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CASE NO.: Appeal (civil)  7507 of 1997

PETITIONER: Dharamraj & Ors.

RESPONDENT: Chhitan & Ors.

DATE OF JUDGMENT: 06/11/2006

BENCH: ARIJIT PASAYAT & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T

TARUN CHATTERJEE,J.

This appeal is directed against the judgment and   order dated 12th March 1987 passed in W.P. No.  2736/1976 by the High Court of Judicature at Allahabad  (Lucknow Bench ) whereby the Writ Petition filed by  Chhitan, Chandrika and Karia, a minor son of Jai Ram,  represented by his mother and guardian Smt. Sonara  being respondent Nos. 1 to 3 in this appeal were allowed  and decision of the consolidation authorities were set  aside. By allowing the said Writ petition, the appellants  were deprived of their alleged shares in ancestral tenancy  and giving sole tenancy rights to respondent Nos. 1 to 3  over the land of Khata No.111 in Village Balrampur,  Pargana and Tehsil Tanda, District Faizabad (hereinafter  referred to as the "said land").  We are not concerned with  the other plots relating to Khata No.13 as the disputes   raised in this case appeal does not relate to the said land.   Therefore, we restrict ourselves in this appeal in respect of  the dispute only relating to the said land. Objections filed under section 9A(2) of the U.P.  Consolidation of Holdings Act 1953 ( in short "the Act") by  the parties in this appeal in respect of the entries in Khata  No.111 and 13 relating to basic year 1378 Fasli were  referred to the Consolidation Officer for adjudication.  We  may reiterate, as noted herein earlier, that in this appeal  the questions need to be decided only in respect of the  lands in Khata No.111 and not Khata No.13.   It is not in  dispute that the lands relating to Khata No.111 in the  basic year were recorded in the name of Saltanati.   Subsequently, in the year 1338 F this land was recorded  in the name of Adhin by way of settlement.   On the death  of Adhin the said land was recorded in the name of  Jabbar and then subsequently in the name of  Jai Ram.    Since Jai Ram was not traceable in his place Smt. Sonara  his wife and minor son Karia had represented the estate  as the legal heirs and representatives of Jai Ram.  Smt.  Sonara entered into a settlement with Chittan son of  Dubri, Chandrika son of Sripat. Thereby the minor Karia  represented by his mother Smt. Sonara agreed to have co- tenancy rights in respect of Khata No.111, with Chittan  and Chandrika. On the other hand, the appellants  representing Daya Ram and others jointly claimed co- tenancy rights in respect of the said land on the ground  that the said lands were acquired by their ancestor  Saltanati and thereafter Jokhan son of Adhin was  recorded in the representative capacity.  

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According to the appellants, the family remained joint  till some time when the land was recorded in the name of  Adhin.  Binda and Sanehi on the death of Salatanati  separated from their joint family and Adhin separated  with his nephews Bhulai and Dukhi.  In this manner, the  said land of Jokhan and Salatanati were distributed  in  the joint family and the shares were divided equally.    However, the said lands continued to be recorded in the  name of Adhin.   After some time, Bhulai and Dukhi, who  were joint with Adhin also separated from him and by  partition the lands were divided.  In the same manner,  Binda and Sanehi lived jointly for some time and  thereafter separated by partition.  The entire lands of  Khata No.111 continued to remain recorded in the name  of Adhin, even though Dukhi, Bhulai, Binda and Sanehi  cultivated their lands separately.  After the death of  Adhin, the said lands came to be recorded in the name of  his son Jabbar and thereafter on the death of Jabbar the  same was recorded in the name of his son Jai Ram. At  this stage, to understand the Pedigree of the parties, it  would be appropriate to give a Pedigree chart herein now  which is not now in dispute as was given by the  appellants. The Pedigree chart which was set up by the  appellants is given below:-

The Consolidation Officer by his order dated 6th June  1972 declared the appellants or their predecessor in  interest as co-tenure holders in respect of the said land  along with Jai Ram and determined the share on the basis  of the Pedigree, as noted above.           Aggrieved by the order dated 6th June 1972  of the  Consolidation Officer respondent Nos. 1 to 3 filed an  appeal whereas Daya Ram and others preferred an appeal  also.   However, the appeals filed by the parties before the  appellate authority i.e. Assistant Settlement Officer were

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dismissed.  Revisions were filed by the parties before the  Deputy Director, Consolidation which were disposed of by  allowing the same partly and the following order was  passed :                 "It is ordered that over the basic year in  Khata No. 13 the names of Chhitan  (respondent No.1), Jai Ram (Respondent  No.2) and Chandrika (Respondent No.3) alone  shall be entered. In Khata No.111 over plot  Nos. 152, 154, 161, 425, 435, 442, 475, 481,  465 and 511 also the names of the  respondent Nos. 1 to 3 shall only be entered.    Over the remaining plots of Khata No.111 in  accordance with the orders of Consolidation  Officer and Assistant Settlement Officer,  Consolidation, the names of both the parties  shall be entered as co-tenants."

At this stage, let us take up the question of accepting  the Pedigree chart set up by the contesting parties. It was  the case of Daya Ram and others (appellants herein) that  Bekaru was the son of Jokhan whereas the case of  respondent Nos. 1 to 3 was that Bekaru was the son of  Saltanati.  However, the respondent Nos. 1 to 3 had failed  to prove that Bekaru was the son of Saltanati.   On a finding of fact arrived by the consolidation  authorities particularly the revisional authorities, it is not  in dispute now that Bekaru was the son of Jokhan and  therefore the Pedigree set up by the appellants must be  accepted. As quoted herein above, the Deputy Director,  Consolidation held that in Khata No.111 plot Nos.  152,   154,  161, 425, 435,  442,    475,    481, 465 and 511 the  names of Chittan, Jai Ram and Chandrika be entered and   over the remaining plots of Khata No.111 the findings of  the Consolidation Officer and the Assistant Settlement  Officer were accepted by him.  That is to say in respect of  the remaining plots in Khata No.111, the respondent shall  be entered as co-tenure holders in respect of the  remaining plots of Khata No.111.       It is this order of the revisional authority passed in  the aforesaid revision cases Daya Ram and others filed a  writ application in the High Court of Allahabad, which  came to be registerd as W.P. No.2838/1976.   It was,  inter-alia, the case made out by Daya Ram and others in  the aforesaid writ application that the Deputy Director of  Consolidation acting as revisional authority had erred in  not holding the appellants who ought to have been held as  co-tenure holders of the said land along with respondent  Nos. 1 to 3  and also remaining plots of Khata No.111.  On  the other hand, the respondent Nos. 1 to 3 also filed a writ  application being W.P. No. 2736/1976 against the order  passed by the Deputy Director, Consolidation in revision  cases challenging the order of the Deputy Director,  Consolidation on the ground that in the admitted facts of  the present case respondent Nos. 1 to 3 ought to have  been held to be sole tenure holders in respect of the said  lands.          By the impugned judgment, the High Court after  hearing the parties disposed of the aforesaid two writ  petitions by passing the following order:                 "In the result, the writ petition  No.2838/76 filed by Daya Ram and others  is dismissed being devoid of merits and

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writ petition No. 2736/76 filed by Chitan  and others is hereby allowed and the order  dated 13.8.1976 passed by Deputy  Director, Consolidation in so far as it  relates to ten plots of Khata No.111  mentioned in the said order by which Daya  Ram and others have been given co- tenancy rights is hereby quashed and the  petitioners Chitan, Chandrika and Karia  under guardianship of Smt. Somura are  directed to be recorded as sole tenure  holders to entire land of Khata No.111 and  also Khata No. 13 of village Balrampur,  Tehsil and Pargana Tanda, District  Faizabad.  No order as to costs."

While disposing of the writ petitions, the High Court   held in substance as under:- A.      The land in dispute did not devolve upon Adhin from  Saltanati.   B.      The land in Khata No.111 was resettled by then  landlord giving certain parts to Adhin and certain  other plots to others.  Therefore, it was a fresh  settlement and there was no continuity in the identity  of the holding. C.      Accepting the findings arrived at by the consolidation  authorities or on the admitted facts, the High Court  held that the disputed holding did not come in tact in  the identical form and only some of the plots of the  holdings belonging to common ancestral were found  included in the disputed holding and therefore that  would not make an ancestral holding so as to give a  share in it to the appellants on that ground nor it  would be permissible to pick up those plots from the  holding and declare them to be the ancestral property  and give a share in those plots to the appellants.                 It is this order of the High Court, which is under  challenge before us in respect of which leave was  granted.   We have heard the learned counsel on either  side and examined carefully all the orders of the  Consolidation authorities and finally the impugned  judgment of the High Court.                                                              It must be brought on record that before us, no  submission has been made in respect of the appeal filed  by Daya Ram and others challenging the portion of the  order which had gone against them.  We restrict  ourselves only on the question whether the claims of  respondent Nos. 1 to 3 in respect of Khata No.111 were  justified or not as granted by the High Court.                   On behalf of the appellants, the main contention of  Dr. R.G. Padia, learned senior counsel appearing for  them was to the effect that it was not open to the High  Court to set aside the findings of fact arrived at by the  consolidation authorities in the exercise of its extra  ordinary jurisdiction under Art. 226 of the Constitution.   It was, however, not the submission of Dr. Padia that it  was not open to the High Court to exercise its  jurisdiction when the consolidation authorities had  erred in deciding a question of law on the facts admitted  or proved by the parties before them.  Dr. Padia thus  contended that the High Court erred in setting aside the  finding of fact of the consolidation authorities by  substituting its own views on the question of fact under  Art. 226 of the Constitution.                 Secondly, it was contended by Dr. Padia that

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since two of the co-tenure holders were not made  parties in the writ application who are appellant Nos. 13  and 14 in the appeal, the writ petitions heard and  disposed of in their absence could not be said to be  maintainable in law.                  The aforesaid two-fold submissions of Dr. Padia  were, however, contested by Mr. O.P. Sharma, the  learned senior counsel who appeared for the respondent  Nos. 1 to 3.  Let us therefore examine the main  question, as raised by the learned counsel for the  parties and noted herein earlier in detail.  We have  already discussed the impugned judgment of the High  Court and the order of all the three consolidation  authorities.  It is now well settled law that in the  exercise of its extra ordinary writ jurisdiction High  Court is not supposed to interfere with the findings of  fact arrived at by the consolidation authorities unless  and until High Court concludes that such findings of  fact are either perverse or based on no evidence.   It  may also be kept in mind that Mr. Sharma appearing  for the respondent Nos. 1 to 3 also had not advanced  any submission to the extent that the findings of fact of  the authorities in the facts and circumstances of the  case could at all be said to be perverse or based on no  evidence.  It was the submission of Mr. Sharma that on  the admitted fact and the findings arrived at by the  consolidation authorities the High Court has only  declared the law on such admitted and proved facts.

               It is well settled position of law by catena of decisions  of this Court that in the writ jurisdiction of the High  Court, it is always permissible for it to correct the  decision of the consolidation authorities or to declare  the law on the basis of facts and proof of such facts.    For this proposition, we may usefully refer to a decision  of this Court in the case of Mukunda Bore  vs.   Bangshidhar Buragohain & Ors.  reported in AIR 1980  SC 1524 in which this Court indicated as to when High  Court can interfere with the orders of  quasi judicial  authority.  This observation may be quoted which is as  follows: "While on facts the order of the Board  under appeal is not impeccable, we must  remember that under Art. 226 of the  Constitution a finding of fact of a domestic  tribunal cannot be interfered with.  The  High Court in the exercise of its special  jurisdiction does not act as a Court of  Appeal.  It interferes only when there is a  jurisdictional error apparent on the face of  the record committed by the domestic  tribunal.  Such is not the case here.  It is  true that a finding based on no evidence or  purely on surmises and conjectures or  which is manifestly against the basic  principles of natural justice, may be said to  suffer from an error of law.  In the instant  case, the finding of the Board that the  appellant does not possess the necessary  financial capacity, is largely a finding of  fact under Rule 206(2) of the Assam Excise  Rules, an applicant for settlement of a shop  is required to give full information  regarding his financial capacity in the  tender.   Such information must include

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the details of sources of finance, cash in  hand, bank balance, security assets, etc.   Then, such information is verified by the  Inquiry Officer."                                (Underlining is ours )

In Syed Yakoob  vs. K.S.Radhakrishnan & Ors.  reported in 1964 (5) SCR 64 this Court observed as  follows:- "finding of fact cannot be challenged in a  proceeding on the ground that the relevant  and material evidence was insufficient to  sustain the finding and that adequacy or  sufficiency of evidence or an inference of fact   to be drawn from the evidence or finding of  fact are entirely within the jurisdiction of the  Tribunal."

               Again in the case of State of West Bengal vs. A.K.  Shaw reported in AIR 1990 SC 2205 this Court held that  if the quasi judicial tribunal had appreciated the evidence  on record and recorded the findings of fact, those findings  of fact would be binding to the High Court.  By the  process of judicial review, the High Court cannot  appreciate the evidence and record its own findings of  fact.  If the findings are based on no evidence or based on  conjectures or surmises and no reasonable man would on  given facts and circumstances come to the conclusion  reached by the quasi-judicial authority on the basis of the  evidence on record, certainly the High Court would  oversee whether the findings recorded by the authority is  based on no evidence or beset with surmises or  conjectures. In view of the law settled by this Court on the  question under consideration, let us consider whether the  High Court was justified in reversing the order of the  consolidation authorities by declaring  that the names of  Respondent Nos. 1 to 3 should be entered as co-tenure  holders in respect of the plots recorded in Khata No.111.   It would be fruitful for us to look into the findings arrived  at not only of the High Court but also of the consolidation  authorities.  The Consolidation Officer as the original  authority under the Act on consideration of the material  on record held the appellants to be co-tenure holders in  respect of the said land with respondent Nos. 1 to 3.  In  appeal, the Assistant Settlement Officer held that the  Consolidation Officer was justified in holding that the  names of the appellants with respondent Nos. 1 to 3  should be entered in respect of the lands recorded in  Khata No.111, i.e. the case made out by the respondent  Nos. 1 to 3 that they may be declared as sole tenure  holders in respect of Khata No.111 was not accepted.           As noted herein earlier, the Deputy Director held the  respondent Nos. 1 to 3 in this appeal to be exclusive  tenure holders of ten plots and in respect of the remaining  plots of this Khata, the Deputy Director, Consolidation  directed the names of the appellants as well as the  respondent Nos. 1 to 3 should be recorded as co-tenure  holders.                 We have already put on record that the High Court,  however, reversed the findings and order of the Deputy  Director, Consolidation by holding that the lands recorded  in the entire Khata No.111 must be recorded in the names  of respondent Nos. 1 to 3.  It was the case of the  appellants in this appeal before the High Court that since

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the lands recorded in Khata No.111 initially belonged to  Saltanati and they represented his branch and that of  Bekaru, son of Jokhan, they were entitled  to get shares  as per pedigree set up by the appellants.  It was also  contended before the High Court that the Deputy Director,  Consolidation fell in error in holding the respondent Nos.  1 to 3 to be the exclusive tenure holders of ten plots of  Khata No.111 which according to them belonged to  Saltanati.  On the other hand, it was the stand of the  respondent Nos. 1 to 3 that the entire holding of the said  Khata was acquired by Adhin and was recorded in his  name in 1338 F.   Therefore, lands recorded in Khata  No.111 which initially belonged to Saltanati was resettled  by the then landlord with Adhin and others.   It was the  stand of the respondent Nos. 1 to 3 that the lands  recorded in the said Khata in the name of  Adhin in the  year 1338 F, certain other plots were also recorded  therein.  Accordingly, it was urged that the land in dispute  was acquired by Adhin by way of settlement which  continued to be in his possession and on his death it had  devolved upon respondent Nos. 1 to 3 exclusively.   The  appellants cannot claim any right, title and interest in  respect of entire Khata No.111 nor can they acquire co- tenure holders rights on the ground that the land was  ancestral holding.     From the above discussion, it is therefore clear that  although originally the said land had belonged to  Saltanati but subsequent event had clearly indicated that  it was recorded in the name of Adhin and therefore the  respondent Nos. 1 to 3, admittedly the successors in  interest of the estate of Adhin, were entitled to succeed.   Accordingly, there cannot be any doubt that the identity of  the said land was changed from Saltanati to Adhin and  thereafter to respondent Nos. 1 to 3. Even all the findings  arrived at by the Deputy Director, Consolidation in  respect of 10 plots in Khata No.111, as noted herein  earlier, the names of respondent Nos.1 to 3 would  exclusively be entered. At the same time, the Deputy  Director, Consolidation had also held that the names of  the appellants should be included in remaining plots of  Khata No.111. From the above admitted fact, it is clear  that the lands recorded in the said Khata were directed to  be recorded in different names. From this it is apparent  that the identity of the lands in Khata No.111 were  directed to be changed which is not permissible in law.      Such being the position, it must be held that the  respondent Nos. 1 to 3 being the successors in interest  from the side of Adhin whose name was duly recorded in  respect of the said land were entitled to succeed to the  said land on the basis of identity and resettlement of the  same.  If the identity of the land has been changed, the  appellants could not get the property on the basis that  originally this land had been recorded in the name of  Saltanati and that the said land was their ancestral  property. Therefore, the pedigree set up at the instance of  the respondent Nos. 1 to 3, even if it cannot be relied on,  the respondent Nos. 1 to 3 were entitled to succeed on the  basis of the aforesaid fact. We must also keep it on record that it was not  disputed before the consolidation authorities nor it was  disputed by the learned counsel for the appellants before  us that the identity of the said land had changed in view  of the resettlement in favour of Adhin.  That being the  position, we must hold that the appellants could not  acquire any co-tenancy rights even if the appellants

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succeeded in proving the pedigree set up by them and  also acquisition of the land by common ancestor. Accordingly, the Deputy Director of Consolidation  was in error in giving co tenure holder rights to the  appellants herein in some of the plots of Khata No.111  on the ground that those plots initially belonged to  Saltanati and it was ancestral holding of appellants.         In view of our discussions made herein above, we  therefore come to the conclusion that the High Court  while reversing the order of the Deputy Director,  Consolidation had not set aside the findings of fact  arrived at by them but on the other hand has declared  the question of law on the admitted facts and the  findings of fact arrived at by the consolidation  authorities. As noted herein earlier, Dr. Padia contended that  since two of the co-tenure holders were not made parties  in the writ application, who are Ram Bachan and  Subhash Chandra appellant Nos.13 and 14 in this  appeal, the writ petition ought to have been dismissed by  the High Court solely on the ground that in their absence  the writ petition could not be said to be maintainable in  law.  This submission of Dr. Padia cannot be accepted  for the simple reason that Ram Bachan and Subhash  Chandra appellant Nos. 13 and 14 claimed their share in  the said land being descendants of Saltanati.   In view of  our findings made herein above that Saltanati had lost  his right, title and interest in respect of the said land  because of the fact that the said land was resettled and  recorded in the name of Adhin, it cannot be said that  Ram Bachan and Subhash Chandra, appellant Nos. 13  and 14, herein ought to have been made parties to the  writ application as they were not found to be co-tenure  holders in respect of the said land. Accordingly, for non- inclusion of Ram Bachan and Subhash Chandra  appellant Nos. 13 and 14 in the Writ Petition filed before  the High Court, it cannot be said that the writ petition  was not maintainable in law.  In view of the aforesaid  finding, the question of abatement on the death of Siya  Ram (father of Subhash Chandra) could not arise at all. Accordingly, in our view, Ram Bachan and  Subhash Chandra appellant Nos.13 and 14 were not at  all necessary parties to the Writ Petition No.2736/1976  and the question of non-maintainability of the writ  petitions before the High Court in their absence could  not arise.  It is, therefore, not necessary to deal with the  decisions cited by Dr.Padia in connection with the  question of abatement on the death of Siya Ram and  maintainability of the writ petition for their non- inclusion. Accordingly, this question is answered in the  negative.               For the reasons aforesaid, this appeal fails and the  same is dismissed without any order as to costs.