Rajbahadur Vs Mukhya Rajasva Adhikari Basti and Others

Ram Surat Ram (Maurya), J.@mdashHeard Sri Pradeep Kumar and Sri Umanath Pandey for the petitioner and Dr. Vinod Kumar Rai and Sri Ashok Kumar Singh, for the respondents. The writ petition has been filed for quashing the order of Mukhya Rajasva Adhikari/Deputy Director of Consolidation (respondent-1) dated 29.12.2004, passed in Revision Nos. 33/1812 of 2004-05, 103/1813 of 2004-05 and 104/2640 of 2004-05, arising out of title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).

2. The dispute relates to the land recorded in khatas 96 [consisting of plots 231, 684/14, 700/9, 731 and 878 (total area 2-0-15 bigha)] and 97 [consisting plots 220, 221/1, 270/1, 277, 280, 818, 830, 846, 915, 916, 917, 948, 952, 959, 988, 995 and 1010 (total area 5-12-17 bigha)] of village Sonebarsa, tappa Ramgarh, pargana Amorha, district Basti. In basic consolidation record, khata 96 was recorded in the names of Ram Nagar, Ram Soch and Ram Yagya sons Dhodhai (now represented by respondents-2 and 3) (hereinafter referred to as the respondents) and Khata 97 was recorded in the names of Ram Nagar, Ram Soch and Ram Yagya sons Dhodhai and Ramdhan son of Bajadi. Govardhan son of Umrao (now represented by the petitioner) filed separate objections (registered as Case Nos. 195 and 196) u/s 9-A of the Act, claiming co-tenancy of 1/2 share, in the land in dispute. It has been stated by Govardhan that the land in dispute was khudkast of Bajadi and Dhodhai, who were real brothers and had equal share in it and was recorded in patti 11 of the khewat. Bajadi sold his 1/2 share in the land in dispute to Umrao through sale-deed dated 11.6.1923 (registered on 8.8.1923) and gave possession over his share to Umrao. Umrao had become co-khudkast holder of the land in dispute on the basis of the aforesaid sale-deed and his name was mutated in the khewat, 1332 F. However, due to inadvertence, the name of Umrao was not mutated in the khatauni. The land in dispute has been through out in joint possession of both the parties. After date of vesting, he had become bhumidhar of the land in dispute to the extent of his 1/2 share.

3. The respondents contested the objections and filed their joint written statements. It has been stated by the respondents that Dhodhai (their father) was sole khudkast holder of the land of khata 96 and 97. The land of khata 96 was through out recorded in his name alone and Bajadi had no share in it, however in the land of khata 97, the name of Ramdhan has been wrongly recorded. After death of Dhodhai, the names of the respondents were recorded over it and they were in exclusive possession over it. After date of vesting the respondents alone became bhumidhar of the land in dispute. Krishna Kumar (respondents) filed a separate objection stating therein that Ramdhan has executed a sale-deed dated 20.2.1981 in his favour in respect of the land of his share in khata 97 as such his name be recorded on the basis of the sale-deed dated 20.2.1981. Govardhan filed a written statement to the objection of Krishna Kumar in which he has stated that Ramdhan was absconding for more than 30 years and the sale-deed dated 20.2.1981 was executed by some imposter. In any case, Ramdhan had no right in the land in dispute as his father had already transferred it to Umrao, as such on the basis of the sale-deed executed by Ramdhan no right can be claimed by Krishna Kumar.

4. These cases were consolidated and tried together by the Consolidation Officer (Final Record), Harraiya, Basti. On behalf of the petitioners apart from documentary evidence, statement of Raj Bahadur was recorded. On behalf of the respondents apart from documentary evidence statements of Ram Soch and Krishna Kumar were recorded. The Consolidation Officer, by order dated 28.4.1987, held that Bajadi executed a sale-deed dated 11.6.1923 (registered on 8.8.1923) in favour of Umrao in respect of his share in the land in dispute and gave possession over it to Umrao. Umrao had become co-khudkast holder of the land in dispute on the basis of the aforesaid sale-deed and his name was mutated in the khewat. The name of Ramdhan was wrongly recorded over the land in dispute and he has no right to transfer it to Krishna Kumar and Krishna Kumar would not get any right on the basis of the alleged sale-deed dated 20.2.1981. Ramdhan was absconding for more than 30 years. Raj Bahadur was an heir of Govardhan. On these findings objections of the petitioner were allowed and the name of the petitioner was directed to be recorded over khata-97 and plots 684/14 and 700/9 of khata 96 holding his share as 1/2 in it. The plots, other than plots 684/14 and 700/9 of khata 96, were held to belong to Ram Nagar, Ram Soch and Ram Yagya. Objection of Krishna Kumar has been dismissed.

5. Ram Soch and others filed an appeal (registered as Appeal No. 292), Raj Bahadur filed an appeal (registered as Appeal No. 293) and Krishna Kumar filed an appeal (registered as Appeal No. 341) from the aforesaid order. All these appeals were consolidated and heard by Settlement Officer Consolidation, Basti, who by order dated 27.3.1991, confirmed the findings of the Consolidation Officer and dismissed all the appeals. Ram Soch and other filed a revision (registered as Revision No. 103/1813 of 2004-05), Raj Bahadur filed a revision (registered as Revision No. 104/2640 of 2004-05) and Krishna Kumar filed a revision (registered as Revision No. 33/1812 of 2004-05) from the aforesaid orders. All the revisions were consolidated and heard by Mukhya Rajaswa Adhikari (respondent-1), who by his order dated 29.12.2004, held that Umrao and his descendants did not take any care, in getting their names recorded in the khatauni on the basis of sale-deed dated 11.6.1923 (registered on 8.8.1923) for such a long time as such after expiry of about 60 years, the petitioner cannot be given any right on its basis. Umrao and his descendant could not cultivate the land in dispute as such they could not become co-khudkast holder in it. Ramdhan was not absconding till the execution of the sale-deed dated 20.2.1981 and this sale-deed was executed by him. Plot No. 684/14 and 700/9 were recorded in the name of Ram Soch and others in 1359 F khatauni, with period of cultivation of 12 years as such it was their khudkast acquired subsequent to 1923 and the petitioner has no share in it. Raj Bahadur cannot co-tenancy in the plots other than the land covered in the sale-deed dated 11.6.1923 (registered on 8.8.1923) of khatas 96 and 97. On these findings, the revision of Krishna Kumar has been allowed and revision of Ram Soch and others was partly allowed and revision of the petitioner was dismissed. Hence this writ petition has been filed.

6. The counsel for the petitioner submitted that the Consolidation Officer and Settlement Officer Consolidation have concurrently held that the disputed land was khudkast of Bajadi and Dhodhai and was jointly recorded in their names in the khewat and khatauni 1331 F and belonged to patti 11 of Gajadhar. This land was purchased by Ram Dutt Pathak (father of Bajadi and Dhodhai) from Ram Roop Pandey, through sale-deed dated 1.4.1920, in pursuance of decree of the Civil Court. According to the entries in khewat, total area of the land of patti 11 was 15 bigha 11 biswa 16 dhur and proprietary share was one Ana, five Pai, 13 Chhatak, three Bhar and 3 thousand six hundred ninety three Jau. Admittedly Bajadi had 1/2 share in it and executed a sale-deed dated 11.6.1923 (registered on 8.8.1923), in favour of Umrao, who was his first cousin and gave possession to him over the land transferred by him. The name of Umrao was recorded in khewat in 1331 F. His name was also recorded in khatauni but subsequently, his name was omitted from some khata as is evident from the khatauni 1359 F. On the basis of sale-deed dated 11.6.1923 (registered on 8.8.1923), Umrao had become co-khudkast holder of 1/2 share, alongwith Dhodhai of the entire land of the area 15 bigha 11 biswa 16 dhur of patti 11 and remained in possession of it, by co-sharing in cultivation through out. It was immaterial that the name of Umrao (or after his death his son Govardhan) was not recorded over some of the plots, in the khatauni. Once it is found that Umrao was co-sharer in the land in dispute, the principle that possession of one co-sharer is possession of all will apply. He submitted that as Bajadi had already transferred his entire share in the land in dispute as such Ramdhan did not inherit any thing from him in the land in dispute. His name was wrongly recorded in the khatauni. Sale-deed executed by Ramdhan in favour of Krishna Kumar dated 20.2.1981 is null and void. He further submitted that Ramdhan was absconding for more than 30 years and the sale-deed was procured from some imposter. Respondent-1 has illegally set aside the concurrent findings of two subordinate authorities without considering the evidence on record and the reasons recorded by the Consolidation Officer, by a cryptic order. The only reason has been given by respondent-1 that the petitioner has not claimed their right on the basis of the sale-deed dated 11.6.1923 (registered on 8.8.1923) for period of about 60 years, is false. He has illegally failed to notice that on the basis of the sale-deed dated 11.6.1923 (registered on 8.8.1923), the name of Umrao was mutated in khewat 1331 F and his name was also recorded in the khatauni. He relied upon the decisions of Supreme Court in Ram Dular v. DDC and others, 1994 RD 290; Gaya Din (D) Through Lrs. and Others Vs. Hanuman Prasad (D) Through Lrs. and Others, and Ram Avadh and Others Vs. Ram Das and Others, , in which it has been held Deputy Director of Consolidation has no jurisdiction to interfere with the findings of fact merely on assumption.

7. In reply to the aforesaid arguments, the counsel for the respondents submitted that Bajadi, through sale-deed dated 11.6.1923 (registered on 8.8.1923), transferred his proprietary right only, in patti 11 of the khewat. Plot numbers were not mentioned in the sale-deed but only proprietary share has been mentioned. The possession over the khaudkast land was never given to Umrao. Under the law Bajadi had become ex-proprietary tenant of the land of his share. After coming into force of U.P. Act No. 1 of 1951, the proprietary right of Umrao in the land in dispute was vested in State of U.P., while sons of Dhodhai became bhumidhar of the khudkast land of his share u/s 18 and Ramdhan son of Bajadi has become sirdar of his share (being ex-proprietary tenant) u/s 19 of U.P. Act No. 1 of 1951 and with effect from 8.1.1977 became bhumidhar. Ramdhan executed a sale-deed dated 20.2.1981 in favour of respondents of the land of his share. The sale-deed dated 11.6.1923 (registered on 8.8.1923) has not been acted upon and Umrao or Govardhan were never obtained possession over the land in dispute on its basis as such their right if any has lost. He relied upon the judgments of this Court in Kundan Lal v. Ghanshyam Das, 1995 ACJ 955, in which it has been held that if plot in dispute has not been included in the sale-deed then merely on the basis of the entry in khewat as co-owner, the co-owner in khewat will not have any right over the land in dispute, Raghunath Singh v. DDC and others, 1971 RD 264, in which it has been held that joint share holder in khewat cannot be treated as co-tenants in the plots mentioned in that khewat, Dharam Prakash v. DDC and others, 1970 ALJ 193, in which it has been held that khudkast right is acquired by the proprietor by virtue of his cultivatory possession and Chandra Bhaskari Tiwari v. DDC and others, 1979 ALJ 1063, in which it has been held that sir and khudkast right cannot be determined on the basis of khewat entries alone.

8. I have considered the arguments of counsel for the parties and examined the records. The issue as to whether Ramdhan was absconding and the sale-deed dated 20.2.1981 executed in the name of Ramdhan in favour of Krishna Kumar is a genuine document or not, is not required to be examined as Krishna Kumar has now inherited the rights of Ram Nagar, Ram Soch and Ram Yagya. So far as the petitioner is concerned, if it is found that Bajadi, father of Ramdhan had sold his entire share in the land in dispute to Umrao and handed over possession over his share then nothing would be left for being inherited by Ramdhan and his sale-deed, even if was executed by him would be void as against the petitioner.

9. The controversy which arises in this writ petition is as to whether Umrao became co-khudkast holder and co-sharer in the land in dispute, and became bhumidhar u/s 18 of U.P. Act No. 1 of 1951 on the basis of sale-deed dated 11.6.1923 executed by Bajadi and his right has never come to an end by ouster or partition. According to the respondents Bajadi transferred his 1/2 share in the proprietary right and possession over the land in dispute remained with him and he has become ex-proprietary tenant of it and sirdar u/s 19 of U.P. Act No. 1 of 1951. Umrao and Govardhan never obtained possession over it and had not acquired the status of co-khudkast holder of the land in dispute. He acquired only proprietary right, which was vested in State of U.P., under U.P. Act No. 1 of 1951. After such a long time, the petitioner cannot claim any right on the basis of sale-deed dated 11.6.1923.

10. The sale-deed dated 11.6.1923 (registered on 8.8.1923), contains recitals "mustari majkur hisse mubaiya par b-aday malgujari kabij dakhil hokar abad kare". This recital clearly shows that Bajadi handed over possession to Umrao in respect of his share in the land in dispute. The counsel for the respondents submitted that the words "Jote, jutawen, awad kare" denotes that only proprietary right was transferred and not the cultivatory right as the sale-deed was in respect of share in the proprietary right only and did not contain the plot numbers as such the possession over the land in dispute was not transferred. The arguments of the counsel for respondents is not liable to be accepted as specifically the words "kabij dakhil hokar abad kare" has been mentioned. In the khewat, a separate patti of total proprietary share of Bajadi and Dhodhai was formed in which area of entire land was mentioned as 15 bigha 11 biswa 16 dhur. Bajadi transferred his entire share of this patti and gave possession over the land of his share. Even if the plot numbers were not mentioned it but as entire share was transferred as such all the plots of this patti, which were recorded in his name were transferred. If only portion of the share had been transferred, then it could be said that as the plot number was not mentioned as such no inference could be drawn that particular plot was transferred. The case law relied upon by the counsel for the respondents have no application in this case. In view of Section 92 of the Evidence Act, 1872, oral evidence cannot be admitted in exclusion of the terms of the sale-deed. On the basis of this sale-deed, the name of Umrao was recorded in the khewat. Khatauni 1359 F shows that some of the plots of patti 11 were recorded in the name of Umrao as such the arguments that sale-deed dated 11.6.1923 was not given effect to cannot be accepted. Respondent-1 has illegally ignored the material evidence on record and observed that after expiry of 60 years, no right can be claimed on the basis of sale-deed.

11. Next point raised by the counsel for the respondents that Bajadi has become ex-proprietary tenant of the land of patti 11, after executing sale-deed dated 11.6.1923 (registered on 8.8.1923). At that time provision of the North Western Provinces Tenancy Act, 1901 was applicable. Section 10 of this Act defines ex-proprietary tenant, relevant portion thereof is quoted below:

10. Ex-proprietary tenants.--Every proprietor, whose proprietary right in a mahal or in any portion thereof, whether in any share therein, or in any specific area thereof, are transferred, on or after the commencement of this Act, either by sale in execution of a decree or order of a Civil or Revenue Court or by voluntarily alienation, otherwise than by gift or by exchange between co-sharer in the mahal, shall become a tenant with a right of occupancy in his sir land and in the land which he has cultivated continuously for twelve years at the date of transfer, and shall be entitled to hold the same at a rent which shall be four annas in the rupee less than the rate generally payable by non-occupancy tenants for land of similar quality and with similar advantages in the neighborhood.

Thus u/s 10 of the Act, 1901, ex-proprietary right has been conferred only over the sir land or the land which was continuously in cultivatory possession for twelve years at the date of transfer. In this case the land was khudkast land and has been acquired through sale-deed dated 1.4.1920 as such on the date of transfer it was not in cultivatory possession for a period of twelve years as such Bajadi did not acquire right of ex-proprietary tenant over it. On the other hand Umrao became co-khudkast holder of 1/2 share in entire land of 15 bigha 11 biswa 16 dhur, recorded in khata khewat 11.

12. Supreme Court in Kailash Rai Vs. Jai Jai Ram and Others, , held that in law the possession of one co-sharer is possession both on his behalf as well as on behalf of all the other co-sharers, unless ouster is pleaded and established. Further, even when one co-sharer is in possession of the land, the other co-sharers must be considered to be in constructive possession of the land. The expression "possession" in clause (a), of Section 18 of U.P. Act No. 1 of 1951, in our opinion, takes in not only actual physical possession, but also constructive possession that a person has in law. If so, when the defendants were in possession of the lands and when no plea of ouster had been raised or established, such possession is also on behalf of the plaintiff-appellant. Under such circumstances, the lands can be considered to be in the "possession" of the appellant or, at any rate, in his constructive possession. Again in A. Viswanatha Pillai and others Vs. Special Tahsildar for Land Acquisition No. IV and others, , held that it is equally settled law that no co-owner has a definite right, title and interest in any particular item or a portion thereof. On the other hand he has right, title and interest in every part and parcel of the joint property. Thus even if the name of Umrao or Govardhan were not recorded in khataunies, their right as co-khudkast holder/co-bhumidhar is not affected.

13. On the basis of the sale-deed dated 11.6.1923, the name of Umrao was recorded in the khewat as co-sharer. His name was also recorded in khatauni of this patti as his proved by khatauni 1359 F. Thus the sale-deed was acted upon and Umrao had become co-khudkast holder of the land in dispute alongwith Dhodhai. A perusal of the judgment of the Consolidation Officer shows that copy of khatauni 1322 F has been filed before him. This paper has not been brought on record of the writ petition by either of the parties. In khatauni 1359 F, period of cultivation of plots 684/14 and 700/9 has been mentioned as 12 years. In the absence of the khatauni 1322 F or any other khatauni of the time of sale-deed dated 11.6.1923, it is not possible for this Court to decide as to whether these plots were included in 15 bigha 11 biswa 16 dhur, recorded in khata khewat 11 of the relevant year or it were new acquisition. As such it is left for Deputy Director of Consolidation to examine this issue with reference to khataunies 1322 F or any other khatauni of that time and 1359 F by comparing the plot numbers and the area of the land recorded therein and decide it afresh. In the result, the writ petition succeeds and is allowed. The order of Deputy Director of Consolidation dated 29.12.2013¹ is set aside. The matter is remanded to the Deputy Director of Consolidation (respondent-1) to examine as to whether plots 684/14 and 700/9 were new acquisition of the respondents or it were included in 15 bigha 11 biswa 16 dhur, recorded in khata khewat 11, by comparing the plot numbers and area of the plots recorded khataunies 1322 F or any other khatauni of the time of sale-deed dated 11.6.1923 and khatauni 1359 F and equally divide the share of the parties in the land covered in the sale-deed dated 11.6.1923, within two months from the date of producing a certified copy of this order.

1. As per Correction Application No. 301599 of 2013 dt. 10.10.2013.