Subba & ANR. Vs.
Debiya and ANR.  INSC 128 (22 January 2009)
JURISDICTION CIVIL APPEAL NO.361 OF 2009 (Arising out of SLP(c) No. 17695 of
2006) Subba & Anr. ...Appellant Versus Debiya & Anr. ...Respondent
appeal is directed against the judgment and order of Allahabad High Court dated
3.7.2006 in CMWP No. 5813/85 setting aside the judgment and order of Revisional
facts leading to filing of this appeal are: one Smt. Sonia resident of village
Chhibab was married in Zari with Mengi. Only two daughters namely Bhagwania and
Maiki were born out of the wedlock.
2 The appellants
herein Subba and Sudish are the sons of Maiki. After the demise of Mengi, Sonia
inherited the property in question from the deceased Mengi. It is alleged that
after the death of Mengi one Teni who was working for Sonia as labourer
developed illicit relations with Sonia as a result one son Debiya respondent
herein was born. Be it noted, as per the version of the appellants Debiya is
not the legal son of Sonia and Mengi, therefore, he could not be the legal heir
to succeed the inherited property of Sonia. Teni died in the year 1956.
Sonia died in April,
1977. In the year 1978, the appellants herein filed objections under the
provisions of U.P. Consolidation Holdings Act, 1953 before the Assistant
Consolidation Officer, Zari, District Banda for declaration as legal heirs of
Sonia and their names to be recorded in the revenue records in place of Sonia.
Deviya also filed his objections whereunder he claimed that the disputed
property was self-acquired property of his father Teni. The Consolidation
Officer vide order dated 7.7.1980 declared Debiya to be the sole legal heir of
Sonia and Teni. The appellants herein being aggrieved by the said order filed
Appeal No. 1838 before the Assistant Settlement Officer Consolidation, Jhansi
Camp-Banda which was dismissed vide order dated 25.9.1980. Thereafter the
appellants filed revision no. 1656 which was allowed by the Assistant Director
Consolidation vide order dated 19.4.1985 setting aside the judgment and order
of Settlement 3 Officer Consolidation and directed the names of the appellants
to be recorded in respect of the said property left behind by Sonia. Being
aggrieved by the revisional order Debiya-the respondent herein filed writ
petition before the High Court. The High Court while allowing the writ petition
quashed the judgment and order of Assistant Director Consolidation and restored
the order of Consolidation Officer and Settlement Officer Consolidation. Hence
have elaborately heard the learned counsel for the parties and perused the
impugned judgment and the material made available on record.
High Court mainly relied upon the admission stated to have been made by the
appellants herein in their objections to the effect that the respondent was
born out of "illegal relationship of Teni and Sonia." The whole
conclusion of the High Court and its decision to reverse the order of the
Revisional Court is based upon the said admission.
question that arises for consideration in this appeal is as to whether the High
Court committed any error apparent on the face of 4 the record in coming to
such conclusion that the respondent herein was born out of the relationship
between Teni and Sonia? Secondly, whether the evidence available on record
supports the conclusion reached by the High Court in a proceeding under Article
227 of the Constitution of India? Thirdly, whether is there any such admission
at all made by the appellants herein in their objections?
evidence adduced on behalf of the respondent herein is not clear as regards the
birth of Debiya out of the relationship between Teni and Sonia. No doubt the
entries in the voter list of the year 1959 as well as 1975 the name of the
respondent was shown as son of Teni but that evidence of respondent itself is
not of any assistance to arrive at any conclusion that he was born out of the
relationship between Teni and Sonia. He expressed his ignorance as to when and
where Teni died.
far as the evidence of the appellants is concerned, the witnesses examined on
their behalf in clear and categorical terms stated that Teni did not belong to
their village Zari but he came to that village in search of work along with the
respondent and he was engaged to work as labourer by Sonia.
is no dispute whatsoever that entries in the revenue records before the
commencement of lis between the parties were in the name of Sonia and Mengi in
respect of the property in question. It is also not in dispute that Sonia was
the legally wedded wife of Mengi.
It is out of the
wedlock of Sonia and Mengi, two daughters namely Bhagwania and Maiki were born.
The appellants are the sons of Maiki - the deceased daughter of Sonia.
the circumstances it becomes difficult to accept the case set up by the
respondent herein that he inherited the property after the death of Sonia.
There is no acceptable evidence that he was born out of the relationship
between Sonia and Teni. In order to overcome this difficulty Debiya appears to
have set up altogether a different case that the possessory right of land was
acquired from one Bhagwat Prasad Zamindar. But there is no acceptable evidence
except the assertion of the respondent.
have perused the objections filed by the appellants herein before the authority
in which there is no such admission to the effect that the respondent was born
out of the "illegal relationship between Teni and Sonia" or any such
admission in the evidence of the 6 appellants. It is in the evidence of the
appellant that Mengi died about 55 years ago as told to them by none other than
Sonia. It is also in their evidence that the respondent herein is the son of
Teni and not of Sonia. Teni was merely cultivating the land on behalf of the
It is also in their
evidence that Sonia and respondent both lived separately and never lived
together. The other witnesses on behalf of the appellants reiterated and
supported the version given by the appellants that Teni does not belong to
their village but came to the village in search of the work along with Debiya.
It is in their evidence that after the death of Mengi, Sonia did not give birth
to any child/children.
so far as the evidence produced on behalf of the respondent to the effect that
Sonia and Mengi did not have any issues at all out of their wedlock does not
inspire any confidence. It is a self- serving statement which cannot be
accepted. No evidence has been produced by the respondent that the property was
acquired by Teni from one Bhagwat Prasad Zamindar as claimed by him. There is
no record to that effect maintained by the revenue administration. On the
contrary, the entries made in Khasra 1333 and 1334F in respect of the land in
question support the case of the appellants inasmuch as the name of Sonia has
been recorded in the said documents.
the Revisional Court after elaborate consideration of the matter and upon
appreciation of the evidence available on record in categorical terms found
that even during the lifetime of Teni and for a very long time the name of
Sonia has been continuously recorded in all the revenue records. It is for that
reason the Revisional Court found that the plea set up by the respondent herein
that the property in question was that of self-acquired property of his father
Teni was not acceptable. The Revisional Court also found that the name of the
respondent herein had never been entered in any of the records after the death
of his father Teni. The Revisional Court found that had it been self-acquired
property of Teni the name of the respondent would have been found place in the
revenue records after the death of Teni.
all the aforesaid reasons it is clear from the evidence and material available
on record that the appellants herein never made any admission that the
respondent was born out of the illegal relationship of Teni and Sonia nor there
is any such admission made by them in their evidence. The finding recorded by
the Revisional Court that the property was always held and possessed by Sonia
as her absolute property does not suffer from any error. The finding that the
appellants herein are the sons of Maiki - the deceased daughter of 8 Sonia
also does not suffer from any error as the same is based upon proper
appreciation of evidence available on record. There is no evidence whatsoever
to arrive at any proper conclusion that respondent herein was born out of the
wedlock/relationship between Sonia and Teni.
our considered opinion, the High Court ought not to have interfered in exercise
of its jurisdiction under Article 227 of the Constitution of India with the
decision of the Revisional Court which does not suffer from any factual and legal
all the aforesaid reasons, the impugned order is set aside.
The appeal is
accordingly allowed with no order as to costs.
(Lokeshwar Singh Panta)
(B. Sudershan Reddy)
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