Nisar Ahmad vs Sami Ullah (Dead) Through Lrs

2024 INSC 820 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 9739-40 OF 2011

NISAR AHMAD & ORS. APPELLANT(S)

VERSUS

SAMI ULLAH (DEAD) THROUGH LRS. & ANR. RESPONDENT(S)

WITH CONTEMPT PETITION (C) NO. 194 OF 2022

JUDGMENT

UJJAL BHUYAN, J.

Heard learned counsel for the parties.

2. The two appeals by special leave are directed against the

judgment and order dated 05.01.2009 passed by a Division Bench

of the High Court of Judicature at Allahabad in Civil Misc. Writ

Petition No. 6635 of 1974 (Nisar Ahmad and Ors. Vs. Deputy

Director of Consolidation, Sultanpur and Ors.) and in Writ Petition

No.18 of 1975 (Sami Ullah and Anr. Vs. Nisar Ahmed and Ors.). By

the aforesaid judgment and order dated 05.01.2009, Civil Misc. Signature Not Verified Digitally signed by SATISH KUMAR YADAV Date: 2024.10.24

Writ Petition No.6635 of 1974 was dismissed and Writ Petition 18:47:00 IST Reason:

No.18 of 1975 has been allowed.

2

3. By order dated 27.04.2009, this Court had issued notice

on the special leave petition as well as on the prayer for interim

relief. Subsequently, by order dated 15.01.2010, both the parties

were directed to maintain status quo prevailing as on 15.01.2010.

Thereafter, by order dated 03.11.2011, leave was granted directing

the status quo order to be continued in the meantime.

4. At the outset, it may be useful to make a brief reference

to the relevant facts. Zahoor Ahmed, son of Abdul Shakoor, father

of the appellants, had moved the Consolidation Officer, Sultanpur

under Section 9(2) of the Uttar Pradesh Consolidation of Holdings

Act, 1953 (briefly ‘the 1953 Act’ hereinafter) raising a dispute as to

Khata Nos. 99 and 100 of village Bhati Jarouli of Miranpur, District

Sultanpur, U.P., recorded in the name of respondent Sami Ullah

and others. Zahoor Ahmed claimed co-tenancy in both the Khatas

to the extent of half share. Since the dispute could not be

reconciled, he approached the Consolidation Officer. After notice

and hearing, the Consolidation Officer passed an order dated

06.12.1972 directing that the name of Zahoor Ahmed be entered

as a co-tenant in Khata No. 99 and accordingly partition be made.

The shares of Sami Ullah and another (respondents herein) were

determined to the extent of 1/4 each. However, the claim of Zahoor 3

Ahmed of co-tenancy qua Khata No. 100 was rejected. Accordingly,

direction was issued to intimate the parties and to correct the

areas of the land in respect of the parties so determined by the

Consolidation Officer.

5. Aggrieved by the aforesaid order dated 06.12.1972,

respondents Sami Ullah and others filed appeals before the

Assistant Settlement Officer under Section 11(1) of the 1953 Act.

Similarly, Zahoor Ahmed also filed an appeal under Section 11(1)

of the 1953 Act against the said order dated 06.12.1972 rejecting

his claim qua Khata No. 100. By order dated 25.04.1973, the

appellate authority i.e. the Assistant Settlement Officer, Sultanpur

dismissed all the appeals. In other words, order of the

Consolidation Officer dated 06.12.1972 was upheld.

6. Thereafter, respondents Sami Ullah and others filed a

revision application before the Deputy Director of Consolidation,

Gorakhpur (‘Deputy Director’, hereinafter). Likewise, the legal

heirs of Zahoor Ahmed, Nisar Ahmed and others (‘appellants’

herein) also filed revision before the Deputy Director against

rejection of their appeal. By the order dated 20.09.1974, the

Deputy Director opined that Zahoor Ahmed was not entitled to get

share in the above Khatas and accordingly the order of the 4

Consolidation Officer as affirmed by the Assistant Settlement

Officer i.e. the appellate authority was modified. Deputy Director

while dismissing the revision of Zahoor Ahmed, Nisar Ahmed and

others allowed the revision of the respondent Sami Ullah and

others.

7. Appellants thereafter preferred Civil Misc. Writ Petition

No. 6635 of 1974 before the High Court of Judicature at Allahabad

(briefly ‘the High Court’ hereinafter). By the judgment and order

dated 05.01.2009, the High Court held that Deputy Director was

not justified in importing principles of Hindu law while

determining the share of the parties who were admittedly

Mohammedans. Accordingly, the High Court held that the

appellants have 1/12 share jointly in the plots comprised in Khata

Nos. 98 and 99 excluding plot Nos. 35, 37, 111 and 112 which

exclusively belongs to the respondents Sami Ullah and his brother

Badlu, sons of Abdul Ghafoor. Accordingly, Civil Misc. Writ Petition

No. 6635 of 1974 was dismissed and Writ Petition No. 18 of 1975

was allowed.

8. It is this judgment and order dated 05.01.2009 which

came to be assailed in the related special leave petitions and upon

leave being granted, the present civil appeals came to be registered. 5

9. While learned counsel for the appellants has contended

that the High Court was not justified in upholding the order passed

by the Deputy Director in revision thereby adversely affecting the

rights of the parties, learned counsel for the respondents on the

other hand supports the impugned order. He submits that the

order of the High Court is a well-reasoned and balanced order and

therefore should not be disturbed.

10. Submissions made by learned counsel for the parties

have received the due consideration of the Court.

11. Zahoor Ahmed, the predecessor in interest of the

appellants, had approached the Consolidation Officer under

Section 9(2) of the 1953 Act raising a dispute regarding Khata Nos.

99 and 100. It may be mentioned that the Khata No. 99 was

recorded in the name of Sami Ullah and Badlu (the respondents)

whereas Khata No. 100 was recorded in the name of Sami Ullah

alone. Zahoor Ahmed claimed co-tenancy in both the Khatas to the

extent of 1/2 share. He also claimed half share in Khata No. 100.

Since the dispute could not be reconciled, the same was raised

before the Consolidation Officer.

11.1. According to Zahoor Ahmed, the land in question were

acquired by Mohammad and Abdul Ghafoor, father of Allah Bux, 6

jointly for the benefit of the entire family. Thus, they were in joint

occupation of the land. At the time of death of Allah Bux, Ghafoor

was the ‘karta’ of the family and all the sons of Allah Bux remained

in joint occupation. Zahoor Ahmed claimed that he was in joint

occupation of the land in question, paying land revenue to the

extent of his share. Thus, he claimed half share in the land in

question by way of pedigree.

11.2. According to the respondents, their father had acquired

the lands covered by Khata No. 98 through lease; their father had

five shares in the said land and one share belonged to Mohammad

who died in 1942. Though he was survived by his daughter, as per

family custom, she did not have any share in the lands in question.

Respondents claimed one share in this land as well. Thus,

according to the respondents, they had 11/12 share in Khata No.

98 and 1/12 share belonged to Zahoor.

11.3. In so far Khata No. 99 is concerned, according to the

respondents, these lands were acquired by their father and

devolved upon them on the death of their father. They challenged

the claim of Zahoor to such land on the ground that Zahoor had

made a dastbardari in their favour in the year 1948. Plot Nos. 45,

57, 111 and 112 were claimed by the respondents as having been 7

acquired by their father Ghafoor. They, however, admitted half

share claim of Zahoor Ahmed in respect of Khata No. 99 while

denying the claim to the remaining extent of half. Plot No. 115 of

Khata No. 100 was wholly claimed by the respondents denying the

claim of Zahoor to the extent of half share in the said land.

11.4. Consolidation Officer upon consideration of the

pleadings of the parties in dispute had framed the following issues:

(i) Whether respondents were entitled to 11/12 share of Khata No. 98?

(ii) Whether Zahoor Ahmed was entitled to half share of Khata No. 98?

(iii) What was the share of the parties in respect of Khata No. 98?

(iv) Whether Zahoor Ahmed was co-tenant of Khata No. 99 as claimed?

(v) Whether the respondents were recorded as the sole owner of the land covered by Khata No. 99?

(vi) Whether Sami Ullah and Badlu i.e. the respondents were entitled to 11/12 share in respect of plot Nos. 31, 94, 95, 96, 97 and 99 etc. as claimed?

(vii) Whether plot Nos. 35, 57, 111 and 112 were the sole sirdari of the respondents as claimed? 8

(viii) What were the share of the parties qua Khata No. 99?

(ix) Whether Zahoor was co-tenant of plot No. 115 of Khata No. 100 as claimed?

(x) Whether the respondents were the sole owner of the land of Khata No. 100?

(xi) What were the shares of the parties qua Khata No. 100?

11.5. After noting that it was an admitted position that

neither the daughter in the family nor their sons got any share in

the lands belonging to the family, Consolidation Officer observed

that the appellants and the respondents were recorded as co-

tenant of the land in Khata No. 98. Respondents also admitted the

share of the appellants in plot Nos. 94, 95, 96, 99, 100 etc. to the

extent of 1/12. Thus, according to the Consolidation Officer, in

view of the admission made by the respondents, Zahoor Ahmed

was the co-tenant and that the dispute was only regarding his

share. Further, the Consolidation Officer remarked that the onus

was on the respondent to prove that they were entitled to 11/12

share of the land. Consolidation Officer also noticed that there was

a lease deed of 1922 but what was to be seen was whether the

lands were acquired jointly.

9

11.6. After discussing the evidence and the materials on

record, the Consolidation Officer vide the order dated 06.12.1972

held that Zahoor Ahmed was in occupation of the plots of land

bearing Nos. 95, 96, 97, 99, 100 and 107 and as many as five plots

being 99, 100, 107 etc. were being cultivated by Zahoor. The

Khasra for the relevant years indicated that Zahoor was all along

in occupation of the above lands; his name was recorded over an

area of 3 bighas 10 biswas of lands and he also paid land revenue

in respect of which large number of revenue receipts were on

record. Thus, the Consolidation Officer concluded that the lands

were acquired jointly when Zahoor Ahmed was a minor and his

share would be half of the land. Therefore, he was entitled to half

share in Khata Nos. 98 and 99. In so far plot No. 115 of Khata No.

100 is concerned, it was held that the same remained the exclusive

property of the respondents. The Consolidation Officer declared

that Zahoor Ahmed being the co-tenant of Khata No. 99 was

entitled to half share thereof. Accordingly, it was ordered that the

name of Zahoor Ahmed be entered as a co-tenant in Khata No. 99

and partition be made in Khata Nos. 98 and 99 in the following

manner:

(i) Zahoor - 1/2 (ii) Sami Ullah - 1/4 10 (iii) Badlu - 1/4

12. Against the aforesaid order dated 06.12.1972,

altogether three appeals were filed before the appellate authority

i.e. Assistant Settlement Officer- one by Zahoor Ahmed and the

other two by the respondents. The appeals were filed under Section

11(1) of the 1953 Act.

12.1. By the common judgment and order dated 25.4.1973,

the appellate authority i.e. Assistant Settlement Officer, Sultanpur

dismissed all the three appeals. While dismissing the appeals, the

appellate authority noted that in the basic year, Khata No.98 was

recorded in the name of Sami Ullah and Badlu and also in the

name of Zahoor Ahmed. Khata Nos.99 and 100 were recorded in

the name of Sami Ullah and Badlu. Zahoor Ahmed filed objection

under Section 9 of the 1953 Act contending that in Khata No.99

his name should be recorded. He claimed 1/2 share in Khata

Nos.98 and 99 contending that Satai was the common ancestor of

both the parties and that he had acquired the disputed land from

the joint family. According to him, Allah Bux and Mohammad were

the sons of Satai. Abdul Ghafoor was the elder son of Allah Bux

and became the ‘karta’ of the joint family. After the death of Allah

Bux, Abdul Ghafoor, Abdul Shakoor and Mohd. Ismail, being sons 11

of Allah Bux, came into possession of the disputed land jointly.

Mohd. Ismail died issueless. The disputed land was recorded in the

name of Sami Ullah and Badlu being the sons of Abdul Ghafoor as

‘karta’ of joint family.

12.2. Zahoor stated that at the time of death of his father, he

was a minor and lived with Abdul Ghafoor. Abdul Ghafoor and

Abdul Shakoor had 1/2 share in the disputed land. Accordingly,

both the parties were in possession of the disputed land.

12.3. Sami Ullah and Badlu objected to the claim of Zahoor

and contended that the land in Khata No.99 was acquired by Abdul

Ghafoor. Sami Ullah and Badlu admitted 1/12 share in the

disputed land and denied share of Zahoor in plot No.115 of Khata

No.100.

12.4. The primary authority i.e. the Consolidation Officer on

the basis of the materials of record and the evidence adduced

decided the share of Zahoor in Khata Nos. 98 and 99 at 1/2 and

dismissed the objection of Zahoor qua plot No. 115 of Khata No.

100. Therefore, Zahoor filed Appeal No. 43 in respect of plot No.

115 of Khata No.100. Sami Ullah and Badlu filed Appeal Nos. 50

and 51 against the decision of the Consolidation Officer declaring 12

1/2 share in the disputed land of Khata Nos. 98 and 99 as

belonging to Zahoor.

12.5. The appellate authority was of the view that plot No.35

was recorded only in the name of Allah Bux. Zahoor had

relinquished in favour of Sami Ullah on 30.06.1948. Zahoor also

relinquished the share of Ismail. Sami Ullah had filed the patta for

the first time before the Consolidation Officer on 07.05.1992. In

the settlement exercise, some disputed land was acquired by Allah

Bux and Mohammed jointly. Plot Nos.111 and 112 were recorded

in the name of Abdul Ghafoor. The appellate authority noted the

submission made on behalf of Zahoor that he was in possession of

the disputed land in Khata Nos.98 and 99 and paying land revenue

and took the view that the disputed land was in possession of the

joint family. When Shakoor, father of Zahoor, had died Zahoor was

a minor. Thereafter, father of Sami Ullah brought up Ghafoor and

Ghafoor lived as a member of the joint family. Though the name of

Ghafoor was not recorded, Sami Ullah admitted 11/12 share of

Zahoor. According to the appellate authority, Zahoor was in

continuous possession over the disputed land. The revenue

receipts indicated that he was in possession of 1/2 share thereof

and paying the revenue in respect of the said land. As regards plot 13

No. 115 of Khata No. 100, the appellate authority concurred with

the view of the primary authority. Therefore, the appellate

authority i.e. the Assistant Settlement Officer upheld the order of

the Consolidation Officer and dismissed all the appeals.

13. Two revision petitions were filed under Section 48 of the

1953 Act, Revision No. 3302 was filed by the respondents and

Revision No. 3312 was filed by the appellants, against the

judgment and order dated 25.04.1973 passed by the Assistant

Settlement Officer in appeal.

13.1. The revisional authority i.e. the Deputy Director of

Consolidation noted that according to Zahoor, the disputed land

was joint family property and as such, his share in it was 1/2.

Khata No. 98 was recorded in the name of Sami Ullah and Badlu

on the one hand and Zahoor on the other hand whereas Khata No.

99 was recorded only in the name of Sami Ullah and Badlu.

Consolidation Officer had allowed the name of Zahoor Ahmed to

be in half of Khata No. 98 and Khata No. 99; however, dismissed

the claim of Zahoor Ahmed in respect of plot No. 115 of Khata No.

100. Against the aforesaid decision, appeal was filed but the same

was dismissed. It was thereafter that the revision came to be filed

by Zahoor Ahmed.

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13.2. On the other hand, Sami Ullah claimed that Zahoor had

1/12 share in Khata No. 98 as well as in Khata No. 99 and none

in respect of plot No. 115 of Khata No. 100. His objection was

allowed in respect of plot No. 115 of Khata No. 100 but was

dismissed in respect of the other two Khatas. Therefore, he also

filed appeals before the Assistant Settlement Officer which were

however dismissed. Thereafter, the related revision petition came

to be filed claiming 5/6th share in Khata No. 98 and exclusively

claimed Khata No. 99 for himself and Badlu.

13.3. During the revision proceedings, Zahoor Ahmed died

and he was substituted by his legal heirs (sons) Nisar Ahmed,

Irshan Ahmed and Ishtiyag Ahmed. The revisional authority

considered the claim of Sami Ullah. Zahoor Ahmed had disputed

1/12th share in Khata No. 98 because in the year 1922, the

disputed land was taken on lease by Abdul Ghafoor: 5/6th share

from Mohammad Ismail and 1/6th share from the zamindar.

Mohammad Ismail died in the year 1942. After his death, his 1/6th

share got devolved in 1/12th share, viz, in plot Nos. 35, 57, 111

and 112. It was noted that Khata No. 99 was recorded in the name

of Sami Ullah and Badlu. The revisional authority noted on the

basis of the evidence adduced that Shakoor had expired in the year 15

1930. Thereafter, the name of Zahoor was recorded as a member

of the joint family in Khata No. 98. From the materials on record,

the revisional authority noticed that Zahoor was in possession and

paying rent in respect of the disputed land. However, the revisional

authority accepted the contention of Sami Ullah that Zahoor had

relinquished his share in respect of plot Nos. 35, 57, 111 and 112

by way of relinquishment deed of the year 1948. Deputy Director

i.e. the revisional authority noted that relinquishment was by way

of a relinquishment deed and that Zahoor had admitted his

signature on it. Therefore, there was no reason to disbelieve the

contention of Sami Ullah because in the year 1948, Zahoor had

relinquished his share in plot Nos. 35, 57, 111 and 112. Further,

possession of Zahoor Ahmed was also not recorded. Thus Zahoor

Ahmed was held to be not entitled to any share in so far the said

plots were concerned. The lower authorities had ignored the

relinquishment deed which vitiated their respective orders. On the

basis of the relinquishment deed, the Deputy Director allowed the

revision of Sami Ullah in respect of plot Nos. 35, 57, 111 and 112.

As regards claim of Zahoor in respect of plot No. 115 of Khata No.

100, the Deputy Director was not convinced about the said claim.

That being the position, the revisional authority upheld the view 16

taken by the lower authorities and dismissed the revision of Zahoor

Ahmed.

14. Assailing the above order of the revisional authority,

appellants preferred Civil Misc. Writ Petition No. 6635 of 1974

whereas respondents preferred Writ Petition No. 18 of 1975 before

the High Court. High Court heard both the writ petitions together

as the two writ petitions arose out of the same consolidation

proceedings in respect of Khata Nos. 98, 99 and 100 in village

Bhati Jarouli, Sultanpur.

14.1. High Court traced the pedigree of the parties. Satai was

the common ancestor and he had two sons, namely, Allah Bux and

Mohammad. Mohammad died issueless in the year 1942. Allah

Bux had three sons i.e. Abdul Ghafoor who died in 1946, Abdul

Shakoor who died in 1930 and Mohammad Ismail who died

issueless in 1935. High Court pointed out that the dispute was

between the two branches of Abdul Ghafoor and Abdul Shakoor.

Petitioners of Civil Misc. Writ Petition No. 6635 of 1974 i.e. the

appellants represented the branch of Abdul Shakoor. The

contesting respondents of the said writ petition i.e. respondents

herein represented the branch of Abdul Ghafoor. In the basic year,

the entries were recorded in the following manner: 17

(i) Khata No. 98 was recorded in the names of the

respondents Sami Ullah and Badlu as well as in

the name of Zahoor Ahmed (father of the

appellants).

(ii) Khata No. 99 was recorded in the names of Sami

Ullah and Badlu (the respondents).

(iii) Khata No. 100 was exclusively recorded in the

name of Sami Ullah (respondent No. 1).

14.2. Zahoor Ahmed, father of the appellants, had filed

objection before the Consolidation Officer claiming co-tenancy

rights in Khata Nos. 98 and 99 to the extent of half share. He also

claimed one half share in plot No. 115 of Khata No. 100.

14.3. According to Zahoor Ahmed (father of the appellants),

the disputed Khatas were acquired jointly by the common

ancestor. After the death of Satai and Allah Bux, the name of Abdul

Ghafoor was recorded since he had attained majority by that time

and Abdul Shakoor was still a minor. Abdul Ghafoor was ‘karta’ of

the family and he looked after Abdul Shakoor and Mohammad

Ismail. After the death of Abdul Ghafoor, in view of the settlement

arrived at between the legal heirs of Abdul Ghafoor and Zahoor 18

Ahmed, the parties were in cultivatory possession of their

respective shares in the disputed Khatas.

14.4. On the other hand, Sami Ullah and Badlu (respondents)

had contended that Khata No. 98 was taken on patta by Abdul

Ghafoor and Mohammad. In the said patta, share of Abdul Ghafoor

was mentioned as 5/6 and that of Mohammad 1/6. After the death

of Mohammad, his share devolved in equal proportion upon Abdul

Ghafoor and Abdul Shakoor. Therefore, the appellants who

represents the branch of Abdul Shakoor got only 1/12 share.

14.5. The case of the contesting objectors (the respondents)

with regard to plot Nos. 35, 57, 111 and 112 comprising Khata No.

99 was that these plots were their exclusive property in view of the

registered relinquishment deed dated 30.06.1948 (which was

registered on 07.07.1948 and executed by the father of the

appellant Zahoor Ahmed) in favour of the respondents. They

contended that the said Khata was neither recorded in the name

of Zahoor Ahmed nor was he in possession thereof. Respondents

were the exclusive owners of plot Nos. 35, 57, 111 and 112 of

Khata No. 99.

14.6. After tracing the trajectory of the orders passed by the

Consolidation Officer, appellate authority i.e. the Assistant 19

Settlement Officer and the revisional authority i.e. the Deputy

Director of Consolidation, the High Court noted that the Deputy

Director vide the order dated 20.09.1974 had confirmed the orders

of the lower authorities with respect to plot No. 115 of Khata No.

100 but had partly allowed the revision of the respondents with

respect to plot Nos. 35, 57, 111 and 112 of Khata No. 99 as well

as of Khata No. 98.

14.7. High Court vide the impugned judgment and order

dated 05.01.2009 held that execution of the relinquishment deed

in respect of the four plots of land i.e. plot Nos. 35, 57, 111 and

112 of Khata No. 99 was not denied by Zahoor Ahmed. It was a

registered document and thus carried the presumption of

genuineness. High Court further noted that the appellants had not

questioned the genuineness and correctness of the relinquishment

deed at any stage of the litigation. Zahoor Ahmed was very much

alive when the consolidation operation had commenced in the

village. Though he filed objections and had the full opportunity to

dispute the relinquishment deed, he did not do so. There was no

evidence on record to show that execution of the relinquishment

deed was ever disputed by Zahoor Ahmed. On the contrary, the

stand of Zahoor Ahmed all along was that after the death of his 20

father, he was brought up by his uncle Abdul Ghafoor; after

attaining the age of majority, he might have executed the said

relinquishment deed. In the writ proceedings, appellants had

contended that they did not admit the genuineness and the

binding nature of the relinquishment deed. But such contentions

were rejected by the High Court on the ground that Zahoor Ahmed

during his entire lifetime at no point of time had disputed the said

relinquishment deed. Even otherwise also, the High Court found

that said plots were exclusively recorded in the names of the

respondents which would go to show that Abdul Shakoor had

surrendered his right and title in favour of Abdul Ghafoor. In view

of the above, High Court opined that the finding recorded by the

Deputy Director of Consolidation in revision was justified and

called for no interference.

14.8. As regards plot No. 115 of Khata No. 100, High Court

noted that all the three authorities below had rejected the claim of

the appellants holding that the said land belongs to the

respondents exclusively. Learned counsel for the appellants also

did not press the writ petition with regard to the said plot. That

being the position, High Court found no merit in Civil Misc. Writ

Petition No. 6635 of 1974 and the same was accordingly dismissed. 21

14.9. In so far Writ Petition No. 18 of 1975 filed by the

respondents is concerned, the challenge was to the finding of

co-tenancy recorded by all the authorities below with respect to

Khata Nos. 98 and 99 holding that Abdul Ghafoor had half share

therein. Respondents (petitioners in Writ Petition No. 18 of 1975)

placed reliance on a lease deed dated 07.05.1922 executed by

Fateh Bahadur and Jagat Narayan Singh in favour of Abdul

Ghafoor and Mohammad mentioning their respective shares :

Abdul Ghafoor had 5/6 share and Mohammad had 1/6 share. On

the death of Mohammad, his share devolved on Zahoor Ahmed to

the extent of 1/12 share and the remaining 11/12 share devolved

on the respondents. The said patta (lease) was rejected by the

Consolidation Officer on the ground that at the relevant time,

Zahoor Ahmed was a minor and that the lease had not seen the

light of the day nor was it proved. In appeal, the appellate authority

held that though the patta (lease) was executed by two persons, it

was signed by only one person i.e. Fateh Bahadur. High Court

considered the lease deed dated 07.05.1922 and noted that land

was taken by two persons, viz, Abdul Ghafoor, son of Allah Bux

and Mohammad, son of Satai. Abdul Shakoor, father of Zahoor

Ahmed was very much alive in the year 1922. He had died some

time in the year 1930. It was clear that the lease was taken jointly 22

by Abdul Ghafoor and Mohammad and not as a joint family

property by the two persons. That apart, the concept of joint family

property prevalent amongst the Hindus was unknown to the

Muslims. Abdul Ghafoor and Mohammad were the only lessees of

the said land. High Court held that the lower authorities had

misdirected themselves by considering acquisition of the said

property by Abdul Ghafoor and Mohammad as joint acquisition on

behalf of the entire family. The source of acquisition of the said

property was the lease deed dated 07.05.1922 and in the revenue

records, names of the respondents and of Zahoor Ahmed were

recorded. The only dispute was with regard to the extent of their

respective shares. The authorities below had proceeded to allot 1/2

share to Zahoor Ahmed on the premise that it was a joint family

property. According to the High Court, the said approach was not

legally tenable. The revisional authority was also not justified in

importing principles of Hindu law while determining the shares of

the parties who were admittedly Mohammedans. Accordingly, it

was held that appellants would get 1/12 share in the land

comprised in the lease deed and not half (1/2) as was decided by

the authorities below.

23

14.10. In that view of the matter, High Court held that the

appellants would have 1/12 share in the plots comprised in Khata

Nos. 98 and 99 excluding plot Nos. 35, 37, 111 and 112 which

exclusively belonged to the respondents.

14.11. That being the position, Writ Petition No. 18 of 1975 was

allowed.

15. Thus, against the dismissal of Civil Misc Writ Petition

No. 6635 of 1974 and partly allowing of Writ Petition No. 18 of

1975, the related special leave petitions were filed.

16. This being the factual scenario, let us now have a brief

survey of the 1953 Act. The Uttar Pradesh Consolidation of

Holdings Act, 1953 (already referred to as ‘the 1953 Act’) is an Act

to provide for the consolidation of agricultural holdings in Uttar

Pradesh for the development of agriculture. The statement of

objects and reasons of the 1953 Act is as under:

After the enforcement of the U.P. Zamindari Abolition and Land Reforms Act, 1950, there was naturally a pressing demand for the consolidation of holdings in the State. Since the complicated and numerous types of tenures, both proprietary and cultivatory, the greatest stumbling blocks in the way of successful consolidation of holdings, have been abolished it is an opportune time to start this work. The advantages of 24

having in compact blocks all the land farmed by one family need only be briefly mentioned. Boundary lines should be reduced in “number and extent, saving land and diminishing boundary disputes, larger fields would be possible and time saved in making trips to the fields. Further, if land were all one piece barriers, such as fences, hedges or ditches could be erected to obtain privacy and prevent trespassing, thieving and gleening. The control of irrigation and drainage water would be easier; control of pests, insects and disease would also be less difficult.

16.1. Thus, as per the statement of objects and reasons, after

the enforcement of the U.P. Zamindari Abolition and Land Reforms

Act, 1950, there arose the need for consolidation of holdings in the

State. It was felt that the advantages of having compact blocks of

all the lands farmed by one family was too well known. Boundary

lines would be reduced in number thereby not only saving the

lands but also reducing boundary disputes. This would also lead

to larger fields with attendant advantages. It could be barricaded

properly to prevent trespassing and ensure proper irrigation and

pest control.

25

17. Raison d’etre of the Act was examined by this Court in

Attar Singh Vs. State of U.P.1. This Court observed that the object

of the 1953 Act is to allot a compact area in lieu of scattered plots

to tenure-holders so that large scale cultivation would be possible

with all its attendant advantages thus leading to reduction of

boundary lines. In the process lot of land would be saved resulting

in lesser number of boundary disputes. While reducing the

movement of the farmers from one plot to another, consolidation

would enure to the benefit of the farmers in erecting fences etc.

around a compact area to prevent trespassing and thieving. It

would also become easier to control irrigation and drainage besides

reducing the number of disputes over water. That apart, pest

control etc. would become easier as the farmers would have

compact areas for cultivation. This Court observed that such

advantages resulting from consolidation of holdings are intended

to encourage the development of agriculture leading to more

production of foodgrains, so essential for the community.

18. Making a comparison of the 1953 Act with the U.P.

Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. 1

of 1951), a Single Bench of the Allahabad High Court in Mool

1 AIR 1959 SC 564 26

Chandra Vs. Deputy Director of Consolidation2, observed that U.P.

Act No. 1 of 1951 was enacted to provide for abolition of the

zamindari system involving intermediaries between the tillers of

the soil and the State and for acquisition of the right, title and

interest over the land by the tillers and also to reform the law

relating to land tenure consequent upon such abolition and

acquisition. On the other hand, the primary object of the 1953 Act

is consolidation of agricultural holdings for the development of

agriculture. It was in this backdrop that Allahabad High Court

observed that the 1953 Act has only a limited role to play and that

is only with regard to consolidation of agricultural holdings to

facilitate better quality of agriculture. Thus, the 1953 Act does not

deal with the grant of substantive rights to the tenure-holders.

While substantive rights are governed by the provisions contained

in U.P. Act No. 1 of 1951, the 1953 Act is only procedural with

regard to consolidation of holdings.

19. Section 3 of the 1953 Act contains the definitions of

various words and expressions used in the said Act. As per Section

3(1A), chak means the parcel of land allotted to a tenure-holder on

consolidation. Consolidation has been defined in Section 3(2) to

2 2007 SCC OnLine All 2196 27

mean re-arrangement of holdings in a unit amongst several

tenure-holders in such a way as to make their respective holdings

more compact. Section 3(2A) defines consolidation area to mean

the area in respect of which notification under Section 4 has been

issued. Section 3(4C) defines holding to mean a parcel or parcels

of land held under one tenure by a tenure-holder singly or jointly

with other tenure-holders. Land has been defined in Section 3(5)

to mean land held or occupied for purposes connected with

agriculture, horticulture and animal husbandry, including

pisciculture and poultry farming. Rectangulation as defined in

Section 3(8A) means the process of dividing the area of a unit into

rectangles and parts of rectangles of convenient size with a view to

regulating the allotment of chaks during consolidation. Tenure-

holder has been defined in Section 3(11) to mean a bhumidhar

either with transferrable rights or with non-transferrable rights.

Unit has been defined in Section 3(11A) to mean a village or part

thereof or two or more villages or parts thereof for which a single

scheme of consolidation is to be framed.

19.1. Section 4 deals with declaration and notification

regarding consolidation. As per sub-Section 1(a), the State

Government, where it is of opinion that a district or part thereof 28

may be brought under consolidation operations, may make a

declaration to that effect to be published in the official gazette

whereupon it shall be lawful for any empowered officer or authority

to enter upon the declared land and carry out survey etc. Thus,

consolidation proceedings start in a district or part thereof with

the issuance of notification under Section 4 which besides being

published in the official gazette is also to be published as a public

notice at convenient places of the district or part thereof.

19.2. The consequences which would ensue following

publication of notification under Section 4 are enumerated in

Section 5(2). Amongst the various consequences, it is important to

note that once a declaration is notified, every proceeding for

correction of records and every suit or proceedings in respect of

declaration of rights or interest in any land lying in the area or for

declaration or adjudication of any other right at any stage of the

proceedings would stand abated. Ofcourse, such abatement would

have to be preceded by notice and hearing. That apart, such

abatement would be without prejudice to the rights of the persons

affected to agitate the rights or interest in dispute in the said suits

or proceedings before the appropriate consolidation authorities

under and in accordance with the 1953 Act.

29

19.3. While Section 7 deals with revision of village map,

Section 8 speaks about revision of the field book etc upon such

revision of village map. Section 8A provides for preparation of

statement of principles to be followed in carrying out the

consolidation operations. Section 9 on the other hand provides for

issue of extracts from records and statements and publications of

records mentioned in Sections 8 and 8A and the issue of notices

for inviting objections under sub-section (1) thereof. Sub-section

(2) empowers the noticee to file objections within the prescribed

period disputing the correctness or nature of the entries in the

records or in the extracts furnished therefrom or in the statement

of principles or the need for partition. Section 9A deals with

disposal of cases relating to claims to land and partition of joint

holdings. Section 9B provides for disposal of objections on the

basis of the statement of principles.

19.4. Any party to a proceeding under Section 9 and who is

aggrieved by an order of the Assistant Consolidation Officer or the

Consolidation Officer, as the case may be, may prefer an appeal

before the Settlement Officer, Consolidation, within the period

prescribed under Section 11. The appellate authority after

providing due opportunity of hearing to the parties shall pass 30

appropriate order in appeal which shall be final. Sub-Section (2) of

Section 11 makes a declaration that the Settlement Officer,

Consolidation, hearing an appeal under sub-Section (1) shall be

deemed to be a court of competent jurisdiction.

19.5. While the appellate order is final, the Director of

Consolidation has been conferred the power of revision and

reference under Section 48. He can exercise the powers under

Section 48 either on a reference or suo moto. The said power is to

be exercised by the Director of Consolidation to satisfy himself as

to the regularity of the proceedings or as to the correctness, legality

or propriety of any order (other than an interlocutory order) passed

by the subordinate authorities.

20. This is broadly the scheme of the Act.

21. Before we analyse the impugned judgment and order of

the High Court, it will be useful to have the pedigree of the parties

in the form of a chart which is as under:

Satai

Allah Bux Mohammad

Abdul Ghafoor Shakoor Mohd. Ismail 31

Zahoor Sami Ullah Badlu

22. As can be seen from the chart above, the dispute is

between the legal heirs of Shakoor i.e. the appellants and the legal

heirs of Ghafoor i.e. the respondents. High Court has duly

considered the claim of the appellants as well as of the respondents

and has taken the view that in so far claim of the appellants to plot

Nos. 35, 57, 111 and 112 of Khata No. 99 and plot No. 115 of Khata

No. 100 are concerned, Zahoor Ahmed himself had relinquished

those lands in favour of the respondents. Relinquishment deed is

a registered one and was never questioned by Zahoor Ahmed

during his lifetime. In that view of the matter, the High Court

concurred with the finding recorded by the revisional authority

and rightly dismissed Civil Misc. Writ Petition No. 6635 of 1974

filed by the appellants.

23. In so far Writ Petition No. 18 of 1975 is concerned, the

same was filed by the respondents, being aggrieved by the

declaration made by the consolidation authorities that appellant

would get half (1/2) share in the plots comprised in Khata Nos. 98

and 99 excluding plot Nos. 35, 57, 111 and 112 which exclusively

belonged to the respondents. High Court took the view that 32

consolidation authorities had erroneously proceeded to allot half

(1/2) share to Zahoor Ahmed on the premise that the land was a

joint family property. High Court held that the authorities were not

justified in importing principles of Hindu law while determining

the share of the parties who were admittedly Mohammedans.

Thus, the High Court held as follows:

I have given careful consideration to the three orders of the authorities. I also perused copy of the lease deed dated 07.05.1922. A bare perusal of the said lease deed dated 07.05.1922 clearly shows that the said lease deed was taken by two persons, namely, Abdul Ghafoor, son of Allah Bux, and Mohammad, son of Satai. Abdul Shakoor, father of Zahoor Ahmed (Objector) was very much alive in the year 1922. He, according to the finding of the Deputy Director of Consolidation, died some time in the year 1930. It shows that the lease was taken jointly by Abdul Ghafoor, son of Allah Bux, and Mohammad, son of Satai. The said lease was not taken as joint family property by these persons. The concept of joint family property which is prevalent amongst the Hindus is not known amongst the Muslims. Abdul Ghafoor, son of Allah Bux, and Mohammad, son of Satai, were the only lessees and no other person. The authorities below misdirected themselves by considering the said acquisition of the property by Abdul Ghafoor and Mohammad as joint acquisition for the family. 33

So far as the validity of the lease in question is concerned, the same cannot be disputed by the contesting respondents Nos. 4 to 7 (petitioners of writ petition No. 6635 of 1974). It is not their case that the property was acquired by Abdul Ghafoor and Mohammad in any other manner. It is also not their case nor established by them that the said property was acquired by Satai, the common ancestor, or by Abdul Ghafoor, father of Zahoor Ahmad, in any other manner. Source of acquisition of the said property is the lease deed in question dated 07.05.1922. In the revenue records in the basic year, names of Sami Ullah and Badlu (respondents Nos. 4 and 5) of the connected writ petition and of Zahoor Ahmad are recorded. Only dispute is with regard to the extent of their respective shares therein. The authorities below have proceeded to allot 1/2 share to Zahoor Ahemed on the basis that it was a joint property of the family. The said approach, in my considered opinion, is not legally tenable. The lease in question was acted upon and was accepted as is evident from the extract of khatauni (record of rights) of the third settlement, Annexure-2 to writ petition No. 18 of 1975. The Deputy Director of Consolidation was not justified in importing principles of Hindu law while determining the shares of the parties. In a nut shell, the petitioners of writ petition No. 6635 of 1974 will get 1/12 share in the land comprised in the said lease deed and not 1/2 as was wrongly held by consolidation authorities. 34

In view of the above discussions, it is held that the petitioners of writ petition No. 6635 of 1974 have 1/12 share jointly in the plots comprised in khata Nos. 98 and 99 excluding plot Nos. 35, 37, 111 and 112 which exclusively belongs to Sami Ullah and his brother Badlu, sons of Abdul Ghafoor.

24. We do not find any error or infirmity in the view taken

by the High Court. The decision rendered by the High Court is on

a bundle of facts agitated and counter agitated by both the parties.

It is a factual determination by the High Court based on the

evidence on record. We do not find any perversity in the approach

of the High Court or any error apparent on the face of record to

warrant further scrutiny by this Court.

25. That being the position, we are of the view that there is

no merit in the two civil appeals which are accordingly dismissed.

However, there shall be no order as to costs.

26. In view of the judgment passed in C.A.Nos.9739-

9740/2011, the Contempt Petition stands closed.

………………………………J. [ABHAY S. OKA]

.……………………………J. [UJJAL BHUYAN] NEW DELHI;

OCTOBER 24, 2024.