Ram Surat Ram (Maurya), J.—Heard Sri H.N. Shukla, for the petitioner and Sri R.K. Upadhyay, along with Sri Murlidhar Dubey, for the contesting respondents.
2. This petition has been filed against the orders of Consolidation Officer dated 04.12.1999, Settlement Officer Consolidation dated 13.07.2000 and Deputy Director of Consolidation, dated 18.10.2006 passed in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the ''Act'').
3. The dispute between the parties is in respect of basic consolidation year khata 97-Aa, Ba and Sa (consisting plots 117/2 (area 0-2-0 bigha), 118 (area 0-4- 0 bigha), 119 (area 0-10-0 bigha), 226 (area 0-1-8 bigha), 226-m (area 0-12-13 bigha), 335 (area 0-17-14 bigha), 336 (area 0-7-19 bigha), 337 (area 0-8-14 bigha), 392 (area 1-2-16 bigha), 292-m (area 0-6-0 bigha) and 393 (area 0-6-13 bigha) of village Tulsi Kalan, pargana Bhadohi, district Sant Ravidas Nagar Bhadohi, which were recorded in the names of Raj Karan alias Ram Nath, Bala, Shivdeo, Daya Shankar sons of Surya Lal, Mahadeo son of Nand Gopal, Dev Narain, Surya Narain sons of Shiv Lal, Bhagauti Prasad, Mata Prasad sons of Ram Kishun, Kishore son of Rangai, Amar Nath, Raghunath sons of Deep Narain (now represented by the petitioner and respondents-5 and 16) (hereinafter referred to as the petitioner). Ram Raj (respondent-4) filed an objection (registered as Case No. 707) under Section 9-A of the Act, for recording his name over it and deleting the names of recorded persons. He claimed that the land in dispute was his ancestral property, in which he had � share. Recorded tenure holders have sold their share in disputed land to third persons, whose names were mutated and recorded in separate khatas. Now recorded persons left with no interest in it.
4. If basic consolidation year entry is broadly analysed then it appears that names of three branches of admitted family pedigree namely Thakur Dayal, Rangai and Shiv Lal were recorded. Branches of Rangai and Shiv Lal were residing at village Bhelasi district Allahabad from old times. They had sold their � share in entire ancestral property and did not contest the objection. Raj Karan and others (descendants of Thakur Dayal) only contested the objection. They took the plea that land in dispute was land of Smt. Ekasi widow of Ram Dan. She executed a usufructuary mortgage dated 08.02.1886, in favour of Thakur Dayal. She could not redeem the mortgage during her life time as such after her death, name of Thakur Dayal was recorded over it. Deo Narain and others (branch of Shiv Lal and Rangai) filed a suit in 1938, in which Bechai, father of Ram Raj (respondent-4) filed written statement and admitted that he had no share in disputed land. In that suit a conditional decree was passed that after deposit of Rs. 300/- they could get their � share in disputed land. Deo Narian and others could not deposit aforesaid amount. Deo Narain and others, thereafter filed a suit for partition, in which preliminary decree was passed. But they never applied for preparation of final decree within time. Bechai filed a suit for ejectment of the recorded tenure holders, in 1952, which was dismissed through out up to High Court in second appeal. Branch of Thakur Dayal alone remained in possession of the disputed land through out.
5. Consolidation Officer, after hearing the parties, by his order dated 04.12.1999 held that disputed land was ancestral property, in which Bechai (father of respondent-4) was co-sharer of � share. Other co-sharers sold their share in disputed land and left with no interest. Name of Bechai was recorded in revenue record but subsequently it was deleted from it. On these findings, he allowed the objection and directed for deleting the names of recorded tenure holders and recording name of Ram Raj. Branch of Thakur Dayal filed an appeal (registered as Appeal No. 1987) from the aforesaid order. Settlement Officer Consolidation, after hearing the parties, by order dated 13.07.2000 held that judgments in previous litigation, in which it was held that Bechai had � share in disputed land, operate as res-judicata between the parties and affirmed the finding of Consolidation Officer that other co-sharers had already sold their share. On these findings, he dismissed the appeal. Branch of Thakur Dayal filed two separate revisions (registered as Revision No. 587 and 588). Both the revisions were consolidated and heard by Deputy Director of Consolidation, who by order dated 18.10.2006 dismissed the revisions. Hence, this petition has been filed.
6. The counsel for the petitioner submitted that Smt. Ekasi widow of Ram Dan was fixed-rate-tenant of the disputed land. She executed a usufructuary mortgage dated 08.02.1886, in favour of Thakur Dayal for Rs. 600/- and handed over possession over it. During her life time, Smt. Ekasi could not redeem the mortgage as such after her death, name of Thakur Dayal was recorded over it. Deo Narain and others, branch of Shiv Lal and Rangai filed a suit in 1938, in which Bechai, father of Raj Raj filed his written statement on 21.01.1939 and admitted that he had no share in disputed land. A conditional decree was passed in it that after deposit of Rs. 300/- the plaintiffs could get � share in disputed land. Deo Narian and others could not deposit aforesaid amount. Deo Narain and others, thereafter, filed a suit for partition, in which preliminary decree was passed. But they never applied for preparation of final decree. Bechai filed a suit for ejectment of the recorded tenure holders, in 1952, which was dismissed through out up to the stage of High Court in second appeal. Branch of Thakur Dayal alone remained in possession of the disputed land through out. Previous judgments operate as res-judicata against Ram Raj. Ram Raj had already sold his ancestral property now he mala fide filed objection during consolidation although his claim has already been negatived in 1948 by civil court. Under Article 148 of Limitation Act, 1908, 60 years period was provided for a suit for redemption of mortgage. Mortgage dated 08.02.1886 was not redeemed within time as such claim of heirs of mortgagor, if any has become barred by limitation as held by this Court in Lakshmi Narain v. DDC and others, 1985 RD 435. Admission of Bechai is best evidence, which can be relied upon it as held by Supreme Court in Thiru John v. Subramaniyam, AIR 1977 SC 1724 and this Court in Girdhari Lal v. DDC and others, 1985 RD 135. Consolidation authorities have illegally ignored admission of Bechai and not applied its mind to the previous judgments and by cryptic orders allowed the objection of respondent-4. He placed reliance on the judgment of Supreme Court in Prabhakaran v. M Azhagiri Pillai AIR 2006 SC 1567 , in which it has been held that an acknowledgment by mortgagee of the right of mortgagor, a fresh period of limitation will start for the mortgagor for redemption of mortgage and in Srinivas Fogla and others v. Satyanand Gupta and others AIR 1969 Patna 64 (DB), in which, it has been held that title by adverse possession cannot be claimed by the mortgagee and relationship of mortgagor and mortgagee shall continue, in the judgment of this Court in Mohd. Umar and others v. Haji Badullah and another 1980 ACJ 159 (DB), in which it has been held that the preliminary decree for partition passed in suit was invalid and inoperative and that such preliminary decree is not a decree for recovery of property within the meaning of Section 7(iv-A) of Court Fees Act, 1887 and the judgment of Board of Revenue, U.P. At Allahabad in Puttoo v. Panchoo Mst. 1955 RD 115, in which, it has been held that preliminary decree does not extinguish a person''s right as co-tenure. Impugned orders are illegal and liable to be set aside.
7. I have considered the arguments of the counsel for the parties and examined the record. Copy of judgment of Chief Court, Benaras State, at Ram Nagar, Benaras dated 15.04.1941 passed in Appeal No. 41 of 1940 (under Agra Tenancy Act, 1901, as enforced in Benaras State) is filed as Annexure-2 to the writ petition. A perusal of this judgment shows that Deo Narain and others (branch of Shiv Lal and Rangai) filed a suit for declaration of their � share in the land, which was recorded in the name of Thakur Dayal at that time, in 1938. Sons of Thakur Dayal contested the suit on the ground that their predecessor Mahraj alias Hansraj was son of Jeet and inherited property of Ekasi after her death, being last male tenure holder in that family, while the plaintiffs and Bechai (defendant-8) belonged to the branch of Ramman (brother of Jeet) and would not get any share, in the land of Smt. Ekasi. They also took plea that Smt. Ekasi executed a usufructuary mortgage dated 08.02.1886, in favour of Thakur Dayal for Rs. 600/- and handed over possession to him over her entire properties. During her life time, Smt. Ekasi could not redeem the mortgage. As Thakur Dayal inherited her, after her death as such his right as mortgagee was merged with the mortgagor. Chief Court in its judgment dated 15.04.1941 held that Mahraj alias Hansraj was not son of Jeet rather he was son of Ramman. At the time of death of Smt. Ekasi (in 1300 F), there was no male member in the branch of Jeet as such she was inherited by descendants of Ramman and her nearest heirs were Raghubar son of Mahraj, Rangai, Shiv Lal sons of Dilraj and Mahipal son of Maniyar. Thakur Dayal inherited � share of Raghubar. Deo Narain and others (the plaintiffs) had � share and Bechai had � share. Bechai got his share redeemed and his name was recorded in revenue record and he was in possession of it. But during record operation in 1320 F, due to mistake, his name was not recorded. His alleged admission in written statements was no accepted in the light of his oral statements. The plaintiffs were given right to get their � share redeemed after deposit of Rs. 300/- This judgment has become final between the parties.
8. Thereafter, Deo Narain and others filed another suit (registered as Civil Suit No. 3 of 1947) (Original Case No. 11 of 1946) for partition of their � share, in which preliminary decree was passed by District Judge, by judgment dated 27.07.1948, holding Dev Narain and others had � share and Bechai had � share. It may be mentioned that at that time, branch of the petitioner did not raise any plea that mortgage was not redeemed as such suit for partition was not maintainable. Dev Narain and others gifted their � share to Shridhar Shukla and Bachan Lal, minor son of Shridhar Shukla (outsiders of the family). Shridhar Shukla and his son Bechan Lal filed Rent Suit Nos. 94 and 95 of 1952 for ejectment of their donors, which was dismissed by Trial Court. Thereafter, they filed Rent Appeal Nos. 41 and 42 of 1954), which were also dismissed. Thereafter, they filed Second Appeal Nos. 1644 and 1645 of 1955), which were consolidated and dismissed by this Court by judgment dated 03.04.1973. These judgments do not help the petitioners nor can be read against Bechai, inasmuch as by these judgments, donee of Dev Narain and others could not eject them on the basis of their gift deed. Reliance on these judgments by the petitioner is misconceived.
9. Judgment of Chief Court, Benaras State dated 15.04.1941 passed in Appeal No. 41 of 1940, holding that Bechai had � share and he had got his share redeemed and was in possession of the land of his share and judgment of Civil Court dated 27.07.1948 passed in partition Civil Suit No. 3 of 1947, again holding � share of Bechai are res-judicata against the petitioner and his branch. So far as share of Bechai is concerned, it has already been redeemed and Bechai was held in possession of it from the life time of Smt. Ekasi. The branch of the petitioner could not raise plea in partition Civil Suit No. 3 of 1947 that branch of Dev Narian and others could not redeemed mortgage of their � share. Now at this stage, his plea that mortgage was not redeemed within limitation as such right to get it redeemed, has become barred by limitation, cannot be raised. Mortgage was for a period of 25 years. Suit for its redemption was within limitation up to 1971. Supreme Court in Mool Chand v. Director, Consolidation, AIR 1995 SC 2493, held that the preliminary decree can nevertheless be given effect to in proceedings before the consolidation authorities in view of the provisions contained in Sections 9 and 9-A of the Act which enables the consolidation authorities to specify the share of individual tenure holders in joint holdings for purpose of effecting partitions to ensure proper consolidation and to settle the dispute between the parties with regard to their claims to land or partition of joint holdings.
10. Consolidation authorities, relying upon various sale deeds, recorded a categorical finding that branch of Thakur Dayal, who had � share in the land of Smt. Ekasi had already sold it to outsiders and left with no interest in the land in dispute. This findings could not been rebutted by the petitioner. It may be mentioned that among descendants of Thakur Dayal, share of the petitioners will be only 1/6 while remaining co-sharers of the petitioner of ⅚ share are not challenging orders of consolidation authorities.
11. So far as alleged admission of Bechai in his written statement dated 23.01.1939 is concerned, this admission was discarded by Chief Court in view of his oral statement in this very suit. Supreme Court in Kishori Lal v. Chaltibai, AIR 1959 SC 504, held that admissions are mere pieces of evidence. Admissions are not conclusive, and unless they constitute estoppel, the maker is at liberty to prove that they were mistaken or were untrue. Bharat Singh v. Bhagirathi, AIR 1966 SC 405, held that admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view of Sections 17, and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. In Ram Niranjan Kajaria v. Sheo Prakash Kajaria, (2015) 10 SCC 203, it has been held that the admission can be clarified or explained. Admission of Bechai in his written statement, having been explained in his oral statement and that explanation has been accepted by that Court. Now the petitioner cannot rely on that admission again.
12. In view of aforesaid discussions, writ petition has no merit and is dismissed.
