Subba & Anr vs Debiya And Anr

Subba & Anr. ...Appellant

Versus

Debiya & Anr. ...Respondent

JUDGMENT

B.SUDERSHAN REDDY,J.

1. Leave granted.

2. This appeal is directed against the judgment and order of

Allahabad High Court dated 3.7.2006 in CMWP No. 5813/85 setting

aside the judgment and order of Revisional Court .

3. The facts leading to filing of this appeal are: one Smt. Sonia

resident of village Chhibab was married in Zari with Mengi. Only two

daughters namely Bhagwania and Maiki were born out of the wedlock. 2

The appellants herein Subba and Sudish are the sons of Maiki. After

the demise of Mengi, Sonia inherited the property in question from the

deceased Mengi. It is alleged that after the death of Mengi one Teni

who was working for Sonia as labourer developed illicit relations with

Sonia as a result one son Debiya respondent herein was born. Be it

noted, as per the version of the appellants Debiya is not the legal son

of Sonia and Mengi, therefore, he could not be the legal heir to

succeed the inherited property of Sonia. Teni died in the year 1956.

Sonia died in April, 1977. In the year 1978, the appellants herein filed

objections under the provisions of U.P. Consolidation Holdings Act,

1953 before the Assistant Consolidation Officer, Zari, District Banda

for declaration as legal heirs of Sonia and their names to be recorded

in the revenue records in place of Sonia. Deviya also filed his

objections whereunder he claimed that the disputed property was

self-acquired property of his father Teni. The Consolidation Officer

vide order dated 7.7.1980 declared Debiya to be the sole legal heir of

Sonia and Teni. The appellants herein being aggrieved by the said

order filed Appeal No. 1838 before the Assistant Settlement Officer

Consolidation, Jhansi Camp-Banda which was dismissed vide order

dated 25.9.1980. Thereafter the appellants filed revision no. 1656

which was allowed by the Assistant Director Consolidation vide order

dated 19.4.1985 setting aside the judgment and order of Settlement 3

Officer Consolidation and directed the names of the appellants to be

recorded in respect of the said property left behind by Sonia. Being

aggrieved by the revisional order Debiya-the respondent herein filed

writ petition before the High Court. The High Court while allowing the

writ petition quashed the judgment and order of Assistant Director

Consolidation and restored the order of Consolidation Officer and

Settlement Officer Consolidation. Hence this appeal.

4. We have elaborately heard the learned counsel for the parties

and perused the impugned judgment and the material made available

on record.

5. The High Court mainly relied upon the admission stated to have

been made by the appellants herein in their objections to the effect

that the respondent was born out of "illegal relationship of Teni and

Sonia." The whole conclusion of the High Court and its decision to

reverse the order of the Revisional Court is based upon the said

admission.

6. The question that arises for consideration in this appeal is as to

whether the High Court committed any error apparent on the face of 4

the record in coming to such conclusion that the respondent herein

was born out of the relationship between Teni and Sonia? Secondly,

whether the evidence available on record supports the conclusion

reached by the High Court in a proceeding under Article 227 of the

Constitution of India? Thirdly, whether is there any such admission at

all made by the appellants herein in their objections?

7. The evidence adduced on behalf of the respondent herein is not

clear as regards the birth of Debiya out of the relationship between

Teni and Sonia. No doubt the entries in the voter list of the year 1959

as well as 1975 the name of the respondent was shown as son of Teni

but that evidence of respondent itself is not of any assistance to arrive

at any conclusion that he was born out of the relationship between

Teni and Sonia. He expressed his ignorance as to when and where

Teni died.

8. So far as the evidence of the appellants is concerned, the

witnesses examined on their behalf in clear and categorical terms

stated that Teni did not belong to their village Zari but he came to that

village in search of work along with the respondent and he was

engaged to work as labourer by Sonia.

5

9. There is no dispute whatsoever that entries in the revenue

records before the commencement of lis between the parties were in

the name of Sonia and Mengi in respect of the property in question. It

is also not in dispute that Sonia was the legally wedded wife of Mengi.

It is out of the wedlock of Sonia and Mengi, two daughters namely

Bhagwania and Maiki were born. The appellants are the sons of Maiki

- the deceased daughter of Sonia.

10. In the circumstances it becomes difficult to accept the case set

up by the respondent herein that he inherited the property after the

death of Sonia. There is no acceptable evidence that he was born out

of the relationship between Sonia and Teni. In order to overcome this

difficulty Debiya appears to have set up altogether a different case

that the possessory right of land was acquired from one Bhagwat

Prasad Zamindar. But there is no acceptable evidence except the

assertion of the respondent.

11. We have perused the objections filed by the appellants herein

before the authority in which there is no such admission to the effect

that the respondent was born out of the "illegal relationship between

Teni and Sonia" or any such admission in the evidence of the 6

appellants. It is in the evidence of the appellant that Mengi died about

55 years ago as told to them by none other than Sonia. It is also in

their evidence that the respondent herein is the son of Teni and not of

Sonia. Teni was merely cultivating the land on behalf of the appellants.

It is also in their evidence that Sonia and respondent both lived

separately and never lived together. The other witnesses on behalf of

the appellants reiterated and supported the version given by the

appellants that Teni does not belong to their village but came to the

village in search of the work along with Debiya. It is in their evidence

that after the death of Mengi, Sonia did not give birth to any

child/children.

12. That so far as the evidence produced on behalf of the

respondent to the effect that Sonia and Mengi did not have any issues

at all out of their wedlock does not inspire any confidence. It is a self-

serving statement which cannot be accepted. No evidence has been

produced by the respondent that the property was acquired by Teni

from one Bhagwat Prasad Zamindar as claimed by him. There is no

record to that effect maintained by the revenue administration. On the

contrary, the entries made in Khasra 1333 and 1334F in respect of the

land in question support the case of the appellants inasmuch as the

name of Sonia has been recorded in the said documents. 7

13. That the Revisional Court after elaborate consideration of the

matter and upon appreciation of the evidence available on record in

categorical terms found that even during the lifetime of Teni and for a

very long time the name of Sonia has been continuously recorded in

all the revenue records. It is for that reason the Revisional Court

found that the plea set up by the respondent herein that the property

in question was that of self-acquired property of his father Teni was

not acceptable. The Revisional Court also found that the name of the

respondent herein had never been entered in any of the records after

the death of his father Teni. The Revisional Court found that had it

been self-acquired property of Teni the name of the respondent would

have been found place in the revenue records after the death of Teni.

14. For all the aforesaid reasons it is clear from the evidence and

material available on record that the appellants herein never made any

admission that the respondent was born out of the illegal relationship

of Teni and Sonia nor there is any such admission made by them in

their evidence. The finding recorded by the Revisional Court that the

property was always held and possessed by Sonia as her absolute

property does not suffer from any error. The finding that the

appellants herein are the sons of Maiki - the deceased daughter of 8

Sonia also does not suffer from any error as the same is based upon

proper appreciation of evidence available on record. There is no

evidence whatsoever to arrive at any proper conclusion that

respondent herein was born out of the wedlock/relationship between

Sonia and Teni.

15. In our considered opinion, the High Court ought not to have

interfered in exercise of its jurisdiction under Article 227 of the

Constitution of India with the

decision of the Revisional Court which does not suffer from any factual

and legal infirmities.

16. For all the aforesaid reasons, the impugned order is set aside.

The appeal is accordingly allowed with no order as to costs.

..........................................J. (S.B. Sinha)

..........................................J. (Lokeshwar Singh Panta)

..........................................J. (B. Sudershan Reddy) 9

New Delhi;

January 22, 2009 10