Ram Surat and Others Vs Assistant Director of Consolidation Sultanpur and Another

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Neutral Citation No. - 2024:AHC-LKO:39228

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Court No. - 18

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Case :- WRIT - B No. - 6214 of 1982

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Petitioner :- Ram Surat And Others

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Respondent :- Assistant Director Of Consolidation Sultanpur And Another

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Counsel for Petitioner :- N.K.Pandey,Ram Kushal Tiwari Counsel for Respondent :- C.S.C.,M.A.Khan,Mohammad Aslam Khan,Mohd Husain,Mohiuddin,Pt. S. Chandra

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Hon'ble Manish Kumar,J.

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Heard learned counsel for the parties and perused the record.

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The present writ petition has been preferred for quashing of the impugned order dated 9.12.1982 passed by the Assistant Director Consolidation, Sultanpur under Section 48 of the Uttar Pradesh Consolidation and Holdings Act, 1953 (hereinafter referred to as 'the Act 1953').

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Learned counsel for he petitioners has submitted that the dispute is with regard to two gatas i.e. Gata No.9 situated at Village Basayakpur and Gata No.56 situated at Village Daulatpur. The original tenure holder Jiyawan had executed a registered Hibanama on 03.09.1954 in favour of the petitioners and their names have been recorded in the revenue record.

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It is further submitted that when the village came under the consolidation operation, an objection was filed by the Respondent No.2 claiming his co-tenancy right on Gata No.9 situated at Village Basayakpur and Gata No.56 situated in Village Daulatpur on the basis of succession being a nephew of Jiyawan. The objection of Respondent No.2 was rejected by the Consolidation Officer by order dated 15.10.1981, against which Ram Kalap had preferred an appeal under Section 11(1) of the Act 1953, which was also dismissed by judgement and order dated 30.12.1981. Against the appellate order dated 30.12.1981, the Respondent No.2 filed a revision under Section 48 of the Act 1953 which was allowed by the Respondent No.1 by order dated 09.12.1982 and remanded the matter to the Consolidation Officer for deciding the matter afresh by framing an issue that whether the Hibanama was a void or voidable instrument or not. Feeling aggrieved by the said judgement, the present writ petition has been filed.

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It is further submitted that the validity of a registered

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document cannot be seen in the consolidation proceedings, particularly when the same was never ever challenged by the Respondent No.2 before any competent court of law and for the first time challenged the same after about more than 28 years in the consolidation proceedings.

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On the other hand learned counsel for Respondent No.2 has submitted that the registered Hibanama alleged to be executed by Jiyawan is a void document as at that time of execution Jiyawan was not mentally fit, so such a document cannot be relied for deciding the co-tenancy right in favour of the petitioners.

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After hearing learned counsel for the parties, going through the record of the case, the orders passed by the Consolidation Officer and the Settlement Officer Consolidation after considering all aspects of the matter and both the authorities i.e. the Consolidation Officer and the Settlement Officer Consolidation have rightly given the finding that the registered Hibanama was not challenged by Respondent No.2 before any competent court of law and refused to interfere in allowing the claim of the Respondent No.2.

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On being asked from the learned counsel for the Respondent No.2 whether at any point of time Respondent No.2 had ever challenged the registered document / Hibanama executed by his uncle in favour of the petitioners, he has very fairly replied that the said registered Hibanama was not challenged before any competent court of law except for the first time before the Consolidation Officer.

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In the order passed by the Consolidation Officer there is specific finding that Jiyawan - the executor of the registered Hibanama in favour of the petitioners had given an statement on affidavit that he had executed a registered Hibanama in favour of the petitioners and he has no claim / right on the said property and the petitioners are in possession of the same. The copy of the statement has been annexed as Annexure 1 to the writ petition.

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The Revisional Court had not dealt with the said finding and the statement of Jiyawan, who had executed the registered Hibanama in favour of the petitioners. It is only executor who can challenge the Hibanama and not anyone else that too after the demise of the executor Jiyawan on the ground that at the time of execution of Hibanama his mental condition was not fit and that too without enclosing any medical documentary evidence.

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Under these circumstances, remanding the matter to decide the matter afresh on the issue of registered Hibanama whether it is void or voidable document is nothing but an unnecessary dragging the petitioners in the unnecessary and unendable litigation.

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12.The Respondent No.2 cannot raise the claim at such a belated stage after about more than 28 years. In the case of Ramnath Singh and another vs. D.D.C. reported in [2014(32) LCD 659] , it has been held that a challenge made after such a long time could not be tenable under the law, moreso, in consolidation proceedings. The relevant para is quoted hereinbelow:-

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"It is specifically mentioned by the Deputy Director of Consolidation that in Khasra 1359 Fasli, name of Nawab as main tenure holder and Aniruddh Singh as sub tenant was entered, same position was there in Khasras of 1361 and 1362 Fasli, Khasra of 1360 Fasli was not available, however since 1363 Fasli name of Aniruddh Singh was entered as main tenure holder and name of Nawab Singh was expunged. 1363 Fasli corresponds to 1955-56 A.D. Objections were filed in 1993 i.e. after about 38 years. Absolutely no reason was given for this undue delay and silence. The lower revisional court allowed the revision placing reliance upon section 20 of U.P.Z.A. & L.R. Act and U.P. Land Reforms amendment Act 1954. Under Section 20 it is provided that every person who on the date immediately preceding date of vesting was a sub tenant shall be called Adhiwasi. Thereafter through operation of law Adhiwasis became Sirdars. 1359 Fasli ended on 30.06.1952 and U.P.Z.A. & L.R. Act was enforced w.e.f. 01.07.1952. Accordingly section 20 was squarely applicable. The Settlement Officer of Consolidation decided the matter in favour of the petitioners on the ground that it was not shown that entry of 1359 and 1363 were correctly made. In case of old entries particularly for applying section 20 of the Act it is not necessary to see whether the entries are correct. In any case it was for the other side to show that entry was wrong. After such long time it is almost impossible to file supporting orders, documents etc. to prove correctness of entry. Entries can not challenged after a long time vide Sahibdar Khan Vs. Sadllo Khan, A.I.R 2003 S.C.2073. Moreover in following authorities it has been held that correctness of the entries for the purposes of section 20 can not be doubted or questioned and even in correct entry ( unless shown to have been made fraudulently or surreptitiously) will be sufficient to confer the right of Adhivasi/Siradar/Bhumidhar upon the person shown to be defacto occupant, in preference to de jure occupant.

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1.Amba Prasad Vs. Abdul Noor Khan, A.I.R. 1965, S.C. 54.

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2.Smt. Sonawati vs. Sri Ram A.I.R. 1968, S.C. 466

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3.Nath Singh and others Vs. The Board of Revenue and others, A.I.R. 1968, S.C. 1351

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4.Wali Mohammad Vs. Ram Surat, A.I.R. 1989, Supreme Court 2296

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5.Hira Lal and another Vs. Gajjan and others, 1990 (3) S.C.C. 285.

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6.Chandrika Prasad Vs. Pullo, A.I.R. 2000, Supreme Court 1785.

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7.Ram Avadh and others Vs. Ram Das and others, 2008 (8) S.C.C. 58.

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In the last authority of 2008 it has been held that if entry is continuing for 11 years since before start of consolidation then it can not be questioned in consolidation proceedings.

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Learned counsel for the petitioners has cited the following 3 authorities which do not support his contention:

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1.1464 R.D. Page 208, Shri Ram Vs. Pilau Singh.

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2.1963 R.D. Page 111, Phagu Vs. Sita Ram.

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3.1997 C.C.C. 480, Gurumukh Singh Vs. D.D.C."

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In view of the facts and circumstances and the evidence on the record i.e. the statement of executor of registered Hibanama on affidavit, no such question arises as to whether the document is void and voidable.

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In view of above, the impugned order dated 09.12.1982 passed by the Assistant Director Consolidation, Sultanpur under Section 48 of the Uttar Pradesh Consolidation and Holdings Act, 1953 (hereinafter referred to as 'the Act 1953') is hereby quashed.

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The writ petition is allowed.

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Order Date :- 23.5.2024

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S. Kumar

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Digitally signed by :- SANTOSH KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Ram Surat and Others v. Assistant Director of Consolidation Sultanpur and Another

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Ram Surat and Others v. Assistant Director of Consolidation Sultanpur and Another

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