& ANR Vs. Deputy Director of Consolidation, Deoria & Ors  INSC
379 (25 July 2000)
RAJENDRA BABU., & SHIVARAJ V. PATIL.
V. PATIL J.
stated, the facts leading to the filing of this appeal are the following.
property in dispute relates to Khata Nos. 22 and 142 of village Kermeni Premwalia,
Distt. Deoria. The respondents 3 to 7 and one Smt. Samundri filed objections
before the Assistant Consolidation Officer and prayed that the name of the
recorded tenure holders be expunged and their names may be recorded contending
that one Smt. Rojhani was the tenure holder of the disputed property; she died
in the year 1966 and they were entitled to the said property by succession.
There was no dispute between parties that the properties belonged to Ram Subhag.
The said property was recorded in his name in Khatauni of 1332 Fasali. The
appellants contested the claim of Respondents 3 to 7 and Smt. Samundri on the
ground that after the death of Smt. Rojhani in the year 1966, Mahaveer and Udit
became entitled to succession under Section 171 of Uttar Pradesh Jamindari
Abolition and Land Reforms Act, 1953 (for short the Act). In the said
proceedings before the Assistant Consolidation Officer, the respondents
examined Shanker and one Kuber Pandey in support of their claim. The Appellant
No. 1 himself entered into witness box to support his claim and one Sudendar
was also examined as DW-2. The Appellants contended that Mahadev, the husband
of Smt. Rojhani died after the death of Ram Subhag, hence succession to Smt. Rojhani
was governed by Section 171 of the Act. The Consolidation Officer by his order
dated 3.5.1979 allowed the objections of the Respondents and granted relief.
appellants filed an appeal challenging the said order before the Assistant
Settlement Officer, Consolidation. The said appeal was allowed on 2.8.80 and
the order of the Assistant Consolidation Officer was set aside. This time the
respondents filed a revision before the Deputy Director of Consolidation,
questioning the validity and correctness of the order dated 2.8.80 passed by
the Assistant Settlement Officer, Consolidation.
Deputy Director, on detailed examination of respective contentions in the light
of the material placed on record, came to the conclusion that the order passed
by the Assistant Settlement Officer, Consolidation, in appeal was not
view he took, the revision petition was allowed and the Order dated 2.8.80
passed in the appeal by the Assistant Settlement Officer, Consolidation, was
set aside and the order dated 3.5.1979 of the Consolidation Officer was
and dissatisfied by the said order dated 30.3.1981 passed in revision, the
appellants filed Civil Misc. Writ Petition No. 9716/81 in the High Court of Judicature
at Allahbad. The High Court after examining the rival submissions made,
dismissed the writ petition finding no merit in it. Hence this appeal.
regard to the contentions raised and the nature of the dispute, it is necessary
to look to the pedigree of the family of Ram Subhag, given below:- Ram Subhag /
----------------------------------------------------- / / / Mahadev Mahaveer Udit
/ / / Rojhani (widow) Komal Ram Chandra / Samundri Devi (daughter)
----------------------------------------------------- / / / / / Shanker Aaras Satya
Narain Kapil Dev Prabhu Nath In the order dated 30.3.1981 of the Deputy
Director of Consolidation, it is recorded thus:- "Both the parties admit
that if Mahadev died during the life time of Ram Subhag and the name of Rojhani
was however recorded during the life time of Ram Subhag, then it will be deemed
to be self-acquired and after the death of Rojhani, it will not be decided
under Section 171 but under Section 174 and in case Mahadev died after Ram Subhag,
then it will be decided under Section 171 after the death of Rojhani."
Before us also, the legal position as indicated above was not disputed by the
leaned counsel for the parties but they contested only with regard to the
aspect whether Mahadev died during the life time of Ram Subhag or later. Hence,
the decision in the case essentially depended on the finding of fact as to
whether Mahadev died during lifetime of Ram Subhag or he survived Ram Subhag.
In this view it is considered unnecessary to refer to the decisions cited.
Senior Counsel for the appellants contended that Smt.
when examined in the suit filed under Section 176 of the Act stated that Mahadev
died after the death of Ram Subhag;
the respondent No. 3 also stated that Mahadev died after the death of Ram Subhag
and one Kuber Pandey examined in the mutation case had also stated that Mahadev
died after the death of Ram Subhag. According to the learned Senior Counsel,
this evidence was binding on the respondents. He added that the copy of the
death certificate of Mahadev filed at later stage was forged and fictitious.
contra, the learned counsel for the contesting respondents submitted that the
Assistant Consolidation Officer (the original authority) and the Deputy
Director of Consolidation (the revisional authority), looking to the evidence
placed on record, both oral and documentary, were right and justified in
accepting the case of the respondents. He added that the High Court also did
not find any merit in the writ petition and as such the same was dismissed by
the impugned order.
be seen from the order dated 30.3.1981 passed by the Deputy Director of
Consolidation in revision, he has examined all aspects in considerable details.
He has referred to statement of Mahaveer in which he had stated that Ram Subhag
died after Mahadev; Komal also has said in his statement that Mahadev died
during the life time of Ram Subhag; the oral evidence according to him, lead by
parties on either side was general. In the circumstances, the oral evidence
consistent with the documents was accepted and rightly so. Reference is made to
Khatauni of Mahadev from which it was established that he died in 1920. It was
clear from Khatauni of 1333 that Ram Subhag was alive till 1929, which is
equivalent to Khatauni 1333. It was also noticed that there was no evidence to
show that name of Mahadev was ever recorded in respect of the disputed land. If
Mahadev had died after Ram Subhag, his name should have been recorded in
respect of the disputed property. Referring to the judgment dated 19.2.1970 of
the Member of Revenue Board it was taken as proof that Mahadev died during the
lifetime of Ram Subhag. In the said order passed in the revision, it is also
stated thus :- "Therefore the name of Rojhani remained recorded without
any authority and her ownership was admitted by the opposite parties in the
case under Section 176 and thus this will be treated as self acquired property
because neither the opposite parties took any proceedings for removal her name,
nor it will be admitted on the basis of the entries that the opposite parties
had taken some proceeding for removal of her name and neither the other two
opposite parties admitted them as co- partners and thus after the death of Rojhani,
the sons of her daughter have become heirs of her under Section 174 of the
Succession Act." From the translated copies of statements of Smt. Rojhani,
Shanker and Kuber Pandey, filed along with the S.L.P. it cannot be said that
their evidence is clinching on the point whether Mahadev died during the life
time of Ram Subhag or he survived him. On the other hand, their statements are
vague and general.
has only stated thus:- "Ram Subhag and Mahadev both died in the same year
due to (Cholera), Mahadev suffered (Cholera) first but the old person Ram Subhag
died first. My husband Mahadev died thereafter six months. The last rituals of
both the persons were together." In his statement, Shanker has stated thus:-
"I did not see Ram Subhag. I did not see Mahadev also. Earlier the Khata
of all these were joint. I do not know whether the name of Mahadev was recorded
in the Khata. The name of Smt.
was recorded 40-45 years back and I do not know what time has passed away the
death of Mahadev. Rojhani was 70-80 years old at the time of her death. I do
not know whether Mahadev died during the life time of his father or when he
died." Kuber Pandey has stated thus:- "I had not seen Mahadev. First
of all Ram Subhag died and Mahadev died after him." The High Court, having
considered rival submissions, rightly did not find any merit in the writ
petition, having regard to the material placed on record and the reasons
recorded in the order of the Deputy Director, Consolidation based on evidence.
This being the position, in our view, the impugned order does not call for
interference. Hence the appeal is dismissed. However, there will be no order as