Rameshwar and others vs Dy. Director of Consolidation, Azamgarh and another

A.P. Sahi, J.—The dispute in this petition relates to a legal battle of cotenancy in a claim set up by the petitioners predecessor-in-interest. Ram Murat in relation to khata Nos. 47, 119 and 326. The claim has been rejected by the Consolidation Officer and on an appeal the petitioners succeeded before the Settlement Officer. Consolidation. The respondent filed a revision which was dismissed on 11.8.1972.Thereafter the matter was taken up in Writ Petition No. 63 of 1973 filed by the respondent before this Court. The petition was allowed on 14.2.1985 and the matter was remanded back to the Deputy Director of Consolidation to decide the matter afresh. The High Court directed that the claim of Ram Murat in relation to plot No. 315 had been accepted and that of the respondent had been rejected. In such a situation it was found that no adverse inference could have been drawn in the said circumstances and the Impact thereof ought to have been assessed in accordance with law. On remand by the High Court the revision was allowed on 29.11.1989 thus rejecting the claim of the petitioner.

A restoration application filed by the petitioner was rejected on 13.6.2000 and against both these orders Writ Petition No. 29097 of 2000 was filed, The same was allowed on 2.7.2005 on the ground that the Deputy Director of Consolidation while deciding the revision has not reversed the findings recorded by the appellate court and has done so without considering the evidence on record which was discussed by the appellate court.

It is on this second remand that the impugned order dated 28.12.2011 has been passed allowing the revision of the respondent setting aside the appellate order that was passed in favour of the petitioner. The petitioners, therefore, aggrieved are now before this Court contending that the Deputy Director of Consolidation has on erroneous consideration of law and fact proceeded to pass the impugned order.

Sri B.D. Mandhyan learned senior counsel contends that the Settlement Officer, Consolidation had categorically discussed the evidence relating to the joint status of the family and as such the holdings in dispute were all joint holdings in which the petitioners had their share. He contends that the same could not have been treated as the exclusive tenancy of the respondent. Sri Mandhyan relying on the decisions in the case of Vasumatiben Gaurishankar Bhatt Vs. Navairam Manchharam Vora and Others, : Kailash Rai v. Jai Ram and others, AIR 1973 SC 893; Badloo and Others Vs. Kandbai and Others, and Dujai and Others Vs. Dy. Director of Consolidation and Others, , contends that the jointness can also be presumed in sirdari khatas and as such the conclusion drawn by the Deputy Director of Consolidation is contrary to the law laid down in the aforesaid cases. He further submits that there was no dispute in relation to khata No. 315 in which the petitioners were the exclusive recorded tenure holders and which dispute has become final. The impact of the decision in relation to khata No. 315 has been wrongly construed by the Deputy Director of Consolidation to be adverse against the petitioners and therefore, the impugned order is vitiated.

He further submits that the evidence on record indicated jointness of holding and that the Deputy Director of Consolidation without upsetting the findings of the Settlement Officer, Consolidation has erred in recording a finding to the contrary. He submits that Ram Murat was a minor when the holding In dispute came to be Jointly held in a representative capacity by Satyadeo and Harbans. For this he relies on the findings recorded by the Settlement Officer, Consolidation as also the statement of Satyadeo extracts whereof have been placed on record through a supplementary-affidavit filed today. Satyadeo has himself admitted the Joint acquisition of the property and that the khataunt of 1359 fasli indicates that the same had been acquired two years ago when the family was still joint. He has further urged that the acquisition of land of khata No. 47 through a sale deed and the transaction of money in which payment is said to have been made by the petitioner indicates that the land had been acquired jointly. He therefore, submits that the Settlement Officer. Consolidation had rightly accepted 1/8th share of the petitioners in khata Nos. 119, 326 and 1/8th in khata No. 47.

Sri S.C. Verma learned counsel for the respondent No. 2 Narbadeshwar Mishra s/o late Satyadeo contends that the appellate order proceeds on a totally erroneous approach of law inasmuch as if the land was Sikkmi and became Sirdari then the concept of the jointness of such acquisition is not acceptable and there is no evidence to that effect. He submits that there is no evidence led by the petitioner to indicate that the holding was acquired Jointly or was ancestral. In the absence of any such evidence the Settlement Officer. Consolidation on the basis of a long drawn reasoning without there being any basis for joint acquisition could not have allowed the appeal.

Sri Verma contends that the Deputy Director of Consolidation has dealt with this issue and has arrived at a conclusion that the land in dispute had been entered in the name of third parties in 1356 fasli. 1359 fasli and 1362 fasli. The claim of acquisition began thereafter on the basis of possession. No evidence of possession of the petitioner was ever found and to the contrary the entry of possession was found in favour of the respondent. The Deputy Director of Consolidation, therefore, concluded that there was no jointness of the holding proved nor there was any evidence of the same being ancestral. He further submits that the Deputy Director of Consolidation has rightly found that if the petitioners were pleading jointness then Ram Murat could not have claimed exclusive rights over khata No. 315 which he claims to have become final.

Having heard learned counsel for the parties the Settlement Officer, Consolidation did record a finding on the basis of the inference drawn that the family had remained Joint up till 1970. Not only this he also relied on certain statement to infer that some property had been recorded separately but the holding in dispute remained a Joint holding.

The holding in question initially admittedly was sirdari and it was claimed on the basis of possession which fact has been categorically recorded by the Deputy Director of Consolidation that there was no evidence of any Joint acquisition of the property or it being ancestral. The entries in 1356 fasli. 1359 fasli and 1362 fasli are neither in favour of the petitioner nor the respondent. The entry of possession is only in favour of the respondent thereafter and his claim came to be crystallized on the basis of possession. The Deputy Director of Consolidation was therefore, right in concluding that if Ram Murat had acquired the land of khata No. 315 exclusively then the respondent also could have acquired exclusive holding over khata Nos. 47, 119, 326 by possession as there was no evidence of jointness.There is yet another aspect. Even if the parties were enjoying a common living the same by itself would not be conclusive proof or evidence that the holding had been acquired jointly. The joint acquisition of a property Is altogether a different concept from a common living pattern accepted by the petitioner. In the instant case the predecessor-in-interest of the petitioner Ram Murat himself indicated the exclusive acquisition of khata No. 315 thus there was a clear severance on this count and the parties can safely be presumed to have acquired property separately. The inferences drawn by the Settlement Officer, Consolidation have, therefore, been rightly reversed by the Deputy Director of Consolidation on consideration of material on record and as such no perversity or Illegality can be found in the Impugned order.

The writ petition lacks merit and is accordingly dismissed.