Ram Avadh & Ors vs Ram Das & Ors

notification under Section 4 of the U.P.

Consolidation of Holdings Act, 1953 (in short

"the Act") was issued for consolidation

operation. The appellants filed objections

under Section 9(2) of the Act before the

Consolidation Officer for recording their names

in place of Bhagirati & ors. in the revenue

records contending that they had obtained the

registered sale deed dated 21st of May, 1969

but by mistake of the Lekhpal, their names

could not be recorded in the revenue records.

2 The respondents also filed objections claiming

that Bhagirati & ors. or their father Faqir had

no share in the suit property and that the suit

property belonged to one Sanehi exclusively and

therefore, Bhagirati & Ors. did not have any

right to sell the same. Accordingly, the

respondents strongly contested the case of the

appellants who prayed for inclusion of their

names in place of Bhagirati & Ors.

By an order dated 15th of March 1970, the

Consolidation Officer allowed the objections of

the appellants and directed that their names be

recorded against the suit property. The

respondents preferred an appeal under section

11(1) of the Act before the Settlement Officer,

Consolidation but the same was dismissed by the

order dated 18th of December, 1970. Feeling

aggrieved, the respondents filed a revision

under Section 48 of the Act before the

Assistant Director - Consolidation, which was

allowed by an order dated 16th of August 1971.

Against this order passed in revision, the

3 appellants filed a writ petition being WP No.

1797 of 1971 and the same was allowed on 14th

of November, 1978 and the matter remanded to

the Assistant Director - Consolidation for

deciding the revision afresh. The Assistant

Director Consolidation allowed the revision

this time also by his order dated 20th of

February 1981. Feeling aggrieved, the

appellants filed a writ petition before the

High Court being 2016 of 1981, which, however,

was dismissed by the judgment and order dated

22nd of May 1998. It is this decision of the

High Court, which is now impugned in this

appeal.

3.Before we proceed further, considering the fact

that concurrent findings of fact arrived at by

the Consolidation Officer and the Settlement

Officer-Consolidation were set aside by the

Assistant Director-Consolidation in revision,

whose decision was affirmed by the High Court in

the impugned judgment, we deem it expedient to

4 look at the findings of High Court and the

Consolidation Officer.

Let us first look at the findings of the

High Court relying on which the writ petition

of the appellants was dismissed. The findings

are as under: -

i)At the time of Third settlement, Sanehi was the

only recorded tenure-holder of the land in

question and Faqir was not recorded as a co-

tenure holder.

ii) The name of Faqir was recorded only in the

year 1356 Fasli without there being any order

showing the title of Faqir or showing the

ground on account of which his name was entered

as a co-tenure holder of the suit property and

therefore, there was no evidence on record to

show how his name could be entered as a co-

tenure holder in the year 1356 Fasli.

iii) The mere fact that in the khetauni of 1356

Fasli, it was mentioned that the tenure-holders

were occupying the land for 15 years, the same

5 could not confer any title on Faqir whose name

did not find place at the time of the Third

settlement.

iv) Unless it was shown by Bhagirati & Ors.

that the title of the suit property was

acquired by Faqir before 1356 Fasli and unless

the mode of acquisition of title was shown, the

mere recording of Faqir's name as a co-tenure

holder of Sanehi in the year 1356 Fasli would

not make Faqir a co-tenure holder of Sanehi in

the suit land.

v) The Assistant Director of Consolidation in

revision had rightly held that the entry in

favour of Faqir was fictitious and could not

have been relied upon by the Consolidation

officer and the assistant settlement officer

(consolidation) to confer any title on Faqir,

his heirs Bhagirati & Ors. and their vendees,

the appellants.

vi) In connection with the land of another

village, it was mentioned that Sanehi had not

taken patta of land for the benefit of his

6 brother Faqir and that being so, the jointness

with regard to the suit property could also not

be assumed.

vii) Since the appellants were the transferees

from Bhagirati & ors. and since the title of

Faqir, the ancestor of Bhagirati & Ors. could

not be established, the appellants were rightly

denied the relief by the Assistant Director of

Consolidation.

viii) The benefit of the authority of the

Supreme Court reported in Sri Nath Singh &

Ors. Vs. Board of Revenue [AIR 1968 SC 1351]

was not available to the appellants because the

entry of 1356 Fasli in favour of Faqir was

fictitiously recorded and therefore, no right

of co-tenure holder could be said to have

accrued to Faqir.

As noted herein earlier, the High Court

dismissed the writ petition of the appellants

on the above findings and affirmed the decision

7 and the findings of the Assistant Director-

Consolidation passed by the latter in revision.

4. In contrast to the above findings of the High

Court relying on which the appellant's claim was

rejected, the Consolidation Officer arrived at

the following findings in his order dated 15th of

May, 1970 and upheld the claim of the appellants:

-

i) The extracts of Khatauni 1356 Fasli and 1357

Fasli revealed that the name of Faqir was

present and that he became Sirdar in 1350 Fasli

as on file.

ii) Ram Das had deliberately avoided the

disclosure of his grandfather's name Dihar or

Dehpal but his ignorance regarding the name of

his grandfather i.e. Sanehi's father would not

mean that Dihar or Dehpal was not Sanehi's

father.

iii) The assertion regarding Dihar or Dehpal as

made by Bhagirathi finds support from the

extract of settlement and certified copy of the

extract of 1356 Fasli, 1357 Fasli on record.

8

iv) Faqir was an occupant in 1356 Fasli and his

heirs had been entered in the Khata in 1368

Fasli by an order of the court after the death

of Faqir in 1367 Fasli.

v) The name of Faqir was present in 1356 Fasli

alongwith Sanehi and by virtue of having been

in physical cultivatory occupation of the plots

from 1356 Fasli onwards, Faqir became Sirdar

thereof and his sons, whose names had been

recorded, were the bonafide Sirdar of the lands

and were entitled to = share because Ram Dass

did not explain who they were if not from that

branch.

vi) As to whether Bhagirati & ors. had the

right to transfer, the statement of A.R.K. on

the file showed that on 1.5.1969, ten times

rent had been deposited in the government

treasury and therefore, the vendor would be

deemed to have become bhumidari of the land

from the date of depositing the amounts in the

state treasury.

9

5. The above findings of the Consolidation Officer

were affirmed by the Assistant Settlement

Officer, Consolidation in his order dated 18th of

December 1970.

6. The learned counsel for the appellants

argued before us that under Section 48 of the

Act, the Assistant Director of Consolidation

did not have the jurisdiction to set aside the

findings of fact recorded by the courts below

without any basis and on assumptions

particularly in view of the fact that the name

of Faqir was recorded as cultivator in

possession along with Sanehi, both being real

brothers and sons of Dehpal. The learned

counsel for the appellants further argued

before us that the appellants would be entitled

to the benefit of Section 20 of the U.P.

Zamindari Abolition and Land Reforms Act, 1950

(in short "UPZA&LR Act) which provides that the

entries in the base year 1356 Fasli are final

and confers all rights on the occupant who

10 would be entitled to retain possession thereof.

It was also argued that the High Court and the

revisional court had adopted an erroneous

approach by relying on the result of a

litigation in respect of some other land in a

different village wherein Sanehi was held to be

exclusive lessee and therefore, it was argued

that it could not be assumed that the present

revenue record showing joint possession and

occupation of Faqir and Sanehi became

unreliable. Finally, the learned counsel for

the appellants contended before us that the

respondents did not take any steps to challenge

the revenue record containing the name of Faqir

before any court and in fact, the names of

Faqir's sons i.e. Bhagirati & Ors. were mutated

in 1368 Fasli after the death of Faqir by an

order passed by the Tehsildar where the

respondents were on notice.

7.These submissions of the learned counsel for the

appellants were contested by the learned counsel

appearing on behalf of the respondents. The

11 learned counsel for the respondents argued that

the suit property is the sole acquisition of the

respondent's grandfather Sanehi and that they

have been occupying the same exclusively after

his death and thus are the sole holders of the

suit property and therefore, Bhagirati & Ors. had

no title of the land in dispute which could

entitle them to sell the suit property to the

appellants. It was further argued that Faqir got

a fictitious entry of his name made in the

Khetauni 1356 Fasli and his name was not present

at the time of the Third Settlement.

8.Having heard the learned counsel for the parties

and after examining the impugned judgment and the

orders of the courts below and other materials on

record, we are of the opinion that this appeal

deserves to be allowed for the reasons set out

hereinafter.

9.From the admitted pedigree chart produced before

us, it is pellucid that Faqir and Sanehi were

real brothers and sons of Dehpal. The record

shows that the suit property was recorded in the

12 name of Faqir and Sanehi in the Khatauni for 1356

Fasli and this entry continued in the Khatauni

for 1357 Fasli to 1366 Fasli. It was a finding of

fact of the Consolidation Officer, which was

affirmed by the Settlement Officer, Consolidation

that Faqir was in possession as recorded

cultivator in possession from 1356 Fasli onwards.

It was also a finding of fact of the

Consolidation Officer that after the death of

Faqir in 1356 Fasli, the names of his sons

Bhagirati & Ors. were mutated in place of their

father in 1368 Fasli on the basis of an order

passed by the Tehsildar where the respondents

were on notice. These findings of fact were

reversed by the revisional court which was

affirmed by the High Court on the ground that the

name of Faqir was not present at the time of the

Third Settlement and therefore, the Khatauni for

the year 1356 Fasli upto 1366 Fasli were

fictitious. It is significant to note that the

respondents had not taken any steps to expunge

the names of the vendors from the record even

13 though they continued to be recorded along with

the respondents. Furthermore, a lot of weight

has been placed by the revisional court as well

as the High Court on the result of a litigation

in respect of some other plots wherein it was

concluded that a certain lease does not appear to

have been entered by Sanehi for the benefit of

the joint Hindu family and as such, Faqir could

not be held to be a co-tenant. We are of the

opinion that the result of that litigation should

not have any bearing on the present case. It is

an admitted fact that in the year 1356 Fasli, the

name of Faqir was entered along with Sanehi in

the Khetauni and yet it was held that this must

be wrong because in respect of land in another

village, the lease was held to be exclusively

that of Sanehi and not for the benefit of Faqir.

This, in our opinion, has been given exaggerated

and undue importance by both the revisional and

the High Court. The fact remains that Faqir's

name was entered in 1356 Fasli, which was not

challenged by the respondents till 1366 Fasli

14 i.e. for almost 11 years. From 1356 Fasli

onwards, throughout the names of Faqir and

thereafter his sons are continuing in the revenue

record and in that view of the matter, the

concurrent findings of fact arrived at by the

courts below should not have been disturbed by

the revisional court and the High Court.

10.The learned counsel for the respondents argued

before us that the name of Faqir was entered

fictitiously without there being any order of any

authority showing the basis on which his name was

entered. It is true that there does not appear

any order passed by any competent authority to

show how Faqir got his name entered in 1356 Fasli

but that by itself would not lead us to infer

that the name was fictitiously entered. Nothing

has been shown to us to prove that Sanehi and

Faqir had separated prior to 1915 except the

result of the litigation of 1944 on which, as

noted hereinabove, we are not inclined to place

much weight. From the admitted pedigree chart

also, as noted herein earlier, it is clear that

15 Faqir and Sanehi were real brothers and sons of

Dehpal. In this view of the matter, it would not

be appropriate to raise such serious doubts over

how Faqir's name appeared in the Khetauni. In any

view of the matter, in our view, the vendors

would be entitled to the benefit of Section 20 of

the UPZA&LR Act. Section 20 provides that where

the person is recorded as an occupant of any land

in Khasra Khatauni for 1356 Fasli, which has been

taken as the base year, he shall be entitled to

retain possession thereof. If the entry was not

challenged, it could not be doubted and have to

be deemed to be correct in view of explanation

III to Section 20 which provide that the entries

in the year 1356 Fasli is final and confers all

rights on occupant. In the present case, the name

of Faqir appeared along with Sanehi in the 1356

Fasli upto 1366 to 1368. Mutation was carried out

after considering objections of respondents, by

the Tehsildar.

11. There is another aspect of this matter. In the

present case, even if it is found that the names

16 of Faqir and subsequently Bhagirati & ors. were

fictitiously recorded, the fact remains that they

were recorded Bhumidars and co-tenure holders (it

is an admitted fact that Bhagirati & Ors.

deposited ten times the land revenue under

Sections 134 to 137 of the UP ZA & LR Act for

grant of Bhumidari Sanad in respect of the suit

land) and that no step was taken by the

respondents ever to challenge their title to the

suit property or the inclusion of their names in

the revenue record. For this reason, the interest

of the present appellants cannot be defeated

particularly when they had made due enquiries

under Section 55(1)(b) of the Transfer of

Property Act that the vendors were the recorded

Bhumidars of the suit property and had a

transferable right before purchasing the suit

property and therefore, in our opinion, they were

bonafide purchasers for value without notice.

12. Before parting with this judgment, we may also

consider the submission of the learned counsel

for the appellants that the revisional court viz.

17 Assistant Director, Consolidation had no

jurisdiction under Section 48 of the Act to set

aside the concurrent findings of fact of the

Consolidation Officer and the Settlement Officer,

Consolidation. In support of her submission, she

relied on two decisions of this court in Ram

Avtar & Ors. Vs. Ram Dhani & Ors.[(1997) 2 SCC

263] and Ram Dular Vs. Dy. Director of

Consolidation, Jaunpur & Ors. [JT 1994 (3) SCC

341]. From these authorities, it is clear that

the Director Consolidation under Section 48 of

the Act does not have the jurisdiction to

interfere with the findings of fact, without any

basis and on assumptions. In view of our

foregoing discussion, we are, therefore, of the

considered view that it was not open to the

Assistant Director Consolidation, whose order was

affirmed by the High Court in the impugned

judgment, to interfere with the concurrent

findings of fact arrived at by the Consolidation

18 Officer as also the Settlement Officer,

Consolidation.

13.For the reasons aforesaid, we set aside the

judgment of the High Court and the Revisional

Court and affirm the decisions of the

Consolidation Officer and the Settlement Officer,

Consolidation. The appeal is thus allowed. There

will be no order as to costs.

.....................................J. [TARUN CHATTERJEE]

........................................J. [HARJIT SINGH BEDI] New Delhi

May 14,2008.

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