JUDGMENT Shitla Prasad Srivastava, J.
1. This writ petition under Article 226 of the Constitution of India has been filed for quashing the judgment and order dated 29.5.1982 passed by the Deputy Director of Consolidation and to modify the judgments and orders dated 24.11.1979 and 2.2.1979 passed by the Settlement Officer Consolidation and the Consolidation Officer respectively.
2. The brief facts for the purposes of the present writ petition are that the dispute relates to Chak Nos. 87 and 20 of village Hathika Pargana Akbarpur and Khata No. 57 of village Asvi Pargana Derapur. The Chak No. 87 was recorded in the name of Smt. Thakura Devi widow of Bharat Singh, whereas Chak No. 20 and Khata No. 57 were recorded in the names of the petitioners and contesting respondents. Smt. Thakura Devi died. The petitioners filed an application under Section 12, of the Consolidation of Holdings Act in respect of the land situate in village Hathlka and Asvt to mutate their names in the revenue papers by expunging the name of Smt. Thakura Devi as she had died and the property in dispute was ancestral one. The opposite party Nos. 4 and 5, namely, Bhagwan Singh and Balbir Singh also filed application under Section 12 of the Consolidation of Holdings Act for recording their names on the basis of a Will alleged to have been executed by Smt. Thakura Devi in their favour on 19.4.73.
3. Both the contesting parties also filed objections under Section 9 of the Consolidation of Holdings Act for recording their names by expunging the name of Smt. Thakura Devi in respect of land in village Asvi. The parties are related to each other and to show their relationship, the pedegree which is relevant for the present case is mentioned in the judgment of the Consolidation Officer, which is quoted below :
Madho Singh |
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4. The petitioners contested the claim of the contesting respondents. They submitted that the property was seer of their ancestors and after the death of their father Bharat, it devolved on the petitioner and his mother Smt. Thakura Devi had no right to inherit the property under the U. P. Tenancy Act, therefore, she had no right to execute the Will in favour of the contesting respondents.
5. The Consolidation Officer held that the execution of the Will by Smt. Thakura Devi was proved but Smt. Thakura Devi had no authority to execute the Will as it was barred under Section 169 (2) of the U.P.Z.A. and L.R. Act. Aggrieved by the aforesaid Judgment and order, three appeals were filed. The petitioners filed the appeal challenging the finding with regard to the execution of the Will. The contesting respondent filed the appeal against the finding rejecting their claim on the basis of the Will and the finding that the Will was barred under Section 169 (2) of the U. P. Z. A. and L. R. Act. All these three appeals were dismissed and same finding was affirmed by the Deputy Director of Consolidation. The petitioners have challenged this Judgment. Their contention is that the Will was not admissible In evidence and execution was also not proved. It was a forged document executed after the death of Smt. Thakura Devi. It is further submitted that the name of Thakura Devi was only entered In the revenue record for consolidation only.
She had no right to inherit the property from her husband and further that the Deputy Director of Consolidation has carved out a third case. There was no pleading with regard to the adverse possession, estoppel and acquiescence. It is further submitted that under the provisions of the U. P. Tenancy Act. 1939, after the death of Bharat Singh, the land being Seer and Khudkasht would devolve according to the personal law. It is further submitted that after the death of Bharat his sons inherited the property under the U. P. Tenancy Act and not widow and sons simultaneously.
6. A counter-affidavit has been filed, wherein it is stated that the petitioner took the inconsistent pleas in the writ petition on the point of filing of the objection before the Consolidation Officer. It is stated in the counter-affidavit that Smt. Thakura Devi got the property in the year 1950 after death of his husband, Bharat before the commencement of the U.P.Z.A. and L.R. Act and she was Bhumidhar. She was living separately from the petitioner along with her grandsons (contesting respondents), who were cultivating the land on her behalf. She got separate chaks after completion of the proceedings of consolidation but no objection was filed by the petitioner regarding their right In allotment of chaks. It is further submitted in the counter-affidavit that she inherited the property before the U.P.Z.A. and L.R.
Act same into force from the male holder and became Bhumidhar under Section 18, and has acquired, right under Sections 18, 134 and 137 and can transfer the came through the Will. A rejoinder-affidavit was filed.
7. Heard the learned counsel for the parties and perused the papers available on record. Sri C. B. Singh, learned counsel for the petitioner has urged that as the property was Seer of the parties and Bharat, the father of the petitioners and husband of Smt. Thakura Devi, who died when the U. P. Tenancy Act was in force, therefore, under Section 9, of the U. P. Tenancy Act, the succession Will be governed by the personal law. He has placed before the Court Section 35, of the U. P. Tenancy Act and submitted that the sons Will inherit the property in preference to their mother, therefore, after the death of Bharat, the name of his widow which was entered only for the consolidation purposes along with his sons, she has no right to execute the Will. In reply, Sri A. K. Sachan, learned counsel for the respondent has urged that the name of Thakura Devi was recorded after the death of her husband along with sons but the sons did not place any objection and her name continued till the consolidation intervened. No objection was filed by the petitioner under Section 9, of the Act challenging the right, and title of Smt. Thakura Devi. The chaks were carved out separately in her name and in the name of other persons who were recorded in the basic year Khatauni. At that time also, the petitioners did not file any objection and permitted her name to continue on separate chaks, therefore, the principle of estoppel Will apply against the petitioners and they cannot raise any objection. It is further submitted that she acquired right by adverse possession. The Consolidation Officer framed a number of issues. The Issue No. 1 related to right of Smt. Thakura Devi on the basis of the succession and Issue No. 2 related to Will. The Consolidation Officer held that the Will is proved. But while deciding Issue Nos. 1 and 3, which related to her right, the Consolidation Officer held that under the U. P. Tenancy Act, she had no right to inherit the property left by her husband along with sons In the property in dispute. He also held that under Section 169 (2), of the U.P.Z.A. and L.R. Act a woman can execute a Will in respect of the property acquired by her but she cannot execute a Will in respect property which she Inherited by succession, therefore, though the Will is proved but as Smt. Thakura Devi did not inherit the property herself and she is not heir too, therefore, the Will is void. The Settlement Officer Consolidation did not consider any legal question involved in this case and did not discuss any evidence but held that as Harpal, one of the sons of Bharat, has accepted the execution of Will but as she has not inherited the property, therefore, she had no right to execute the Will.
8. A perusal of the judgments of the Settlement Officer Consolidation and the Consolidation Officer will show that none of these authorities have decided the point of estoppel, acquiescence or adverse possession. The Deputy Director of Consolidation affirmed the finding of both the authorities below on the point of Will and also held that she had no right to inherit the property after the death of her husband but observed that during the consolidation proceedings, the name of Thakura Devi was entered in the title and Chaks were carved out, therefore, the parties have accepted her right and share and the petitioners are debarred from challenging her right and that she has perfected her right by adverse possession and the petitioners are estopped from challenging her right.
9. From the perusal of the judgment, it is apparent that all the three consolidation authorities have concurrently held that Smt. Thakura Devi could not inherit the land in dispute after the death of her husband as she was not the legal heir of her husband. It is also apparent that the plea of estoppel, acquiescence or adverse possession was not taken or raised by the contesting respondents in their objection nor any such issue was framed by the Consolidation Officer nor any such finding was given either by the Consolidation Officer or by the Settlement Officer Consolidation. It is only the Deputy Director of Consolidation, who has carved out a third case not pleaded by the parties.
10. Sri A.K. Sachan, learned counsel for the petitioner has urged that the Consolidation Officer had framed issue No. 3 to the effect that as to whether Smt. Thakura Devi has right to execute a Will in favour of the respondent Nos. 4 and 5 and the Deputy Director of Consolidation has held that Bharat died in the year 1950 who was recorded in the year 1356 F. and Smt. Thakura Devi was recorded in the revenue record in the year 1369 F. She was continued in possession for more than twenty years and her share was separate in the partition suit, therefore, the presumption of adverse possession is implied and the Court has power to decide the right on the principles of adverse possession and right of estoppel and acquiescence without specific pleading or without framing issues. For this purpose, he has cited a case Chaturbhuj Prasad Khatri v. Hari Narain Khatri and others, 1991 ED 314. In this case, it was held by the High Court that the plaintiff who filed a suit for possession on the basis of title, it is open to the defendents to say that at the determination of the period of limitation, the right of the plaintiff to recover the revenue record and actually she was neither the owner nor in possession. The contesting respondents have claimed that Smt. Thakura Devi was living separately from her grandsons and grandsons were in possession on behalf of Smt. Thakura Devi and that the chaks were carved out separately in the name of Smt. Thakura Devi, therefore, the question now in the present case is as to whether Smt. Thakura Devi was claiming herself as heir and successor of her husband or on the basis of the adverse possession or whether her name was only for the consolidation purposes, but these points were not considered either by the three consolidation authorities.
11. The second decision. Sri Sachan has cited Nabboo Khan v.
Board of Revenue, 1971 RD 523, on the point of presumption of continuous entry for a long time without specific pleadings. In this case, it was held that in the pleading that they had been in possession throughout the plea of adverse possession was implicit and a categorical finding had to be recorded that the respondents together or one of them had been continuously in adverse possession for the requisite period before filing of the suit. In this case a suit under Section 229B/209 of U.P.Z.A. and L.R. Act was filed against three persons based on the allegation that they were the Sirdar of the plots in question and the defendant had no concern with the plots. An alternative plea was taken that if the act of the defendant was found to be in possession, a decree for eviction may be passed against the defendant. The defendant contested the suit on the ground that they were original tenants and they had long been in possession of the plots and that the plaintiff was never in possession over them and they have acquired Sirdari right over the same. The said suit was dismissed with the findings that the plaintiff had not been in possession in 1356 F. It was held that when the defendant acquires Sirdari right under Section 210, if there is no pleading that they had been in possession throughout, the plea of adverse possession was implicit. In this case also the Court remanded the case to the Board of Revenue to consider this point and decide it again.
12. The third case cited by Sri Sachan regarding presumption of correctness of the entry unless contrary is proved. His submission is that as the name of Smt. Thakura Devi was recorded along with the names of the petitioners; the presumption of correct entry was there. He has further placed reliance on a decision in Nagubai Ammal and others v. B. Shama Rao, AIR 1956 SC 593, for the purpose that absence of specific pleading of question was mere irregularity.
13. Learned counsel for the respondent Sri A. K. Sachan has submitted that the points of estoppel.
acquiescence and adverse possession are the points of law which can be raised even though there is no pleading of issue.
14. I am of the view that so far as the question of estoppel, and acquiescence is concerned. It is well settled law that there cannot be any estoppel against the statute in the matter of devolution of tenancy or creation of tenancy right. The principle of estoppel will not apply rather the relevant law of devolution will apply and if some body has acted against law of devolution, he cannot be estopped from challenging the devolution according to law. In the instant case, it is apparent that there is concurrent finding that Smt. Thakura Devi was not the legal heir of her husband so far as devolution of tenancy right is concerned, therefore, merely the name of Smt. Thakura Devi was entered in the revenue record along with her sons and the sons, who had no enmity with their mother, permitted her name to continue in record, that will not estop them from challenging the right of the lady on the point of inheritance when they being the real claimants are being deprieved of their valid share on account of the said Will, alleged to have been executed by Smt. Thakura Devi in favour of the contesting respondents. The Settlement Officer Consolidation and Consolidation Officer had not touched this point nor it was argued before them, then it was not open to the Deputy Director of Consolidation to carve out a third case.
15. So far as the finding given by the Deputy Director of Consolidation on the point of adverse possession is concerned, after going through the pleading, evidence, which is available on record and the decisions cited by the learned counsel for the respondent. I am of the view that in view of the decision of this Court (supra), as the question of possession, limitation or the point of tenancy has neither been considered by the Consolidation Officer or Settlement Officer, Consolidation or the Deputy Director of Consolidation rather the Deputy Director of Consolidation has only decided the point of adverse possession on the basis of joint entry of mother and sons and that now the sons are estopped from accepting the right of the mother and further they had accepted the right in the partition suit, but has not considered the question of possession on the basis of the evidence while deciding the plea of adverse possession. It is a fit case in which the Deputy Director of Consolidation should decide this point of adverse possession afresh keeping in view of the observations made by the High Court in the judgment in Chaturbhuj Prasad Khatri v. Hari Narain Khattri and others, 1991 RD 314, especially in para 6 of the aforesaid judgment but he will not permit the parties to lead any evidence and will decide the point of adverse possession afresh.
16. I accordingly allow this writ petition in part, setting aside the Judgment so far as it relates to the point of adverse possession and affirm the judgment of all the three authorities on the point of heirship and remand the case to Dy. Director of Consolidation. The Deputy Director of Consolidation, if comes to the conclusion that Smt. Thakura Devi acquired right on the basis of the adverse possession, then he will consider the question of Will also and if he is of the opinion that the genuineness of the Will is to be seen then he may frame the issues to this effect and also permit the issue before the Consolidation Officer and get a finding on the same. There will be no order as to costs.