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Vankateshwar v. Ddc - WRIT - B No. 283 of 1984  RD-AH 364 (1 October 2003)
CIVIL MISC. WRIT PETITION NO. 283 OF 1984.
Vanketeshwar and another Vs. Deputy Director of Consolidation and others
Hon. S. K. Singh, J.
By means of this writ petition petitioners have prayed for quashing the order of the Deputy Director of Consolidation dated 8.12.1983 (annexure no. 3 to the writ petition). There appears to be no dispute about the factual aspects and thus a brief narration will suffice for the purpose of disposal of this writ petition. Mention of a pedigree showing the relationship between the parties and their respective claim will be useful at this place:
= Stri Kulwanta
| | |
Surajdei Kishundei Shobha
(married daughter) (married daughter) (daughter)
(Respondent ) (Respondent)
Petitioners happen to be son of Shobha, one of the daughter of Kalicharan-Kulwanta. Respondents no. 2 and 3 are the two married daughters of Kalicharan-Kulwanta. In the basic year records the name of petitioners was recorded. Objection was filed by respondents no. 2 and 3 claiming expunction of the name of the petitioners and for entering of their names being the preferential heir under Section 172 of the U. P. Z. A. & L. R. Act. Land in dispute is claimed to be owned by Kalicharan and on his death to have passed on to Kulwanta, his widow and on the death of Kulwanta which took place on 21.2.1948 name of Shobha as shown in the pedigree came to be recorded. Shobha was unmarried daughter at the time of death of Kulwanta. After the death of Shobha which took place in the year 1963 the name of the petitioners came to be recorded. The objection filed by the respondents under Section 9-A (2) of the U. P. C. H. Act referred above was rejected by the Consolidation Officer and thereafter the appeal by the Assistant Settlement Officer Consolidation by their judgments dated 7.5.1979 and 12.2.1981 respectively. On the revision filed by the respondents they have succeeded in their claim in respect to land comprised in khata no.15 but in respect to the land comprised in khata no. 70 the judgment of the courts below was maintained. It is thus the petitioners being aggrieved by the judgment of the Assistant Settlement Officer Consolidation dated 8.12.1983 (annexure no. 3) have filed this petition which is apparently confined to the land comprised in khata no. 15.
Learned counsel for the petitioners submits that the land in dispute was the sir khudkasht from the time Kalicharan who died in 1948 and thus his widow inherited the property under Hindu Law. On the death of Smt. Kulwanta which took place in the year 1948, Shobha Devi being unmarried daughter at that time inherited the khudkasht right and continued to remain khudkasht holder prior to the date of vesting. On the death of Shobha Devi in the year 1963 under Hindu Succession Act, 1956 Shobha Devi became absolute owner. Thus Section 174 of the U. P. Z. A. & L. R. Act will be applicable and inheritance is to be governed accordingly. In view of the application of the Hindu Succession Act under Section 14(1) of the Act Shobha Devi shall be treated to be absolute owner and not a limited owner and thus Deputy Director of Consolidation in taking the view that rights are to be governed under Section 172 (2)(i) of the Act have committed an error. The submission is that Shobha having succeeded the limited state, by operation of Section 14 (1) of the Hindu Succession Act her limited state/rights enlarged in absolute right. It is argued that the Deputy Director of Consolidation has not considered the claim of the petitioners by keeping in mind the overriding effect of the provisions as are contained in the Hindu Succession Act. Lastly it is submitted that the Deputy Director of Consolidation has admitted khatauni extract of the 1354 fasli without affording adequate opportunity to the petitioners and in any view the revision has been allowed without examining the facts, evidence and the submission in detail and without recording any elaborate finding on the questions in issue. In support of the submission referred above learned counsel for the petitioners have placed reliance on the decision given by the Apex Court in the case of Bishwanath Pandey Vs. Badami Kaur and others, AIR 1980 S. C. 1329, Vijay Pal Singh and another Vs. Deputy Director of Consolidation and others, AIR 1996 S.C. 146; Mool Chand Vs. Kedar (deceased) by LRs. And others, 2000 RD 157 and the provisions as contained in Section 4 and 14 (1) of the Hindu Succession Act.
In response to the aforesaid submission counsel for the respondents submits that on the facts of the present case provisions of Section 172 (2) (ii) of the U. P. Z. A. & L. R. Act is to apply and thus demolition is to take place in accordance with Section 171 of the U. P. Z. A. & L. R. Act. It is submitted that in order to determine the applicability of Section 174 of the U. P. Z. A. & L. R. Act. It is argued that the court is to go to the origin of the title of the bhumidhar or the main source from where the interest has been derived in the holding. The argument is that provisions of the Hindu Succession Act, 1956 cannot be made applicable to the agricultural plots. Submission is that relevant date must be the date immediately before the date of vesting and not the date of death after the vesting for tracing the rights. In support of the submission reliance has been placed by the learned counsel on the decision given in the case of Munna Singh Vs. Deputy Director of Consolidation and others, 1969 A.L.J. 764; Uma Shankar and another Vs. Deputy Director of Consolidation and others, AIR 1973 Alld. 407; Smt. Tilari Vs. Deputy Director of Consolidation, 1971 RD 232; Smt. Prema Devi vs. Deputy Director of Consolidation and others, AIR 1970 Alld. 238 and Ram Jivan Vs. Smt. Phoola (dead) by LRs. And others, 1976 ALR 262. For the submission that some of the cases referred by the learned counsel for the petitioner has not dealt the question in issue in detail and, therefore, they have no binding effect on the principle of sub silentio, reliance has been placed on a decision given by the Apex Court in the case of Arnit Das Vs. State of Bihar, JT 2000 (6) SC 320.
In view of the aforesaid submission as noted above the judgment of the Assistant Director of Consolidation, impugned before this Court has been examined. At the very outset it is to be mentioned that the two courts have negatived the claim of the respondents and, therefore, the judgment of the revisional court being of reversal needs to be in more detail touching the concerned issue in the backdrop of relevant provisions of the U.P.Z.A. & L. R. Act and the Hindu Succession Act, 1956. Section 172 (1) of the U.P.Z.A. & L. R. Act needs no attention as it deals with the situation when a bhumidhar, sirdar or asami after the date of vesting inherited an interest. Thus the provisions as contained in Section 172 (2) of the U. P. Z. A. & L. R. Act and in section 4 and Section 14 (i) of the Hindu Succession Act as has been argued are also to be kept in mind for adjudication of the issue. The provisions as are contained in Section 172 (2) of the U.P.Z.A. & L. R. Act and Section 4 and 14 of the Hindu Succession Act will be useful to be quoted at this stage :
"Section 172 (2) Where a bhumidhar or sirdar who has before the date of vesting, inherited an interest in any holding as a widow, widow of a male lineal descendant in the male line of descent, mother, daughter, father's mother, son's daughter, sister or half-sister being the daughter of the same father as the deceased-
(a) dies, and such bhumidhar or sirdar was on the date immediately before the said date an intermediary of the land comprised in the holding, or held the holding as a fixed rate tenant, or an exproprietary or occupancy tenant in Avadh or as a tenant on special terms in Avadh and-
(i) she was in accordance with the personal law applicable to her entitled to a life estate only in the holding, the holding shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of Section 171) of the last intermediary or tenant aforesaid; and if
(ii) she was in accordance with the personal law applicable to her entitled to the holding absolutely the holding shall devolve in accordance with the table mentioned in section 174;
Section 4. Overriding effect of Act - (1) Save as otherwise expressly provided in this Act-
(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act :
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.
(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provision of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.
Section 14. Property of a female Hindu to be her absolute property- - (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner."
Although there appears to be no dispute about certain factual aspects i.e. about the death of Kulwanta and Shobha which has taken place in the year 1948 and 1963 and also that the respondents no. 2 and 3 were the married daughters and Shobha happened to be the unmarried daughter when Kulwanta died but at the same time it appears that before the Assistant Director of Consolidation, opposite parties who were revisionist filed khatauni extract of 1354 fasli by which new fact came into existence and the Deputy Director of Consolidation taking into account the same proceeded to pass the impugned order. It has come in the judgment that out of the entire land in dispute some of the land was proved to be owned by Kalicharan but in respect to the some of the land there happened to be no proof, that whether it belonged to Kalicharan or not. It appears that on filing of khatauni extract of 1354 fasli the Assistant Director of Consolidation gave a finding that some of the land was recorded sir khudkasht and on the basis of khatauni of 1354 fasli it has been held that the land was recorded in class II and III and it is thereafter it has been concluded that whatever land was recorded in the name of Kalicharan, as khudkasht land, rights will be governed by Section 172 (2)(i) of the U.P.Z.A. & L. R. Act and whatever land which has not been recorded khudkasht of Kalicharan the petitioner will get the rights under Section 174 of the Act. The courts have given a finding that the opposite parties have not been found to be in possession over the land after abolition of the zamindari. The appellate court has dismissed the appeal of the opposite parties also by giving a finding that all the land has not been proved to be khudkasht. On the reading of the judgment of the Deputy Director of Consolidation it is clear that by narrating certain facts so far discussion part is concerned he has summarised it in a concised manner by stating the fact that whatever land which was recorded in the name of Kalicharan as sir and khudkasht, rights will pass in accordance with the provisions of Section 172 (2) of the U.P.Z.A. & L. R. Act. It appears that valuable rights of the parties and its adjudication is involved and, therefore, their rival claim was liable to be analysed in accordance with the relevant provisions as has been referred in the argument from both sides. Although learned counsel for the parties have placed before this Court decided cases on the point in issue but, as revisional court has not examined the matter in the light of various arguments, legal aspects as has been placed before this Court and also for the reason that in respect to the rights of Kalicharan in respect to the part of the land there happens to be no clear detail and finding, this Court is of the opinion that by examining the factual aspect in respect to the nature of the rights of Kalicharan in the land comprised, recording of finding straightway by this Court, may not be justified. There is already grievance of the petitioners that finding has been given by the Deputy Director of Consolidation on the basis of khatauni of 1354 fasli which was filed for the first time before the revisional court without adequate opportunity to the petitioners to which although in reply the respondents have stated that the petitioners have not objected of filing of that evidence but as the right and title of the parties is to finally set at rest, it appears that as the aforesaid document was filed by the opposite parties for the first time in the revision the petitioners, as prayed, are entitled to get an opportunity in the matter. Otherwise also there is no finding by the Deputy Director of Consolidation that khatauni of 1354 fasli as has been filed has been duly proved rather only by making a mention that the aforesaid document has been filed, the ultimate conclusion has been arrived at. A bare reading of the judgment of the revisional court clearly indicates that he has decided the revision in a cursory manner. After giving brief narration of the facts, discussion and conclusion part is without any analysis of the serious disputed questions of fact and law and thus keeping in mind valuable rights of the parties it appears to be safe and proper to ask revisional court to record a clear finding on the factual and legal aspect involved in the matter as has been noted in this order or even other aspects which may be argued before him which may be permissible in law, so that in the event matter is taken up by either of the parties before this court or further higher court the required findings either way in detail may be there.
For the aforesaid reasons this Court instead of going into the merits of the mater in the light of the decisions of this Court and the Apex Court as has been referred, proposes to get the matter finally decided by the revisional court within a time bound schedule so that the disposal of the matter may not linger on.
For the reasons recorded above, this writ petition succeeds and is allowed. The judgment of the Assistant Director of Consolidation dated 8.12.1983 is hereby quashed in so far it relates to the khata no. 15. The revisional court is required to decide the revision afresh in accordance with law after adequate opportunity to the parties preferably within a period of three months from the date of receipt of certified copy of this order from either of the parties without allowing any unwarranted adjournment to either of the parties.
Writ petition thus stands allowed and the matter is remanded back in the light of the observations as contained in this judgment.
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