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GULAB DAS versus D.D.C.

High Court of Judicature at Allahabad

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Gulab Das v. D.D.C. - WRIT - B No. 11660 of 1984 [2007] RD-AH 12095 (17 July 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

(Court No.23)

Civil Misc. Writ Petition No.11660 of 1984

Gulab Das vs. Deputy Director of Consolidation, Allahabad  and others.

AND

Civil Misc. Writ Petition No.14060 of 1984

Keshav Das vs. Deputy Director of Consolidation, Allahabad and others.

Hon.S.U.Khan,J.

Heard learned counsel for the parties.

Petitioners in both the writ petitions are real brothers and each petitioner is proforma respondent in the other writ petition. There is no clash of interest between the two petitioners, brothers.

The dispute relates to three Khatas i..e Khata No. 19, 113 and 173. Admitted pedigree is given below:

Udhishthir

/

-------------------------------------------------------------

          /    / Ram Swaroop Mahadev (@ Madhav)

 / / Chandrashekhar         Mata Saran

 (Original respondent No.2) /

----------------------------------

/   /

Gulab Das Keshav Das

(Petitioner in the   (Petitioner in the

first writ petition )          second writ petition)

It is stated that consolidation proceedings in the village in which property in dispute is situate started in the year 1971. The year in which consolidation proceeding starts is called basic year. In the basic year, on the first two Khatas name of Chandrashekhar was recorded in the revenue records. Petitioners filed objections claiming that they also had share in the land in dispute. Similarly third Khata in the basic year was recorded in the name of Chandrashekhar and others. In the said Khata also Gulab Das and Keshav Das, petitioners claimed their right. Admittedly at no point of time names of petitioners or their father or grand father was recorded over the land in dispute. Since much before Zamindari Abolition name of Chandrashekhar alone was continuing in the records over the first two Khatas and the same position continued even after Zamindari Abolition till the basic year. Similar was the position of entries in respect of third Khata which was entered in the name of Chandrashekhar respondent No.2 and others but not in the names of petitioners. Petitioners filed objections before the consolidation officer which were registered as case No. 1035. Consolidation Officer, Meja, Allahabad allowed the objections through order dated 12.6.1973. Consolidation officer held that in Khata No. 19 and 113 Chandrashekhar had half share, Keshav Das had ¼ share and Gulab Das had ¼ share. In respect of Khata No. 173, C.O held that Gulab Das  had 1/8 share, Keshav Das had 1/8 share, Chandrashekhar had ¼ share, Ram Khelawan had ¼ share and Brij Bhan had ¼ share. Against order dated 12.6.1973 appeal was filed by Chandrashekhar being Appeal No.494, which was dismissed by Assistant Settlement Officer Consolidation on 5.12.1973. Against the said judgment revision No. 126/44 was filed by Chandrashekhar before DDC. Revision was allowed on 30.3.1974. The said order was set-aside in writ petition being writ petition No. 2847 of 1974 decided on 21.1.1981 and matter was remanded. After remand DDC, Allahabad allowed the revision on 18.5.1984. Said order has been challenged through this writ petition.

Admittedly some land was jointly recorded in the names of the petitioners and Chandrashekhar and prior to that in the name of Chandrashekhar and petitioner's father and grandfather. However, land in dispute was never recorded jointly. A document of 1940 purporting to be memo of family partition entered into in between Chandrashekhar and Mata Saran father of the petitioners. In the objections nothing was stated regarding the alleged memo of partition. C.O and SOC held that memo of partition was admissible in evidence and proved. Chandrashekhar had outrightly denied any partition. C.O. and SOC also held that as there was admittedly some joint property, hence, it would be presumed that Chandrashekhar acquired the property in dispute from the nucleus of the joint property. No expert opinion on the disputed signatures of the Chandrashekhar over memorandum of partition was obtained and adduced by the petitioners.

DDC held that memo of partition was not proved for the reasons that firstly signatures of Chandrashekhar were not proved and secondly it was not explained that as to why after the said partition no efforts were made for getting the name of Mata Saran entered in the revenue records. Revisional Court further held that as some property was jointly entered in the name of Chandrashekhar and father and grandfather of the petitioners, hence, there was absolutely no reason for entering only the name of Chandrashekhar over the land in dispute in the capacity of Karta of Joint Hindu Family. Revisional court also held that absolutely no reason was given by the petitioners for their long silence, even since Zamindari Abolition till start of consolidation.

I fully agree with the findings of the revisional court. There is absolutely no error in the said findings.

In Jagdev Vs. Deputy Director of Consolidation, Allahabad and others 2006 (101) RD 216, I have held that revenue entries continuing since much before Zamindari Abolition can not be reversed in the consolidation proceedings on the basis of several doctrines including the doctrine of estoppel. In the instant case memo of family partition was not at all proved. Moreover, no mention of the alleged memorandum of family partition was made in the objection filed before the C.O. In case family partition had taken place then petitioners' father should have got his name mutated in the revenue records. There was absolutely no need to enter into any family partition if entries in the revenue records were not got corrected accordingly. The fact that some land was jointly entered clearly proved that the land over which the name of Chandrashekhar was recorded exclusively belonged to Chandrashekhar. Absolutely no explanation was given by the petitioners for their long silence. Under U.P.Z.A.L.R Act new rights came into existence.

Learned counsel for the petitioners has cited an authority of Supreme Court reported in Kale Vs. DDC 1976 RD 355 regarding validity of unregistered memo of family settlement . In the instant case memo of family settlement has been found not to have been executed hence, said authority is not applicable. Similarly authority reported in Hariram Vs. Ram Asrey 2007 (1) AWC 227 is also not applicable. Third authority cited by the learned counsel for the petitioner is reported in Shyam Lal Vs. Assistant Director of Consolidation 2007 ACJ 451. In the said authority it has been held that if it is proved that joint family had sufficient nucleus at the time of acquisition of other property then presumption may be drawn that the other property is also joint family property. In the instant case, no evidence has been led regarding sufficient nucleus. It has not been stated by the petitioner that what was the income earned from the property which was jointly recorded. Moreover, in the authority of Shyam Lal the fact of long silence by the unrecorded tenure holder has not been adverted to. In the aforesaid authority of Jagdev, I have discussed this aspect in detail.

Accordingly, I do not find any error in the judgment and orders passed by the DDC.

Writ petitions are therefore dismissed.

17.7.2007/

Sw


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