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IN THE HIGH COURT OF ALLAHABAD
Jaspreet Singh, J.
Lalta Prasad and Others – Petitioners
Versus
Haunsla Prasad and Others – Respondents
Consolidation No. 2572 of 1978
Decided On : 01-10-2021
Constitution of India-Article 226 –Writ petition - Uttar Pradesh Consolidation of Holdings Act, 1953 - Section 9-A(2), 48 - Oudh Rent Act, 1886 - Section 108 - Co-tenancy rights - Ancestral/joint family property - Disputes arose upon the commencement of consolidation operations - Karta of joint family - Land was acquired within family in a representative capacity - Petitioner also had 1/3rd right - At relevant time, the Oudh Rent Act, 1886 was in operation and in terms of the Act, tenancy was neither heritable nor transferable, by virtue of the Section 108 of the Oudh Rent Act, 1886 no suit of partition or claiming co-tenancy rights could have been preferred before the Civil court - Whether the said decree was without jurisdiction - Whether petitioner has been able to establish its case seeking co-tenancy rights on basis of the property being ancestral - Whether property in suit was joint property of the parties as alleged by plaintiff - Whether in light of law of limitation such a claim could be considered.
Finding of the court : It is only when such a suit is sought to be brought against landlord then it would be hit by Section 108 of the Act and such a suit necessarily would be within jurisdiction of the Revenue Court - Despite both oral and documentary evidence having been led before three Consolidation Authorities which have concurrently recorded that petitioner is not entitled to claim of 1/3rd share on basis of co-tenancy is based on proper appreciation and material available on record and is concluded by concurrent findings which for the reasons as recorded do not suffer from any error which may persuade this Court to interfere in exercise of powers conferred on this Court under Article 226 of the Constitution of India - Said property cannot be treated to be ancestra -Three Consolidation Courts have also taken note of it and have found that the property was enjoyed by parties separately - That in a later suit a defence which is based on the facts which constituted a cause of action in the suit which abated or is dismissed under the said Rule does not operate as a bar. Thus, the effect of abatement does not create any conclusive bar - In so far as claim of petitioner treating the property to be joint is concerned, there is neither any pleadings nor any material to indicate that the property in question was acquired in a representative capacity - There is nothing on record to indicate that property was acquired from joint family nucleus
Result : Writ petition dismissed.
JUDGMENT :
1. The instant writ petition calls in question the judgment and order passed by the Consolidation Officer in Case No. 165 under Section 9-A(2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as 'U.P.C.H. Act, 1953') dated 30.04.1970 whereby the claim of the petitioners relating to co-tenancy rights in respect of base year Khata No. 123 and 141 was rejected. The petitioner preferred an appeal before the Settlement Officer of Consolidation which also was rejected by means of judgment and order dated 07.09.1974. The effort of the petitioner to challenge the aforesaid two judgments as mentioned above before the Deputy Director of Consolidation by filing a Revision under Section 48 of the U.P.C.H. Act of 1953 ended in an unsuccessful endevour.
2. Being faced with three such judgments, the petitioner have invoked the jurisdiction of this Court under Article 226 of the Constitution of India wherein by means of order dated 07.11.1978, the petition was admitted and the operation of the impugned orders was stayed.
3. During the pendency of the petition, the original petitioner Lalta Prasad expired so also the private respondent nos. 1, 5, 6, 8, 10, 11 and 12 expired and they were substituted by their legal heirs, however, for the sake of convenience, the Court has referred to the original parties, as they were impleaded at the time of institution of the writ petition.
4. In order to appreciate the controversy involved in the instant petition, an undisputed family tree as set up by the parties is being referred to.
5. Sri Debi Charan is the common ancestor who was survived by his four sons namely (i) Ram Avatar (ii) Nand Kishor (iii) Kali Prasad (iv) Bhagirathi.
6. As far as the petitioner is concerned, he is the son of Raghuvir son of Arjun who in turn is the son of Ram Awatar. While the private respondents no. 1 to 3 are the sons of Sarju Saran while private respondent nos. 4 and 5 are sons of Raj Narayan. They claim through the branch of Bhagirathi whereas the private respondent no. 6 is the son of Chandi Sahai, respondent no. 7 is the son of Suraj Narayan, private respondent nos. 8 and 9 are sons of Uday Narayan, private respondent no. 10 is the son of Lal Bahadur, private respondent no. 11 and 12 are the sons of Indrabali. All the aforesaid respondents nos. 6 to 12 claim their rights through the branch of Sri Nand Kishore.
7. It will also be relevant to notice that it is not disputed that Kali Prasad died issueless. Thus, on one hand the petitioner claiming his 1/3rd right through the branch of Ram Awatar whereas private respondent nos. 1 to 5 are the successors in interest from the branch of Bhagirathi while the respondent nos. 6 to 12 are from the branch of Nand Kishore.
8. The disputes arose upon the commencement of the consolidation operations in Village Sahra Mau, Pargana, Bidhar, Tehsil, Tanda, District Faizabad (now District Ambedkar Nagar).
9. In the base year, Khata No. 123 was recorded in the names of the respondents nos. 6 to 12 (from the branch of Nand Kishore) while Khata No. 141 was recorded in the names of respondents nos. 1 to 5 (from the branch of Bhagirathi).
10. It was the case of the petitioner that initially the land comprising of Khata No. 123, 141 and 126 was the ancestral/joint family property. Though, the land of Khata No. 126 stands exclusively in the name of the petitioner while the other plots of the Khata in question was joint family property, hence the petitioner have 1/3rd share in each of the three Khatas.
11. The basis of the petitioner's claim was that Sri Nand Kishore was the Karta of the joint family which consisted of his brothers and sons. Since the land was acquired within the family in a representative capacity, hence, the petitioner also had 1/3rd right therein.
12. Upon the commencement of the consolidation operations, the petitioner found that the land comprising of Khata No. 123 was in the name of the respondents nos. 6 to 12 whereas the land of Khata No. 1
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