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Ram Deo & Others v. D.D.C. & Others - WRIT - B No. 1005 of 1976 [2006] RD-AH 10806 (3 July 2006)


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 Judgment Reserved on 3.5. 2006

Judgment Delivered on 3.07.2006


Civil Misc. Writ Petition No. 1005 of 1976

Ram Deo and others Versus D.D.C, Varanasi and others.

Hon'ble S.U.Khan J

Heard learned counsel for the parties.

This writ petition arises out of consolidation proceedings and involves question of title.

In the basic year (the year immediately preceding start of consolidation operation in the area in question) the names of respondents Mahadeo and others were recorded in the revenue records over the land in dispute, which is comprised in Khata No. 274 and is situate in Mauza Jagdishpur. Original petitioners filed objections before Consolidation Officer under section 9(2) of U.P. Consolidation of Holdings Act (C.H. Act in short). They claimed that Sukhdeo their father was real brother of Khurbhur (or Khurkhur) who was father of respondent No.3 Mahadeo. It was also alleged in the objections that Fakir was the father of Khurbhur and Sukhdeo and another son Lurkhur. The entire case of the petitioners was based upon an alleged registered family settlement of 20.7.1927. Original document was not filed, only its certified copy was filed. According to the said settlement all the members of family of Fakir were entitled to the family lands even though some land might be recorded only in the name of one or some of the family members. The ancestors of parties had some agricultural land in another village Katari also. On the said land names of all the persons were recorded in the revenue records. The cases before C.O were registered as case No. 97562-97569 (total seven cases). Consolidation Officer, Harhua, Varanasi held that the family settlement was proved and in accordance therewith he granted share in the land in dispute to the petitioners also. The cases were decided by C.O on 18.11.1974. Against the said judgment and order Appeal No. 2243 was filed by Mahadeo before Settlement Officer Consolidation (S.O.C in short). S.O.C Varanasi (east) allowed the appeal on 9.9.1975. Against the said judgment and order revision No. 3875 Ram Deo and others Versus Mahadeo and others was filed which was dismissed by D.D.C Varanasi on 30.3.1976, hence this writ petition.

S.O.C after discussing the entire material on record and attending circumstances found that the alleged family settlement was not proved. One of the witnesses of the said settlement was Pratap Singh who was examined on behalf of the objectors on commission, as he was very old. The Commissioner reported that during the course of the statement he became unable to continue with the statement. He in his statement clearly stated that about partition no document was written. One of the alleged executants of the agreement Smt Anupa denied the execution of the said agreement. The S.O.C also held that on the land of the other village, names of all the family members were recorded in the revenue records hence there was no reason for not recording the names of all the family members over the land in dispute which is situate in Jagdishpur. Since 1927 the year in which alleged family settlement was arrived at till start of consolidation (in or about 1973-74) petitioners remained silent. Their silence on the one hand almost disproved the alleged family settlement and on the other hand it also operated as estoppel against them. Presumption attached with long standing revenue entries continuing since much before Zamindari Abolition cannot lightly be taken to be rebutted. By virtue of Zamindari Abolition, drastic changes in the nature of tenures of agricultural land were made. New tenures and rights were created by Zamindari Abolition. If some one did not raise any objection at the time of Zamindari Abolition then he can not be permitted to assert, several years after Zamindari Abolition, that he must also be declared to be the Sirdar or Bhumidhar of the land in dispute even though his name is not mentioned in revenue records since long. I have discussed this point in detail in the judgment delivered today in Writ Petition 1332 of 1976 Jagdeo Versus D.D.C.

Lots of the authorities have been cited by both the parties in respect of the presumption of correctness of a document more than 30 years old. However as S.O.C and D.D.C found the said document not to have actually been executed hence question of presumption of correctness does not arise (or stands rebutted). Petitioners also contended that on the basis of said agreement names of all the family members were recorded in respect of other agricultural lands hence it stood proved. In respect of this contention S.O.C rightly held that over the other lands names were recorded in pursuance of some judgment dated 20.8.1935. In any case if names of other family members were got recorded over some land then there was no reason for not getting the names recorded in respect of the land in dispute also. This clearly means that even if the said agreement was executed it was intended to be applicable only in respect of other lands and not to the land in dispute. S.O.C also found that in the copy of earlier order of 1935 the words " on the basis of agreement" appeared to be inserted afterwards. S.O.C also noted that the land situate in village katari was acquired in 1906 and its Patta was in favour of Khurbhur as well as Fakir i.e. father of Khurbhur while land in dispute which is situate in village Jagdishpur was acquired by Khurbhur alone in 1910. From this fact S.O.C rightly inferred that land in dispute was exclusively acquired by Khurbhur. If it had been acquired by joint family then name of Fakir father of Khurbhur would have been there in the revenue records. It appears that at some places S.O.C has confused the names of Khurbhur and Lurkhur.

I do not find any merit in the writ petition hence it is dismissed.




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