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CASE NO.: Appeal (civil) 191 1991

PETITIONER: GAYA DIN (D) THROUGH LRS.  & ORS.  ...

       Vs.

RESPONDENT: HANUMAN PRASAD (D) THROUGH LRS.  & ORS.  ...

DATE OF JUDGMENT:       27/11/2000

BENCH: S.S.M.Quadri, S.N.Phukan

JUDGMENT:

     SYED SHAH MOHAMMED QUADRI, J.

     This  appeal,  by special leave, is from the  judgment and  order  of the High Court of judicature at Allahabad  in Writ  Petition No.1685 of 1975 dated October 20, 1989.   The lis has its origin in the objections filed by the successors of   Sheetal  Prasad,  the   respondents,  under  the   U.P. Consolidation  of  Holdings  Act,   1953  (for  short,  the Consolidation  Act)  at  the time of Partal  against  the successors  of  Bala Prasad and Sadhau, the appellants,  who were  recorded as Khatedars of khatas in dispute.  They  are Khata  Nos.  2,11,21,23 which, comprise of bhumidhari lands, khata  Nos.  28,39 which consist of sirdari lands of village Akathi  and khata No.8 which is a bhumidhari land of village Chainpur.   To  appreciate the scope of the controversy  and the  facts giving rise to it, it would be helpful to  notice the  genealogy  of the family of the parties  :   PEDIGREE Matai  Manni Gokul (died issueless) Bala Pd.  Sadhau Sheetal Pd.    Parmeshwar   Chandrika   =Smt.Sheoraja  (died   (died issueless) issueless)

     Gayadin  Brindaban Mathura Gaya Hanuman Bhikhari A1 A2 A4 A5 R1 =Smt.Sukhdei R2 =Smt.Sheo Devi A3 Jagannath R3

     [A represents appellant and R represents respondent]

     In  the  objections  filed by  them,  the  respondents claimed  that  they  and the appellants are the  members  of Joint  Hindu  family  and that the entries in the  names  of appellants  are  in  representative  capacity  for  all  the members  of  the  joint family and, therefore,  their  names should  also  be recorded as the co-sharers along  with  the names  of  the appellants.  This claim was contested by  the appellants  denying existence of joint family and  asserting that  they  are  holding  the  khatas  in  their  individual capacity.   On  considering  the  evidence  adduced  by  the parties  the Consolidation Officer held that all the  khatas did  not  belong  to a common ancestor and that it  was  not shown  that they were acquired for the whole family from the joint family funds by the head of the family so he dismissed

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the objections on December 23, 1969.  The respondents herein carried  the matter in appeal before the Settlement  Officer Consolidation.   On June 4, 1970, he allowed the appeal  and set  aside the said order of the Consolidation Officer.  But the  Deputy  Director of Consolidation allowed the  revision filed  by  the  appellants  and remanded  the  case  to  the Settlement  Officer Consolidation on July 6, 1971.  By order dated  September 22, 1973, the Settlement Officer held  that the  khatas in question were joint Hindu family property and all  the parties were co-sharers who were entitled to  1/6th share  each.   The  appellants again carried the  matter  in revision before the Deputy Director of Consolidation who set aside  the order of the Settlement Officer holding that  the khatas  in question are held by the appellants  individually and  allowed the revision on April 7, 1975.  The respondents assailed the validity of that order before the High Court in the  writ  petition.  By the impugned order the  High  Court quashed   the  said  order  of   the  Deputy   Director   of Consolidation  dated April 7, 1975 and restored the order of the  Settlement  Officer Consolidation dated  September  22, 1973.   The  appellants  are  thus   before  us  in  appeal. Mr.V.K.S.Choudhary,   learned   senior   counsel   for   the appellants,  argued  that the High Court ought not  to  have interfered  with  the  order  of   the  Deputy  Director  of Consolidation under Article 226 of the Constitution and that in  any  event  the  tenancy rights were  inherited  not  in accordance  with  the  personal law of the  parties  but  in accordance  with  the provisions of the U.P.   Tenancy  Act, 1939.   According  to Mr.Choudhary, the Joint  Hindu  family could  not  have held the tenancy rights even if  the  lands were  that  of Manni, the common ancestor, and on his  death the  sons  would have become co-tenants.  He contended  that under  Sections  3-B  and  3-C   of  the  United   Provinces Agricultural  Tenants [Acquisition of Privileges] Act,  1953 (for  short, the Acquisition Act) unless an unrecorded co- tenant  got  a declaration, he could not claim to be  a  co- tenant  (See:   Section  7-A).  The respondents  not  having obtained such a declaration, are not entitled to be recorded as  sharers  in  the khatas.  Mr.Anil Kumar  Gupta,  learned counsel  for the respondents, submitted that the contentions now  raised under the Acquisition Act were not urged  before any   of  the  Authorities  or   the  High  Court  so  these contentions  could  not be raised for the first time  before this  Court;   that  the only question which was  under  the consideration  of the Authorities as well as the High  Court was  whether  the  parties were members of the  Joint  Hindu family  and  the  khatas  in question were  held  for  their benefit,  which was answered in favour of the respondents by the High Court.  A perusal of the impugned order of the High Court  as  well as the orders of the Authorities  under  the Consolidation Act, shows that the appellants did not urge at any  earlier  stage,  the contentions now raised  before  us under  Sections 3B and 3C of the Acquisition Act, therefore, we  are not inclined to deal with the said contentions.  The only point which remains to be considered is the controversy which  was raised and decided by all the Authorities as well as  by the High Court and that is :  whether the parties are members of joint Hindu family and the khatas in question are held for all the members of the joint Hindu family.  Now, we shall  advert to the contentions of the appellants that  the High Court ought not to have interfered with the findings of facts recorded by the Deputy Director of Consolidation whose powers  under  the  amended provision of Section 48  of  the Consolidation  Act  are wide enough to upset or reverse  the findings  of  facts  recorded  by  the  Settlement   Officer

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Consolidation.   The  High  Court, it was argued,  erred  in quashing the order of the Deputy Director on the ground that he  unjustifiably  interfered with order of  the  Settlement Officer  Consolidation  when there was no error apparent  on the  face  of  the  record.  The  learned  counsel  for  the respondents  has submitted that the powers of the revisional authority -- the Deputy Director -- under amended Section 48 are  wider than the unamended Section 48 which was analogous to  Section  115 C.P.C.;  but even so the powers  cannot  be equated to the powers of the Court of appeal so interference with  the  order of the Settlement Officer Consolidation  by the  Deputy  Director on re-appreciating the  evidence,  was illegal  and  was rightly quashed by the High Court.   There can  be  no  doubt  that under amended  Section  48  of  the Consolidation  Act, the revisional power of the Director  of Consolidation  is not confined to errors of jurisdiction  as was  the position under the unamended provision.  The  power of  the  revisional  authority  now  extends  to  satisfying himself  as  to  the regularity,  correctness,  legality  or propriety  of  any order other than an interlocutory  order. It  is  well-settled  that  conceptually  the  powers  of  a revisional  authority,  even  if couched in  wide  language, cannot be equated with the powers of an appellate authority. The  scope  of the powers of the Deputy Director  under  the amended provision came up for consideration of this Court in Ram Dular Vs.  Deputy Director of Consolidation, Jaunpur and Ors.   [1994  Supp.  (2) SCC 198].  It was observed that  in considering  the  correctness, legality or propriety of  the order  or correctness of the proceedings or regularity under Section  48 of the Consolidation Act, the Deputy Director of Consolidation  could  not  assume the  jurisdiction  of  the original   authority   as   a  fact-finding   authority   by appreciating  for himself of those facts de novo;  he had to consider  whether  the legally admissible evidence had  been considered by the authorities in recording a finding of fact or  law  or  the  conclusion reached by them  was  based  on evidence  or  any patent illegality or impropriety had  been committed  or  there was any procedural irregularity,  which would  go  to  the root of the matter.   That  judgment  was relied on in a recent judgment of this Court in Seshmani and Anr.  Vs.  Deputy Director of Consolidation, district Basti, U.P.  and Ors.  [2000 (2) SCC 523].  It is true in Sheo Nand and  Ors.  Vs.  Deputy Director of Consolidation,  Allahabad and  Ors.   [AIR  2000  SC  1141],  this  Court  observed  : Section 48 of the Consolidation Act gives very wide powers to  the Deputy Director.  It enables him either suo motu  on his  own  motion  or  on the application of  any  person  to consider the propriety, legality, regularity and correctness of  all  the  proceedings  held under the Act  and  to  pass appropriate orders.  These powers have been conferred on the Deputy  Director  in the widest terms so that the claims  of the  parties  under the Act may be  effectively  adjudicated upon  and determined so as to confer finality to the  rights of  the  parties  and the Revenue Records  may  be  prepared accordingly.

     But in the very next para the amplitude and the extent of  the  powers have been qualified thus :  Normally,  the Deputy  Director, in exercise of his powers, is not expected to disturb the findings of fact recorded concurrently by the Consolidation   Officer   and     the   Settlement   Officer (Consolidation)  but where the findings are perverse, in the sense that they are not supported by the evidence brought on record by the parties or that they are against the weight of evidence.   It  would be the duty of the Deputy Director  to

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scrutinise  the  whole  case again so as  to  determine  the correctness,  legality or propriety of the orders passed  by the authorities subordinate to him.

     Thus,  it is clear that notwithstanding the fact  that Section  48 has been couched in wide terms, it only  permits interference where the findings of the subordinate authority are perverse in the sense that they are not supported by the evidence  brought  on record or they are against the law  or where  they suffer from the vice of procedural irregualrity. Now,  reverting  to the facts of this case,  the  Settlement Officer  has  correctly framed the questions;   whether  the parties  are members of joint Hindu family and the  property in dispute is joint Hindu family property.  He discussed the documents  of 1905, 1906, 1911, 1916, 1919 and 1920 executed in  favour of various members of the family including minors to  show that the family acquired properties in the names of the  family  members including minors.  He also referred  to Khewat  of  1924  and 1932 to arrive at  the  conclusion  of existence  of  joint family.  Another fact which  was  taken into  consideration  was  that Hanuman Prasad  entered  into partnership  agreement in June 1948 which shows that Hanuman Prasad  was a partner and Gaya Din was an honorary  manager. It  is in that background he referred to Gaya Din depositing ten times revenue in 1950 for acquisition of Bhumidari right in  the  lands  covered  by the Khatas in  dispute  for  the benefit  of  the  joint  family.  He has  also  relied  upon possession  of plots irrigation deposits, entries in  Kanpur plots, printing of invitation cards by the family to support the  conclusion of the jointness of the family.  It was  the cumulative  effect  of  all  these  factors  that  made  the Settlement Officer Consolidation to arrive at the conclusion that  the  family  was  joint   and  that  the  khatas  were maintained  in the names of members of different branches of the  family.   He  thus concluded that the eight  khatas  in question  were  joint  Hindu  family property  and  all  the parties  were co-owners thereof.  A perusal of the order  of the  Deputy Director of Consolidation shows that nowhere  he pointed  out  that the findings recorded by  the  Settlement Officer  Consolidation  were  perverse or  contrary  to  the evidence  or not supported by evidence.  What all appears is that  in  respect  of  certain facts,  the  Deputy  Director arrived at the conclusion different from that reached by the Settlement  Officer Consolidation but that by itself, in our view,  does  not under Section 48 of the  Consolidation  Act clothe  the  Deputy Director with the power to  disturb  the findings   of  fact  recorded  by  the  Settlement   Officer Consolidation.  The High Court in the impugned order noted : The  Settlement  Officer Consolidation on  considering  of Khewat,  Annexure-1  as  also application  for  mutation  on behalf  of  Mathura Prasad and Ganga Krishna minor  sons  of Sadhau,  opposite  party  No.1   having  applied  for  their mutation  in the joint khewat Annexure-2 and other documents together  with other evidence rightly held the family to  be joint  and  no  partition  had taken place.  It  was  also pointed  out that the Deputy director of Consolidation  lost sight  of  the  fact that there was no iota of  evidence  to indicate that the opposite parties made self- acquisition of any  land.   It  was  in that context that  the  High  Court observed  that since the evidence on record and on appraisal of  law, the Settlement Officer Consolidation did not commit any  error  apparent on the face of the record  which  could have been disturbed by the Deputy Director of Consolidation. It  was further pointed out that the findings of the  Deputy Director of Consolidation suffered from non-consideration of

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oral  and documentary evidence which was taken into  account by the Settlement Officer Consolidation and was erroneous on the  face  of  record as such the same could be  disturb  in exercise  of  the  jurisdiction  under Article  226  of  the Constitution.   The High Court has also noted that the order of  the Deputy Director was based on improper  consideration of evidence and wrong application of well- settled principle of  law  about  presumption of jointness in  a  joint  Hindu family  and  quashed  the order of the  Deputy  Director  of Consolidation.   We find no illegality in the impugned order of  the  High Court.  Mr.Choudhary has next  contended  that even assuming that Manni was the Head of the family and held the  tenancy rights under the U.P Tenancy Act the succession is  not  according to Hindu Law but under the provisions  of the  Tenancy  Act and that in any event the claim  that  the joint family possessed tenancy rights cannot be accepted and in support of this contention he relied upon the judgment of the  Full Bench of the Allahabad High Court in Chotey Lal  & Ors.   vs.   Jhandey Lal & Anr.  [1972 A.W.R.  225].   There can  be  no  controversy  about   the  contention  that  the succession  of  the tenancy rights, special  rights  created under  the  Act, can only be under the provisions  of  those Acts.   On  Mannis death his sons Bala Prasad,  Sadhau  and Sheetal  Prasad  became  entitled to 1/3rd each.   But  they continued as joint Hindu family of which their children also became members.  It is a well-settled principle of Hindu Law that  the joint and undivided family is the normal condition of  Hindu society but it is not a juristic person as such it cannot  hold any property independent of the members.  On  a perusal  of  the  aforementioned judgment of Full  Bench  of Allahabad  High Court, we approve the following  proposition laid  down  by it :  That the members of the joint  family collectively  own the coparcenary property.  Each member has an  interest  in such property, though his interest  becomes definite  on  partition.   Till  then, it  is  an  undivided interest.   The view express in Mahabir Singh and the  other cases mentioned above, that the members were not the tenants of  the holding because they had no interest in it, is, with respect, fallacious.  In law, the members of the joint Hindu family  together  become  the tenants of the  holding.   The coparcenary  body  as such, and as an entity apart from  its members,  does not own property.  The property does not vest in   the   coparcenary   but    in   its   members,   though collectively.

     But this position far from supporting the claim of the appellants negatives their claim.  As the khatas in question which now comprise of Bhumidari and Sirdari lands, could not be  held  in  the name of the joint family which  is  not  a juristic  person, they stand in the names of the members  of different  branches of the family and the khatedars ought to be  taken as holding collectively for the benefit of all the members  of the family.  For the above reasons, the judgment and  order  of  the  High Court does  not  suffer  from  any illegality  to  warrant  interference by  this  Court.   The appeal is accordingly dismissed with costs.