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PETITIONER: KOMAL & ANOTHER

       Vs.

RESPONDENT: DEPUTY DIRECTOR OF CONSOLIDATION, DEORIA & OTHERS

DATE OF JUDGMENT:       25/07/2000

BENCH: S. RAJENDRA BABU., & SHIVARAJ V. PATIL.

JUDGMENT:

SHIVARAJ V. PATIL J.

Leave granted.

Briefly  stated,  the facts leading to the filing of this  appeal are the following.

The  property  in  dispute relates to Khata Nos.  22 and  142  of village  Kermeni Premwalia, Distt.  Deoria.  The respondents 3 to 7  and  one Smt.  Samundri filed objections before the  Assistant Consolidation  Officer  and prayed that the name of the  recorded tenure  holders  be  expunged  and their names  may  be  recorded contending  that  one Smt.  Rojhani was the tenure holder of  the disputed  property;   she  died in the year 1966  and  they  were entitled  to  the  said  property by succession.   There  was  no dispute  between  parties  that the properties  belonged  to  Ram Subhag.   The said property was recorded in his name in  Khatauni of   1332  Fasali.   The  appellants   contested  the  claim   of Respondents  3  to 7 and Smt.  Samundri on the ground that  after the  death  of Smt.  Rojhani in the year 1966, Mahaveer and  Udit became  entitled to succession under Section 171 of Uttar Pradesh Jamindari  Abolition  and Land Reforms Act, 1953 (for  short  the Act).  In the said proceedings before the Assistant Consolidation Officer, the respondents examined Shanker and one Kuber Pandey in support  of  their claim.  The Appellant No.  1  himself  entered into  witness box to support his claim and one Sudendar was  also examined  as  DW-2.  The Appellants contended that  Mahadev,  the husband  of  Smt.   Rojhani died after the death of  Ram  Subhag, hence  succession to Smt.  Rojhani was governed by Section 171 of the  Act.  The Consolidation Officer by his order dated  3.5.1979 allowed  the  objections of the Respondents and  granted  relief. The  appellants filed an appeal challenging the said order before the Assistant Settlement Officer, Consolidation.  The said appeal was   allowed   on  2.8.80  and   the  order  of  the   Assistant Consolidation  Officer was set aside.  This time the  respondents filed  a  revision before the Deputy Director  of  Consolidation, questioning  the  validity  and correctness of  the  order  dated 2.8.80 passed by the Assistant Settlement Officer, Consolidation. The  Deputy  Director,  on  detailed  examination  of  respective contentions  in the light of the material placed on record,  came to  the  conclusion  that  the  order  passed  by  the  Assistant Settlement Officer, Consolidation, in appeal was not sustainable. In  the  view he took, the revision petition was allowed and  the Order  dated  2.8.80  passed  in  the  appeal  by  the  Assistant Settlement  Officer,  Consolidation, was set aside and the  order dated  3.5.1979  of  the  Consolidation  Officer  was  confirmed.

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Aggrieved  and  dissatisfied  by the said order  dated  30.3.1981 passed  in  revision,  the  appellants filed  Civil  Misc.   Writ Petition  No.   9716/81  in  the  High  Court  of  Judicature  at Allahbad.   The High Court after examining the rival  submissions made,  dismissed the writ petition finding no merit in it.  Hence this appeal.

Having  regard  to the contentions raised and the nature  of  the dispute, it is necessary to look to the pedigree of the family of Ram Subhag, given below:-

Ram                           Subhag                            / -----------------------------------------------------   /   /   / Mahadev  Mahaveer Udit / / / Rojhani (widow) Komal Ram Chandra  / Samundri                     Devi                      (daughter) -----------------------------------------------------  / / / /  / Shanker Aaras Satya Narain Kapil Dev Prabhu Nath

In   the  order  dated  30.3.1981  of  the  Deputy  Director   of Consolidation, it is recorded thus:-

"Both the parties admit that if Mahadev died during the life time of Ram Subhag and the name of Rojhani was however recorded during the  life  time  of  Ram Subhag, then it will  be  deemed  to  be self-acquired  and  after  the death of Rojhani, it will  not  be decided  under  Section  171 but under Section 174  and  in  case Mahadev  died  after  Ram Subhag, then it will be  decided  under Section 171 after the death of Rojhani."

Before  us  also, the legal position as indicated above  was  not disputed by the leaned counsel for the parties but they contested only  with  regard to the aspect whether Mahadev died during  the life  time  of Ram Subhag or later.  Hence, the decision  in  the case  essentially  depended on the finding of fact as to  whether Mahadev  died  during lifetime of Ram Subhag or he  survived  Ram Subhag.   In  this view it is considered unnecessary to refer  to the decisions cited.

Learned  Senior  Counsel for the appellants contended  that  Smt. Rojhani  when examined in the suit filed under Section 176 of the Act  stated  that  Mahadev died after the death  of  Ram  Subhag; Shanker the respondent No.  3 also stated that Mahadev died after the  death  of  Ram Subhag and one Kuber Pandey examined  in  the mutation  case had also stated that Mahadev died after the  death of  Ram  Subhag.  According to the learned Senior  Counsel,  this evidence  was binding on the respondents.  He added that the copy of  the  death  certificate of Mahadev filed at later  stage  was forged and fictitious.

Per  contra,  the learned counsel for the contesting  respondents submitted  that the Assistant Consolidation Officer (the original authority)   and  the  Deputy   Director  of  Consolidation  (the revisional  authority), looking to the evidence placed on record, both  oral and documentary, were right and justified in accepting the  case of the respondents.  He added that the High Court  also did  not find any merit in the writ petition and as such the same was dismissed by the impugned order.

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As  can  be  seen from the order dated 30.3.1981  passed  by  the Deputy Director of Consolidation in revision, he has examined all aspects in considerable details.  He has referred to statement of Mahaveer  in  which  he  had stated that Ram  Subhag  died  after Mahadev;   Komal also has said in his statement that Mahadev died during  the life time of Ram Subhag;  the oral evidence according to  him,  lead  by parties on either side was  general.   In  the circumstances,  the  oral evidence consistent with the  documents was  accepted  and rightly so.  Reference is made to Khatauni  of Mahadev  from which it was established that he died in 1920.   It was  clear  from Khatauni of 1333 that Ram Subhag was alive  till 1929,  which is equivalent to Khatauni 1333.  It was also noticed that  there was no evidence to show that name of Mahadev was ever recorded  in  respect of the disputed land.  If Mahadev had  died after  Ram Subhag, his name should have been recorded in  respect of  the  disputed  property.   Referring to  the  judgment  dated 19.2.1970  of  the Member of Revenue Board it was taken as  proof that Mahadev died during the lifetime of Ram Subhag.  In the said order passed in the revision, it is also stated thus :-

"Therefore  the  name  of Rojhani remained recorded  without  any authority  and her ownership was admitted by the opposite parties in  the  case under Section 176 and thus this will be treated  as self  acquired property because neither the opposite parties took any  proceedings for removal her name, nor it will be admitted on the basis of the entries that the opposite parties had taken some proceeding  for  removal  of her name and neither the  other  two opposite parties admitted them as co- partners and thus after the death  of Rojhani, the sons of her daughter have become heirs  of her under Section 174 of the Succession Act."

From  the  translated  copies  of statements  of  Smt.   Rojhani, Shanker  and Kuber Pandey, filed along with the S.L.P.  it cannot be  said  that their evidence is clinching on the  point  whether Mahadev  died  during the life time of Ram Subhag or he  survived him.   On the other hand, their statements are vague and general. Smt.  Rojhani has only stated thus:-

"Ram  Subhag  and  Mahadev  both died in the  same  year  due  to (Cholera),  Mahadev  suffered (Cholera) first but the old  person Ram  Subhag  died first.  My husband Mahadev died thereafter  six months.  The last rituals of both the persons were together."

In his statement, Shanker has stated thus:-

"I  did not see Ram Subhag.  I did not see Mahadev also.  Earlier the  Khata  of all these were joint.  I do not know  whether  the name  of  Mahadev  was recorded in the Khata.  The name  of  Smt. Rojhani was recorded 40-45 years back and I do not know what time has  passed  away the death of Mahadev.  Rojhani was 70-80  years old at the time of her death.  I do not know whether Mahadev died during the life time of his father or when he died."

Kuber Pandey has stated thus:-

"I  had  not  seen  Mahadev.  First of all Ram  Subhag  died  and Mahadev died after him."

The  High Court, having considered rival submissions, rightly did not  find  any merit in the writ petition, having regard  to  the material  placed on record and the reasons recorded in the  order

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of  the  Deputy Director, Consolidation based on evidence.   This being the position, in our view, the impugned order does not call for interference.  Hence the appeal is dismissed.  However, there will be no order as to costs.