Heard Sri Syed Aftab Ahmad, learned counsel for the petitioner. Sri Vijay Bahadur Verma and Sri P.V. Chaudhary, learned counsel appearing for private respondent nos. 6/1 to 6/4 and 7 respectively.
The petitioners by means of the instant petition assails the judgment passed by the Assistant Collector 1st Class, Bakshi Ka Talab, Lucknow dated 29.08.2007 whereby in the case under Section 229-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the U.P.Z.A. & L.R. Act) instituted by the predecessor-in-interest of the private respondent nos. 6/1 to 6/4 (namely Sarvar Khan) was decreed. The first appeal preferred by the petitioners before the Additional Commissioner (Judicial) Lucknow Division, Lucknow was dismissed by means of judgment dated 20.12.2010 in Appeal No. 440 of 2007-08 and further the second appeal preferred by the petitioners before the Board of Revenue bearing Second Appeal No. 191/2011-12 was also dismissed by means of judgment dated 22.01.2014.
In order to appreciate the controversy involved in the above petition, the facts giving rise to the instant petition are being noticed first:-
One Sri Sarvar Khan who was the predecessor-in-interest of the private respondent nos. 6/1 to 6/4 had instituted a Suit under Section 229-B of the U.P.Z.A. & L.R. Act in respect of Plot No. 172 measuring 4 Biswa, 16 Biswansi, Plot No. 227 measuring 1 Bigha, 9 Biswa, 4 Biswansi and Plot No. 238 measuring 1 Bigha, 2 Biswa and 13 Biswansi, total three plots situate in Gram Palka, Pargana, Mahosa, Tehsil Bakshi Ka Talab, District Lucknow.
While instituting the aforesaid suit, Sarvar Khan had pleaded that he is entitled to half share in Plot No. 172 and 227 whereas Plot No. 238 was his exclusive and a declaration to the aforesaid effect be granted. The aforesaid suit was instituted by him against his uncle Chheda Khan, the admitted pedigree as disclosed in the pleadings is that Subrati Khan was the common ancestor who had two sons namely Ghuru Khan (father of the original defendant Chheda Khan) and Jhabbu Khan (father of the plaintiff-Sarvar Khan in the suit under Section 229-B of the Act).
It was pleaded that Plot Nos. 172 and 227 was the ancestral property and was in joint mutation at the time of first consolidation operation. The father of the plaintiff Jhabbu Khan and father of the defendant-Chheda Khan namely Ghuru Khan were living jointly and since Ghuru Khan was the elder brother, therefore, his name stood mutated in the revenue records. Even after the death of Jhabbu Khan, the families remained together and upon the death of Ghuru Khan, later the name of the Chheda Khan was mutated in the records since the other son of Ghuru Khan namley Rustom Khan had pre-deceased him and was issueless. It was also pleaded that in the year 1988-89 an oral settlement between the families took place as a result the plaintiff got half share in Plot Nos. 172 and 227 and in so far as Plot No. 238 is concerned that was inherited by the plaintiff through his mother who got the said plot from Shamsuddin (real maternal uncle of plaintiff) and thus the plaintiff was in exclusive possession of Plot No. 238.
When the consolidation proceedings commenced, the plaintiff preferred his objections under Section 9-A (2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as the U.P.C.H. Act, 1953) however, before the matter could be finally decided, a notification under Section 6 (1) of the U.P.C.H. Act was issued on 22.06.2001 as a result the consolidation operations were terminated. It is immediately thereafter that the plaintiff on 02.01.2002 instituted the suit for declaration under Section 229-B of the U.P.Z.A, L.R. Act, 1950.
The original defendant namely Chheda Khan filed his written statement contesting the suit of the plaintiff Sarvar Khan on the ground that the allegations made are false. It was stated that the property in the shape of Plot No. 172 and 227 as well as the Plot No. 238 were the exclusive property in the hands of Chheda Khan. It was also stated that Ghuru Khan had acquired the said property and the same was not ancestral. Chheda Khan also denied the factum of the alleged settlement and also stated that in so far as Plot No. 238 is concerned, the same never belonged to Shamsuddin and therefore the case set up by the plaintiff that he had acquired rights in the said property through his maternal uncle was false. Another objection raised was that even during the first round of consolidation, the plaintiff or his father namely Jhabbu Khan had never raised any question or objection regarding the property being recorded solely in the name of Ghuru Khan, consequently, by virtue of Section 49 of the U.P.C.H. Act, 1953, the suit of the plaintiff was barred.
It was also objected by the defendant that since the property was agricultural in nature, accordingly, there was no concept of any Karta or the property being joint rather since the property was exclusively acquired by Ghuru Khan, hence, upon his death, in terms of Section 171 of the U.P.Z.A. & L.R. Act, the property devolved solely on Chheda Khan as the other son of Ghuru Khan namely Rustam Khan had died issue-less during the lifetime of Ghuru Khan.
In the backdrop of the aforesaid pleadings, the Trial Court framed 4 issues and the parties led their respective evidence and considering the same, the Assistant Collector, 1st Class by means of its judgment dated 29.08.2007 decreed the suit. While doing so, the issue no. 1, 2 and 3 which related to the fact whether the plaintiff had rights in plot no. 172 and 227 and whether the plaintiff had exclusive rights in Plot No. 238 and whether the suit was barred by Section 49 of the U.P. C.H. Act, were answered in favour of the plaintiffs.
The defendant/the petitioners preferred a civil appeal before Additional Commissioner, (Judicial) registered as Appeal No. 440/2007-2008 which also after hearing the parties was dismissed and consequently, the matter was further agitated in a second appeal before the Board of Revenue in Second Appeal No. 19 of 2011-12 which was also dismissed by means of judgment dated 22.01.2014.
While assailing the aforesaid 3 judgments, the learned counsel for the petitioner has primarily raised 3 issues:- (i) the Board of Revenue had permitted the appellant/petitioners herein, to file additional documents in second appeal and despite having done so it did not consider the same, so the judgment on this score alone stands vitiated (ii) the other point raised by the learned counsel for the petitioners is that the pleadings of the plaintiff that the father of the defendant namely Ghuru Khan was the Karta Khandan and thus his name was recorded in the revenue records to which the plaintiff/his predecessor-in-interest did not raise objection is misconceived as the concept of Karta Khandan is neither permissible in Mohammadam Law to which the parties were subjected under their personal law nor the land being agricultural in nature was governed by it and the devolution of interest could only take place in terms of Section 171 of the U.P.Z.A. & L.R. Act and this fact has also been ignored by the three courts below. (iii) The third issue raised by the learned counsel for the petitioner is that since the father of the plaintiff Jhabbu Khan had not raised any objection during the first round of consolidation, hence, the objections now raised in terms of the suit under Section 229-B was barred by Section 49 of the U.P.C.H. Act.
The learned counsel for the petitioner has relied upon a decision of a Single Judge of this Court reported in 2011 SCC Online (Allahabad) 2644 Shahid Khan and Others Vs. Deputy Director of Consolidation, Gautam Buddh Nagar and others.
The learned counsel appearing for the private respondents nos. 6/1 to 6/4 and 7 while refuting the aforesaid submissions has stated that the aforesaid petition is concluded by concurrent findings of fact. The 3 Courts after noticing the admission of the original defendant namely Chheda Khan also noticing the evidence of the other witnesses which were examined on behalf of the defendant found that the property was joint and it was in the family since the time of their common ancestor namely Subrati Khan. Since the Ghuru Khan was the elder brother, hence, his name was recorded but the family of Ghuru Khan and the family of Jhabbu Khan remained joint and thus at the time of first consolidation since there was no dispute between the families, hence, there was no question of raising any objection at the time of first consolidation. It has also been urged that after an oral settlement between the two families, Jhabbu Khan got half share in Plot No. 172 and 227 whereas Plot No. 238 was exclusively in the cultivatory possession of the plaintiff as that plot was acquired from Shahubuddin who was the real maternal uncle (Mama) of the plaintiff.
The learned counsel for the private respondents have also submitted that it is incorrect to state that the Second Appellate Court had permitted the plaintiff to bring on record the additional documents rather the same is misconceived. The defendants did not file any documentary evidence during the trial and first appellate stage and it is only along with the writ petition that the documents have been brought on record in the shape of Annexure Nos. 4, 5, 9, 11, 12, 13, 14, 15, 16, 17, 18 and 19. The aforesaid annexures were never filed before the Trial Court or before the First Appellate Court thus merely by filing the documents before the Second Appellate Court and that too without there being a specific order allowing the documents to be taken on record it cannot be said that the said documents were taken on record and that the second Appellate Court had failed to notice the same.
It has also been urged that since the property in the shape of Plot No. 172 and 227 were joint. The father of the plaintiff and the plaintiff had half share therein as they were co-tenants and they were also cultivating half of the said land. Merely because the entry was in the name of Ghuru Khan, the predecessors of the defendant, same would not deprive the plaintiff of his share as the entry in the revenue records is only for the fiscal purposes and does not exclude or extinguish the substantive right which had vested in the plaintiff. It is in this backdrop that it is submitted that the suit was rightly decreed by the courts below and the writ petition being concluded by concurrent finding of fact and the judgments under challenge are not liable to be interfered with in exercise of powers under Article 226 of the Constitution of India, hence, the writ petition deserves to be dismissed.
The learned counsel for the private respondent nos. 6/1 to 6/4 has relied upon a Devision Bench decision of this Court rendered in the case of Ram Briksh and Another Vs. Deputy Director of Consolidation and 3 others passed on a reference in Writ-B No. 52717 of 2013 decided on 16.05.2017 and reported in 2017 (6) ADJ 356 (DB).
The Court has considered the rival submissions and has also carefully perused the material on record.
In so far as the first submission of learned counsel for the petitioner is concerned that the petitioner had filed additional documents before the Second Appellate Court which was taken on record but not considered and it vitiates the judgment is being considered first:-
The Counsel for the private respondents have specifically taken a plea in their counter affidavit that the aforesaid documents were never part of the proceedings before the Trial Court or the First Appellate Court. The private respondents have also filed a supplementary affidavit wherein the order sheets of the Board of Revenue has been brought on record.
Referring to the aforesaid order sheets of the Board of Revenue, it was pointed out by the learned counsel for the petitioner that on 12.04.2012, the appellant (the petitioners herein) had prayed for time to bring the documents on record and in the order sheets, it was incorporated that the caveator-respondents (the private-respondents herein) had no objection and then thereafter the matter was fixed for 26.04.2012. Again on 21.05.2012, the time was sought by the appellant-petitioners herein. Again on 25.06.2012 the appellant-petitioners herein had sought time and in the order sheets, it was recorded that the caveator-private respondents herein did not have any objection. On 19.11.2012, it is submitted by learned counsel for the petitioner that the documents were filed and the Court had directed the documents to be served on the learned counsel for the caveator-private respondents so also would be evident from the order dated 12.04.2012. It is submitted that thereafter on 19.09.2013, the second appeal was admitted and thereafter it was finally heard and decided but the documents filed by the appellant-petitioners herein was not considered.
In order to ascertain the veracity of the aforesaid submission, this Court has perused the order sheets of the dates as mentioned above.
From the perusal of the same, it would indicate that the petitioners had sought adjournment before the Board of Revenue to bring the documents on record. The order sheets also indicates that the no objection as referred by the learned counsel for the petitioner as given by the counsel for the caveator-private respondents was not to the effect that the documents be taken on record but only confined to the adjournment as the appellant was not ready for arguments on admission and he wanted to raise his submissions on the basis of the said documents. From the perusal of the subsequent order sheets, it would also indicate that the petitioners merely filed the documents but admittedly no application under Order 41 Rule 27 C.P.C. or in the nature thereof was filed by the petitioner before the Board of Revenue. Merely the copies of the documents were served on the defendant which does not indicate or mean that the same were formally taken on record or they formed part of the appeal. This Court is not convinced with the submissions of the learned counsel for the petitioner that the documents were filed by him and were not taken note of, inasmuch as, the petitioner is merely pressing his own interpretation to the order sheets whereas there is nothing on record to indicate that the Board of Revenue had ever permitted the documents to be formally taken on record by any speaking or reasoned order which would make it incumbent on the Second Appellate Court to consider the said documents on their own merit.
The submission of learned counsel for the petitioner is fallacious also for a reason that whenever in an appeal any additional documents are sought to be placed, they required to be accompanied by an appropriate application indicating specific grounds why the aforesaid documents could not be placed before the Trial Court or the First Appellate Court. It is no more res-integra that the Code of Civil Procedure is applicable to the proceedings under Section 229-A of the U.P.Z.A. & L.R. Act. Similarly, before the Second Appellate Court, it was incumbent upon the petitioner to have moved a proper application under Order 41 Rule 27 or an application in nature thereof but the same was not done. The powers of the Second Appellate Court are abridged and unless and until sufficient cause and the grounds as contemplated in Order 41 Rule 27 C.P.C are met and allowed by the Court, the documents as referred above are not to be considered on merits. The aforesaid proposition is now well settled by the Apex Court in the case of Union of India Vs. Ibrahim Uddin reported in 2012 (8) SCC 148. (See paras 38 to 40 and paras 42 and 48).
Thus, in absence of any application or any order indicating clearly that the Board of Revenue had accepted those documents after applying its minds and meeting the grounds as mentioned in Order 41 Rule 27 C.P.C., it cannot be said that the documents were part of the record of the Second Appellate Court.
Thus, for the said reasons, the first submission of the learned counsel for the petitioner fails.
In so far as the second submission that the property in question devolved in terms of Section 171 of the U.P.Z.A & L.R. Act on the heirs of Ghuru Khan, i.e. in the family of the petitioners and there is no concept of Karta Khandan or the property being joint either in the personal law of the Mohammadans to which the parties are subject or in the U.P.Z.A. & L.R. Act which is applicable and hence the judgment ignoring this aspect of the matter is vitiated.
Upon perusal of the record, and from careful consideration of the pleadings and the evidence led, the Court is not convinced with this submission as well as for the reason that may be the plaintiff stated that Ghuru Khan was the Karta Khandan but the evidence which was led, it clearly indicated that the property in question i.e. Plot No. 172 and 227 was in the family since the time of Subrati Khan who was the grand-father of Chheda Khan (the original defendant) and the great grand-father of Sarvar Khan (the original plaintiff).
On the perusal of the material on record, it would indicate that the Courts below have relied upon the admission of the defendant namely Chheda Khan while arriving at a finding that the plaintiff also had half share in the property in question. Chheda Khan was examined as a witness and in his cross examination, he stated that his grand-father's name was Subrati Khan who had two sons Jhabbu Khan and Ghuru Khan. He also stated that Ghuru Khan was the elder and that the families were one. He stated that the disputed plots are three in number and that the disputed property has been in the family since the time of Subrati Khan. He also declined any suggestion that his father Ghuru Khan had acquired the property by some lease from some Zamindar or through a sale deed. He also stated that during the first round of consolidation, the families were joint.
Even the witness which was examined on behalf of the defendant namely Riyasat Ali in his cross examination also confirmed that the families of Ghuru Khan and Jhabbu Khan were joint. The other witness of the defendant namely Azaz Khan also in his cross examination stated that the plots in question was ancestral property and was in the family since the time of Subrati Khan, thus, from the evidence on record, which has been considered by the three courts, in so far as Chheda Khan is concerned, he could not establish how he acquired the property exclusively nor he could bring on record any evidence to indicate that Ghuru Khan, his father, had acquired the property.
There was ample material available on record which corroborated the version of the plaintiff that the property was ancestral and was in the family since the time of Subrati Khan and considering the aforesaid, the Courts have rightly come to the conclusion that even as per the law of succession as applicable upon the death of Subrati Khan, the common ancestor and since the property was available during his time, the same would devolve on his two sons namely Ghuru Khan and Jhabbu Khan each would have half share therein. Consequently, the plaintiff being the successor of Jhabbu Khan was entitled to half share and thus the submission that merely because at one place it was stated that the property was recorded in the name of Ghuru Khan as Karta Khandan implies that the concept of joint property was being adopted is not quite correct. Reading a sentence in isolation without considering the entire pleadings gives rise to the anomlous results and the submission of learned counsel for the petitioner is an off shoot of the aforesaid anomaly.
The evidence on record clearly substantiates that the property was ancestral and after the death of Subrati Khan, it devolved on his two sons. Admittedly, there is no dispute regarding the pedigree and the plaintiffs are from the branch of Jhabbu Khan whereas the defendant was from the branch of Ghuru Khan. Merely because the name of Ghuru Khan was recorded would not mean that the right of Jhabbu Khan was extinguished especially when there is nothing on record to suggest it while on the contrary the evidence indicates that they were living together jointly. Since the aforesaid finding is based on evidence on record including the statement given by Chheda Khan himself and being a finding of fact, no perversity could be pointed out which could persuade this Court to take a different view. Accordingly, this submission also fails.
The other submission relating to Plot No. 238 also does not find favour with this Court, inasmuch as, the defendant/petitioners could not establish how the aforesaid property came in the hands of Ghuru Khan or Subrati Khan. On the contrary, there is material and evidence to indicate that in the base year Khatauni of 1359 and 1362 Fasli year, the Plot No. 238 stood recorded in the name of Shamsuddin. It is not disputed that Shamsuddin is the real maternal uncle of the plaintiff Sarvar Khan. The evidence which was led suggested that the aforesaid plot was being cultivated exclusively by Jhabbu Khan and remained in the family of plaintiff-Sarvar Khan. The entry relied by the learned counsel for the petitioner-defendant also does not come to his rescue, inasmuch as, the name of Rustam Khan is incorrectly recorded with incorrect parentage.
The Courts below have also considered this aspect of the matter and recorded conclusively that in respect of Plot No. 238, it was originally recorded in the name Shamsuddin son of Wazir Khan, thereafter, it was recorded in the name of Rustam son of Jhabbu Khan whereas the father's name of Rustam was Ghuru Khan and not Jhabbu Khan. Rustam Khan as also noticed above had pre-deceased and died issueless whereas it could not be disputed that Shamsuddin son of Wazir Khan was the maternal uncle of the plaintiff-Sarvar Khan. No evidence or explanation could be given by the defendants as to how the aforesaid entry in the name of Rustam Khan son of Jhabbu Khan came to be incorporated whereas the witnesses examined on behalf of plaintiff clearly deposed that Shamsuddin son of Wazir Khan was the maternal uncle of the plaintiff and he had given the aforesaid plot to his sister (i.e. the mother of the plaintiff) and upon her death, it came exclusively in the hands of the plaintiff.
Thus, on this count also, the submission of learned counsel for the petitioner fails as he could not establish as to how the Plot No. 238 came in the hands of Ghuru Khan or Chheda Khan. The mere submission that it was recorded in the name of Rustam Khan who died issueless and so it was inherited by Chheda Khan does not sound convincing when the petitioner could not establish how the property came in the hands of Rustam Khan in the first place. It is also being a finding of fact which has been recorded on the basis of evidence available on record requires no interference from this Court.
Now coming to the last submissions, regarding the applicability of Section 49 of the U.P.C.H. Act, it would be relevant to note that there is ample material and evidence on record to indicate that at the time of the first consolidation, there were actually no dispute. The parties were living together and Ghuru Khan being the elder son, his name was recorded, though the property was in the family since the time of their common ancestor Subrati Khan (the father of Ghuru Khan and Jhabbu Khan).
In this regard, the Division Bench of this Court in the case of Ram Briksh while giving its opinion, noticed the questions which were referred to be answered by the Bench and are being reproduced hereafter:-
"(i) Whether use of words "could or ought to have been taken" in latter part of Section 49 of the Act, compulsorily forces the co-sharers, who are living jointly, peacefully and have no grievance against their father/brother/co-sharer, whose name is recorded in representative capacity, or they were willing to live jointly, due to situation of their family, i.e. (father and minor son), (mother and minor son), (brother and minor brother) and (some co-sharer was student and had gone abroad for study and fully depends upon other co-sharers) etc., to file an objection under Section 9 of the Act for separation of his share?
(ii) Whether by operation of law, the parties can be thrown into litigation against their will/need and by not raising claim to land or partition and separation of the chak their right to property can be taken away in spite of protection available under Article 19 (1) (f) and now Article 300-A of the Constitution?
(iii) Whether, in spite of well settled legal principle in respect of joint property, right of a co-sharer will come to an end under Section 49 of the Act, on the notification under Section 52, due to not claiming partition of his share and separate chak in his name, although, there had been no ouster from joint property?"
Thereafter, meticulously, considering the various provisions of the U.P.C.H. Act, U.P.Z.A. & L.R. Act as well as the decisions of the Apex Court as well as of this Court on the issue regarding the applicability of Section 49 of the U.P.C.H. Act, the reference was answered in the following words:-
Issue No. I Whether use of words "could or ought to have been taken" in latter part of Section 49 of the Act, compulsorily forces the co-sharers, who are living jointly, peacefully and have no grievance against their father/brother/co-sharer, whose name is recorded in representative capacity, or they were willing to live jointly, due to situation of their family, i.e. (father and minor son), (mother and minor son), (brother and minor brother) and (some co-sharer was student and had gone abroad for study and fully depends upon other co-sharers) etc., to file an objection under Section 9 of the Act for separation of his share?
A. Because of the words "could or ought to have been taken" in latter part of Section 49 of the Act, same does not compulsorily forces the co-sharers, who are living jointly, peacefully and have no grievance against their father/brother/co-sharer whose name is recorded in representative capacity or they were willing to live jointly due to situation of their family and who have not filed an objection under Section 49 of the Act for separation of their share inasmuch as under the provisions of U.P. Consolidation of Holdings Act, 1953, it is the statutory obligation cast upon the authorities and the incumbent, who has been holding the property in question in the representative capacity to get the records corrected and in case in designed manner the obligation in question has not been discharged by Consolidation Authorities as well as by the incumbent holding the property in the representative capacity, then in such a situation Section 49 of the Act would not at all be attracted and such situation would be covered under the contingency of planned fraud to drop the name of other co-sharers from the revenue records.
Issue No. II Whether by operation of law, the parties can be thrown into litigation against their will/need and by not raising claim to land or partition and separation of the chak their right to property can be taken away in spite of protection available under Article 19 (1) (f) and now Article 300-A of the Constitution?
A. The answer is that a party cannot be thrown in litigation against their will/need and by not raising claim to land of partition and separation of chak, their rights to property cannot be taken away under the protection provided for under Article 19(1)(f)/ Article 300-A of the Constitution of India.
Issue No.III Whether, in spite of well settled legal principle in respect of joint property, right of a co-sharer will come to an end under Section 49 of the Act, on the notification under Section 52, due to not claiming partition of his share and separate chak in his name, although, there had been no ouster from joint property?
A. The rights of the co-sharers will not at all come to an end under Section 49 of the Act, on the notification under Section 52 due to not claiming partition of his share and separate chak in his name and till there is no ouster from the joint property his right in the property will continue to exist.
In view of the binding precedent of the Division Bench on the reference which has been noticed above, it is clear that in the present facts and circumstances, the bar of Section 49 would not operate. Since it was clearly borne out from the evidence and material on record that at the time of first consolidation, the parties were living jointly and there was no dispute amongst them followed by a settlement.
Subsequently, when Sarvar Khan raised the dispute during the second consolidation but by virtue of Notification under Section 6, the same was cancelled and thereafter the present suit under Section 229-B was instituted, hence, at the given opportunity, the plaintiff had raised his claim. In view of the aforesaid, the decision relied upon by the learned counsel for the petitioner in the case of Shahid Khan being on different facts is clearly distinguishable.
This Court is bound by the Division Bench decision and no contrary decision has been placed before the Court by either of the parties or by the learned Standing Counsel, hence, this Court is of the considered view that in the given facts and circumstances, the finding of three courts regarding the non-applicability of Section 49 of the U.P. Consolidation of Holdings Act, 1953 also does not suffer from any error which requires the intereference from this Court.
In view of the aforesaid discussion, this Court does not find that there is any merit in the aforesaid petition, consequently, the same is dismissed, however, in the facts and circumstances, there shall be no orders as to costs.
[Jaspreet Singh, J.] Order Date: 22.01.2021 Asheesh