not believing the claim of the petitioners based on the family settlement executed on 01.05.1957 and registered is also not tenable in view of the law laid down by this Court in the case of Ram Ashrey and others vs. Board of Revenue, U.P., Allahabad and others, reported in (1981) ALJ 1283. – In the case of Ram Ashrey (supra), in more than clear words it has been held by this Court that joint holding which stands recorded exclusively in the name of one of the members of the family can be mutually partitioned by way of family settlement declaring it to belong to another or others members of the family. – Court in the said case has further held that if joint property has been partitioned in family settlement, parties to such family settlement would be estopped from resiling. – Court have no hesitation to hold that reasons given by the courts below by passing the impugned orders are legally not tenable. – The family settlement, registered has to be given due weightage and some solemnity has to be attached to it. – So far as the submissions made by learned counsel representing the respondents that identity of the land stands broken is concerned, the said issue need not be gone into in view of the findings recorded above regarding the family settlement, registered – Submission of learned counsel for respondents made in respect of presumption of right on the basis of revenue entries in khatauni pertaining to 1356-1359 fasli also thus loses force. – As far as the insistence of learned counsel for respondents that this Court would not interfere in concurrent findings of fact recorded by the courts below, it may only be stated that in the discussions made above this Court has found that the finding recorded by the Settlement Officer, Consolidation and also by the Deputy Director of Consolidation in respect of family settlement was erroneous inasmuch as the same is based on reasons which are legally not tenable. – Any illegality committed by courts below or findings based on erroneous application of legal principles can always be corrected by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. – Writ Petition Allowed
ORDER :
D.K. Upadhyaya, J.
1. This petition filed under Article 226 of the Constitution of India challenges the order dated 26.08.2005 passed by the Settlement Officer of Consolidation, Sultanpur whereby the orders dated 18.03.1999 and 09.04.1999 passed by the Consolidation Officer, Sultanpur in respect of land in dispute comprising in khata nos. 24 and 200 of village Haripur, Pargana Aldemau, Tehsil Kadipur, District Sultanpur have been set aside and the land in said khatas has been ordered to be recorded in the names of Brij Bhushan, Lauhari Prasad and Ram Krishna to the extent of 1/2, 1/4 and 1/4 shares of these persons. The petitioner has also challenged the order dated 28.08.2006 passed by the Deputy Director of Consolidation, Sultanpur whereby the revision petitions preferred against the order dated 26.08.2005 passed by the Settlement Officer of Consolidation, have been dismissed.
2. Heard learned counsel for the parties.
3. Since the dispute at hand has a long history and various parties to the proceedings drawn before the consolidation authorities/courts as also before this Court have died and in their place, their legal heirs and representatives have been substituted, the petitioners and their predecessors-in-interest will be referred to as petitioners and similarly the respondents and their predecessors-in-interest shall be referred to as the respondents in this judgment.
4. The dispute raised in this petition relates to land comprised in two khatas, namely, khata nos. 24 and 200, situate in village Haripur, Tehsil Kadipur, District Sultanpur. Khata no. 24 comprised of gata nos. 151, 351, 151/4, 351/4, 151/3 and 351/5 whereas Khata no. 200 comprised of gata nos. 132/2, 132/4, 116 and 132. It is not in dispute that basic year entry in the revenue records in respect of land in dispute was in the name of Chandra Bhushan and Brij Bhushan. Chandra Bhushan is the father of respondent nos. 3 and 4 whereas Brij Bhushan is the father of respondent no. 5.
5. On commencement of consolidation proceedings, the petitioners filed objections taking a plea that land in question was ancestral property both of the petitioners and the respondents and that the petitioners have been in possession over their shares of land since before abolition of zamindari. The claim of petitioners was also based on a Bahmi Bantwara (family settlement). Certain other objections were also filed by other individuals. In respect of land comprised in khata no. 24, respondents filed objections regarding gata no. 192 to the effect that name of Brij Bhushan be deleted from the said gata. The petitioners also filed objections regarding gata nos. 351/4 and 154/4 with the prayer that names of respondent nos. 3 and 4 and that of Brij Bhushan be deleted from the records and in their place, names of petitioners be recorded. Another objection in respect of khata no. 24 was filed by Hari Prasad in relation to gata no. 351 and 352 with the prayer that he be recorded as co-tenure holder. In respect of gata nos. 151 and 351, another objection was also filed by the petitioners with the prayer that names of respondents be deleted and their names be recorded. In respect of gata nos. 151/3 and 351/5, one Param Sukh who was father of petitioner nos. 10 and 11 and Gayatri Prasad, Jayanti Prasad and Vans Raj also filed objections praying that names of respondent nos. 3 and 4 and that of Brij Bhushan be expunged and in their place, names of the petitioners may be recorded.
6. Similarly in respect of land comprised in khata no. 200, the petitioners filed objection regarding gata nos. 132/1, 351, 132/2 and 132/4. Objection in respect of gata no. 132/2 was filed by Param Sukh, Gayatri Prasad, Jayanti Prasad, Vans Raj and Ram Ujagar as well. Brij Bhushan, father of respondent no. 5, Lauhari Prasad and Ram Krishan also filed objections against Ram Awadh in respect of gata no. 132 to the effect that his name be deleted and their names be recorded in his place. Regarding gata nos. 116, 131 and
