Abhiraji v Deputy Director of Consolidation and others

Allahabad High Court

 3 May 2013

Writ B No. 45721 of 1992

Bench

Ram Surat Ram (Maurya)

The Order of the Court was as follows :

1. Heard Sri H.S.N. Tripathi, counsel for the petitioner.

2. The writ petition has been filed for quashing the order of Deputy Director of Consolidation, Deoria (respondent-1) dated 16.09.1992 passed in Revision No. 548, Abhiraji Vs. Shanti and others, order of Settlement Officer Consolidation, Hata, Deoria (respondent-2) dated 16.11.1987 and order of Consolidation Officer, Hata, Deoria (respondent-3) dated 03.09.1987, in title proceedings under U.P. Consolidation of Holdings the Act, 1953 (hereinafter referred to as the Act).

3. Dispute relates to plot No. 3916 (area 0.46 acre) of village Basahia alias Kaptanganj, tappa Parwarpar, pargana Haweli, tahsil Hata, district Deoria. In basic consolidation record, name of one Abdul Gani was recorded as ‘sirdar’ and name of Abhiraji (the petitioner) was recorded in class IX of the khatauni. During field to field partal in consolidation operation, an area of 0.16 acre of plot No. 3916 was found as abadi and remaining area of 0.30 acre was found in cultivation of Mst. Shanti Devi (respondent-4), accordingly in CH Form-5, possession of respondent-4 was recorded. The petitioner, respondent-4 and Abdul Gani filed objections u/s. 9 (2) of the Act, claiming the land in dispute. All the objections were consolidated and tried together. Later on Abdul Gani abandoned his claim. On behalf of the petitioner, copies of khatauni of 1359 F, Khasra of 1359 F, khataunis of 1370 F to 1377 F were filed and witnesses Almeen, Isha and Khalil were examined. Smt. Shanti Devi filed khatauni of 1323 F and examined witnesses Pauhari Sharan and Bhagwan. The Consolidation Officer by his order dated 03.09.1987 found that from the documentary evidence it is proved that an area of 0.16 acre of plot No. 3916 was converted into abadi which was also found during partal in consolidation as well as by Settlement Officer Consolidation in his spot inspection report dated 08.12.1975 accordingly he directed for recording 0.16 acre area of this plot as abadi in column VI of the khatauni. The Consolidation Officer, however, did not advert to the arguments of Smt. Shanti Devi that entries in favour of the petitioner were forged on the ground that possession of Smt. Shanti Devi was not established on the remaining area of 0.30 acre of the land in dispute, therefore he directed for maintaining entries of basic consolidation year in respect of that area of the land in dispute.

4. The petitioner and respondent-4 both filed appeals from the order of Consolidation Officer dated 03.09.1987. Both the appeals were consolidated and heard by respondent-2, who by his order dated 16.11.1987 held that in khatauni 1359 F name of Abhiraji had been inserted by overwriting. Abhiraji has failed to prove her title and also that by whose order her name was recorded in 1359 F khatauni. Thereafter her name was not recorded in any year up to 1370 F. In 1370 F khatauni her name was entered in column IX, while column 1 and 2 of the khatauni was blank thus these entries were also not genuine and forged. During partal, possession of Abhiraji was not found over the land in dispute. Thus neither title nor possession of Abhiraji was proved. Entries of the name of Abdul Gani was also forged. On the other hand names of Ram Awatar, Ram Lagan and Raja, sons of Ganga, were recorded over the land in dispute in 1323 F Khatauni as ‘dakhilkar’. Bhagwan son of Raja, witness of Smt. Shanti Devi has proved that his ancestor had given the land in dispute in ‘sankalp’ to Pauhari Tiwari, husband of the petitioner as he was their ‘purohit’. Since then Shanti Devi was in possession over the entire area of the land in dispute. He relying upon the khatauni of 1323 F, statement of Bhawan son of Raja and report of Settlement Officer Consolidation dated 08.12.1975 held that Shanti Devi had been in possession over the entire area of the land in dispute. On these findings the appeal of Smt. Shanti Devi (respondent-4) was allowed and appeal of the petitioner has been dismissed. The petitioner filed a revision (registered as Revision No. 548) from the aforesaid order which has been dismissed by respondent-1 by order dated 16.09.1992.

5. The orders of the consolidation authorities have been challenged on the ground that an area of 0.16 acre of the land in dispute was found as abadi during partal as such the consolidation authorities had no jurisdiction to adjudicate title dispute of the parties over it. Smt. Shanti Devi neither based her claim on the alleged oral gift in her favour nor it was proved. Respondents-1 and 2 have illegally held that there was manipulation in khatauni of 1359 F and finding in this respect is based upon conjectures and surmises. The title of the petitioner had already been upheld by the judgment of Revenue Court dated 30.03.1973 passed in Suit No. 1318 of 1972 under Section 229-B of U.P. Act No. 1 of 1951. Collusive admission of Abdul Gani could not have been relied upon against the petitioner. Report dated 08.12.1975 relating to spot inspection of Settlement Officer Consolidation was an ex parte report and no reliance could have been placed on it.

6. I have considered the arguments of the counsel for the petitioner and examined the records. The first question arise as to whether title and possession of the petitioner over the land in dispute was proved. The petitioner has adduced contradictory evidence. On the one hand she filed khatauni of 1359 F showing that her name was recorded in column VIII as hereditary tenant but she has not filed any document to show that how she acquired hereditary right and on whose order her name was recorded in khatauni of 1359 F. Respondents-1 and 2 have concurrently found that by making an over- writing name of the petitioner was recorded in khatauni of 1359 F. This was the reason that in subsequent years her name was not recorded in the revenue record. If she had been hereditary tenant since before abolition of zamindari, her name ought to have been recorded as sirdar after abolition of zamindari. Thus the petitioner failed to prove her title over the land in dispute. Arguments of the counsel for the petitioner that the findings in this respect are based upon conjectures and surmises and is not liable to be accepted as respondents-1 and 2 had examined khatauni and khasra of 1359 F filed before them.

7. In contradiction to her case based on title, she had produced khataunis of 1370 to 1377 F, showing that her name was recorded in column IX of the khataunis, having been found in possession over the land in dispute during partal by the lekhpal. Land Record Manual provides mandatory provisions to serve notice on the land holder before recording possession in column IX of the khatauni. The copies of the khataunis produced by the petitioner show that column relating to chief tenant was missing in it. Thus the petitioner has not adduced any evidence to prove that before recording possession over the land in dispute, the procedure as provided under Land Record Manual had been followed. Un-authorized entries in column IX cannot be relied upon and be regarded as a forged entries as has been consistently held by this Court. Thus neither title nor possession of the petitioner was proved over the land in dispute. Findings of fact recorded by respondents-1 and 2 in this respect do not suffer from any illegality.

8. So far as arguments of the counsel for the petitioner that the land in dispute was found as abadi during partal as such the consolidation authorities had no jurisdiction to adjudicate title dispute of the parties over it is concerned, in paragraph-11 of the writ petition, the petitioner has categorically denied the existence of abadi. The arguments in this respect is contrary to the pleading and case of the petitioner. It is well settled that a bhumidhar has right to use a part of his holding for any other purposes. In order to provide jurisdiction to the consolidation authorities over such land, the word “land” has been differently defined under the Act, which is quoted below:

Section- 3 (5):- ‘land’ means land held or occupies for purposes connected within agriculture, horticulture, and animal husbandry (including pisciculture and poultry farming) and includes-

(i) The sites, being part of the holding, of a house or other similar structure; and

(ii) Trees, wells and other improvements existing on the plots forming the holding.

Thus from the aforesaid definition, it is clear that houses and other structures lying on a part of the holdings are within the jurisdiction of the consolidation authorities and they were fully justified in deciding title of it.

9. So far as title and possession of respondent-4 is concerned, respondents- 1 and 2 relying upon the statement of Bhagwan son of Raja found that land in dispute was given by Ram Awatar, Ram Lagan and Raja, sons of Ganga, who were recorded over the land in dispute in Khatauni of 1323 F as ‘dakhilkar’ to Pauhari Tiwari, husband of the petitioner in ‘sankalp’ as he was their ‘purohit’. Since then Shanti Devi was in possession over the entire area of the land in dispute. Concurrent findings of facts recorded by respondents-1 and 2 in this respect do not suffer from any illegality.

10. So far as judgment and decree of Revenue Court in favour of the petitioner is concerned, respondent no.4 was not party in that suit as such it cannot be read against her.

11. From the aforesaid discussion, I do not find any illegality in the impugned orders so as to warrant interference by this Court in exercise of writ jurisdiction. The writ petition has no merit and it is dismissed.

Petition dismissed