Ram Avadh & Ors Vs. Ram Das & Ors  INSC 925 (14 May 2008)
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.5570 OF 2001 Ram Avadh & Ors.
...Appellants Versus Ram Das & Ors ...Respondents
TARUN CHATTERJEE, J.
1. This appeal is directed against
the judgment and order dated 22nd of May, 1998 passed by a learned single judge
of the High Court of Judicature at Allahabad (Lucknow Bench) in W.P. No. 2016
of 1981 whereby the High Court had dismissed the writ petition filed by the appellants
against an order of the Assistant Director of Consolidation, Sultanpur holding
the sale deed dated 21st of May, 1969 in favour of the appellants to be
1 2.This case has a chequered
history, which would be clear from the following facts leading to the filing of
The appellants alleged that by
virtue of a registered sale deed dated 21st of May, 1969, they are the vendees
of = of the land in Khata No. 98 (in short "the suit property")
recorded in the name of the vendors viz., Bhagirati, Putai, Ram Newaj, Matadin,
Bachai and Ram Avadh alias Avadhu (in short "Bhagirati & ors.")
who are co-tenure holders with the respondents. A notification under Section 4
of the U.P.
Consolidation of Holdings Act,
1953 (in short "the Act") was issued for consolidation operation. The
appellants filed objections under Section 9(2) of the Act before the
Consolidation Officer for recording their names in place of Bhagirati &
ors. in the revenue records contending that they had obtained the registered sale
deed dated 21st of May, 1969 but by mistake of the Lekhpal, their names could
not be recorded in the revenue records.
2 The respondents also filed
objections claiming that Bhagirati & ors. or their father Faqir had no
share in the suit property and that the suit property belonged to one Sanehi
exclusively and therefore, Bhagirati & Ors. did not have any right to sell
the same. Accordingly, the respondents strongly contested the case of the
appellants who prayed for inclusion of their names in place of Bhagirati &
By an order dated 15th of March
1970, the Consolidation Officer allowed the objections of the appellants and
directed that their names be recorded against the suit property. The
respondents preferred an appeal under section 11(1) of the Act before the
Settlement Officer, Consolidation but the same was dismissed by the order dated
18th of December, 1970. Feeling aggrieved, the respondents filed a revision
under Section 48 of the Act before the Assistant Director - Consolidation,
which was allowed by an order dated 16th of August 1971.
Against this order passed in
revision, the 3 appellants filed a writ petition being WP No.
1797 of 1971 and the same was
allowed on 14th of November, 1978 and the matter remanded to the Assistant
Director - Consolidation for deciding the revision afresh. The Assistant
Director Consolidation allowed the revision this time also by his order dated
20th of February 1981. Feeling aggrieved, the appellants filed a writ petition
before the High Court being 2016 of 1981, which, however, was dismissed by the
judgment and order dated 22nd of May 1998. It is this decision of the High
Court, which is now impugned in this appeal.
3.Before we proceed further,
considering the fact that concurrent findings of fact arrived at by the
Consolidation Officer and the Settlement Officer-Consolidation were set aside
by the Assistant Director-Consolidation in revision, whose decision was
affirmed by the High Court in the impugned judgment, we deem it expedient to 4
look at the findings of High Court and the Consolidation Officer.
Let us first look at the findings
of the High Court relying on which the writ petition of the appellants was
dismissed. The findings are as under: - i)At the time of Third settlement,
Sanehi was the only recorded tenure-holder of the land in question and Faqir
was not recorded as a co- tenure holder.
ii) The name of Faqir was recorded
only in the year 1356 Fasli without there being any order showing the title of
Faqir or showing the ground on account of which his name was entered as a
co-tenure holder of the suit property and therefore, there was no evidence on
record to show how his name could be entered as a co- tenure holder in the year
iii) The mere fact that in the
khetauni of 1356 Fasli, it was mentioned that the tenure-holders were occupying
the land for 15 years, the same 5 could not confer any title on Faqir whose
name did not find place at the time of the Third settlement.
iv) Unless it was shown by
Bhagirati & Ors.
that the title of the suit
property was acquired by Faqir before 1356 Fasli and unless the mode of
acquisition of title was shown, the mere recording of Faqir's name as a
co-tenure holder of Sanehi in the year 1356 Fasli would not make Faqir a
co-tenure holder of Sanehi in the suit land.
v) The Assistant Director of
Consolidation in revision had rightly held that the entry in favour of Faqir
was fictitious and could not have been relied upon by the Consolidation officer
and the assistant settlement officer (consolidation) to confer any title on
Faqir, his heirs Bhagirati & Ors. and their vendees, the appellants.
vi) In connection with the land of
another village, it was mentioned that Sanehi had not taken patta of land for
the benefit of his 6 brother Faqir and that being so, the jointness with regard
to the suit property could also not be assumed.
vii) Since the appellants were the
transferees from Bhagirati & ors. and since the title of Faqir, the
ancestor of Bhagirati & Ors. could not be established, the appellants were
rightly denied the relief by the Assistant Director of Consolidation.
viii) The benefit of the authority
of the Supreme Court reported in Sri Nath Singh &
was not available to the
appellants because the entry of 1356 Fasli in favour of Faqir was fictitiously
recorded and therefore, no right of co-tenure holder could be said to have
accrued to Faqir.
As noted herein earlier, the High
Court dismissed the writ petition of the appellants on the above findings and
affirmed the decision 7 and the findings of the Assistant Director-
Consolidation passed by the latter in revision.
4. In contrast to the above
findings of the High Court relying on which the appellant's claim was rejected,
the Consolidation Officer arrived at the following findings in his order dated
15th of May, 1970 and upheld the claim of the appellants:
- i) The extracts of Khatauni 1356
Fasli and 1357 Fasli revealed that the name of Faqir was present and that he
became Sirdar in 1350 Fasli as on file.
ii) Ram Das had deliberately
avoided the disclosure of his grandfather's name Dihar or Dehpal but his
ignorance regarding the name of his grandfather i.e. Sanehi's father would not
mean that Dihar or Dehpal was not Sanehi's father.
iii) The assertion regarding Dihar
or Dehpal as made by Bhagirathi finds support from the extract of settlement
and certified copy of the extract of 1356 Fasli, 1357 Fasli on record.
8 iv) Faqir was an occupant in
1356 Fasli and his heirs had been entered in the Khata in 1368 Fasli by an
order of the court after the death of Faqir in 1367 Fasli.
v) The name of Faqir was present
in 1356 Fasli alongwith Sanehi and by virtue of having been in physical
cultivatory occupation of the plots from 1356 Fasli onwards, Faqir became
Sirdar thereof and his sons, whose names had been recorded, were the bonafide
Sirdar of the lands and were entitled to = share because Ram Dass did not
explain who they were if not from that branch.
vi) As to whether Bhagirati &
ors. had the right to transfer, the statement of A.R.K. on the file showed that
on 1.5.1969, ten times rent had been deposited in the government treasury and
therefore, the vendor would be deemed to have become bhumidari of the land from
the date of depositing the amounts in the state treasury.
5. The above findings of the Consolidation
Officer were affirmed by the Assistant Settlement Officer, Consolidation in his
order dated 18th of December 1970.
6. The learned counsel for the
appellants argued before us that under Section 48 of the Act, the Assistant
Director of Consolidation did not have the jurisdiction to set aside the
findings of fact recorded by the courts below without any basis and on
assumptions particularly in view of the fact that the name of Faqir was
recorded as cultivator in possession along with Sanehi, both being real
brothers and sons of Dehpal. The learned counsel for the appellants further
argued before us that the appellants would be entitled to the benefit of
Section 20 of the U.P.
Zamindari Abolition and Land
Reforms Act, 1950 (in short "UPZA&LR Act) which provides that the
entries in the base year 1356 Fasli are final and confers all rights on the
occupant who 10 would be entitled to retain possession thereof.
It was also argued that the High
Court and the revisional court had adopted an erroneous approach by relying on
the result of a litigation in respect of some other land in a different village
wherein Sanehi was held to be exclusive lessee and therefore, it was argued
that it could not be assumed that the present revenue record showing joint possession
and occupation of Faqir and Sanehi became unreliable. Finally, the learned
counsel for the appellants contended before us that the respondents did not
take any steps to challenge the revenue record containing the name of Faqir
before any court and in fact, the names of Faqir's sons i.e. Bhagirati &
Ors. were mutated in 1368 Fasli after the death of Faqir by an order passed by
the Tehsildar where the respondents were on notice.
7.These submissions of the learned
counsel for the appellants were contested by the learned counsel appearing on
behalf of the respondents. The 11 learned counsel for the respondents argued
that the suit property is the sole acquisition of the respondent's grandfather
Sanehi and that they have been occupying the same exclusively after his death
and thus are the sole holders of the suit property and therefore, Bhagirati
& Ors. had no title of the land in dispute which could entitle them to sell
the suit property to the appellants. It was further argued that Faqir got a
fictitious entry of his name made in the Khetauni 1356 Fasli and his name was
not present at the time of the Third Settlement.
8.Having heard the learned counsel
for the parties and after examining the impugned judgment and the orders of the
courts below and other materials on record, we are of the opinion that this
appeal deserves to be allowed for the reasons set out hereinafter.
9.From the admitted pedigree chart
produced before us, it is pellucid that Faqir and Sanehi were real brothers and
sons of Dehpal. The record shows that the suit property was recorded in the 12
name of Faqir and Sanehi in the Khatauni for 1356 Fasli and this entry
continued in the Khatauni for 1357 Fasli to 1366 Fasli. It was a finding of
fact of the Consolidation Officer, which was affirmed by the Settlement
Officer, Consolidation that Faqir was in possession as recorded cultivator in
possession from 1356 Fasli onwards.
It was also a finding of fact of
the Consolidation Officer that after the death of Faqir in 1356 Fasli, the
names of his sons Bhagirati & Ors. were mutated in place of their father in
1368 Fasli on the basis of an order passed by the Tehsildar where the
respondents were on notice. These findings of fact were reversed by the
revisional court which was affirmed by the High Court on the ground that the
name of Faqir was not present at the time of the Third Settlement and
therefore, the Khatauni for the year 1356 Fasli upto 1366 Fasli were
fictitious. It is significant to note that the respondents had not taken any
steps to expunge the names of the vendors from the record even 13 though they
continued to be recorded along with the respondents. Furthermore, a lot of
weight has been placed by the revisional court as well as the High Court on the
result of a litigation in respect of some other plots wherein it was concluded
that a certain lease does not appear to have been entered by Sanehi for the
benefit of the joint Hindu family and as such, Faqir could not be held to be a
co-tenant. We are of the opinion that the result of that litigation should not
have any bearing on the present case. It is an admitted fact that in the year
1356 Fasli, the name of Faqir was entered along with Sanehi in the Khetauni and
yet it was held that this must be wrong because in respect of land in another
village, the lease was held to be exclusively that of Sanehi and not for the
benefit of Faqir.
This, in our opinion, has been
given exaggerated and undue importance by both the revisional and the High
Court. The fact remains that Faqir's name was entered in 1356 Fasli, which was
not challenged by the respondents till 1366 Fasli 14 i.e. for almost 11 years.
From 1356 Fasli onwards, throughout the names of Faqir and thereafter his sons
are continuing in the revenue record and in that view of the matter, the
concurrent findings of fact arrived at by the courts below should not have been
disturbed by the revisional court and the High Court.
10.The learned counsel for the
respondents argued before us that the name of Faqir was entered fictitiously
without there being any order of any authority showing the basis on which his
name was entered. It is true that there does not appear any order passed by any
competent authority to show how Faqir got his name entered in 1356 Fasli but
that by itself would not lead us to infer that the name was fictitiously
entered. Nothing has been shown to us to prove that Sanehi and Faqir had
separated prior to 1915 except the result of the litigation of 1944 on which,
as noted hereinabove, we are not inclined to place much weight. From the
admitted pedigree chart also, as noted herein earlier, it is clear that 15
Faqir and Sanehi were real brothers and sons of Dehpal. In this view of the
matter, it would not be appropriate to raise such serious doubts over how
Faqir's name appeared in the Khetauni. In any view of the matter, in our view,
the vendors would be entitled to the benefit of Section 20 of the UPZA&LR
Act. Section 20 provides that where the person is recorded as an occupant of
any land in Khasra Khatauni for 1356 Fasli, which has been taken as the base
year, he shall be entitled to retain possession thereof. If the entry was not
challenged, it could not be doubted and have to be deemed to be correct in view
of explanation III to Section 20 which provide that the entries in the year
1356 Fasli is final and confers all rights on occupant. In the present case,
the name of Faqir appeared along with Sanehi in the 1356 Fasli upto 1366 to
1368. Mutation was carried out after considering objections of respondents, by
11. There is another aspect of
this matter. In the present case, even if it is found that the names 16 of
Faqir and subsequently Bhagirati & ors. were fictitiously recorded, the
fact remains that they were recorded Bhumidars and co-tenure holders (it is an
admitted fact that Bhagirati & Ors.
deposited ten times the land
revenue under Sections 134 to 137 of the UP ZA & LR Act for grant of
Bhumidari Sanad in respect of the suit land) and that no step was taken by the
respondents ever to challenge their title to the suit property or the inclusion
of their names in the revenue record. For this reason, the interest of the
present appellants cannot be defeated particularly when they had made due
enquiries under Section 55(1)(b) of the Transfer of Property Act that the
vendors were the recorded Bhumidars of the suit property and had a transferable
right before purchasing the suit property and therefore, in our opinion, they
were bonafide purchasers for value without notice.
12. Before parting with this
judgment, we may also consider the submission of the learned counsel for the
appellants that the revisional court viz.
17 Assistant Director,
Consolidation had no jurisdiction under Section 48 of the Act to set aside the
concurrent findings of fact of the Consolidation Officer and the Settlement
Officer, Consolidation. In support of her submission, she relied on two
decisions of this court in Ram Consolidation, Jaunpur & Ors. [JT 1994 (3)
SCC 341]. From these authorities, it is clear that the Director Consolidation
under Section 48 of the Act does not have the jurisdiction to interfere with
the findings of fact, without any basis and on assumptions. In view of our
foregoing discussion, we are, therefore, of the considered view that it was not
open to the Assistant Director Consolidation, whose order was affirmed by the
High Court in the impugned judgment, to interfere with the concurrent findings
of fact arrived at by the Consolidation 18 Officer as also the Settlement
13.For the reasons aforesaid, we
set aside the judgment of the High Court and the Revisional Court and affirm
the decisions of the Consolidation Officer and the Settlement Officer,
Consolidation. The appeal is thus allowed. There will be no order as to costs.
[HARJIT SINGH BEDI] New Delhi May