& Ors Vs. Chhitan & Ors  Insc 744 (6 November 2006)
Pasayat & Tarun Chatterjee Tarun Chatterjee,J.
appeal is directed against the judgment and order dated 12th March 1987 passed in W.P. No. 2736/1976 by the
High Court of Judicature at Allahabad (Lucknow Bench) whereby the Writ Petition
filed by Chhitan, Chandrika and Karia, a minor son of Jai Ram, represented by
his mother and guardian Smt. Sonara being respondent Nos. 1 to 3 in this appeal
were allowed and decision of the consolidation authorities were set aside. By
allowing the said Writ petition, the appellants were deprived of their alleged
shares in ancestral tenancy and giving sole tenancy rights to respondent Nos. 1
to 3 over the land of Khata No.111 in Village Balrampur, Pargana and Tehsil Tanda,
District Faizabad (hereinafter referred to as the "said land"). We
are not concerned with the other plots relating to Khata No.13 as the disputes raised
in this case appeal does not relate to the said land.
we restrict ourselves in this appeal in respect of the dispute only relating to
the said land.
filed under section 9A(2) of the U.P. Consolidation of Holdings Act 1953 ( in
short "the Act") by the parties in this appeal in respect of the
entries in Khata No.111 and 13 relating to basic year 1378 Fasli were referred
to the Consolidation Officer for adjudication. We may reiterate, as noted
herein earlier, that in this appeal the questions need to be decided only in
respect of the lands in Khata No.111 and not Khata No.13. It is not in dispute
that the lands relating to Khata No.111 in the basic year were recorded in the
name of Saltanati.
in the year 1338 F this land was recorded in the name of Adhin by way of
settlement. On the death of Adhin the said land was recorded in the name of Jabbar
and then subsequently in the name of Jai Ram.
Jai Ram was not traceable in his place Smt. Sonara his wife and minor son Karia
had represented the estate as the legal heirs and representatives of Jai Ram. Smt.
Sonara entered into a settlement with Chittan son of Dubri, Chandrika son of Sripat.
Thereby the minor Karia represented by his mother Smt. Sonara agreed to have
co- tenancy rights in respect of Khata No.111, with Chittan and Chandrika. On
the other hand, the appellants representing Daya Ram and others jointly claimed
co- tenancy rights in respect of the said land on the ground that the said
lands were acquired by their ancestor Saltanati and thereafter Jokhan son of Adhin
was recorded in the representative capacity.
to the appellants, the family remained joint till some time when the land was
recorded in the name of Adhin. Binda and Sanehi on the death of Salatanati
separated from their joint family and Adhin separated with his nephews Bhulai
and Dukhi. In this manner, the said land
of Jokhan and Salatanati were distributed in
the joint family and the shares were divided equally.
the said lands continued to be recorded in the name of Adhin. After some time, Bhulai
and Dukhi, who were joint with Adhin also separated from him and by partition
the lands were divided. In the same manner, Binda and Sanehi lived jointly for
some time and thereafter separated by partition. The entire lands of Khata
No.111 continued to remain recorded in the name of Adhin, even though Dukhi, Bhulai,
Binda and Sanehi cultivated their lands separately. After the death of Adhin,
the said lands came to be recorded in the name of his son Jabbar and thereafter
on the death of Jabbar the same was recorded in the name of his son Jai Ram. At
this stage, to understand the Pedigree of the parties, it would be appropriate
to give a Pedigree chart herein now which is not now in dispute as was given by
Pedigree chart which was set up by the appellants is given below:- The
Consolidation Officer by his order dated 6th June 1972 declared the appellants or their
predecessor in interest as co-tenure holders in respect of the said land along
with Jai Ram and determined the share on the basis of the Pedigree, as noted
by the order dated 6th
June 1972 of the
Consolidation Officer respondent Nos. 1 to 3 filed an appeal whereas Daya Ram
and others preferred an appeal also. However, the appeals filed by the parties
before the appellate authority i.e. Assistant Settlement Officer were
dismissed. Revisions were filed by the parties before the Deputy Director,
Consolidation which were disposed of by allowing the same partly and the
following order was passed :
is ordered that over the basic year in Khata No. 13 the names of Chhitan
(respondent No.1), Jai Ram (Respondent No.2) and Chandrika (Respondent No.3)
alone shall be entered. In Khata No.111 over plot Nos. 152, 154, 161, 425, 435,
442, 475, 481, 465 and 511 also the names of the respondent Nos. 1 to 3 shall
only be entered.
the remaining plots of Khata No.111 in accordance with the orders of
Consolidation Officer and Assistant Settlement Officer, Consolidation, the
names of both the parties shall be entered as co-tenants." At this stage,
let us take up the question of accepting the Pedigree chart set up by the
contesting parties. It was the case of Daya Ram and others (appellants herein)
that Bekaru was the son of Jokhan whereas the case of respondent Nos. 1 to 3
was that Bekaru was the son of Saltanati. However, the respondent Nos. 1 to 3
had failed to prove that Bekaru was the son of Saltanati.
finding of fact arrived by the consolidation authorities particularly the revisional
authorities, it is not in dispute now that Bekaru was the son of Jokhan and
therefore the Pedigree set up by the appellants must be accepted.
quoted herein above, the Deputy Director, Consolidation held that in Khata
No.111 plot Nos. 152, 154, 161, 425, 435, 442, 475, 481, 465 and 511 the names
of Chittan, Jai Ram and Chandrika be entered and over the remaining plots of Khata
No.111 the findings of the Consolidation Officer and the Assistant Settlement
Officer were accepted by him. That is to say in respect of the remaining plots
in Khata No.111, the respondent shall be entered as co-tenure holders in
respect of the remaining plots of Khata No.111.
this order of the revisional authority passed in the aforesaid revision cases Daya
Ram and others filed a writ application in the High Court of Allahabad, which
came to be registerd as W.P. No.2838/1976. It was, inter-alia, the case made
out by Daya Ram and others in the aforesaid writ application that the Deputy
Director of Consolidation acting as revisional authority had erred in not
holding the appellants who ought to have been held as co-tenure holders of the
said land along with respondent Nos. 1 to 3 and also remaining plots of Khata
No.111. On the other hand, the respondent Nos. 1 to 3 also filed a writ
application being W.P. No. 2736/1976 against the order passed by the Deputy
Director, Consolidation in revision cases challenging the order of the Deputy
Director, Consolidation on the ground that in the admitted facts of the present
case respondent Nos. 1 to 3 ought to have been held to be sole tenure holders
in respect of the said lands.
impugned judgment, the High Court after hearing the parties disposed of the
aforesaid two writ petitions by passing the following order:
the result, the writ petition No.2838/76 filed by Daya Ram and others is
dismissed being devoid of merits and writ petition No. 2736/76 filed by Chitan
and others is hereby allowed and the order dated 13.8.1976 passed by Deputy
Director, Consolidation in so far as it relates to ten plots of Khata No.111
mentioned in the said order by which Daya Ram and others have been given co-
tenancy rights is hereby quashed and the petitioners Chitan, Chandrika and Karia
under guardianship of Smt. Somura are directed to be recorded as sole tenure
holders to entire land of Khata No.111 and also Khata No. 13 of village Balrampur,
Tehsil and Pargana Tanda, District Faizabad. No order as to costs." While
disposing of the writ petitions, the High Court held in substance as under:-
land in dispute did not devolve upon Adhin from Saltanati.
land in Khata No.111 was resettled by then landlord giving certain parts to Adhin
and certain other plots to others. Therefore, it was a fresh settlement and
there was no continuity in the identity of the holding.
Accepting the findings arrived at by the consolidation authorities or on the
admitted facts, the High Court held that the disputed holding did not come in
tact in the identical form and only some of the plots of the holdings belonging
to common ancestral were found included in the disputed holding and therefore
that would not make an ancestral holding so as to give a share in it to the
appellants on that ground nor it would be permissible to pick up those plots
from the holding and declare them to be the ancestral property and give a share
in those plots to the appellants.
this order of the High Court, which is under challenge before us in respect of
which leave was granted. We have heard the learned counsel on either side and
examined carefully all the orders of the Consolidation authorities and finally
the impugned judgment of the High Court.
must be brought on record that before us, no submission has been made in
respect of the appeal filed by Daya Ram and others challenging the portion of
the order which had gone against them. We restrict ourselves only on the
question whether the claims of respondent Nos. 1 to 3 in respect of Khata
No.111 were justified or not as granted by the High Court.
behalf of the appellants, the main contention of Dr. R.G. Padia, learned senior
counsel appearing for them was to the effect that it was not open to the High
Court to set aside the findings of fact arrived at by the consolidation
authorities in the exercise of its extra ordinary jurisdiction under Art. 226
of the Constitution.
was, however, not the submission of Dr. Padia that it was not open to the High
Court to exercise its jurisdiction when the consolidation authorities had erred
in deciding a question of law on the facts admitted or proved by the parties
before them. Dr. Padia thus contended that the High Court erred in setting
aside the finding of fact of the consolidation authorities by substituting its
own views on the question of fact under Art. 226 of the Constitution.
it was contended by Dr. Padia that since two of the co-tenure holders were not
made parties in the writ application who are appellant Nos. 13 and 14 in the
appeal, the writ petitions heard and disposed of in their absence could not be
said to be maintainable in law.
aforesaid two-fold submissions of Dr. Padia were, however, contested by Mr.
O.P. Sharma, the learned senior counsel who appeared for the respondent Nos. 1
to 3. Let us therefore examine the main question, as raised by the learned
counsel for the parties and noted herein earlier in detail. We have already
discussed the impugned judgment of the High Court and the order of all the
three consolidation authorities. It is now well settled law that in the
exercise of its extra ordinary writ jurisdiction High Court is not supposed to
interfere with the findings of fact arrived at by the consolidation authorities
unless and until High Court concludes that such findings of fact are either
perverse or based on no evidence. It may also be kept in mind that Mr. Sharma
appearing for the respondent Nos. 1 to 3 also had not advanced any submission
to the extent that the findings of fact of the authorities in the facts and
circumstances of the case could at all be said to be perverse or based on no
evidence. It was the submission of Mr. Sharma that on the admitted fact and the
findings arrived at by the consolidation authorities the High Court has only
declared the law on such admitted and proved facts.
well settled position of law by catena of decisions of this Court that in the
writ jurisdiction of the High Court, it is always permissible for it to correct
the decision of the consolidation authorities or to declare the law on the
basis of facts and proof of such facts.
this proposition, we may usefully refer to a decision of this Court in the case
of Mukunda Bore vs. Bangshidhar Buragohain & Ors. reported in AIR 1980 SC
1524 in which this Court indicated as to when High Court can interfere with the
orders of quasi judicial authority. This observation may be quoted which is as
on facts the order of the Board under appeal is not impeccable, we must
remember that under Art. 226 of the Constitution a finding of fact of a
domestic tribunal cannot be interfered with. The High Court in the exercise of
its special jurisdiction does not act as a Court of Appeal. It interferes only
when there is a jurisdictional error apparent on the face of the record
committed by the domestic tribunal. Such is not the case here. It is true that
a finding based on no evidence or purely on surmises and conjectures or which
is manifestly against the basic principles of natural justice, may be said to
suffer from an error of law. In the instant case, the finding of the Board that
the appellant does not possess the necessary financial capacity, is largely a
finding of fact under Rule 206(2) of the Assam Excise Rules, an applicant for
settlement of a shop is required to give full information regarding his
financial capacity in the tender. Such information must include the details of
sources of finance, cash in hand, bank balance, security assets, etc.
such information is verified by the Inquiry Officer." (Underlining is ours
) In Syed Yakoob vs. K.S.Radhakrishnan & Ors. reported in 1964 (5) SCR 64
this Court observed as follows:- "finding of fact cannot be challenged in
a proceeding on the ground that the relevant and material evidence was
insufficient to sustain the finding and that adequacy or sufficiency of
evidence or an inference of fact to be drawn from the evidence or finding of
fact are entirely within the jurisdiction of the Tribunal."
in the case of State of West
Bengal vs. A.K. Shaw
reported in AIR 1990 SC 2205 this Court held that if the quasi judicial
tribunal had appreciated the evidence on record and recorded the findings of fact,
those findings of fact would be binding to the High Court. By the process of
judicial review, the High Court cannot appreciate the evidence and record its
own findings of fact. If the findings are based on no evidence or based on
conjectures or surmises and no reasonable man would on given facts and
circumstances come to the conclusion reached by the quasi-judicial authority on
the basis of the evidence on record, certainly the High Court would oversee
whether the findings recorded by the authority is based on no evidence or beset
with surmises or conjectures.
view of the law settled by this Court on the question under consideration, let
us consider whether the High Court was justified in reversing the order of the
consolidation authorities by declaring that the names of Respondent Nos. 1 to 3
should be entered as co-tenure holders in respect of the plots recorded in Khata
would be fruitful for us to look into the findings arrived at not only of the
High Court but also of the consolidation authorities. The Consolidation Officer
as the original authority under the Act on consideration of the material on
record held the appellants to be co-tenure holders in respect of the said land
with respondent Nos. 1 to 3. In appeal, the Assistant Settlement Officer held
that the Consolidation Officer was justified in holding that the names of the
appellants with respondent Nos. 1 to 3 should be entered in respect of the
lands recorded in Khata No.111, i.e. the case made out by the respondent Nos. 1
to 3 that they may be declared as sole tenure holders in respect of Khata
No.111 was not accepted.
noted herein earlier, the Deputy Director held the respondent Nos. 1 to 3 in
this appeal to be exclusive tenure holders of ten plots and in respect of the
remaining plots of this Khata, the Deputy Director, Consolidation directed the
names of the appellants as well as the respondent Nos. 1 to 3 should be
recorded as co-tenure holders.
have already put on record that the High Court, however, reversed the findings
and order of the Deputy Director, Consolidation by holding that the lands
recorded in the entire Khata No.111 must be recorded in the names of respondent
Nos. 1 to 3. It was the case of the appellants in this appeal before the High
Court that since the lands recorded in Khata No.111 initially belonged to Saltanati
and they represented his branch and that of Bekaru, son of Jokhan, they were
entitled to get shares as per pedigree set up by the appellants. It was also
contended before the High Court that the Deputy Director, Consolidation fell in
error in holding the respondent Nos. 1 to 3 to be the exclusive tenure holders
of ten plots of Khata No.111 which according to them belonged to Saltanati. On
the other hand, it was the stand of the respondent Nos. 1 to 3 that the entire
holding of the said Khata was acquired by Adhin and was recorded in his name in
1338 F. Therefore, lands recorded in Khata No.111 which initially belonged to Saltanati
was resettled by the then landlord with Adhin and others. It was the stand of
the respondent Nos. 1 to 3 that the lands recorded in the said Khata in the
name of Adhin in the year 1338 F, certain other plots were also recorded
therein. Accordingly, it was urged that the land in dispute was acquired by Adhin
by way of settlement which continued to be in his possession and on his death
it had devolved upon respondent Nos. 1 to 3 exclusively. The appellants cannot
claim any right, title and interest in respect of entire Khata No.111 nor can
they acquire co- tenure holders rights on the ground that the land was
the above discussion, it is therefore clear that although originally the said
land had belonged to Saltanati but subsequent event had clearly indicated that
it was recorded in the name of Adhin and therefore the respondent Nos. 1 to 3,
admittedly the successors in interest of the estate of Adhin, were entitled to
there cannot be any doubt that the identity of the said land was changed from Saltanati
to Adhin and thereafter to respondent Nos. 1 to 3. Even all the findings
arrived at by the Deputy Director, Consolidation in respect of 10 plots in Khata
No.111, as noted herein earlier, the names of respondent Nos.1 to 3 would
exclusively be entered. At the same time, the Deputy Director, Consolidation
had also held that the names of the appellants should be included in remaining
plots of Khata No.111. From the above admitted fact, it is clear that the lands
recorded in the said Khata were directed to be recorded in different names.
From this it is apparent that the identity of the lands in Khata No.111 were
directed to be changed which is not permissible in law.
being the position, it must be held that the respondent Nos. 1 to 3 being the
successors in interest from the side of Adhin whose name was duly recorded in
respect of the said land were entitled to succeed to the said land on the basis
of identity and resettlement of the same. If the identity of the land has been
changed, the appellants could not get the property on the basis that originally
this land had been recorded in the name of Saltanati and that the said land was
their ancestral property. Therefore, the pedigree set up at the instance of the
respondent Nos. 1 to 3, even if it cannot be relied on, the respondent Nos. 1
to 3 were entitled to succeed on the basis of the aforesaid fact.
must also keep it on record that it was not disputed before the consolidation
authorities nor it was disputed by the learned counsel for the appellants
before us that the identity of the said land had changed in view of the
resettlement in favour of Adhin. That being the position, we must hold that the
appellants could not acquire any co-tenancy rights even if the appellants
succeeded in proving the pedigree set up by them and also acquisition of the
land by common ancestor.
the Deputy Director of Consolidation was in error in giving co tenure holder
rights to the appellants herein in some of the plots of Khata No.111 on the
ground that those plots initially belonged to Saltanati and it was ancestral
holding of appellants.
view of our discussions made herein above, we therefore come to the conclusion
that the High Court while reversing the order of the Deputy Director,
Consolidation had not set aside the findings of fact arrived at by them but on
the other hand has declared the question of law on the admitted facts and the
findings of fact arrived at by the consolidation authorities.
noted herein earlier, Dr. Padia contended that since two of the co-tenure holders
were not made parties in the writ application, who are Ram Bachan and Subhash
Chandra appellant Nos.13 and 14 in this appeal, the writ petition ought to have
been dismissed by the High Court solely on the ground that in their absence the
writ petition could not be said to be maintainable in law. This submission of
Dr. Padia cannot be accepted for the simple reason that Ram Bachan and Subhash
Chandra appellant Nos. 13 and 14 claimed their share in the said land being
descendants of Saltanati. In view of our findings made herein above that Saltanati
had lost his right, title and interest in respect of the said land because of
the fact that the said land was resettled and recorded in the name of Adhin, it
cannot be said that Ram Bachan and Subhash Chandra, appellant Nos. 13 and 14,
herein ought to have been made parties to the writ application as they were not
found to be co-tenure holders in respect of the said land. Accordingly, for
non- inclusion of Ram Bachan and Subhash Chandra appellant Nos. 13 and 14 in
the Writ Petition filed before the High Court, it cannot be said that the writ
petition was not maintainable in law. In view of the aforesaid finding, the
question of abatement on the death of Siya Ram (father of Subhash Chandra)
could not arise at all.
in our view, Ram Bachan and Subhash Chandra appellant Nos.13 and 14 were not at
all necessary parties to the Writ Petition No.2736/1976 and the question of
non-maintainability of the writ petitions before the High Court in their
absence could not arise. It is, therefore, not necessary to deal with the
decisions cited by Dr.Padia in connection with the question of abatement on the
death of Siya Ram and maintainability of the writ petition for their non-
inclusion. Accordingly, this question is answered in the negative.
the reasons aforesaid, this appeal fails and the same is dismissed without any
order as to costs.