Court No. - 19
Case :- WRIT - B No. - 1912 of 2019 Petitioner :- Smt. Jagwanti Respondent :- Deputy Director Of Consolidation And 8 Others Counsel for Petitioner :- Ajay Shankar,Triveni Shanker Counsel for Respondent :- C.S.C.,Surendra Tiwari
Hon'ble Salil Kumar Rai,J.
Heard Sri Triveni Shanker, Senior Counsel assisted by Sri Ajay Shankar, for the petitioner and Sri P.N. Saxena, Senior Counsel assisted by Sri Surendra Tiwari, for respondent nos. 4 to 6.
The counsel for the respondents agree that the writ petition may be finally decided on the averments made in and the documents annexed with the writ petition itself and no counter affidavit is required.
The facts of the case are that one Ghurahu Ram had three sons, namely, Tarkeshwar Pandey, Kedar Nath and Ishwar Prasad. The petitioner is the widow of Ishwar Prasad. Kedar Nath died issueless. Tarkeshwar Pandey had three sons, namely, Raj Kumar, Raja Ram and Amresh Chand who have been impleaded as respondent nos. 7 to 9 in the present writ petition. Alok Kumar and Anurag Kumar, i.e., respondent nos. 4 and 5 are the sons of Raj Kumar and Neeraj Kumar, i.e., respondent no. 6 is the son of Amresh Chand. Ghurahu Ram was the original tenure holder of Khata No. 39, i.e., the disputed khata. The aforesaid facts are admitted by the parties. It has been stated in paragraph nos. 5 and 12 of the writ petition that Tarkeshwar Pandey died in 2016, Kedar Nath died in 2001 and Ishwar Prasad died in 2005. The aforesaid fact regarding the death of Tarkeshwar Pandey, Kedar Nath and Ishwar Prasad has also been admitted by the counsel for the respondents during the course of argument. In Case No. 125 of 1994 registered under Section 229-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950'), the respondent nos. 7 to 9 were held co-tenure holders of the disputed khata vide order dated 29.2.1996 passed by the Deputy District Magistrate, Robertsganj and through the aforesaid judgment, the said respondents were held to have equal shares in the disputed khata along with Tarkeshwar Pandey, Kedar Nath and Ishwar Prasad. It is apparent that the decree dated 29.2.1996 was passed while Tarkeshwar Pandey, Kedar Nath and Ishwar Prasad were alive. It appears that the judgment and decree dated 29.2.1996 passed in Case No. 125 of 1994 was never challenged before any court. During the consolidation operations in the village, the petitioner filed objections under Section 9- A(2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') claiming herself to be a co-tenure holder of the disputed khata having half share in the same as on the date when the objections were filed, Ishwar Prasad, i.e., the husband of the petitioner as well as Kedar Nath and Tarkeshwar Pandey had died. The claim of the petitioner was that after the death of Kedar Nath who died issueless, his estate shall devolve in equal shares on the descendants of Tarkeshwar Pandey, i.e., respondents nos. 4 to 9 and the heir of Ishwar Prasad, i.e., the petitioner. In their reply, the respondents pleaded that by virtue of the decree dated 29.2.1996 passed in Case No. 125 of 1994, Ishwar Prasad had 1/6 share in the disputed khata and, therefore, the petitioner as the heir of Ishwar Prasad also held 1/6 share in the disputed khata. The Consolidation Officer vide his order dated 6.12.2018 relying on the decree dated 29.2.1996 passed in Case No. 125 of 1994 held that Ishwar Prasad and consequently the petitioner along with other co-tenure holders of the disputed khata which included Kedar Nath had 1/6 share in the disputed khata and consequently after the death of Kedar Nath in 2001 the petitioner had 1/5 share in the disputed khata. Aggrieved by the order dated 6.12.2018 passed by the Consolidation Officer, the petitioner filed appeals before the Settlement Officer of Consolidation which were dismissed by the Settlement Officer of Consolidation vide his order dated 25.3.2019. The orders passed by the Consolidation Officer and the Settlement Officer of Consolidation were affirmed by the Deputy Director of Consolidation vide his order dated 28.6.2019. The orders dated 28.6.2019, 25.3.019 and 6.12.2018 have been challenged in the present writ petition.
It was argued by the counsel for the petitioner that in their impugned orders, the consolidation authorities have illegally held that Ishwar Prasad and Kedar Nath had only 1/6 share each in the disputed khata along with respondent nos. 7 to 9 and Tarkeshwar Pandey because the respondent nos. 7 to 9 were co-tenure holders with Tarkeshwar Pandey and not co-tenure holders with Ishwar Prasad and Kedar Nath. It was argued by the counsel for the petitioner that the consolidation authorities had wrongly relied on the decree dated 29.2.1996 passed in Case No. 125 of 1994 and, therefore, the impugned orders passed by the consolidation authorities are liable to be set-aside. It was argued that Ishwar Prasad had 1/3 share in the disputed khata while Kedar Nath was alive and after the death of Kedar Nath, Ishwar Prasad and consequently the petitioner had half share in the disputed khata and the orders passed by the consolidation authorities rejecting the claim of the petitioner are vitiated by errors of law apparent on the face of record and are liable to be set-aside. It was further argued that assuming Ishwar Prasad had 1/6 share in the disputed khata because of the decree dated 29.2.1996 passed in Case No. 125 of 1994 even then after the death of Kedar Nath, Ishwar Prasad was entitled to half share in the estate of Kedar Nath and consequently had 1/4 share in the disputed khata. It was argued that in any view of the matter, the impugned orders passed by the consolidation authorities are contrary to law and are liable to be set- aside.
I have considered the submissions of the counsel for the petitioner and also perused the records.
It is evident that in Case No. 125 of 1994 registered under Section 229-B of the Act, 1950, the respondent nos. 7 to 9 were held to be co-tenure holders of the disputed khata along with Tarkeshwar Pandey, Kedar Nath and Ishwar Prasad. There is nothing on record to show that the decree dated 29.2.1996 passed in Case No. 125 of 1994 was challenged in appeal or in any other proceedings permitted by law. Thus, the issue regarding the rights of respondent nos. 7 to 9 to be the co-tenure holders of the disputed khata was barred by the principle of res-judicata and the consolidation authorities lacked the jurisdiction to examine the legality or correctness of the decree dated 29.2.1996 passed in Case No. 125 of 1994. The consolidation authorities have rightly relied on the decree dated 29.2.1996 to decide the share of the parties in the disputed khata. As a consequence of the decree dated 29.2.1996, Ishwar Prasad had only 1/6 share in the disputed khata during the lifetime of Kedar Nath. Thus, the argument of the counsel for the petitioner regarding the legality of the orders passed by the consolidation authorities relying on the decree dated 29.2.1996 stands rejected.
However, the effect of the decree dated 29.2.1996 was that Kedar Nath also had 1/6 share in the disputed khata. After the death of Kedar Nath, the estate of Kedar Nath would devolve according to Section 171 of the Act, 1950. It is admitted by the parties that Kedar Nath died before Ishwar Prasad and Tarkeshwar Pandey. Thus, under Section 171(2)(e) of the Act, 1950, the estate of Kedar Nath devolved in equal share on Tarkeshwar Pandey and Ishwar Prasad who were alive when Kedar Nath died. Thus, after the death of Kedar Nath, the share of Ishwar Prasad in the disputed khata was 1/6 + 1/12, i.e., his own share in addition to the half share in the estate of Kedar Nath. Thus, the share of Ishwar Prasad and consequently the share of the petitioner after the death of Ishwar Prasad in the disputed khata was 1/4. The consolidation authorities have wrongly held that after the death of Kedar Nath, the share of Ishwar Prasad and consequently the petitioner in the disputed khata would be 1/5. Sri P.N. Saxena, the Senior Counsel representing the respondents has frankly admitted the aforesaid position regarding the share of the petitioner in the disputed khata.
For the aforesaid reason, it is held that the share of the petitioner in the disputed khata is 1/4. The writ petition is allowed to the said extent.
The orders dated 28.6.2019, 25.3.019 and 6.12.2018 passed by the Deputy Director of Consolidation, Settlement Officer of Consolidation and the Consolidation Officer are, hereby, set-aside to the aforesaid extent and it is directed that the consolidation proceedings shall be held and the records shall reflect that the petitioner has 1/4 share in the disputed khata.
With the aforesaid directions, the writ petition is partly allowed.
Order Date :- 22.8.2019 Satyam