RAM AVADH & ORS. v. RAM DAS & ORS

Citation: [2008] 8 S.C.R. 627

Court: Supreme Court of India

Bench: TARUN CHATTERJEE, H.S. BEDI

Case summary

RAM AVADH & ORS. v. RAM DAS & ORS.pdf

Judgment text

[2008] 8 S. C:R. 627 RAM AVADH & ORS. v. RAM DAS & ORS. . (Civil Appeal No. 5570 Of 2001) MAY 14, 2008 [TARUN CHATTERJEE AND HARJIT SINGH BEDI, JJ. ] + 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 - Co-tenure holders of the vendor filing objection that the vendors having no right in the property could not have sold it- Objection 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 Fasli- 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 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 ,.

J. uls 48 to set aside the concurrent findings offact- 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 revenue records. Respondents also filed objections contend- 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 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 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.

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 exclusive 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 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 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 -1 land in another village, the lease was held to be exclusively that of the father of the respondents and not for the benefit of father of the vendors. The result of that litiga- ORS. A tion should not have any bearing on the present case. This, 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 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] 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 - · 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 us that under Section 48 of the Act, the Assistant Director of ~ ).. . Consolidation did not have the jurisdiction to set aside the findings 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 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 . if. assumed that the present revenue record showing joint possession 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 mutated 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. 8. Having heard the learned counsel for the parties and after examining the impugned judgment and the orders of the courts 636 SUPREMEeOURT REPORTS [2008] 8 S. C. R. 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 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 -1 FasIi. 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 1356 FasIi 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 findings 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 FasIi were fictitious. It is significant to note that the respondents had not 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 aI court as well as the High Court on the result of a litigation in respect of some other plots wherein it was con- ~ 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 1356 Fasli, the name of Faqirwas entered along with Sanehi in the. Khetauni and yet it was held that this must be wrong be- ~ cause 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 importance by both the revisional and the High Court. The fact remains that Faqir's name was entered in 1356 Fasli, wh. ich 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 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 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 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 view, the vendors would be entitled to thebenefit of Section 20 ofthe 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 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 objections of respondents, by the Tehsildar. 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 hold- ,. l 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 F challenge their title to the suit property or the inclusion of their I names in the revenue record.

For this reason, the interest of the I 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- ' 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 h~d no jurisdiction under Section 48 of the Act to set aside the . 'ii 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. t i Vs. Ram Dhani & Ors. [(1997) 2 SCC 263] and Ram DularVs. ! 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 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 j,,, concurrent findings of fact arrived at by the Consolidation Officer as also the Settlement Officer, Consolidation. r 13. For the reasons aforesaid, we set aside the judgment of the High Court and the Revisional Court and affirm the decisions of -i the Consolidation Officer and the Settlement Officer, Consolidation. The appeal is thus allowed. There will be no order as to costs. I ~ K. K. t. Appeal allowed. '