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RAJKARAN AND OTHERS versus D.D.C. ALLAHABAD AND OTHERS

High Court of Judicature at Allahabad

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Rajkaran And Others v. D.D.C. Allahabad And Others - WRIT - B No. - 36101 of 2004 [2007] RD-AH 17295 (1 November 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

1. Civil Misc.Writ Petition No. 36101 of 2004

Rajkaran & Others Vs. Dy.Director of Consolidation

2. Civil Misc.Writ Petition No.36104 of 2004

Rajkaran & others Vs. Dy.Director of Consolidation & Others

3.Civil Misc.Writ Petition No.36107 of 2006

Raj Mani & Others vs. Dy.Director of Consolidation & others

A N D

4. Civil Misc.Writ Petition No.36110 of2004

Harish Chandra & Others vs. Dy.Director of Consolidation & Others

_____________

Hon.Janardan Sahai,J

Bhola was the original tenant of all the plots in dispute. He had three sons- Vindeshwar, Durga and Ayodhya. The petitioners in all these petitions are the transferees of Mata Badal & Others, who are descendants of Vindeshwar's branch. The respondents in these petitions Udai Shankar & others are descendants of Durga's branch.

Common question of facts and law are involved in these writ petitions and they are therefore being disposed of together. The khatas involved in each of these petitions are however different.

In writ petition no.36101 the dispute is about khata no.23. In writ petition no. 36104 of 04 the dispute is in respect of khata no.20. The dispute in writ petition no.36107 of 04 is about khata no.12. In writ petition no. 36110 of 04, the dispute is in respect of khata no.35. The plots of these khatas were recorded in the basic year in the name of the petitioners. Separate objections in respect of these khatas were filed by the respondents' descendants of Durga's branch. The case of the respondents is that they are co tenants of half share as the plots in dispute have descended to the parties from Bhola the common ancestor. The case was contested by the petitioners on the ground that after the death of Bhola there was a partition in the family before 1319 F and in the said partition the plots in dispute came into the share of Vindeshwar's branch. The Consolidation Officer allowed the objections of the respondents and held that they are co tenants of the disputed khatas. Aggrieved the petitioners preferred an appeal which was allowed by the Settlement Officer Consolidation, who dismissed the objections filed by the respondents. The respondents preferred separate revisions before the Dy.Director of Consolidation, who by four judgments passed on the same date allowed the revisions and held that the respondents are entitled to half share. The Dy.Director held that the partition was not proved and the plots in dispute were recorded in 1282F in the name of the common ancestor Bhola. Reliance has been placed by the Dy.Director upon a dastbardari executed in the year 1939 by Mata Badal and other descendants of Vindeshwar's branch and in the said dastbardari it was admitted that the descendants of Durga's branch and Vindeshwar's branch are entitled to equal share. The present four writ petitions have been filed by the petitioners against these orders of the Dy.Director of Consolidation.

I have heard Sri Sankatha Rai assisted by Sri Pradip Rai counsel for the petitioners and S/Sri B.P.Singh and K.N.Misra counsel for the respondents.

It was submitted by the petitioner's counsel that the dastbardari deed cannot be relied upon as it was never acted upon. It appears that writ petition nos. 6127 and 8806 of 1971 were filed by Durga's branch against the transferors of the petitioners, descendants of Vindeshwar's branch and in those petitions the present petitioners transferors belonging to Vindeshwar's branch had challenged the dastbardari. Those petitions did not relate to the plots in dispute and were in respect of plots of another village but the dastbardari was relied upon by Durga's branch. It was held by this court that it was not necessary that the dastbardari should have been acted upon in order that it could have binding effect. It was held by this Court that the admission in the dastbardari related to pre existing rights and it was not required that it should have been acted upon. This court by its judgment set aside the order of the Dy.Director of Consolidation and remanded the case for fresh decision but it was held that the dastbardari would be read with other evidence. The finding now recorded by the Dy.Director of Consolidation relying upon the dastbardari therefore does not suffer from any error and the dastbardari can be read as an admission of the parties regarding co tenancy rights of the respondents.

It was then contended by the petitioner's counsel that the dastbardari related only to certain plots and not to all the plots in dispute in the present cases. The dastbardari it is said was confined to plot no.50 of khata no.7 and plots 21 and 28 of khata no.23. It is submitted that in any case the admission would therefore have to be confined to the specific plots in respect of which it was made while the Dy.Director of Consolidation has awarded half share to the respondents in other plots as well. The submission of the respondents' counsel is that in 1282 F Bhola was recorded over an approximate area of 21 bighas. In 1319 F the branch of Vindeshwar was recorded over almost this entire area except for a portion of about 3 bighas which was recorded in the name of Durga. According to the respondents' counsel there being three branches the admission in the dastbardari was made in respect of the plots mentioned in the dastbardari which together with the plots already in the name of Durga entered in the khatauni 1319F would work out to an area which would correspond to the 1/3rd share of Durga's branch. The Dy.Director of Consolidation has not recorded any finding upon this point.

It is also submitted that the respondents are entitled to half share on account of the fact that Ayodhya's branch became extinct and the share of Ayodhya' branch came into the share of Vindeshwar's branch as well as Durga's branch and therefore the petitioners as well as the respondents are entitled to a half share. On this point also the Dy.Director has not recorded any finding. The Dy.Director has determined the share of Durga's branch as half without considering these aspects which are required to be decided before the share of Durga's branch can be said to be half.It is therefore appropriate that the matter should go back to the Dy.Director of Consolidation for fresh decision.

The next submission of the petitioner's counsel is that the plot no.8 of Khata no.23 was acquired by Mata Badal by a sale deed in the year 1952 and was not one of the plots which came down from the common ancestor and therefore the petitioner's alone are entitled to that plot. Sri B.P.Singh counsel for the respondents stated that the respondents are not making any claim on plot no.8. Therefore this matter need not be investigated any further by this court and it is sufficient to say that the contesting respondents have no share therein.

The next submission of the petitioner's counsel is that the sale deeds were executed in theyear1961 by Mata Badal and others in favour of the petitioners and in consequence of the sale deeds the names of the petitioners were entered and have continued on the record and the respondents did not file any suit challenging the sale deeds and as the consolidation operations have commenced in the village in the year 2000 the claim of the respondents to challenge the sale deed is barred by limitation. The contention does not appear to have any merit. A sale deed executed in excess of the share of a party is void to the extent it is made in excess. In support of this contention reliance has been placed by the respondents' counsel upon Gorakh Nath Dubey Vs. Hari Narain Singh AIR 1973 SC 2451.It is not necessary for a person who is not party to such a void sale deed to challenge it by way of a suit. A person not a party to such a void sale deed can ignore it as it does not affect his rights to the extent it is void. A person not affected by the sale deed can file a suit for declaration of his rights in the property as long as his interest in the property continues. However the position would be different if a transferee of agricultural land enters into possession and matures his rights under Section 210 of the U.P.Zamindari Abolition & Land Reforms Act and in such a case a suit for declaration or a claim in an objection under Section 9 of the U.P.Consolidation of Holdings Act would be barred by limitation. Counsel for the petitioners has relied upon a decision of the apex court in 1995 ACJ 99 Smt. Ramti Devi Vs. Union of India. The facts of that case are altogether different. In that case it was found by the apex court that no issue regarding voidity of the sale deed was raised nor a finding recorded. In the present case the consolidation court is the proper court in which the question of share could be determined. It is open to the consolidation court to hold that the alienation beyond the share of the party is void can be avoided. The contention therefore fails.

The contention of the petitioners counsel that they are entitled to the benefit of Section 41 of the Transfer of Property Act may now be considered. From the recitals contained in the order of the Dy. Director of Consolidation it appears that the petitioners had relied upon the provisions of Section 41 of the Transfer of Property Act. However, the Dy.Director of Consolidation has not recorded any finding upon the point. The question whether the benefit of Section 41 of the Act is available to the petitioners involves determination of facts. The pre condition for the application of Section is express or implied consent for the name of the ostensible owner continuing on the record. As the Dy.Director of Consolidation has not recorded any finding upon this point, it is appropriate that the matter should go back to the Dy. Director of Consolidation.

Lastly it was submitted by the petitioners' counsel that there is no finding that the petitioners are in adverse possession and that the sale deed was never challenged by Durga's branch and the suit under Section 229B filedl by the respondent was dismissed.. In reply it was submitted by Sri B.P.Singh counsel for the respondents that the suit under Section 229B of the Zamindari Abolition & Land Reforms Act was filed in respect of these very plots in the year 1964 and that suit continued until the consolidation operations intervened and the suit abated and the finding of possession recorded by the Settlement Officer, Consolidation is erroneous. The Dy. Director of Consolidation has passed a judgment of reversal but has not adverted to this aspect of the case and has not recorded any finding on the point whether the petitioners had matured their rights by adverse possession. It is therefore appropriate that on this point also the matter is required to be considered by the Dy.Director of Consolidation

Although in the written arguments filed by the petitioners a large number of points have been raised but the oral arguments were confined only to the points which have been referred to above.

In the result all the four petitions are partly allowed. The orders of the Dy.Director of Consolidation dated 26/7/04 in all these petitions are quashed and he shall decide the revisions afresh. The admissions made in the dastbardari will be binding upon Vindeshwari's branch and their effect will be considered by the Dy,Director of Consolidation along with other evidence and he will decide the case afresh in accordance with law keeping in view the findings given above. The Dy. Director of Consolidation will also consider whether the benefit of Section 41 of the Transfer of Property Act is available to the petitioners and whether they have matured rights by adverse possession. He will decide the same on the material already on record preferably within six months.

1.11.07sm

1. Civil Misc.Writ Petition No. 36101 of 2004

Rajkaran & Others Vs. Dy.Director of Consolidation

2. Civil Misc.Writ Petition No.36104 of 2004

Rajkaran & others Vs. Dy.Director of Consolidation & Others

3.Civil Misc.Writ Petition No.36107 of 2006

Raj Mani & Others vs. Dy.Director of Consolidation & others

A N D

4. Civil Misc.Writ Petition No.36110 of2004

Harish Chandra & Others vs. Dy.Director of Consolidation & Others

_____________

Hon.Janardan Sahai,J

Bhola was the original tenant of all the plots in dispute. He had three sons- Vindeshwar, Durga and Ayodhya. The petitioners in all these petitions are the transferees of Mata Badal & Others, who are descendants of Vindeshwar's branch. The respondents in these petitions Udai Shankar & others are descendants of Durga's branch.

Common question of facts and law are involved in these writ petitions and they are therefore being disposed of together. The khatas involved in each of these petitions are however different.

In writ petition no.36101 the dispute is about khata no.23. In writ petition no. 36104 of 04 the dispute is in respect of khata no.20. The dispute in writ petition no.36107 of 04 is about khata no.12. In writ petition no. 36110 of 04, the dispute is in respect of khata no.35. The plots of these khatas were recorded in the basic year in the name of the petitioners. Separate objections in respect of these khatas were filed by the respondents' descendants of Durga's branch. The case of the respondents is that they are co tenants of half share as the plots in dispute have descended to the parties from Bhola the common ancestor. The case was contested by the petitioners on the ground that after the death of Bhola there was a partition in the family before 1319 F and in the said partition the plots in dispute came into the share of Vindeshwar's branch. The Consolidation Officer allowed the objections of the respondents and held that they are co tenants of the disputed khatas. Aggrieved the petitioners preferred an appeal which was allowed by the Settlement Officer Consolidation, who dismissed the objections filed by the respondents. The respondents preferred separate revisions before the Dy.Director of Consolidation, who by four judgments passed on the same date allowed the revisions and held that the respondents are entitled to half share. The Dy.Director held that the partition was not proved and the plots in dispute were recorded in 1282F in the name of the common ancestor Bhola. Reliance has been placed by the Dy.Director upon a dastbardari executed in the year 1939 by Mata Badal and other descendants of Vindeshwar's branch and in the said dastbardari it was admitted that the descendants of Durga's branch and Vindeshwar's branch are entitled to equal share. The present four writ petitions have been filed by the petitioners against these orders of the Dy.Director of Consolidation.

I have heard Sri Sankatha Rai assisted by Sri Pradip Rai counsel for the petitioners and S/Sri B.P.Singh and K.N.Misra counsel for the respondents.

It was submitted by the petitioner's counsel that the dastbardari deed cannot be relied upon as it was never acted upon. It appears that writ petition nos. 6127 and 8806 of 1971 were filed by Durga's branch against the transferors of the petitioners, descendants of Vindeshwar's branch and in those petitions the present petitioners transferors belonging to Vindeshwar's branch had challenged the dastbardari. Those petitions did not relate to the plots in dispute and were in respect of plots of another village but the dastbardari was relied upon by Durga's branch. It was held by this court that it was not necessary that the dastbardari should have been acted upon in order that it could have binding effect. It was held by this Court that the admission in the dastbardari related to pre existing rights and it was not required that it should have been acted upon. This court by its judgment set aside the order of the Dy.Director of Consolidation and remanded the case for fresh decision but it was held that the dastbardari would be read with other evidence. The finding now recorded by the Dy.Director of Consolidation relying upon the dastbardari therefore does not suffer from any error and the dastbardari can be read as an admission of the parties regarding co tenancy rights of the respondents.

It was then contended by the petitioner's counsel that the dastbardari related only to certain plots and not to all the plots in dispute in the present cases. The dastbardari it is said was confined to plot no.50 of khata no.7 and plots 21 and 28 of khata no.23. It is submitted that in any case the admission would therefore have to be confined to the specific plots in respect of which it was made while the Dy.Director of Consolidation has awarded half share to the respondents in other plots as well. The submission of the respondents' counsel is that in 1282 F Bhola was recorded over an approximate area of 21 bighas. In 1319 F the branch of Vindeshwar was recorded over almost this entire area except for a portion of about 3 bighas which was recorded in the name of Durga. According to the respondents' counsel there being three branches the admission in the dastbardari was made in respect of the plots mentioned in the dastbardari which together with the plots already in the name of Durga entered in the khatauni 1319F would work out to an area which would correspond to the 1/3rd share of Durga's branch. The Dy.Director of Consolidation has not recorded any finding upon this point.

It is also submitted that the respondents are entitled to half share on account of the fact that Ayodhya's branch became extinct and the share of Ayodhya' branch came into the share of Vindeshwar's branch as well as Durga's branch and therefore the petitioners as well as the respondents are entitled to a half share. On this point also the Dy.Director has not recorded any finding. The Dy.Director has determined the share of Durga's branch as half without considering these aspects which are required to be decided before the share of Durga's branch can be said to be half.It is therefore appropriate that the matter should go back to the Dy.Director of Consolidation for fresh decision.

The next submission of the petitioner's counsel is that the plot no.8 of Khata no.23 was acquired by Mata Badal by a sale deed in the year 1952 and was not one of the plots which came down from the common ancestor and therefore the petitioner's alone are entitled to that plot. Sri B.P.Singh counsel for the respondents stated that the respondents are not making any claim on plot no.8. Therefore this matter need not be investigated any further by this court and it is sufficient to say that the contesting respondents have no share therein.

The next submission of the petitioner's counsel is that the sale deeds were executed in theyear1961 by Mata Badal and others in favour of the petitioners and in consequence of the sale deeds the names of the petitioners were entered and have continued on the record and the respondents did not file any suit challenging the sale deeds and as the consolidation operations have commenced in the village in the year 2000 the claim of the respondents to challenge the sale deed is barred by limitation. The contention does not appear to have any merit. A sale deed executed in excess of the share of a party is void to the extent it is made in excess. In support of this contention reliance has been placed by the respondents' counsel upon Gorakh Nath Dubey Vs. Hari Narain Singh AIR 1973 SC 2451.It is not necessary for a person who is not party to such a void sale deed to challenge it by way of a suit. A person not a party to such a void sale deed can ignore it as it does not affect his rights to the extent it is void. A person not affected by the sale deed can file a suit for declaration of his rights in the property as long as his interest in the property continues. However the position would be different if a transferee of agricultural land enters into possession and matures his rights under Section 210 of the U.P.Zamindari Abolition & Land Reforms Act and in such a case a suit for declaration or a claim in an objection under Section 9 of the U.P.Consolidation of Holdings Act would be barred by limitation. Counsel for the petitioners has relied upon a decision of the apex court in 1995 ACJ 99 Smt. Ramti Devi Vs. Union of India. The facts of that case are altogether different. In that case it was found by the apex court that no issue regarding voidity of the sale deed was raised nor a finding recorded. In the present case the consolidation court is the proper court in which the question of share could be determined. It is open to the consolidation court to hold that the alienation beyond the share of the party is void can be avoided. The contention therefore fails.

The contention of the petitioners counsel that they are entitled to the benefit of Section 41 of the Transfer of Property Act may now be considered. From the recitals contained in the order of the Dy. Director of Consolidation it appears that the petitioners had relied upon the provisions of Section 41 of the Transfer of Property Act. However, the Dy.Director of Consolidation has not recorded any finding upon the point. The question whether the benefit of Section 41 of the Act is available to the petitioners involves determination of facts. The pre condition for the application of Section is express or implied consent for the name of the ostensible owner continuing on the record. As the Dy.Director of Consolidation has not recorded any finding upon this point, it is appropriate that the matter should go back to the Dy. Director of Consolidation.

Lastly it was submitted by the petitioners' counsel that there is no finding that the petitioners are in adverse possession and that the sale deed was never challenged by Durga's branch and the suit under Section 229B filedl by the respondent was dismissed.. In reply it was submitted by Sri B.P.Singh counsel for the respondents that the suit under Section 229B of the Zamindari Abolition & Land Reforms Act was filed in respect of these very plots in the year 1964 and that suit continued until the consolidation operations intervened and the suit abated and the finding of possession recorded by the Settlement Officer, Consolidation is erroneous. The Dy. Director of Consolidation has passed a judgment of reversal but has not adverted to this aspect of the case and has not recorded any finding on the point whether the petitioners had matured their rights by adverse possession. It is therefore appropriate that on this point also the matter is required to be considered by the Dy.Director of Consolidation

Although in the written arguments filed by the petitioners a large number of points have been raised but the oral arguments were confined only to the points which have been referred to above.

In the result all the four petitions are partly allowed. The orders of the Dy.Director of Consolidation dated 26/7/04 in all these petitions are quashed and he shall decide the revisions afresh. The admissions made in the dastbardari will be binding upon Vindeshwari's branch and their effect will be considered by the Dy,Director of Consolidation along with other evidence and he will decide the case afresh in accordance with law keeping in view the findings given above. The Dy. Director of Consolidation will also consider whether the benefit of Section 41 of the Transfer of Property Act is available to the petitioners and whether they have matured rights by adverse possession. He will decide the same on the material already on record preferably within six months.

1.11.07sm


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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