Court No. - 11
Reserved on 28.2.2018 Delivered on 31.5.2018
Case :- WRIT - B No. - 32732 of 2003 Petitioner :- Mohd Yusuf & Another Respondent :- D.D.C. & Others Counsel for Petitioner :- Hari Shanker Mishra,A.K.Srivastava Counsel for Respondent :- C.S.C.,B.K. Sharma,P.C. Singh
Hon'ble Salil Kumar Rai,J.
1. Heard learned counsel for the petitioners and learned counsel for heirs of respondent Nos. 5, 6 and 7 as well as learned Standing Counsel representing respondent Nos. 1, 2, 3 and 4.
2. Petitioners are the son of Rajjak. Rajjak and respondent Nos. 5, 6 and 7 were the son of Fazal. The dispute in the present writ petition relates to Khata No. 214 (hereinafter referred to as 'disputed plots'). In the Revenue Records relating to 1348 Fasli one Mohd. Ishhaq and Rajjak were recorded as tenure holders of the disputed plots. It is evident from record that Rajjak was recorded as a tenant of the disputed plots. After the death of Rajjak, petitioners were recorded as tenure holders of the disputed plots and continued as such in the Revenue Records of the Basic year. During the consolidation operations held in the Village, respondent Nos. 5 to 7 filed objections under Section 9-A(2) of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') praying to be recorded as co-tenure holders of the disputed plots inter alia claiming that the plots in the disputed khata were acquired by Fazal, and therefore, after the death of Fazal, respondent Nos. 5 to 7 were co-tenure holders of the same with Rajjak and name of Rajjak continued in the Revenue Records only in representative capacity as he was the eldest son of Fazal. On the aforesaid objections of respondent Nos. 5 to 7 Case No. 648/490 was registered in the Court of Consolidation Officer (hereinafter referred to as, 'C.O.'). The C.O. vide his order dated 18.5.1985 allowed the said objections against which petitioners filed Appeal before respondent No. 2- Settlement Officer of Consolidation (hereinafter referred to as, 'S.O.C.'), which was numbered as Appeal No. 77/118/202. The S.O.C. vide his order dated 8.4.1993 allowed the said appeal setting aside the order dated 18.5.1985 passed by the C.O. and remanded back the matter to the C.O. for a fresh decision according to the guidelines recorded in his judgement. Against the judgement and order dated 8.4.1993, respondent Nos. 5 to 7 filed Revision before respondent No. 1-Deputy Director of Consolidation, Allahabad (hereinafter referred to as, 'D.D.C.'), which was registered as Revision No. 3415/737. The aforesaid revision was dismissed by the D.D.C. vide his order dated 16.8.1996. Consequently, proceedings before the C.O. revived and the C.O. vide his judgement and order dated 16.1.1999 dismissed the objections filed by respondent No. 5 to 7. Against the order dated 16.1.1999 passed by the C.O., respondent Nos. 5 to 7 filed Appeal before the S.O.C., which was registered as Appeal No. 1839/1999. The aforesaid appeal was allowed by the S.O.C. vide his order dated 16.12.1999 whereby the S.O.C. set aside the order dated 16.1.1999 passed by the C.O. and allowed the objections filed by respondent Nos. 5 to 7. Against the aforesaid order dated 16.12.1999 passed by the S.O.C., petitioners filed Revision before the D.D.C., which was registered as Revision No. 1518 and the same was dismissed by the D.D.C. vide his judgement and order dated 27.5.2003. The reasons given by S.O.C. and D.D.C. were that from the evidence available on record, it was evident that disputed plots were purchased by Fazal and Rajjak was recorded in the Revenue Records only in representative capacity as he was the eldest son of Fazal. The judgements and orders dated 27.5.2003 and 16.12.1999 passed by the D.D.C. and S.O.C. have been challenged in the present writ petition.
3. It has been argued by learned counsel for the petitioners that petitioners and respondents are Muslims by religion, and therefore, there can be no presumption of a joint family between Rajjak and respondent Nos. 5 to 7, and therefore, respondent Nos. 5 to 7 were not entitled to be recorded as co- tenure holders of the disputed plots. Counsel for the petitioners has further argued that from the evidence on record, it was evident that the disputed plots were acquired by Rajjak and were not acquired by Fazal and the C.O., after considering the evidence, recorded a finding in favour of the petitioners, which was according to law and the S.O.C. has set aside the order passed by the C.O. without considering the relevant evidence available on record and without reversing the findings recorded by the C.O. Counsel for the petitioners also argued that orders passed by the D.D.C and S.O.C. are non-speaking orders as the findings recorded by them in their impugned orders are not supported by sufficient reasons, and therefore, the impugned orders passed by the D.D.C. as well as S.O.C. are contrary to law and liable to be set aside.
4. Rebutting the argument of learned counsel for the petitioners, counsel for respondent Nos. 5 to 7 argued that it was evident from the Revenue Records relating to 1348 Fasli that Rajjak was only 5 to 6 years at the time of alleged acquisition of disputed plots by him, and the aforesaid fact was sufficient to record a finding that the disputed plots were acquired by Mohd. Fazal and not Rajjak whose name was recorded in the Revenue Records only in representative capacity as he was the eldest son of Mohd. Fazal and consequently, respondent Nos. 5 to 7 were entitled to be recorded as co-tenure holders of the same after the death of Mohd. Fazal. It has been argued by counsel for respondents that in light of the aforesaid, the judgements and orders dated 27.5.2003 and 16.12.1999 passed by the D.D.C. and S.O.C. are according to law and require no interference under Article 226 of the Constitution of India.
5. I have considered the rival submissions of learned counsel for the parties and perused the record.
6. It is evident from the judgement and order dated 16.1.1999 passed by the C.O. that while passing the aforesaid order, the C.O. held that burden to prove that disputed plots were acquired by Mohd. Fazal and not Rajjak was on respondent Nos. 5 to 7. It is also apparent from the record and the order dated 16.1.1999 passed by the C.O. that the case of respondent Nos. 5 to 7 rests on entries in the Revenue Records relating to 1348 Fasli showing Rajjak as minor leading to the inference that the disputed plots were acquired by Mohd. Fazal in the name of Rajjak who was recorded in the Revenue Records only in a representative capacity. While dealing with the aforesaid argument, the C.O. considered the Family Register relating to the petitioners and respondent Nos. 5 to 7, which showed that Rajjak was born in 1907. The C.O. while recording a finding that, in 1336 Fasli i.e. the ostensible date when the disputed plots were acquired from the Zamindar, Rajjak was a major, and therefore, repelled the argument of the respondents based on the alleged minority of Rajjak. While recording his finding rejecting the claim of respondents, the C.O. in his judgment and order dated 16.1.1999, also relied on the testimony of one Mohd. Ishhaq testifying that the disputed plots were acquired by Rajjak and on the fact that respondents were not able to challenge the testimony of the aforesaid witness produced by the petitioners. It is notable that in his judgement and order dated 16.1.1999, the C.O. also recorded that Mohd. Ishhaq was the only living person who could testify regarding the age of Rajjak or the person who acquired the disputed plots. In his order dated 16.1.1999, the C.O. also considered the circumstance that no dispute regarding disputed plots was raised by the respondents after the death of Mohd. Fazal even though Rajjak and respondents were recorded as co-tenure holders of other plots initially recorded in the name of their father Mohd. Fazal. On the basis of afroesaid evidence, the C.O. held that respondents had not been able to prove that the disputed plots were acquired by Mohd. Fazal, and therefore, were not entitled to be recorded as co-tenure holder of the same. The findings of the C.O. have been narrated in detail only to show that while recording his findings, the C.O. had considered, in detail, the evidence available on record.
7. However, in their judgements and orders dated 27.5.2003 and 16.12.1999 the D.D.C. and S.O.C. have allowed the claim of the respondents relying only on the entry in the Revenue Records of 1348 Fasli showing Rajjak as a minor on the relevant date and relying on the aforesaid entry, the S.O.C. and D.D.C inferred that the disputed plots were acquired by Mohd. Fazal, and therefore, respondents were entitled to be recorded as co-tenure holders of the same. It is apparent that while recording their aforesaid findings, the S.O.C. and the D.D.C. have not considered the entries in the Family Register as well as the oral testimony of Mohd. Ishhaq and the circumstances narrated by the C.O. regarding the failure of the respondents to raise any dispute after the death of their father Mohd. Fazal when all four sons of Mohd. Fazal i.e. Rajjak and respondent Nos. 5, 6 and 7 were recorded as co-tenure holders in the Revenue Records relating to other plots recorded in the name of Mohd. Fazal. The entries in the Revenue Records were not final and conclusive regarding the age of Rajjak. In their judgements dated 27.5.2003 and 16.12.1999, the D.D.C. and S.O.C. have not specifically considered the findings of the C.O. recorded in his judgement dated 16.1.1999 and have also not set aside the findings recorded by C.O. It is apparent that in their orders dated 27.5.2003 and 16.12.1999, the D.D.C. and S.O.C. have not considered the material evidence available on record and thus, for the aforesaid reasons, the impugned orders are vitiated due to non-consideration of relevant materials available on record.
8. For the aforesaid reasons, the orders dated 27.5.2003 and 16.12.1999 passed by the D.D.C. and S.O.C. are contrary to law and are hereby set aside. The writ petition is allowed. The matter is remanded back to respondent No. 2-S.O.C. to decide Appeal No. 1839/1999 and pass fresh order after considering all the material evidence available on record within a period of four months from the date a certified copy of this order is produced before him.
Order Date :- 31.5.2018 Anurag/-