Heard Mr.S.K.Mehratora, learned counsel for the petitioner, as well as Mr.R.R.Upadhyay, learned counsel for the respondents.
Through the instant writ petition the petitioner has sought the following reliefs:-
(i)issue a writ of certiorari quashing the judgment and decree dated 18.6.82 vide annexure No.4 passed by the Assistant Sub Divisional Officer, Amethi, District Sultanpur, and the judgment and decree dated 29.3.85, passed by the Assistant Commissioner, Faizabad Division, Faizabad, vide annexure No.5 and the judgment and decree dated 24.8.93 vide annexure No.6 passed by the Board of Revenue, U.P. at Allahabad.
(ii)issue any other writ, order or direction as may seem to be just and proper in the circumstances of the case.
(iii) award costs of this petition.
(iv) waive statutory notice as the matter is urgent.
The dispute relates to plot Nos.1647, 1630, 1677, 1679, 1712, 1508/2035 and 1678/2079 of village Teeker Mafi, Pargana and Tehsil Amethi, district Sultanpur, recorded in the name of Maharaj Deen, opposite party No.4.
The pedigree of the family is reproduced hereunder, as it would be convenient to determine the point involved in the matter:-
Pancham ________________|_________________ | | Sheetal Parauti _______|___________________ | / / / Smt.Munni Bhagwandeen Ori Ram Avtar (daughter) _____/_______ (DIL) (DIL) / / / Ram Buksh(son) Smt.Bachchi Smt.Murha / (daughter) Maharaj Deen (Petitioner) (Opp.Party No.4.) The facts as set out by the petitioner, of the case, are that the petitioner being member of the family claims her right over the property in dispute, claiming the same as ancestral property by way of suit filed under Section 229-B of the U.P.Zamindari Abolition and Land Reforms Act (in short Zamindari Abolition Act). The petitioner submitted that the disputed plot No.1647, measuring 2 bighas, 7 biswa, 10 biswansi continued to be in the nature of grove from the second settlement i.e. 1301 Fasali. In the First settlement, it was a part of Plot No.1413, being recorded as Parti and Usar (Banjar).
In the second settlement i.e. 1301 Fasali, the area of 2 bigha, 9 biswa was acquired by Sheetal and Parauti, sons of Pancham from Zamindar with permission to plant grove. Subsequently, it was numbered as plot No.1860, recorded in their names in Khatauni No.56. Thus, the petitioner claims the said land as acquired by Parauti and Sheetal jointly by the joint family fund and claimed his half share therein, being descendent of Sheetal. He also claimed that the property in dispute had been in joint possession of the petitioner and Maharajdin, opposite party No.4, who is descendent of Parauti. It is stated that in the third settlement i.e. 1343 Fasali the said plot was incorrectly and illegally recorded in the name of Maharajdeen alone without noticing to other with a new number i.e. 2275, measuring 2 bigha, 7 biswa and 10 biswansi. Subsequently during the course of consolidation proceedings it was numbered as 1647 for the same area.
It is stated that since the petitioner was admitted in possession of half of the share over the land in dispute, it could not know regarding the illegal entries in the exclusive name of opposite party No.4 nor was there any occasion to doubt his bonafide, therefore, he could not raise objection against the said entry. So far as the other plot numbers i.e. 1630, 1677, 1679, 1712, 1508/2035 and 1678/2079 are concerned, it is stated that those came down from Pancham, the common ancestor of the parties. The petitioner tried to establish this fact through the corresponding plot numbers during the various settlements and the final numbers allotted in the consolidation proceeding. However, the Additional Sub Divisional Officer i.e. opposite party No.3 dismissed the suit. The aggrieved petitioner challenged the order of the opposite party No.3 through an appeal before the Additional Commissioner, Faizabad Division, Faizabad i.e. opposite party No.2, who too dismissed the appeal by means of order dated 29.3.1985. Then aggrieved petitioner filed the second appeal before the Board of Revenue, which was also dismissed by means of its order dated 24th of August, 1993.
The petitioner's case is that Parauti was elder of Sheetal and he died prior to Sheetal, therefore, in the normal course, the land ought to have been recorded in the name of Sheetal, who survived Parauti, but it was recorded in the name of descendent of Parauti incorrectly. There is no evidence of re-settlement of the property in favour of the respondent indicating the break-up of the joint family constituted by Parauti and Sheetal. Thus, it is stated by the petitioner that the courts below failed to appreciate the aforesaid aspect and rejected the petitioner's claim illegally.
The learned counsel for the petitioner further stated that the Board of Revenue dealt with the matter under Section 331 of the Zamindari Abolition Act in exercise of power provided to deal with the second appeal. However, in the present case, he decided the case without framing substantial question of law. It is further stated that plot No.1860, which latter on became plot No.2275, was recorded in the first settlement in the name of Pancham, who had been the common ancestor of both the parties and also planted grove, as was recorded in the second settlement with the joint names of his sons, namely, Sheetal and Parauti. At that time the U.P.Tenancy Act was applicable, Section 206(d) of which provides that regarding the groves the inheritance will be governed by the personal law of the tenure holders, therefore, the petitioner could not be deprived from her share under the above Act.
In support of his submissions, as aforesaid, he cited the following decisions, in which it has been held that the second appeal cannot be decided by the Board of Revenue or the court without framing substantial questions of law. It has further been held that in the second appeal, judgment without formulating substantial question of law is illegal.
(1) Ghanshyam and others versus The Board of Revenue and others, reported in 2010 (28) LCD 468.
(2) Krishna Baldeo and others versus State of U.P. And others, reported in 2010 (28) LCD 673.
(3) Nune Prasad and others versus Nune Ramakrishna, reported (2008) 8 SCC 258.
(4) Rajeshwari versus Puran Indoria, reported in (2005) 7 SCC 60.
(5) Ved Ram versus Harish Chandra and another, reported in 2005 (23) LCD, 604.
He further submitted that the change of identity of the land during the course of consolidation proceeding has no affect on the right of the parties. In support of his submission he relied upon the decision of the Hon'ble Supreme Court rendered in the case of Rajeshwar and another versus Board of Revenue and others, reported in 1995 RD 441.
He further stated that the suit in question cannot be held to be barred by Section 49 of the U.P. Consolidation of Holdings Act,1953, as it is well settled that mere non participation in the rent and profits of land of a co-sharer does not amount to his ouster so as to give title by adverse possession to the other co-sharer in possession. In support of his submission he relied upon the decision of the Hon'ble Supreme Court rendered in the case of Karbalai Begum versus Mohd.Sayeed and another, reported in 1980 RD 300 SC. In this case the Hon'ble Supreme Court has further held that it is well settled that unless there is an express provision barring a suit on the basis of title, the courts will not easily infer a bar of suit to establish the title of the parties.
He further submitted that it is a case of amalgamation of holding of two tenure holders as the title in regard to the property being ancestral has not to be adjudicated upon, rather both the co-tenure holders hold their right over there. He further stated that once the existence of joint family is not in dispute, necessarily the property held by the family assumes the character of a coparcenary property and every member of the family would be entitled by birth to a share in the coparcenary property unless and one of the coparceners pleads, by separate pleadings, and proves that some of the properties or all the properties are his self-acquired properties and could not be blended in the coparcenary property. In support of this submission he cited a decision of the Hon'ble Supreme Court rendered in the case of Sher Singh and others versus Gamdoor Singh, reported in 1997(2 SCC 485.
It is further submitted that in law there exists a presumption in regard to the continuance of a joint family. The party which raises a plea of partition is to prove the same. Even separate possession of portion of the property by the co-sharers itself would not lead to a presumption of partition as has been held by the Hon'ble Supreme Court in the case of Chintamani Ammal Versus Nandagopal Gounder and another, reported in 2007 (4) SCC 163.
It is further stated that on mere severance of status of joint family, the character of any joint family property does not change with such severance. It retains the character of joint family property so long as the joint family property is in existence and is not partitioned amongst the co-sharers as has been held by the Hon'ble Supreme Court in the case of M.L.Subbaraya Setty versus M.L.Nagappa Setty, reported in 2002 (4) SC 743.
He further claims that the property was acquired by the nucleus of the family, therefore, even if it stands in the name of an individual member, there would be a presumption that the same belongs to joint family. In support of his submission he cited the following decisions:-
(1) P.S.Sairam and another versus P.S.Rama Rao Pissey and others, reported in (2004) 11 SCC 320.
(2) D.S.Lakshmaiah and anotehr versus L.Balasubramanyam and another, reported in (2003) 10 SCC 310.
On the other hand the opposite party No.4 through the counter affidavit contended that Smt. Bachchi received the property from Bhagwandin and she was in possession over there. She has no concern with the grove plot No.1467. The answering respondent has also raised objection on the maintainability of the writ petition on the ground that the petitioner's claim is barred by Section 49 of the U.P.C.H.Act with the submission that after consolidation operation was over both the parties have been issued separate khataunies of separate Gatas. During the course of consolidation operation, the petitioner did not file any objection before the Consolidation Officer regarding plot Nos.1630,1677, 1679, 1712, 1508/2035 and 1678/2079 and thus the settlement of those plots in favour of answering respondent has become final. It is further stated that the land did not belong to Pancham, rather it is a self acquired property of Parauti. So far as the Sheetal is concerned, he has separate holding in his life time. The answering respondent has inherited the property of Parauti only. In support of his submission he cited the decision of Hon'ble Supreme Court rendered in the case of Sita Ram versus Chhota Bhondey and others, reported in AIR 1991 SC page 249, in which the Hon'ble Supreme court has held that declaration and adjudication of rights of tenure-holders in respect of land lying in the area covered by the notification under Section 4(2) of the Act and adjudication of any other right arising out of consolidation proceedings, and in regard to which a proceeding could or ought to have been taken under the Act, would cover adjudication of questions as to title in respect of the said lands. It is stated by him that it is not in dispute that the land in dispute was recorded exclusively in the name of the respondent's ancestors. The petitioner even being fully aware with the same, much less during the course of consolidation proceeding, did not make any attempt to get his name jointly recorded in the revenue record. By appropriate proceeding the answering respondent has been brought on record only as a legal representative, after the death of original tenant. In support of his submission he cited a decision of Hon'ble Supreme Court rendered in the case of Narendra Singh and others versus Jai Bhagwan and others, reported in 2005 (23) LCD page 1580.
It is stated by learned counsel for the answering respondent that there is a concurrent finding of the courts below, whereby it has been submitted that the rights and title of the parties have been adjudicated upon with concurrent findings of the courts below, howsoever erroneous cannot be disturbed. In support of his submission he cited the decision of Hon'ble Supreme Court rendered in the case of Kondiba Dagadu Kadam versus Savitribai Sopan Gujar and others, reported in (1999) 3 SCC, page 722, Subhan Rao and others versus Parvathi Bai and others, reported in (2010) 10 SCC, page 235 and in the case of State of Himanchal Pradesh and another versus Sri Dutt (dead) by LRs. And others, reported in (2010) 10 SCC, page 68.
Section 49 of the U.P. Consolidation of Holdings Act, 1953 is reproduced hereunder:-
"49. Bar to Civil court jurisdiction.- Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure-holders in respect of land by the lying in an area, for which a [notification] has been issued [under sub-section (2) of Section 4], or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no Civil or Revenue Court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act:
[Provided that nothing in this section shall preclude that Assistant Collector from initiating proceedings under Section 122-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 in respect of any land, possession over which has been delivered or deemed to be delivered to a Gaon Sabha under or in accordance with the provisions of this Act]."
After going through the facts of the case, I find that the petitioner is claiming her right over the land in dispute as being acquired by the nucleus of the joint family even since before abolition of Zamindari, however, in the meantime the consolidation proceedings intervened, but it is not in dispute that the petitioner did not make any attempt to get her name recorded over the land in dispute.
The petitioner has challenged the order impugned on several grounds including that the Board of Revenue decided the Second Appeal without framing substantial question of law. She may be right to say so, but I am of the view that since she has lost her basic right of contest, in light of Section 49 of the Act, it is inappropriate to issue any direction to the Board of Revenue to decide the case afresh after framing substantial question of law. I am further of the view that in light of the aforesaid provisions of Section 49 of the Act, the petitioner had no right to file any application claiming co-tenancy right, even before the primary court. Thus, it is observed that once she lost basic right to contest due to implication of law, she can not be permitted to raise any question of procedural irregularity committed in deciding the case.
There is a concurrent finding of the courts below, whereby the rights and titles of the parties have been adjudicated upon, in which I do not find error. Therefore, the writ petition is dismissed.
Order Dated:19.3.2012 Banswar