Ram Avadh & Ors. v. Ram Das & Ors.

[2008] 8 S.C:R. 627 A B + # RAM AVADH & ORS. _v._ RAM DAS & ORS . . (Civil Appeal No. 5570 Of 2001) MAY 14, 2008 # **[TARUN CHATTERJEE AND HARJIT SINGH BEDI, JJ.]** _,.J._ _Uttar Pradesh consolidation of Holdings Act, 1953_ - _s. 9 (2) and 48_ - _Consolidation proceedings_ - _Objection of vendee of the land seeking entry of their names in the revenue records_ c - _Co-tenure holders of the vendor filing objection that the vendors having no right in the property could not have sold itObjection of vendees allowed by Consolidation Officer as well as Settlement Officer, on the finding that predecessor of the vendors was co-sharer of the land in the_ Khatauni _1356_ FasliD _Revisional court disbelieving the findings of courts below reversed their orders_ - _High Court upholding the order of revisional court_ - _On appeal, held: Revisional court and High Court should not have disturbed the findings of fact arrived at by the courts below- They were not right in raising doubt about_ E _the entry of the name of vendor's predecessor in the Khatauni_ - _In view of the entries in 1356 Fasli, and the same not having been challenged, vendors were also entitled to benefit uls 20 of Zamindari Abolition Act_ - _Vendors were recorded Bhumidars and co-tenure holders_ - _Revisional Court had no jurisdiction_ F _uls 48 to set aside the concurrent findings of fact- Uttar Pradesh ZamindariAbolition and Land Reforms Act, 1951-s. 20- Transfer of Property Act, 1882- s. 55 (1) (b)._ **Appellants had purchased the property in question from the persons who were the co-tenure holders with the respondents. In consolidation proceedings in respect of the land, appellants filed objections before the Consolidation Officer for recording their names in place of the vendors in the** rev- **enue records. Respondents also filed objections contend-** G H 627 SUPREME COURT REPORTS [2008] 8 S.C.R. 628 ~ A ing that the suit property exclusively belonged to their father and the vendors or their father having no share in the property, the same could not have been sold by the vendors. Consolidation Officer allowed the objections of the appellants on the finding that the entries in the _Khatauni_ 1356 _Fasli_ and 1357 B[Fasli ][revealed ][that ][the ][name ][of ][vendors' father ][was ][present ] alongwith father of the respondents and he became _Sirdar_ in 1350 _Fas11;·_ and that the vendors' name has been entered in the _Khata_ in-1368 _Fasli_ as legal heirs after their father's death. Appeal before Settlement Officer was dismissed upholding c[the ][findings ][by ][Consolidation Officer. Revision petition u/s. ] 48 of U.P. Consolidation of Holdings Act, 1953 was allowed up holding interalia the entry of vendors' father in _Khatauni_ 1356 Faslt~ In the writ petition filed by the appellants, the order of revisional court was upheld. D D In appeal to this court appellant contended _interalia_ that Revisional court as well as High Court adopted an erroneous approach by relying on the result of a litigation in respect of some other land in a different village wherein father of the respondents was held to be excluE[sive lessee; that they were entitled to benefit of ][s. ][20 ][of ] U.P. Zamindari Abolition and Land Reforms Act, 1951 which provides that entries in the base year 1356 _Fasli_ are final and confer all rights on the occupants who could be entitled to retain possession thereof; and that F[revisional court did not have the jurisdiction to set aside ] the findings of fact recorded by the courts below. + ~ ...\... ## Allowing the appeal, the court HELD: 1.1 It is an admitted fact that in the year 1356 G _[Fasli, ]_[the name ][of ][father of the vendors was entered along ] with father of the respondents in the _Khatauni_ and yet it was held that this must be wrong because in respect of land in another village, the lease was held to be exclusively that of the father of the respondents and not for the H[benefit of father ][of ][the vendors. ][The ][result ][of ][that litiga-] _-1_ 629 RAM AVADH & ORS. _v._ RAM DAS A ORS. ..... _-<f_ _.I. ~ tion should not have any bearing on the present case. This, A has been given exaggerated and undue importance by both the revisional and the High Court. The fact remains that name of father of the vendors was entered in 1356 _Fas/i,_ which was not challenged by the respondents till 1366 _Fasli_ i.e. for almost 11 years. From 1356 _Fasli_ onwards, throughout, the B names of the father of vendors and thereafter of the vendors are continuing in the revenue record and in that view of the matter, the concurrent findings of fact arrived at by the courts below should not have been disturbed by the revisional court and the High Court. [Para 9] [636-F-H, 637-A,B] c 1.2 It is true that there does not appear any order passed by any competent authority to show how father of the vendors got his name entered in 1356 _Fasli_ but that by itself would not lead this court to infer that the name was fictitiously entered. Nothing has been shown to prove D that father of the respondents and father of vendors had separated prior to 1915 except the result of the litigation of 1944 on which, this Court is not inclined to place much weight. From the admitted pedigree chart also, it is clear that they both were real brothers. In this view of the matE ter, it would not be appropriate to raise such serious doubts over how name of the father of the vendors appeared in the _Khatauni._ [Para 10] [637-C-E] 2. In any view of the matter, the vendors would be entitled to the benefit of Section 20 of the U.P. Zamindari AboF lition and Land Reforms (UPZA&LR) Act. Section 20 provides that where the person is recorded as an occupant of any land in Khasra Khatauni for 1356 _Fasli,_ which has been taken as the base year, he shall be entitled to retain possession thereof. If the entry was not challenged, it could G not be doubted and have to be deemed to be correct in view of explanation Ill to Section 20 which provide that the entries in the year 1356 _Fasli_ is final and confers all rights on occupant. In the present case, the name of father of vendors appeared along with his brother in the 1356 _Fas/J_ H F SUPREME COURT REPORTS (2008] 8 S.C.R. 630 ~ .·A upto 1366 to 1368. Mutation was carried out after considering objections of respondents, by th~ Tehsildar. [Para 1 OJ [637-E,F,G] 3. There is another aspect of this matter. In the present . case, even if it is found that the names of vendor's father B and subsequently that of the vendors were fictitiously recorded, the fact remains that they were recorded Bhumidars and co-tenure holders and that no step was taken by the respondents ever to challenge their title/to the suit property or the inclusion of their names in the revenue record. For C this reason, the interest of the present appellants cannot be defeated parti~ularly when they had made due enquiries under Section 55(1)(b) of the Transfer of Property Act that the vendors were the recorded Bhumidars of the suit property and. had a transferable right before purchasing the suit D property and therefore, they were _bonafide_ purchasers for value without notice. [Para 11] [637-G,H, 638-A,B,C] 4. The revisional court viz. Assistant Director, Consolidation had no jurisdiction under Section 48 of the Act to set aside the concurrent findings of fact ofthe Consolidation Officer and E the Settlement Officer, Consolidation. [Para 12] [638-C,D] _Ram Avtar and Ors. vs. Ram Dhani and_ Ors.1997 (2) sec 263; _Ram Dular VS. Dy. Director of Consolidation,_ - _Jaunpur and Ors._ JT 1994 (3) SCC 341 relied on F CIVILAPPELLATE JURISDICTION: Civil Appeal No. 5570 of 2001 From the final Judgment and order dated 22/5/1998 of the High Court of Judicature at Allahabad, Lucknow Bench, G Lucknow in W.P. No. 2016/1981 Sandhya Goswami, M.P.S. Tomarand Juhi fortheAppellants. Maooj Swarup, Lalita Kohli and Charu Singhal (for M/s. Manoj Swarup & Co.) for the Respondents. H The Judgment of the Court was delivered by 631 RAM AVADH & ORS. _v._ RAM DAS & ORS. [TARUN CHATTERJEE, J.] -+ **TARUN CHATTERJEE,** J. 1. This appeal is directed A against the judgment and order dated 22nd of May, 1998 passed by a learned single judge of the High Court of Judicature at Allahabad (Lucknow Bench) in W.P. No. 2016of1981 whereby the High Court had dismissed the writ petition filed by the appellants against an order of the Assistant Director of Consoli~ B dation, Sultanpur holding the sale deed dated 21st of May, 1969 in favour of the appellants to be illegal. 2. This case has a chequered history, which would be clear from the following facts leading to the filing of this appeal. c The appellants alleged that by virtue of a registered sale deed dated 21st of May, 1969, they are the vendees of _,Yi bf_ the land in Khata No. 98 (in short "the suit property") recorded in the name of the vendors viz., Bhagirati, Putai, Ram Newaj, Matadin, Bachai and Ram Avadh al~as Avadhu (in short "Bhagirati & ors.") who are cotenure holders with the respondents. A notification under Section 4 of the U.F. Consolidation of Holdings Act, 1953 (in short "the Act") was issued for consolidation operation. The appellants filed objections under Section 9(2) of the Act before the Consolidation Officer for recording their names in place of Bhagirati & ors. in the revenue records contending that they had obtained the registered sale deed dated 21st of May, 1969 but by mistake of the Lekhpal, their names could not be recorded in the revenue records. The respondents also filed objections claiming that Bhagirati & ors. or their father Faqir had no share in the suit property and that the suit property belonged to one Sanehi exclusively and therefore, Bhagirati & Ors. did not have any right to sell the same. Accordingly, the respondents strongly contested the case of the appellants who prayed for inclusion of their names in place of Bhagirati & Ors. D E F By an order dated 15th of March 1970, the Consolidation Officer allowed the objections of the appellants and directed that ~ • their names be recorded against the suit property. The respondents preferred an appeal under section 11 ( 1) of the Act before the Settlement Officer, Consolidation but the same was dismissed by the order dated 18th of December, 1970. Feeling aggrieved, G H SUPREME COURT REPORTS [2008] 8 S.C.R. 632 + A the respondents filed a revision under Section 48 of the Act before - the Assistant Director Consolidation, which was allowed by an order dated 16th of August 1971. Against this order passed in revision, the appellants filed a writ petition being WP No. 1797of1971 and the same was allowed on 14th of November, 1978 and the B matter remanded to the Assistant Director - Consolidation for deciding the revision afresh. The Assistant Director Consolidation allowed the revision this time also by his order dated 20th of February 1981. Feeling aggrieved, the appellants filed a writ petition before the High Court being 2016 of 1981, which, however, was disc missed by the judgment and order dated 22nd of May 1998. It is this decision of the High Court, which is now impugned in this appeal. 3. Before we proceed further, considering the fact that concurrent findings of fact arrived at by the Consolidation Officer and the Settlement Officer-Consolidation were set aside D by the Assistant Director-Consolidation in revision, whose decision was affirmed by the· High Court in the impugned judgment, we deem it expedient to look at the findings of High Court and the Consolidation Officer. Let us first look at the findings of the High Court relying on E which the writ petition of the appellants was dismissed. The findings are as under: - F G i) At the time of Third settlement, Sanehi was the only recorded tenure-holder of the land in question and Faqir was not recorded as a co-tenure holder. ii) The name of Faqir was recorded only in the year 1356 Fasli witl1out there being any order showing the title _9f_ Faqir or showing the ground on account of which his name was entered as a co-tenure holder of the suit property and therefore, there was no evidence on record to show how his name could be entered as a co-tenure holder in the year 1356 Fasli. H iii) The mere fact that in the khetauni of 1356 Fasli, it was mentioned that the tenure-holders were occupying the land for 15 years, the same could not confer any title on Faqir whose 633 RAM AVADH & ORS.v. RAM DAS & ORS. [TARUN CHATTERJEE, J.] + name did not find place at the time of the Third settlement. A iv) Unless it was shown by Bhagirati & Ors. that the title of the suit property was acquired by Faqir before 1356 Fasli and unless the mode of acquisition of title was shown, the mere recording of Faqir's name as a co-tenure holder of B Sanehi in the year 1356 Fasli would not make Faqir a cotenure holder of Sanehi in the suit land. v) The Assistant Director of Consolidation in revision had rightly held that the entry in favour of Faqir was fictitious and could not have been relied upon by the Consolidation c officer and the assistant settlement officer (consolidation) to confer any title on Faqir, his heirs Bhagirati & Ors. and their vendees, the appellants. vi) In connection with the land of another village, it was mentioned that Sanehi had not taken patta of land for the D benefit of his brother Faqir and that being so, the jointness with regard to the suit property could also not be assumed. vii) Since the appellants were the transferees from Bhagirati & ors. and since the title of Faqir, the ancestor of Bhagirati E & Ors. could not be established, the appellants were rightly denied the relief by the Assistant Director of Consolidation. viii) ThG benefit of the authority of the Supreme Court reported in _Sri Nath Singh_ & _Ors. Vs. Board of Revenue_ [AIR 1968 SC 1351] was not available to the appellants F because the entry of 1356 Fasli in favour of Faqir was fictitiously recorded and therefore, no right of co-tenure holder could be said to have accrued to Faqir. ... • As noted herein earlier, the High Court dismissed the writ petition of the appellants on the above findings and affirmed G the decision and the findings of the Assistant Director-Consolidation passed by the latter in revision. 4. In contrast to the above findings of the High Court relying on which the appellant's claim was rejected, the Consolida- H SUPREME COURT REPORTS 634 (2008] 8 S.C.R. ,...._ A tion Officer arrived· at the following findings in his order dated 1 Sth of May, 1970 and upheld the claim of the appellants: - i) The extracts of Khatauni 1356 Fasli and 1357 Fasli revealed that the name of Faqir was present and that he became Sirdar in 1350 Fasli as on file. B c D E F G ii) Ram Das had deliberately avoided the disclosure of his grandfather's name Dihar or Dehpal but his ignorance regarding the name of his grandfather i.e. Sanehi's father would not mean that Dihar or Dehpal was notSanehi's father. iii) The assertion regarding Dihar or Dehpal as made by Bhagirathi finds support from the extract of settlement and certified copy of the extract of 1356 Fasli, 1357 Fasli on record. iv) Faqir was an occupant in 1356 Fasli and his heirs had been entered in the Khata in 1368 Fasli by an order of the court after the death of Faqir in 1367 Fasli. v) The name of Faqir was present in 1356 Fasli alongwith Sanehi and by virtue of having been in physical cultivatory occupation of the plots from 1356 Fasli onwards, Faqir became Sirdar thereof and his sons, whose names had been recorded, were the bonafide Sirdar of the lands and were entitled to _Yi_ share because Ram Dass did not explain who they were if not from that branch. vi) As to whether Bhagirati & ors. had the right to transfer, the statement of A.R.K. on the file showed that on 1.5.1969, ten times rent had been deposited in the government treasury and therefore, the vendor would be deemed to have become bhumidari of the land from the date of depositing the amounts in the state treasury. 5. The above findings of the Consolidation Officer were affirmed by the Assistant Settlement Officer, Consolidation in his order dated 18th of December 1970. -+ _>·_ .. ... 6. The learned counsel for the appellants argued before H[us ][that under Section ][48 ][of the Act, the Assistant Director ][of ] RAM AVADH & ORS. _v._ RAM DAS & ·ORS. [TARUN CHATTERJEE, J.] 635 _).._ ,.., -+ .if. . Consolidation did not have the jurisdiction to set aside the findA ings of fact recorded by the courts below without any basis and on assumptions particularly in view of the fact that the name of Faqirwas recorded as cultivator in possession along with Sanehi, both being real brothers and sons of Dehpal. The learned counsel for the appellants further argued before us that the appellants 8 would be entitled to the benefit of Section 20 of the U. P. Zamindari Abolition and Land Reforms Act, 1950 (in short "UPZA&LR Act) which provides that the entries in the base year 1356 Fasli are final and confers all rights on the occupant who would be entitled to retain possession thereof. It was also argued that the High c Court and the revisional court had adopted an erroneous approach by relying on the result of a litigation in respect of some other land in a different village wherein Sanehi was held to be exclusive lessee and therE?fore, it was argued that it could not be assumed that the present revenue record showing joint possesD sion and occupation of Faqir and Sanehi became unreliable. Finally, the learned counsel for the appellants contended before us that the respondents did not take any steps to challenge the revenue record containing the name of Faqir before any court and in fact, the names of Faqir's sons i.e. Bhagirati & Ors. were muE tated in 1368 Fasli after the death of Faqir by an order passed by the Tehsildar where the respondents were on notice. 7. These submissions of the learned counsel forthe appel- > ~ lantswere contested by the learned counsel appearing on behalf of the respondents. The learned counsel for the respondents argued that the suit property is the sole acquisition of the respondent's grandfather Sanehi and that they have been occupying the same exclusively after his death and thus are the sole. holders of the suit property and therefore, Bhagirati & Ors. had no title of the land in dispute which could entitle them to sell the > t suit property to the appellants. It was further argued that Faqir got a fictitious entry of his name made in the Khetauni 135? Fasli and his name was not present at the time of the Third Settlement. F G 8. Having heard the learned counsel for the parties and after examining the impugned judgment and the orders of the courts H SUPREMEeOURT REPORTS [2008] 8 S.C.R. 636 A below and other materials on record, we are of the opinion that this appeal deserves to be allowed for the reasons set out hereinafter. 9. From the admitted pedigree chart produced before us, it is pellucid that Faqir and Sanehi were real brothers and sons of Dehpal. The record shows that the suit property was recorded B in the name of Faqir and Sanehi in the Khatauni for 1356 Fasli and this entry continued in the Khatauni for 1357 Fasli to 1366 Fas Ii. It was a finding of fact of the Consolidation Officer, which was affirmed by the Settlement Officer, Consolidation that Faqir was in possession as recorded cultivator in possession from C 1356 Fas Ii onwards. It was also a finding of fact of the Consolidation Officer that after the death of Faqir in 1356 Fasli, the names of his sons Bhagirati & Ors. were mutated in place of their father in 1368 Fasli on the basis of an order passed by the Tehsildar where the respondents were on notice. These findD ings of fact ·were reversed by the revisional court which was affirmed by the High Court on the ground that the name of Faqir was not present at the time of the Third Settlement and therefore, the Khatauni for the year 1356 Fasli upto 1366 Fas Ii were fictitious. It is significant to note that the respondents had not E taken any steps to expunge the names of the vendors from the record even though they continued to be recorded along with the respondents. Furthermore, a lot of weight has been placed by the revision a I court as well as the High Court on the result of a litigation in respect of some other plots wherein it was conF eluded that a certain lease does not appear to have been entered by Sanehi for the benefit of the joint Hindu family and as such, Faqir could not be held to be a co-tenant. We are of the opinion that the result of that litigation should not have any bearing on the present case. It is an admitted fact that in the year G 1356 Fasli, the name of Faqirwas entered along with Sanehi in the. Khetauni and yet it was held that this must be wrong because in respect of land in another village, the lease was held to be exclusively that of Sanehi and not for the benefit of Faqir. This, in our opinion, has been given exaggerated and undue H importance by both the revisional and the High Court. The fact -1 -¥· ~ ~ RAM AVADH & ORS.v. RAM DAS & 637 ORS. [TARUN CHATTERJEE, J.] remains that Faqir's name was entered in 1356 Fasli, wh.ich A was not challenged by the respondents till 1366 Fasli i.e. for almost 11 years. From 1356 Fasli onwards, throughout the names of Faqir and thereafter his sons are continuing in the revenue record and in that view of the matter, the concurrent findings of fact arrived at by the courts below should not have B been disturbed by the revisional court and the High Court. 10. The learned counsel for the respondents argued before us that the name of Faqir was entered fictitiously without there being any order of any authority showing the basis on which his name was entered. It is true that there does not appear any order passed by C any competent authority to show how Faqir got his name entered in 1356 Fasli but that by itself would not lead us to infer that the name was fictitiously entered. Nothing has been shown to us to prove that Sanehi and Faqir had separated prior to 1915 except the result of the litigation of 1944 on which, as noted hereinabove, we are not D inclined to place much weight. From the admitted pedigree chart also, as noted herein earlier, it is clear that Faqir and Sanehi were real brothers and sons of Dehpal. In this view of the matter, it would not be appropriate to raise such serious doubts over how Faqir's name appeared in the KhetaunL In any view of the matter, in our E view, the vendors would be entitled to the benefit of Section 20 of the UPZA&LR Act. Section 20 provides that where the person is recorded as an occupant of any land in Khasra Khatauni for 1356 Fasli, which has been taken as the base year, he shall be entitled to retain possession thereof. If the entry was not challenged, it could F not be doubted and have to be deemed to be correct in view of explanation 111 to Section 20 which provide that the entries in the year 1356 Fasli is final and confers all rights on occupant. In the present case, the name of Faqir appeared along with Sanehi in the 1356 Fasli upto 1366 to 1368. Mutation was carried out after considering G objections of respondents, by the Tehsildar. F 11. There is another aspect of this matter. In the present case, even if it is found that the names of Faqir and subsequently Bhagirati & ors. were fictitiously recorded, the fact remains that they were recorded Bhumidars an9 co-tenure holdH (2008] 8 S.C.R. SUPREME COURT REPORTS 638 t i _!_ G ,.l A ers (it is an admitted fact that Bhagirati & Ors. deposited ten times the land revenue under Sections 134 to 137 of the UP ZA & LR Act for grant of Bhumidari Sanad in respect of the suit land) and that no step was taken by the respondents ever to challenge their title to the suit property or the inclusion of their B[names ][in ][the revenue ][record. ][For this reason, the interest of the ] present appellants cannot be defeated particularly when they had made due enquiries under Section 55(1 )(b) of the Transfer of Property Act that the vendors were the recorded Bhumidars of the suit property and had a transferable right before purchas' c[ing ][the suit property ][and ][therefore, ][in ][our ][opini·on, ][they were ] bonafide purchasers f<:Jr value w!thout notice. 12. Before parting with this judgment, we may also consider the submission of the learned counsel for the appellants that the revisional court viz. Assistant Director, Consolidation D h~d no jurisdiction under Section 48 of the Act to set aside the concurrent findings of fact of the COflsolidation Officer arid the Settlement Officer, Consolidation. In support of her submission, she relied on two decisions of this court in _Ram Avtar_ & Ors. _Vs. Ram Dhani_ & Ors.[(1997) 2 SCC 263] and _Ram DularVs._ E _[Dy ][Director ][of ][Consolidation, Jaunpur& Ors. ]_[[JT 1994 ][(3) ][SCC ] 341 ]. From these authorities, it is clear that the Director Consolidation under Section 48 of the Act does not have the juris-. diction to interfere with the findings of fact, without any basis and on assumptions. In view of our foregoing discussion, we F[are, ][therefore, of the considered view that it was not ][open ][to the ] Assistant Director Consolidation, whose order was affirmed by the High Court in the impugned judgment, to interfere with the concurrent findings of fact arrived at by the Consolidation Officer as also the Settlement Officer, Consolidation. 13. For the reasons aforesaid, we set aside the judgment of the High Court and the Revisional Court and affirm the decisions of the Consolidation Officer and the Settlement Officer, Consolidation. The appeal is thus allowed. There will be no order as to costs. Appeal allowed. K.K.t. H ~ .'ii -i **==> picture [4 x 5] intentionally omitted <==** **----- Start of picture text -----**<br> I<br>**----- End of picture text -----**<br> j,,, I '