Heard Mohd. Aslam Khan, learned Senior Advocate along with Mohd. Aslam Khan, learned counsel for the petitioner and Shri Vijay Bahadur Verma, learned counsel for the opposite parties.
The subject matter in issue in these writ proceedings is the validity of an order passed by the Deputy Director of Consolidation under Section 48 of the U.P. Consolidation of Holdings Act, 1953 (For short ''the Act, 1953').
In the basic year Khatauni the land comprised in Khata No. 132 was recorded in the name of Medha widow of Suraj Deen. Before marrying Suraj Deen, Medha was married to one Kali Deen S/o Ram Charan. During field verification Ram Autar and Visesar belonging to the family of Suraj Deen claimed bhoomidhari rights and interests in the land in question. Likewise, Gaya Deen S/o Ram Adheen, Dujai S/o Shiv Ratan and Ram Gareeb S/o Ram Prasad belonging to the other branch of Kali Deen staked co-tenancy rights.
The Consolidation Officer held that the first husband of Medha, Kali Deen had inherited the land in question from Ram Charan and his name was recorded accordingly in Khatauni of 1331 Fasli. He also opined that the land in dispute did not belong to Shiv Kali the common ancestor of Kali Deen, Ram Adheen and Shiv Ratan, as, the lands, which were recorded in the name of Shiv Kali in the second settlement did not come down to Kali Deen, as it is, i.e. their identity had changed. In fact, there was a difference of more than 7 Bighas in the area of the land. Based on this the Consolidation Officer opined that a fresh settlement had taken place in favour of Ram Charan in respect of the land in question which devolved upon Kali Deen and after his death upon his widow Medha, whose name was recorded in the Khatauni of 1346 Fasli in respect of the land measuring 9-19-10 (instead of land measuring 14-12-13 at the time of Shiv Kali) with the endorsement that she was recorded as such, having inherited the said land, for the past 13 years. The land recorded in the name of Medha is the same which was recorded in the settlement in the name of Kali Deen.
The Consolidation Officer also opined that the land in question was never recorded in the name of Suraj Deen and the statement of Medha that Ram Autar and Visesar were co-tenants was not accepted and this was nothing but an attempt to illegal transfer of the land, specially as, the land was recorded in her name in Khatauni of 1346 Fasli as having been inherited by her 13 years ago which matches with the time of death of Kali Deen, her first husband. Consequently, she had inherited the land from him.
As regard the claim of co-tenancy by Gaya Deen as also legal heirs of Ram Adheen and Shiv Ratan the Consolidation Officer opined that Ram Adheen had filed a suit in respect of these very lands and other lands seeking possession etc. on 02.12.1929 against the petitioner herein Medha, her second husband Suraj Deen and Guljar, who also belonged to family of Suraj Deen, wherein, Ram Adheen confined his claim to 4 trees and made a statement that the claim in respect of the other land be dismissed. Accordingly, the suit was dismissed. The suit was filed in around 1337 Fasli. The Consolidation Officer opined that Ram Charan died prior to 1331 Fasli that is why the name of Kali Deen his son was recorded in respect of the land in question in 1331 Fasli as having inherited from ancestors. In the said plaint as noticed by the Consolidation Officer Ram Adheen had also mentioned that about three years ago Kali Deen had also died, meaning thereby, some times in 1333 Fasli and the name of Medha his widow was recorded as inheritor of the land which matches with the entry in favour of Medha in the Khatauni of 1346 Fasli. The Consolidation Officer opined that Ram Adheen having admitted his claim only to 4 trees and in view of the aforesaid he recorded a finding that the land in dispute had been acquired by Ram Charan and not Shiv Kali, and Gaya Deen etc. did not have co-tenancy rights. The Consolidation Officer also opined that Dujai and Ram Gareeb belonging to the branch of Shiv Ratan were not bound by the decree passed in the suit filed by Ram Adheen, nevertheless as they had not adduced any evidence to show that they were in possession, therefore, it was held that they did not have any co-tenancy rights in the land in dispute, specially in view of the other findings in this regard as already discussed hereinabove.
The Consolidation Officer also recorded a finding that there was no evidence whatsoever that the land in dispute had been acquired by Guljar, Mahraj Deen and Mahadev belonging to the family of Suraj Deen, the second husband of Medha. Accordingly, he rejected their objections with regard to the basic year entry and held that Medha the petitioner herein was entitled to be recorded as sole tenure holder in respect of the land who had continued to be recorded in respect thereof since 1333 Fasli and was in possession of the lands. Her statement in favour of Ram Autar etc. was not accepted, as, it was nothing but an attempt to illegal transfer of the land.
Being aggrieved Ram Gareeb filed an appeal. The S.O.C. affirmed the order of the Consolidation Officer. He also opined that in the second settlement the Khata comprised of area of land measuring 14-12-13, whereas, in the name of Shiv Kali the said Khata comprised of only 7-19-10. Apart from it, there are three Gatas of lands which did not find mention in the Khata in question in the second settlement. Ram Adheen having entered into a compromise in a suit filed by him confining his claim to only 4 trees, the S.O.C. was of the view that Medha after death of Kali Deen was the sole tenure holder and entitled to the said land and had also paid the Lagan in respect thereof. The appellant could not establish that the land came down with the same identity from a common ancestor. The appeal was dismissed.
Gaya Deen and others filed a revision before the Deputy Director of Consolidation against the aforesaid order. The revisionists were those who claimed co-tenancy rights on the basis of land belonging to a common ancestor Shiv Kali. The D.D.C. held that there was no evidence to show that the land was ever been recorded in the name of Ram Charan. As regards the records wherein the name of Kali Chararn was recorded as he having inherited the same, he opined that this inheritance was directly from Shiv Kali, as, these very lands were recorded in the name of Shiv Kali in the Second Settlement. He opined that possibly Ram Charan had predeceased Shiv Kali or Kali Deen had received the land from Shiv Kali through Will. In this regard the contention of Shri M.A. Khan, learned Senior Counsel for the petitioners was that these observations/ findings are based on pure conjecture and surmises without there being any evidence to support the same.
The D.D.C. also opined that numbers which were recorded in the name of Shiv Kali in the second settlement with area of land measuring 14-12-13 were also recorded in the third settlement in the name of Kali Deen, except for 6 or 7 Gatas, which, though recorded in the name of Shiv Kali, did not come down to Kali Deen. The Gatas which did come done were 43, 45, 50, 208, 299, 373. Gatas No. 17 and 44 were not recorded in the name of Shiv Kali though the same were recorded in the name of Kali Deen. As against the area of land recorded in the name of Shiv Kali i.e. 14-12-13 the area of land which came down to Kali Deen was 7-19-10. The D.D.C. did not accept the findings of the C.O. and S.O.C. that the land was acquired by Ram Charan and that it came down to Kali Deen from him, as, according to him, there was no evidence to show that the land was ever recorded in the name of Ram Charan or any fresh settlement was made in his favour. He further opined that merely because some of the Gatas did not come down to Kali Deen from Shiv Kali or some new Gatas were added, it would have no bearing on the nature of the property, which was ancestral from the time of Shiv Kali. He also opined that Medha could not prove that she had acquired the land from the Zamindar on the basis of any fresh settlement. The Rukka filed by her in this regard was disbelieved. Medha in her statement had admitted that she had got the land from Kali Deen, her first husband and that the land was of her father-in-law i.e. Ram Charan, which according to the D.D.C. was proof of the fact that Medha had not got it through a fresh settlement in her name from the Zamindar. The D.D.C. dispelled the claim of Ganga and Guljar i.e. the family of Suraj Deen, the second husband of Medha.
As regard the suit filed by Ram Adheen on 02.12.1929 the D.D.C. accepted the contention of Dujai and Ram Gareeb that they or their predecessors in interest were not made parties to the suit which had been filed by Ram Adheen, who belonged to the other branch of Shiv Kali, therefore, the said decree was not binding on them. Moreover, he also accepted the contention that the statement made by Ram Adheen was only with regard to possession and not with regard to title. Interestingly, in the end, the D.D.C. opined that Medha the petitioner herein had inherited the land from her first husband Kali Deen and thereafter married Suraj Deen, therefore, on such marriage, all her rights and interests in the land stood relinquished, which according to him would revert back to the legal heirs of the last male tenant i.e. Kali Deen but the said heirs i.e. Gaya Deen etc. had accepted half share of Medha, therefore, she was entitled to half share, Gaya Deen to 1/4, Dujai 1/8 and Ram Gareeb to 1/8 share accordingly. He allowed the Revision accordingly. The family members of Suraj Deen have not carried the challenge regarding their independent claim to this Court, therefore, the orders have become final so far said claim is concerned.
During the pendency of this writ petition the original petitioner Medha died and her legal representatives have been substituted in her place.
The only dispute which remains to be considered is the alleged co-tenancy rights claimed by the branch of Gaya Deen and Shiv Ratan to the land in dispute. The C.O. and the S.O.C. had clearly recorded the finding that the lands which were recorded in the name of Shiv Kali in Second Settlement did not come down to Kali Deen with the same identity and therefore, they recorded consequential findings that the identity of the land not being the same in the hand of the successors as that in the hand of the common ancestor it could not be held that the land was joint family property. The D.D.C. however, without giving any cogent reasoning has upset this finding by merely saying that the fact that some new Gatas were added and others Gatas were not available at the stage of Kali Deen it would not mean that the property was not joint, and had not come down from a common ancestor, in view the fact that some of the Gatas which were recorded in the name of Shiv Kali had come down to Kali Deen. With respect, this finding of the D.D.C. is not sustainable in law, specially in view of the admitted position in the order of the D.D.C. itself that there were at least 7 Gatas which were recorded in the name of Shiv Kali in the second settlement but did not come down to Kali Deen in the third settlement and Gatas No. 17 and 44 which were recorded in the name of Kali Deen were never recorded in the name of Shiv Kali. Moreover, it is also an admitted position that the difference in the area of the land was more than 7 Bighas, which is a substantial difference, therefore, in view of the law propounded by this Court in the case of Jagdamba Singh and Ors. Vs. Deputy Director of Consolidation and Ors. reported in 1984 (2) LCD 398 the D.D.C. clearly erred in holding the land in dispute to be joint family property, as, the identity of the land in the hands of Shiv Kali was not the same as that in the hands of Kali Deen. While minor variations in the identity of the land can be ignored, substantial variations, as in this case, can not be so ignored. It is well settled that in order to entitle a party to claim co-tenancy rights in the holding on the ground of it being ancestral, the unbroken identity of the holding has got to be established/ proved by the party. If the identity of the holding had changed the claim can not succeed, this is what has been held in the aforesaid judgment of Jagdamba Singh. In Para 14 thereof various decisions have been cited taking the same view. It is paragraph 15 of the judgment which is relevant, wherein, while reiterating that in order to uphold the claim of co-tenancy rights on the ground of land being ancestral it is essential that the entire land of the holding of the common ancestor must have come down in identical form and it must have remained unchanged and intact. It would, however, be correct to say that where, as a result of survey made during settlements, the area of some plots might have decreased or increased or that some plot or plots are eliminated for some explained reason, from the holding in question viz. having fallen in the bed of river due to the alluvial and deluvial action of the river or by the construction of the canal etc., then, in such event it cannot be said that there is break in the identity of the holding in dispute. The slight change like elimination of certain plots or the increase or decrease in the area of certain plots for the aforesaid reasons shown would not operate to destroy the identity of the holding coming down in identical form in the family from the time of the common ancestor. But in order to uphold the claim of co-tenancy rights on the ground of land being ancestral it must be established by the claimant that the holding has come down intact and in identical form, that it has not been sub-divided or resettled with one or some of the heirs or with the strangers. It was held that where the disputed holding has not come intact in the identical form and only some of the plots of the holding belonging to common ancestor are found included in the present disputed holding, it would not make it ancestral holding so as to give a share in it to the claimants on that ground nor it would be permissible to pick up those plots from the holding and declare them to be ancestral property and give a share in those plots to the claimant. Similar view has been taken by this Court in Paragraph 20 and 24 of the judgment after considering various decision on this point.
Based on the aforesaid legal proposition when the Court considers the facts of this case what comes out is firstly that the variations in the area of the plots is huge i.e. to the tune of more than 7 Bighas. Secondly, as many as 7 or 8 plots had not come down from Shiv Kali to Kali Deen. Thirdly, at least two new plots, which were not in the name of Shiv Kali, are recorded in the name of Kali Deen. Fourthly, there is no explanation by those who claimed co-tenancy rights i.e. the branch of Gaya Deen and Shiv Charan, as to the aforesaid variations in the area and plots, therefore, in view of the judgment in Jagdamba Singh' case (supra) the D.D.C. has recorded his findings on the basis of an incorrect legal premise.
Even if tenancy was not statutorily inheritable per se under the Oudh Rent Act 1886, although it was so inheritable for the remaining period of Patta granted by the Zamindar, if the family members of the Tenant were in possession on his death or expiry of Patta the Zamindars used to settle the land with such Family members afresh. The fact is that the land in question was recorded in the name of Kali Deen the first husband of Medha and thereafter it was recorded in the name of Medha.
In view of what has been stated hereinabove the branch of Gaya Deen and Shiv Ratan do not have any right and the finding of the D.D.C. in this regard is based on incorrect legal premise, as already mentioned hereinabove. As regards the finding of the D.D.C. that the branch of Shiv Ratan was not bound by the decree in the suit filed by Ram Adheen, wherein, he had relinquished his claim, if any, in respect of the land in dispute by confining it to 4 Trees only, with utmost respect, once the finding of the D.D.C. that the land was the joint family property having come down from Shiv Kali the common ancestor itself is not sustainable in law, then, this reasoning does not help said persons claiming co-tenancy rights. Moreover, it has been recorded by the C.O. and the S.O.C. that not only Medha was recorded in respect of the land in question ever since 1333 Fasli but was also in possession thereof having paid the Lagan, whereas, there was no evidence led by these alleged co-tenants to show that they were ever in possession of the said land as such on this count also the decision of the C.O. and S.O.C. is more in tune with law and the D.D.C. has clearly erred.
As far as the branch of Ram Adheen is concerned having filed a suit for possession on 02.12.1929 in respect of the land in dispute as also other lands and having abandoned his claim by confining it to only 4 trees, the D.D.C. herein also erred by saying that the relinquishment or waiver was only in respect of possession and not title. If the right to possess was obviously being claimed on the basis of title and there is nothing to prove otherwise and even otherwise once the alleged right to possession itself was abandoned there is no way that title could be claimed in consolidation proceedings that too after so many years.
There is another aspect of the matter which needs to be considered. At the fag end of the order the D.D.C. has cursorily mentioned that Medha having married Suraj Deen she relinquished all her rights, this appears to be a reference to the provision of reversion as contained in Section 36 of the U.P. Tenancy Act, 1939 and Section 172 of the U.P. Zamindari Abolition and Land Reforms Act, 1952 without saying it in so may words. However, this finding is absolutely perverse for the simple reason that there is nothing on record to show that Medha married Suraj Deen after coming into force of the Tenancy Act, 1939. Her first husband Kali Deen died much prior to coming into force of the Act, 1939 as is evident from the order of the C.O. and the S.O.C. and the name of Medha itself was recorded since 1333 Fasli i.e. 1926. In the absence of any proof that the marriage of Medha with Suraj Deen took place after coming into force of the Act, 1939 there is no way such a finding could have been recorded as there was no provision analogous to Section 36 of the Act, 1939 and Section 172 of the Act, 1952 in the Oudh Rent Act, 1886. The fact that in the suit of Ram Adheen, Suraj Deen was also impleaded as a party and there are averments regarding the second marriage of Medha therein is itself proof of the fact that second marriage took place prior to 1929.
Shri Vijay Bahadur Verma, learned counsel for the opposite parties after arguing the matter at some length and with great vehemence, when he was pointed out the aforesaid illegalities and anomalies he did not pursue the issues any further except to say that at least the plots which had come done from Shiv Kali to Kali Deen as per the order of the D.D.C. should be declared as joint property and the order of the D.D.C. be sustained to this extent. It is not possible to accede to this request in view of the judgment in Jagdamba Singh's case (supra) wherein it has been categorically held that the entire holding should have come down in the same identity and there is no question of picking and choosing some of the plots and declaring them as joint property.
In this case an interim order has been operating in favour of the petitioners since 01.12.1980 by which the order of the D.D.C. has been stayed.
In view of the reasons already discussed hereinabove, the judgment of the D.D