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Sharda Prasad v. Ayodhya Prasad - WRIT - B No. 722 of 1976  RD-AH 13942 (21 August 2006)
Judgment reserved on 12.7.2006
Judgment Delivered on 21.8.2006
Civil Misc. Writ Petition No. 722 of 1976
Sharda Prasad Versus Ayodhya Prasad 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.
The name of Rameshwar grand father of the petitioner was entered in the revenue records for the first time in 1314 fasli (1906-07 A.D). After the death of Rameshwar the name of his son was recorded and thereafter the name of Sharda petitioner was recorded in the revenue records. This position continued till the start of consolidation (basic year) with certain breaks. Contesting respondents filed objections under section 9 of U.P Consolidation of Holdings Act asserting therein that they were descendants of brothers of Rameshwar ( or their transferees) and name of Rameshwar was entered in the revenue records in the representative capacity hence his brothers and thereafter the contesting respondents had also share in the agricultural land in dispute, Dan Pandey was father of Rameshwar. He had three more sons i.e. real brothers of Rameshwar. Their names were Jagesar, Gajadhar and Bihari. According to the petitioner land in dispute was gifted to Rameshwar by Bhagwan Singh. The case of the contesting respondents was that the land in dispute was actually gifted to Dan Pandey, father of Rameshwar, however, Dan Pandey got entered the name of Rameshwar in the revenue records in the representative capacity. The gift was alleged to be oral. Consolidation Officer (C.O), Chauri district Varanasi decided the case on 29.12.1966, copy of the said judgment is annexure 1 to the writ petition, which does not contain any number. C.O rejected the objections and directed that the name of petitioner should continue in the revenue records.
Against the judgment passed by C.O Appeal No.2319 was filed. Assistant Settlement Officer Consolidation (ASOC), Faizabad camp at Gyanpur allowed the appeal on 15.6.1968 and directed that the name of contesting respondents shall also be recorded alongwith the petitioner. The said judgment was affirmed by Deputy Director of Consolidation (D.D.C), Varanasi in revision which was dismissed on 11.12.1975, hence this writ petition.
ASOC held that as gift was made orally hence it was invalid. Towards the end of para 10 of its judgment A.S.O.C observed as follows:
"For the reasons already given by me, I am of the opinion that gift was made not to Rameshwar but to Dan Pandey, the common ancestor. Besides this even if it is held that gift was made to Rameshwar the gift was invalid because it was orally made. On the basis of gift deed Rameshwar could not get any right. Any right that could accrue to Rameshwar was by way of possession and as Rameshwar was living jointly with his brothers he and his three brothers had remained in possession and therefore all of them acquired rights in the land in dispute".
These findings are not correct. If a person gets possession of an agricultural land his brothers who may be residing with him do not get any right therein. Rights may accrue to the brothers only if they constitute Joint Hindu Family and property is acquired from Joint nucleus. There was absolutely no evidence of any nucleus. In any case in case of gift, nucleus is meaningless. Absolutely no explanation was given by the contesting respondents for the entry of name of Rameshwar, in case land in dispute was given to Dan Pandey father of Rameshwar. If the father acquires property, his name is entered in the revenue records and not of one of his sons. However S.O.C was right in holding that the case was to be decided on the basis of possession.
I have held in Jagdeo Vs. D.D.C 2006 (5) Alld. Daily Judgments 651 that revenue entries continuing since much before Zamindari Abolition can not be questioned in consolidation proceedings. However, in the instant case the said principle cannot be applied. It is clear that contesting respondents since much before basic year were asserting their rights. Respondents 2 to 6 are descendants of Jagesar and Gajadhar both sons of Dan Pandey. Respondents 1, 7 and 8 claimed that Mahadeo son of Bihari (son of Dan Pandey) sold his ¼ share to respondent No.1 and Hanuman father of respondents No.7 and 8 on 13.4.1942. Mahadeo on 25.5.1937, executed usufructuary mortgage in respect of part of the land in dispute in favour of Surjan and others and the revenue entries were changed in pursuance of the said mortgage as was apparent from Khatauni of 1346 fasli. It has also been found by the revisional court that the said mortgage was redeemed by Triveni who was descendant of Gajadhar son of Dan Pandey. After 11 years of execution of sale deed by Mahadeo in favour of Ayodhya Prasad and Hanuman in the year 1942, a Civil Suit for injunction and possession was filed by petitioner Sharda Prasad in 1953. The suit was dismissed in default on 8.8.1961. Restoration application was also dismissed on 26.7.1962. On the basis of these four important facts i.e. mortgage, redemption of mortgage, sale deed and Civil Suit, S.O.C and D.D.C held that the property was joint family property.
In view of the above, it is clear that for about 40 years since before basic year brothers of Rameshwar and transferees of one such brother were asserting their rights in the property in dispute. S.O.C has also mentioned in para 8 of its judgment that in the suit filed by petitioner in the year 1953 he had admitted in his statement under Order 10 Rule 2 C.P.C that Ayodhya Prasad and Hanuman were in possession of ¼ share.
In view of the above no fault can be found with the judgment and orders passed by the S.O.C and D.D.C to the effect that the property in dispute was joint family property and Rameshwar had ¼ share in it. S.O.C has also held that dismissal of Civil Suit for possession and injunction filed by petitioner against Ayodhya Prasad and Hanuman operates as res judicata. Technically speaking dismissal of suit in default does not operate as res judicata, however, by virtue of Order 9 Rule 9 C.P.C, dismissal of suit in default of plaintiff but in the presence of defendant precludes the plaintiff from bringing a fresh suit in respect of the same cause of action. Apart from it at least possession of petitioner No.1 and father of respondent No. 7 and 8 is proved since 1953 when the Civil Suit was filed.
Accordingly there is no merit in the writ petition hence it is dismissed.
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