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 and the private opposite parties had separate holdings and separate groves which has come in the evidence before the courts below. The Zamindar had granted patta on 14.04.1950 in favour of the predecessor-in-interest of the petitioners and on the basis of same, they were continuing in possession of the said plot. The land was never recorded in the name of the common ancestor of petitioner and the private opposite parties and the opposite parties were never in possession whereas the petitioners are in possession of the property in question on the basis of aforesaid patta. The opposite parties never claimed their possession. Therefore, the petitioners are entitled for the said plot on the basis of adverse possession also. Learned court below has recorded a finding that at the time of patta, the land was in the possession of the Zamindar. Therefore question of partition does not arise.
6. He further submitted that the patta was proved before the Consolidation Officer. Therefore its validity cannot be questioned. The private respondents have claimed their rights on the basis of the partition deed, which is a private document and it was not proved. He further submitted that while filing objection, the partition deed was not claimed and subsequently, the case was developed and the claim was set up on the basis of alleged partition deed. Therefore also the private respondents are not entitled for the plot in question.
7. On the basis of above, learned counsel for the petitioners had submitted that the writ petition is liable to be allowed and the impugned orders are liable to be quashed. Learned counsel for the petitioners has relied on the judgment of the Hon'ble Apex court in the case of Ram Avadh versus Ram Das; 2008(8) SCC 58 and judgment of this Court in the case of Mohd. Naimuddin and others versus Deputy Director of Consolidation Barabanki; 2020(147) RD 90.
8. Learned counsel for the respondent had submitted that the plot in question was in possession of ancestors of the petitioners and the private opposite parties and it has been admitted by the petitioner no.1 in his evidence before the Consolidation Officer that in the grove, grave of the ancestors are situated. He has also admitted the partition but he had failed to disclose as to what was given to the opposite parties. The opposite parties had proved their case on the basis of partition deed and the recommendations of Prayag and Ram Narayan were also recorded. Prayag was the karta of the family and it has been admitted by the appellate authority also but even then the appeal was allowed without mentioning the facts and points raised by the opposite parties. It has been recorded by the revisional authority that the family tree was not disputed by the parties and in the Kafiyat column the names of trees are also mentioned. He further submitted that the petitioner no.1 had also admitted in his evidence that the plot in dispute is an old grove and it was not divided. Considering the evidence produced by the parties and recording a categorical finding, the revision has been allowed. He had also submitted that the alleged patta, on the basis of which the rights are being claimed by the petitioners, is of 14.04.1950 when the patta could not have been issued by the Zamindar because after 1947 there was ban on issuance of patta. He also submitted that patta of grove, which is a public land could not have been issued. On the basis of above, learned counsel for the respondent submitted that the writ petition has been filed on misconceived and baseless grounds and it is liable to be dismissed as order passed by the revisional authority and consolidation officer does not suffer from any illegality or infirmity.
9. I have considered the submissions of learned counsel for the parties and perused the orders passed by the courts below,the documents placed on record and the pleadings of the parties.
10. The dispute in the present writ petition relates to plot no.366/3-3-0. The said plot was recorded in the basic year in Khata No.190 in the name of the predecessor-in-interest of the petitioners. Two objections were filed under Section 9 of the Act of 1953, one by Ram Milan and others and second by Kedar nath and others claiming their rights on the plot in question alleging that the petitioners and opposite parties are living together and the plot in question is an ancestral property. The Consolidation Officer had allowed the claim of the opposite parties on the basis of admission of the petitioner's witness that the grove is old and graves of ancestors are in grove and the partition had taken place 50-60 years ago but he failed to disclose as to what was given to the opposite parties in lieu of the said plot. The Settlement Officer Consolidation recorded a finding in the appellate order that there is no mention of partition deed in the objection filed under Section 9 and the plea of partition was taken subsequently during pendency of the case and it is a private document. Therefore it is not admissible. It has also been recorded that the partition is dated 04.05.1948 while the patta filed by the petitioners is dated 14.04.1950 and the said patta has been proved and it was also proved that at the time of grant of patta, the Zamindar was in possession of the land in question and since the partition is not proved therefore allowed the appeal and directed to continue the entries recorded in the basic year. On being challenged, the revisional authority held that the appellate authority without considering that the grove was old and also as to whether the patta could have been made in the year 1950 and as to why only names of three branches has been mentioned in the patta has allowed the appeal. It has also not considered that whether on the basis of names of three branches in the patta, the rights of the fourth branch, whose name has been left, would be extinguished and maintained the order passed by the Consolidation Officer.
11. The claim by the opposite parties has been setup on the plot on the ground of old and ancestral property and on the basis of old trees and grove on the plot in question and on the basis of a document dated 04.05.1948, which is in the nature of a partition deed. They had given a family tree before the Consolidation Officer, in which the name of the father of Prayag, Kashiram, Ram Narayan and Mahaveer was not given as it is not mentioned in the order while they were claiming the same on the basis of old and ancestral property whereas the name of their father has been given in the order passed by the revisional authority as Girja and it is mentioned that the petitioner has stated in his evidence that Girja was the head of the family. The revisional authority has recorded a finding that, at the time when the alleged patta was issued, there was grove on the plot in question and the patta of plot could not have been made while Izazat Nama for grove could have been given. It has also recorded a finding that after 1947, there was a ban on patta, therefore it could not have been issued and it has been got issued only to deprive the petitioners from their rights.
12. The learned revisional authority has though placed reliance on the document dated 04.05.1998 purporting to be a partition deed between the parties and allowed the claim of the opposite parties on the basis of the said deed but failed to consider as to whether the same could have been considered to be a valid document because on the one hand plea of same was not taken in the objection under Section 9 and on the other hand the same was not proved. The revisional authority has also not considered and recorded any finding as to whether the document dated 04.05.1948 is worthy of acceptance or not in view of finding recorded by the appellate authority. As per evidence of one Sahab deen, who claimed that he was recovering the lagan at the time of Zamindar, plot in question was in possession of the Zamindar at the time of patta. Therefore if the plot in question was in possession of Zamindar at the time of patta then the question of it in possession of opposite parties and it's partition by means of alleged partition deed does not arise.
13. In case the plot in question could not have been ancestral property and in possession of Zamindar at the relevant point of time then the question arises as to whether the patta could have been issued by the Zamindar or not and if it could have been issued as to whether the patta was valid and not void under Section 8 of U.P. Z.A. & L.R. Act 1950, which reads as under:-
"8.Contract entered into after August 8,1946 to become void from the date of vesting-Any contract for grazing or gathering of produce from land or the collection of forest produce or fish from any forest or fisheries entered into after the eighth day of August, 1946 between an intermediary and any other person in respect of any private forest, fisheries, or land lying in such estate shall become void with effect from the date of vesting.
14. A Division Bench of this Court in the case of Raghunath Singh and another versus State of U.P. and another; 1961 RD 337 has held that a lease of land for the purpose of cultivation which confers on the lessess not merely a right in the land but also the right to exclusive possession of the land and to turn it to cultivation, is not a transaction covered by Section 8. The relevant paragraph is extracted below:-
"In our 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. A contract for the collection of forest produce must in order that it may be such a transaction be contract essentially for the collection etc. of the produce. It will not be such a contract if the removal etc. of the forest has to be done to make the land agriculture worthy- the object and purpose of the lease. In the instant case, admittedly the leases were for using the land for purpose of agriculture and horticulture etc. As a matter of fact the lessees were also entered as hereditary tenants of the lands and later after the abolition of zamindaris as sirdars. They have been paying the land revenue also assessed on them to the government. It is not possible in these circumstances to hold that the leases were contracts for the collection of forest produce. The contract referred to in Section 8 does not contemplate the conferment on the promises any right in or over land, it, on the other hand, merely refers to the right to collect forest produce or to perform certain acts over the land. A lease of land for the purpose of cultivation which confers on the lesses not merely a right in the land but also the right to exclusive possession of the land and to turn it to cultivation, is not a transaction covered by Section 8. It is not possible under the circumstances to accept that the leases in favour of the petitioners were void under Section 8 of the U.P. Zamindari Abolition & land Reforms Act. Being leases for agricultural purposes the lessee acquired, at first the status of hereditary tenants and later when the Zamindari Abolition and Land Reforms Act was enforced of Sirdars of the lands therein transferred."
15. A Coordinate bench of this Court, in the case of Mohd. Naimuddin and others versus Deputy Director of Consolidation Barabanki; 2020(147) RD 90, after considering the judgment in the case of Raghu Nath Singh and Anr. versus State of U.P. and Anr.(supra) has held that a lease of land for the purpose of cultivation which confers on the lessee not merely a right on the land but also the right to exclusive possession of the land and to turn it to cultivation is not a transaction covered by Section 8. Hence, where the land was for agricultural purpose the lessee acquired at first a status of hereditary tenant and later when the U.P. Zamindari Abolition and Land Reforms Act was enforced of Sirdar of the lands therein transferred.
16. Section 20 of the U.P. Z.A. & L.R. Act provides that where a person is recorded as an occupant of any land [other than grove land....] in Khasra or Khatauni of 1356 Fasli, which has been taken as the base year, he shall be entitled to retain possession thereof. The Hon'ble Apex Court, in the case of Ram Avadh versus Ram Das; 2008 (8) SCC 58, has held that if the entry was not challenged it could not be doubted and have to be deemed to be correct in view of explanation III to Section 20 which provides that the entries in the year 1356 Fasli is final and confers all rights on occupant. Section 20 reads as under:-
" 20. A tenant of Sir, sub-tenant or an occupant to be an adhivasi Every person who-
(a) on the date immediately preceding the date of vesting was or has been deemed to be in accordance with the provisions of this Act]-
(i) except as provided in[sub-clause (i) of Clause (b)], a tenant of sir other than a tenant referred to in Clause (ix) of Section 19 or in whose favour hereditary rights accrue in accordance with the provisions of Section 10; or
(ii) except as provided in[sub-clause (i) of Clause (b)], a sub-tenant other than a sub-tenant referred to in proviso to sub-section (3) of Section 27 of the United Provinces Tenancy (Amendment) Act, 1947 (U.P. Act X of 1947), or in sub-section (4) of Section 47 of the United Provinces Tenancy Act, 1939 (U.P. Act XVII of 1939) of any land other than grove land,
(b) was recorded as occupant,-
(i) of any land[other than grove land or land to which Section 16 applies or land referred to in the proviso to sub-section (3) of Section 27 of the U.P. Tenancy (Amendment) Act, 1947]in the khasra or khatauni of 1356-F prepared under Section 28[33]respectively of the U.P. Land Revenue Act, 1901 (U.P. Act III of 1901), or who was on the date immediately preceding the date of vesting entitled to regain possession thereof under Clause (c) of sub-section (1) of Section 27 of the United Provinces Tenancy (Amendment) Act, 1947 (U.P. Act X of 1947); or
(ii) of any land to which Section 16 applies, in the[khasra or khatauni of 1356 fasli prepared under Sections 28 and 33 respectively of]the United Provinces Land Revenue Act, 1901 (U.P. Act III of 1901), but who was not in possession in the year 1356-F;
18. In the present case, it is not in dispute that the names of the petitioners were recorded in 1356 Fasli and 1359 Fasli as well as in the basic year entry of 1386 Fasli. Therefore the said entries could not have been unsettled without any substantial evidence in favour of the opposite parties and without examining the correctness of the document dated 04.05.1948 which is in the nature of partition deed. The revisional 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 and without considering the provisions of Section 8 and 20 of U.P. Z.A. & L.R. Act has allowed the revision.
19. In view of above, this Court is of the view that the impugned order is not sustainable in the eyes of law, which is liable to be set aside and reconsidered by the revisional authority. Thus the order dated 26.07.1989 passed in Revision No.1402/942 by the opposite party no.1 is set aside and the matter is remanded to the revisional authority to decide the revision afresh in accordance with law and in the light of the observations made hereinabove expeditiously. An endeavour shall be made by the revisional authority to decide the revision within a period of six months from the date of production of certified copy of this order on priority basis.
20. The writ petition is partly allowed in the aforesaid terms. No order as to costs.
...................................... (Rajnish Kumar,J.) Order Date :-02.02.2021 Akanksha