Babu Nandan Upadhyaya vs Deputy Director of Consolidation and Others

G.S.N. Tripathi, J.—This is a writ petition Under Article 226 of the Constitution praying for a writ in the nature of certiorari quashing the order dated 28.7.75 passed by the Day. Director of Consolidation (D.D.C.) Respondent No. 1 and the order dated 15.5.75 passed by the Settlement Officer, Consolidation, Respondent No. 2.

The disputed property is plot No. 206 area 76 decimal. The undisputed position is that Sita Ram, the father of the parties, was Zamindar of this property. Allegedly, in the year 1354 Fasli, he made a settlement in favour of his eldest son, the Petitioner whereas; Respondent Nos. 3 and 4, the other two sons were minors. Another feature of the case is that the land was recorded partly in the years 1356 Fasli and 1359 Fasli. The worthy father was quite conscious of the fact that the property will go outside the family the moment the Zamindari Abolition notification was issued as It was very much in the air that Zamindari Abolition Legislation was going to be passed shortly. He did not go long in search of a proper tenant and readily found his worthy son, the Petitioner as a good character in whose favour a settlement could be made In order to ward off the evil effects of Zamindari Abolition Legislation. It is in the context that the case has to be viewed. Another picture of the case is that Sita Ram, the father of the parties died sometimes in the year 1970-71 near about the notification u/s 4 of the Consolidation of Holdings Act. The family was shown joint for pretty long time. Even on February 2, 1966, parties jointly purchased properties. In the Kutumbh register, they were shown jointly recorded.

In this broad feature of this family history, a settlement is alleged to have been made in favour of the Petitioner by his real father. Both the courts below have repelled his contention that the disputed property belongs exclusively to him.

Reliance has been placed on the ruling of the Hon''ble Supreme Court in AIR 1964 SC 1076. It is very clear from that ruling that when the nucleus is proved of joint status and Joint interest, the burden is upon the person who says that he exclusively earned the property. There is not an iota of evidence on the record to prove as to what was the financial status of the Petitioner or if at all. He had any financial status in presence of his father Specially when the other two brothers are minors. Therefore, it is difficult to believe that with such a nucleus with joint family the father would have excluded his other two sons and made a settlement in favour of the Petitioner only. The principal intention appears to be to grab the property somehow or the other, which might have gone outside the family. Therefore a colour had to be given of settlement in favour of the Petitioner who alone was major at that time.

Both the courts have applied their minds on the evidence and circumstances available on the record. I do not find any misdirection on their part giving any scope for interference Under Article 226 of the Constitution.

Sri S.N. Singh has vehemently argued that the Petitioner''s contention regarding limitation has not been considered. I think it was not at all essential especially when the Consolidation Officer himself had decided the case not only on the point of limitation but on merits also. It seems that the point of limitation had not been very seriously pressed there, which is now being agitated in this Court.

There is no force in this petition. It is accordingly dismissed. The deposits made in pursuance of this Court''s order dated 25.8.75 shall be withdrawn by the Respondents. The stay order, if any, shall stand vacated forthwith.