Heard Shri Akhtar Abbas, learned counsel for the petitioners and learned Additional Chief Standing Counsel for the State.
None has appeared for the private opposite parties to contest and argue the matter though a learned counsel had filed vakalatnama.
Though, this writ petition was filed in 1985 the impugned order passed by the D.D.C. was never stayed instead an interim order was passed on 25.04.1988 restraining the opposite parties from cutting the trees existing on the land in dispute. As noted in the order dated 13.11.2019 the lower Court records pertaining to the case at hand had already been weeded out on 01.06.1995 as informed by learned Additional Chief Standing Counsel on the basis of written instructions which are on record.
In brief, the facts of the case are that Bhagauti Deen, Parmeshwar Deen and Sukhdeo were three brothers. The dispute in this case pertains to Khata No. 34 comprising of Gata No. 4/1 measuring 12-6-02 on which it is said that a grove was existing when the consolidation operations started. At the start of consolidation operations i.e. in the basic year Khatanui, sons of Bhagauti Deen and Sukhdeo were recorded. The sons of other brother Parmeshwar Deen, whose legal representatives are the petitioners before this Court, filed objections claiming co-tenancy. It is not in dispute that the said grove land had come down to Bhagauti Deen from one Shikora, his alleged maternal grand mother. Prior to on set of consolidation operation a Suit under Section 229 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as ''the Act, 1950') was filed by the sons of Sukhdeo wherein the sons of Parmeshwar Deen and Bhagauti Deen were also arrayed as defendants but the sons of Parmeshwar Deen for some reason could not or did not contest the matter inspite of publication of notice to them and ultimately the suit was decided on the basis of compromise between the sons of Sukhdeo and the sons of Bhagauti Deen who took half share each of the said land. It is said that the sons of Parmeshwar Deen filed an application for restoration of suit proceeding which was rejected by the Judicial Officer on 15.05.1971 i.e. after commencement of the consolidation operations.
As already stated during consolidation operations the sons of Parmeshwar Deen filed objections under Section 9-A(2) claiming co-tenancy as aforesaid. The Consolidation Officer gave 1/3 share each to the sons of Bhagauti Deen, Parmeshwar Deen and Sukhdeo on the ground that the land had come in the name of Bhagauti Deen from the common maternal grand mother Shikora and also that Sharda Prasad the son of Bhagauti Deen who was recorded tenure holder had deposed in favour of the objectionist/claimants. S.O.C. affirmed the order of the Consolidation Officer. The matter went up before the Revisional Court which allowed the revision on 31.07.1973. This order of D.D.C. was challenged before the Writ Court under Article 226 of the Constitution of India by means of Writ Petition No. 558 of 1976 filed by the sons of Parmeshwar Deen. The Writ Court vide its judgment dated 14.11.1979 set-aside the judgment of the D.D.C. on the ground that relevant evidence had not been considered and reasons had not been given by the D.D.C. while upsetting the findings of the C.O. and the S.O.C. After remand, the D.D.C. reconsidered the matter and passed the impugned judgment dated 26.02.1985. He gave half share to the sons of Sukhdeo based on the comprise decree passed in the Suit under Section 229 and based on the statement of Sharda Prasad son of Bhagauti Deen, the recorded tenure holder, that, all the three brothers had 1/3 share each, in the remaining half share, he gave 1/2 to the sons of Bhagauti Deen Deen and remaining half to the sons of Parmeshwar Deen.
The grievance of Shri Akhtar Abbas, learned counsel for the petitioners is that this could not have been done firstly for the reason that the decree passed in the suit under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950 was not on merits but on a compromise arrived at between the sons of Bhagauti Deen and Sukhdeo which was not binding upon the sons of Parmeshwar Deen and did not constitute res-judicata. Secondly, he says that if according to D.D.C. Shikora was the maternal grand mother of Bhagauti Deen alone and mother of Bhagauti Deen was not the mother of Parmeshwar Deen and Sukhdeo, then, sons of Sukhdeo were also not entitled to any share, yet, a compromise was arrived at which was indicative of the fact that they were in fact entitled on the basis of succession. He also submitted that rejection of the application of restoration filed by the sons of Parmeshwar Deen was of no consequence, as, rejection of such an application would not constitute res-judicata. He contended that the directions of the Writ Court which remanded the matter back to the D.D.C. have not been adhered. The provisions of Indian Evidence Act have not been taken into consideration. He also submitted that there was no denial of the claim of the petitioners by the defendants in the pleadings/objections.
As regards the plea of Shri Akhtar, learned counsel for the petitioners based on pleadings as noticed hereinabove, the sons of Sukhdeo filed an Appeal bearing No. 360/4376 before the Settlement Officer, Consolidation against the order of the Consolidation Officer dated 11.04.1968 and after dismissal of this Appeal they also filed a revision before the Deputy Director of Consolidation challenging the said orders which is evidence of the fact that they were denying the claim of the sons of Parmeshwar Deen. Udit Narayan S/o Sukhdeo had even been deposed that sons of Parmeshwar Deen had no concern with the land in dispute. It is trite then in matters of consolidation as litigants are poor and illiterate people strict rules of pleading are not applied. Moreover, this plea ought to have been raised in the earlier round of litigation when the Writ Court remanded the matter back to the D.D.C. for reconsideration Not having raised it then it is not liable to be considered now. The argument of Shri Akhtar to the contrary is thus rejected.
Even if, rejection of application of petitioners for restoration of suit proceedings under Section 229-B did not constitute res-judicata the fact is that it is the petitioners who had challenged the entries in the basic year Khatauni in favour of the sons of Bhagauti Deen and Sukhdeo, by filing an objection, therefore, the onus was upon them to prove their claim that the property was ancestral having been created by Baldi and that Shikora the alleged wife of Baldi and/or the alleged maternal grand mother of Bhagauti Deen was also the maternal grand mother of the other two brothers Prameshwar Deen and Sukhdeo and that the mother of all these three brothers was the same. The learned counsel for the petitioners could not point out any evidence which may have been led by them before the Courts below to establish the aforesaid basic factual premise on which they had based their claim. After the matter was remanded back by this Court vide judgment dated 14.11.1979 rendered in Writ Petition No. 558 of 1976 filed by the petitioners, for reconsideration, D.D.C. in the impugned judgment dated 26.06.1985 examined the records of Case No. 2838 before the Consolidation Officer wherein Ambika Prasad- petitioner no. 1 was a party and the records of Revision No. 4574 before the D.D.C. Udit Narayan Vs. Ambika and Ors. as well as 4589; Prem Nath Vs. Ambika and Ors. filed under Section 48 of the Act, 1953 pertaining to Village Balapur, Pargana and Tehsil Kunda decided vide common judgment dated 31.07.1973, wherein, this very issue as to whether Shikora was the maternal grand mother of Bhagauti Deen alone or of all the three brothers was considered by the Consolidation Courts in respect of a dispute pertaining to another plot which was the subject matter of these proceedings which were different from the proceedings at hand and a specific finding was recorded that the mother of Bhagauti Deen and that of Parmeshwar Deen and Shukdeo were different and that Bhagauti Deen had got the land in dispute from his maternal grand mother. On being confronted learned counsel for the petitioners accepted that these were separate proceedings pertaining to another land but he could not show that this finding in the other case was ever challenged and set-aside. The D.D.C. also noted that brother of Ambika Prasad- the original petitioner herein, namely, Shrinath and Sharada Prasad the sons of Bhagauti Deen had not denied this fact nor had they stated that mother of three brothers as aforesaid were not different. The D.D.C. has accordingly recorded a finding in the impugned proceedings that Bhagauti Deen had succeeded to the holding of his own maternal grand mother. He has also opined that the C.O. and S.O.C. had not given any reason for arriving at a contrary finding/conclusion that maternal grand mother of all the three brothers was the same. He has also taken note of statement of Sharada Prasad S/o Bhagauti Deen, as in cross examination, that his father Bhagauti Deen had derived the land in dispute from his maternal grand mother as sole tenure holder and that initially Bhagauti Deen alone was in possession. In fact in his cross examination Sharada Prasad had stated that Bhagauti Deen had given half of the land to Shukhdeo for cultivation. As regards the statement of Sharada Prasad which was heavily relied by the learned counsel for the petitioners, he had nowhere admitted that the maternal grand mother of Bhagauti Deen was also the maternal grand mother of Parmeshwar Deen and Shukhdeo.
In this view of the matter, as the petitioners have failed to establish that Shikora from whom the land in dispute had come down to Bhagauti Deen was the maternal grand mother of Parmeshwar Deen also, the very premise on which the claim was based is non existent, therefore, the question as to whether compromise arrived at in the proceedings under Section 229-B was illegal or void does not fall for consideration at the behest of the petitioners herein. There may have been several reasons for the compromise which need not be looked into at the behest of the petitioners for the reasons aforesaid. The D.D.C. has held the sons of Shukhdeo to be entitled to half share in the land in dispute on the basis of aforesaid compromise with the sons of Bhagauti Deen. The fact that he has given half share to the petitioners in the remaining share of Sharada Prasad on the basis of the statement made by Sharada Prasad in this regard is itself a bonus for the petitioners in view of the reasons already discussed. This has been done only on account of the statement of Sharada Prasad which could not have been used against the sons of Shukhdeo in whose favour the compromise had already attained finality viz-a-viz Sharada Prasad.
In view of the above, this Court does not find any valid ground for interference with the order passed by the D.D.C., in exercise of its powers under Article 226 of the Constitution of India.
The writ petition is, accordingly, dismissed.
Interim order is discharged.