Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 104

IN THE HIGH COURT OF ALLAHABAD
RAJNISH KUMAR, J.
Krishna Dutt Pandey and Others – Petitioners
Versus
Joint Director of Consolidation and Others – Respondents
Consolidation No. 7498 of 1989
Decided On : 02-02-2021

Advocates:
Advocate Appeared:
For the Petitioners: H.S. Sahai, Priti Saxena, Uma Shankar Sahai.
For the Respondents: S.P. Shukla, Anand Kumar Shukla, Avinash Chandra Pandey, R.P. Shukla, Rahul Roshan Dubey, Ravi Kishore Joshi, Vivek Kumar Tiwari.

Point of law: opinion Section 8 is not attracted in the case of leases of land where the purposes of the leases is to use the land for the purpose of agriculture, horticulture, pisciculture etc. It is sometimes unavoidable that in the process of using the land for these purposes reclamation also is done and what is known as forest produce is collected or removed in the process. Land must be cleared of unwanted growth to turn it usefully to agriculture etc. The mere fact that these operations are necessarily involved in making the land agriculture worthy will not take away from the transaction their true nature as leases of land.

Headnote:
U. P. Consolidation of Holdings Act 1953 - Section 9 and 11(1) - Petition Challenging Order - Land Dispute - Facts of the case, for adjudication of the present writ petition, are that dispute pertains to Plot which was recorded in name of petitioners as bhumidhars in basic year - On publication of record under Section 9 of Act 1953 opposite party nos. 3 to 8 filed objections claiming that parties hailed from common ancestor and land in dispute is old grove and names of the opposite parties have been omitted to be recorded, as such, their names should also be recorded along with petitioners - Claim of opposite parties was refuted by petitioners and according to them, pedigree shown by the opposite parties before Consolidation Officer was incomplete, family is not joint family, parties have their separate holdings and separate groves - It was further alleged that no party has any concern with land of others and zamindar had executed patta in favour of petitioners and at no point of time, neither land in dispute was recorded in name of common ancestor nor opposite parties were in possession over land in dispute –
Finding of the Court:
Court of the view that it is not in dispute that names of petitioners were recorded Fails as well as in the basic year entry of 1386 Fasli - Therefore said entries could not have been unsettled without any substantial evidence in favour of the opposite parties and without examining correctness of the document which is in the nature of partition deed - Provisional authority posed some questions but without answering the same on the basis of any cogent evidence and any finding regarding nature of land in dispute on the basis of revenue records –
Result: Petition allowed

JUDGMENT :

RAJNISH KUMAR, J.

1. Heard Sri. U.S. Sahai, learned counsel for the petitioners and Sri. Avinash Chandra Pandey, learned counsel for the respondent.

2. The instant writ petition has been filed challenging the order dated 13.07.1982 passed in Case No. 3563 by the Consolidation Officer and the order dated 26.07.1989 passed in Revision No. 1402/942 by the Joint Director of Consolidation, Sultanpur, by means of which the order passed by the Settlement Officer Consolidation, Musafirkhana, District-Sultanpur in Appeal No. 234 has been set aside and the order passed by the Consolidation Officer has been upheld.

3. The brief facts of the case, for adjudication of the present writ petition, are that the dispute pertains to Plot No. 366, which was recorded in the name of the petitioners as bhumidhars in the basic year. On publication of record under Section 9 of the U.P. Consolidation of Holdings Act 1953(hereinafter referred to as the Act of 1953), the opposite party nos. 3 to 8 filed objections claiming that the parties hailed from common ancestor and the land in dispute is old grove and the names of the opposite parties have been omitted to be recorded, as such, their names should also be recorded alongwith the petitioners. The claim of the opposite parties was refuted by the petitioners and according to them, the pedigree shown by the opposite parties before the Consolidation Officer was incomplete, the family is not joint family, the parties have their separate holdings and separate groves. It was further alleged that no party has any concern with the land of the others and the zamindar had executed patta on 14.04.1950 in favour of the petitioners and at no point of time, neither the land in dispute was recorded in the name of the common ancestor nor the opposite parties were in possession over the land in dispute. The dispute was referred by the Assistant Consolidation Officer to the Consolidation Officer and the parties tendered their evidence. After evidence, the Consolidation Officer, placing reliance on a partition deed dated 04.05.1948 allowed the objection filed by the opposite parties by means of the order dated 13.07.1982. The petitioners had challenged the order passed by the Consolidation Officer in appeal under Section 11(1) of Act of 1953, which came up before the Assistant Settlement Officer Consolidation, who by means of the order dated 10.05.1985 allowed the appeal in favour of the petitioners. Being aggrieved, the opposite party nos. 3 to 8 had filed a revision under Section 48 of Act of 1953 which came up before the Joint Director of Consolidation, who by means of the order dated 26.07.1989 allowed the revision and set aside the order passed by the Assistant Settlement Officer Consolidation and maintained the order passed by the Consolidation Officer. Hence the present writ petition has been filed by the petitioners.

4. During pendency of the writ petition, the petitioner nos.1 to 7 had died. Therefore their legal heirs were substituted. Opposite party nos. 13 to 19 were also impleaded on an application moved by the petitioners as predecessor-in-interest of them who was party before the courts below was not impleaded while filing the writ petition. The opposite party nos. 4 to 6 and 8 had also died. Therefore their legal heirs were also substituted.

5. Submission of learned counsel for the petitioners was that the Plot No. 366 was recorded in the name of the predecessor-in-interest of the petitioners in the basic year and there was no jointness between the petitioners and the private opposite parties. The names of the predecessor-in-interest of the petitioners were recorded in 1356 Fasli and 1359 Fasli. Therefore they have matured their title and right as bhumidhars because the said entries were in the nature of title. The name of the petitioners were also recorded in the basic year, i.e. 1386 Fasli as bhumidhar. There was no jointness between the petitioners and the private opposite parties. The petitioners