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Mithai v. Ddc - WRIT - B No. - 7151 of 1979  RD-AH 16808 (24 October 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 21
Civil Misc. Writ Petition No. 7151 of 1979
Mithai and others .......... Petitioners
Deputy Director of Consolidation and others .............. Opposite parties
Hon'ble Janardan Sahai, J
The dispute relates two Khatas viz., Khata No. 103 and 107. The plots of these khatas were recorded in the basic year in the name of the parties. Objections under Section 9 of the U.P. Consolidation of Holdings Act were filed by the respondents Ram Adhar and Bechan regarding share to which parties were entitled. It appears that Matadin was the common ancestors of the parties. He had five sons - Jadhubir @ Later, Harnam, Sagar, Raghubir, and Khariya @ Sarnam, Sarnam had filed a suit for partition of his share in the year 1937 which was decreed and his share was determined as one fourth. According to Respondents Bechan and Ram Adhar sons of Nandan of Sagar's branch there was a partition between the brothers but Raghubir and Nandan son of Sagar were joint and the share of Raghubir was inherited by Nandan. Respondent Nos. 4 and 5 Bechan and Ramadhar claimed to be entitled to to the share of Raghubir in addition to that of Nandan and thus they claimed, entitlement to a half share. The case was contested by the petitioners. According to the petitioners the land in dispute came down from the common ancestor Mahabir and that Sagar father of Nandan had predeceased the common ancestor Matadin and the share of Raghubir was inherited by his surviving brothers and thus they claimed a three fourth share according to the pedigree. The Consolidation Officer by order dated 24.5.1977 allowed the objections of respondent Nos. 4 and 5 Bechan and Ram Adhar. The petitioners preferred an appeal. The Settlement Officer Consolidation allowed the appeal of the petitioners and awarded to all the parties the share according to the pedigree. Against the order of the Settlement Officer, Consolidation two revisions were filed - one by the petitioners and the other by respondent Nos. 4 and 5. The revision of respondent Nos. 4 and 5 have been allowed by the Deputy Director of Consolidation while the revision of the petitioners was dismissed. The order of the Deputy Director of Consolidation impugned in this writ petition is dated 27.7.1977.
I have heard Sri A.K. Rai counsel for the petitioners. None is present on behalf of the respondents.
The Deputy Director of Consolidation has relied upon an admission of the petitioners' ancestors in the written statement filed by them in suit No. 4 of 1937 filed by Sarnam. Copy of the said written statement is on the record as Annexure-4 of the petition. This written statement was filed by Jadhubir @ Later, Ram Surat and Lochan ancestor of the petitioners of Jadhubir and Harnam's branch and Shivnandan petitioner since deceased also of Harnam's branch. In paragraph no. 2 of the written statement it was alleged that about 35 - 36 years back there was a separation in the family and Raghubir and Sagar, father of Nandan, were living together and about three and half years back Raghubir died in a state of jointness with Nandan. After his death, Nandan is in possession. The Deputy Director of Consolidation has relied upon this admission and has drawn the conclusion that there was a partition in the family and that Nandan who was nephew of Raghubir was cosharer in cultivation and therefore the share of Raghubir passed on to Nandan father of respondent nos. 4 and 5. On this basis the share of respondent Nos. 4 and 5 has been determined by the Deputy Director of Consolidation as half.
Sri A.K. Rai counsel for the petitioners submitted that the Deputy Director of Consolidation has erred in the finding which he has recorded. He referred to the written statement filed in the suit no. 4 of 1937 and he submits that according to the averments made in paragraph No.2 of the written statement Raghubir died about three and a half years back. The written statement it is submitted was filed by Jadhubir, father of some of the petitioners, from which it is apparent that Jadhubir the brother of Raghubir was alive on the death of Raghubvir. He also draws my attention to the averments made in the written statement that death of Raghubir had taken place about three and half years back. The written statement in Suit No. 4 of 1937 was filed on 28.11.1936 and therefore Raghubir must have died some time in the year 1932-33 when the provisions of Agra Tenancy Act were in operation. In paragraph no.8 of the writ petition it is stated that the disputed land was occupancy tenancy. It is submitted that succession would therefore be governed by provisions of Section 24 of the Agra Tenancy Act. In the order of succession laid down by that provision a brother falls under clause (V) whereas other collaterals which include a nephew are covered under clause (VII). Under the proviso clause (VII) collateral who has share in cultivation alone is entitled to succeed. It is submitted that Jadhubir brother of Raghubir was alive on the date of death of Raghubir as is clear from the averments made in the written statement and brother being a preferential heir would therefore be entitled to succeed the share of Raghubir. The Deputy Director of Consolidation has found that there was a partition in the family 35 - 36 years back as admitted in the written statement in the suit of 1937 and that Sarnam and Raghuvir were joint. Counsel for the petitioner submitted that even if this finding is accepted the succession would still be governed by Section 24 of the Agra Tenancy Act as the land is occupancy tenancy and Jadhubir would succeed. He also submitted that the written statement has been misconstrued and that separation in the family does not amount to partition and in the circumstances the Deputy Director of Consolidation should have considered the other evidence which he has not, and the case is required to be sent back to the Deputy Director of Consolidation for fresh decision. The contention that these aspects have not been considered appears to have merit. It does appear that the Deputy Director of Consolidation has not considered the aspect whether there was a mere separation in the family in the matter of living or a partition of holdings and whether even if there was partition, Jadhubir the brother of Raghubir was alive on the death of Raghubir and being a preferential heir was entitled to succeed. These aspects of the matter are required to be considered in the context of the evidence on the record. The order of the Deputy Director of Consolidation dated 27.7.1979 is therefore set aside. The case is sent back to the Deputy Director of Consolidation for fresh decision after giving opportunity to the parties. The Deputy Director of Consolidation shall try to dispose of the matter expeditiously and if possible within a period of six months from the date certified copy of this order is filed before him.
The writ petition is allowed.
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