Allowed

Krishan Devi v. D.D.C.and Ors.

Allahabad HC24 Jan 2025WRIB/644/1985

Case brief

AI extract

What is this about?

In a writ petition challenging revenue orders regarding succession rights to property, the High Court set aside the decision of the Settlement Officer and Deputy Director of Consolidation. The Court found that the authorities improperly relied on suspicious, unproved documents and failed to adjudicate fundamental issues like the date of death and statutory order of succession, necessitating a rema

What did the court decide?

The writ petition is allowed; the orders of the Settlement Officer of Consolidation dated 09.04.1980 and the Deputy Director of Consolidation dated 07.11.1984 are quashed and remanded for fresh determ

Krishan Devi Vs D.D.C.and Ors. — Succession and Inheritance | Allahabad HC (2025)

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Neutral Citation No. - 2025:AHC-LKO:4973

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Court No. - 8

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Case :- WRIT - B No. - 644 of 1985

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Petitioner :- Krishan Devi Respondent :- D.D.C.And Ors Counsel for Petitioner :- Nirmal Tewari,Surya Kant Singh Counsel for Respondent :- C.S.C.,D.C Mukherjee,Shikhar Anand

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Hon'ble Jaspreet Singh,J.

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1.Heard Shri Surya Kant Singh, learned counsel for the petitioners, Shri Shikhar Anand, learned counsel appearing for the private respondent no.2 and the learned Standing Counsel for the Staterespondents.

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Under challenge is the order dated 07.11.1984 passed by the Deputy Director of Consolidation, Sitapur whereby it dismissed the revision preferred by the petitioner afÏrming the order passed by the Settlement OfÏcer of Consolidation dated 09.04.1980 as a consequence the order passed by the Consolidation OfÏcer has been afÏrmed.

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The dispute relates to Khata No.624 of village Sevta, Pargana Kondri North, Tehsil Biswan, District Sitapur. Upon the commencement of the consolidation operation in the village in question, the petitioner filed their objections under Section 9-A(2) of the U.P. Consolidation of Holdings Act, 1953 claiming rights in the said Khata being the daughter of Bihari recorded tenure holderr. The claim of the petitioner was that the disputed property in question was recorded in the name of Bihari son of Raghubar. On his death, he was survived by his widow Hardai and the petitioner who are daughters inherited the same.

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On the other hand, the private respondent no.2 Anant claimed himself to be the son of Bihari and stated that he had the right to succeed to be estate of his later father Bihari and in his presence the petitioners who are alleged to be the daughters of Bihari were not entitled to succeed

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and in this context the Consolidation OfÏcer had committed an error in refusing the claim of the private respondent no.2 which was corrected by the Settlement OfÏcer of Consolidation when the appeal of the private respondent no.2 was allowed and the same has been afÏrmed by the Deputy Director of Consolidation.

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Learned counsel for the petitioners assailing the two orders passed by the Settlement OfÏcer of Consolidation and the Deputy Director of Consolidation has urged that Anant the private respondent no.2 was the son Chhedu and not son of Bihari.

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It is further urged that in order to usurp the property, Anant got his name fradulantly incorporated showing himself to be son of Bihari. There were interpolation in the Parivar Register which has not been appropriately considered by the Settlement OfÏcer of Consolidation as well as the Deputy Director of Consolidation.

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It is further submitted that even the school certificate which was relating to the private respondent no.2 where he was said to be reading in class-5 was also not appropriately proved and by blindly relying upon such unauthenticated documents, the Settlement OfÏcer of Consolidation as well as the Deputy Director of Consolidation has committed an error.

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It is further urged that the private respondent no.2 while examining himself before the Consolidation OfÏcer as witness could not establish his own parentage and this has not been noticed by the Settlement OfÏcer of Consolidation and the Deputy Director of Consolidation rather on the contrary have ignored vital piece of evidence which has resulted in recording a finding which is not supported by the material on record which has vitiated the judgment of the Settlement OfÏcer of Consolidation and the Deputy Director of Consolidation, consequently, the petition deserves to be allowed.

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Per contra, Shri Shikhar Anand, learned counsel for the private respondent no.2 has submitted that

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the petition is concluded by findings of fact and both the Settlement OfÏcer of Consolidation as well as the Deputy Director of Consolidation have rightly upheld the claim of the private respondent no.2 and the same does not require any interference.

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It is further urged that both the Settlement OfÏcer of Consolidation as well as the Deputy Director of Consolidation have considered the material evidence on record including the Parivar Register and the school leaving certificate wherein the private respondent no.2 Anant was shown as son of Bihari and not son of Chhedu, hence these being pure findings of fact cannot be disturbed in exercise of power under Article 226 of the Constittion of India, hence the writ petition deserves to be dismissed.

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The Court has heard the learned counsel for he parties and also perused the material on record.

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At the outset, it may be noticed that the private respondent no.2 died during pendency of the writ petition and his legal heirs have already been brought on record and they are represented by Shri Shikhar Anand Advocate.

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The dispute which is involved in the instant petition relates to the right of succession to the property left behind by Bihari son of Raghubar. Certain facts which ware not disputed between the parties is that undisputedly Bihari was the recorded tenure holder and his name was reflected in the base year Khatauni. It is also not disputed between the parties that upon the death of Bihari, he was survived by his wife Smt. Hardai. It is also not disputed that the petitioners no.1 and 2 are the daughters of Bihari. However, there is a dispute as to whether Anant the private respondent no.2 is the son Chhedu as alleged by the petitioners or he is the son of Bihari as claimed by the respondent no.2.

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Another contentious point which has been raised is regarding the third daughter of Bihari, namely, Smt. Jaishree who as per the private respondent no.2 was the daughter of Bihari, who

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appeared as a witness in favour of Anant the private respondent no.2 and this fact as per the private respondent no.2 goes on to establish that private respondent no.2 was the son of Bihari and not Chhedu.

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The Consolidation OfÏcer while rejecting the claim of Anant vide order dated 29.12.1977 had framed a specific issue in this regard. Issue nos.2, 4 to 6 were relating to the controversy as to whether Anant was the son of Bihari or son of Chhedu. Whether after the death of Bihari, his widow Hardai would be the legal heirs and whether the daughters of Hardai would the legal heirs and whether the name of Anant has been fraudulently incorporated in the revenue record.

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Considering the evidence both oral and documentary, the Consolidation OfÏcer noticed that Anant could not establish his parentage as being son of Bihari. The petitioners had entered into the witness box and had clearly stated that Anant was son of Chhedu and he was grand son of Chhutkau whereas the petitioners were the daughter of Bihari.

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It was also stated that Raghubar had two other brothers, namely, Ghishu and Chhutkau. Chhedu was the son of Chhutkau and Anant was the son of Chhedu. He belonged to different branch and could not claim rights in the property of Bihari. The Consolidation OfÏcer noticed that the claim made by Anant in this regard was rejected on 02.11.1973. The application moved before the Assistant Consolidation OfÏcer would indicate that Anant had put his thumb impression wherein Anant had shown himself to be the grand son of Chhutkau. The Consolidation OfÏcer also noticed that on 18.01.1976 when Anant examined himself as witness he had put in his signatures and this was contrary to his action of putting his thumb impression in the proceedings before the Assistant Consolidation OfÏer where his objections were rejected on 02.11.1973. He also could not explain as to how he had claimed the rights in the property of Bihari where earlier he had claimed rights being the grand son of Chhutkau.

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The Consolidation OfÏcer also noticed that another sister of the petitioners, namely, Smt. Jaishree had deposed in favour of the private respondent no.2 stating that he was her brother. In this way, there was a contradiction as one sister Smt. Jaishree claimed that Anant was her brother whereas two other daughters of Bihari, namely, the petitioners stated that Anant was not their brother but was the son of Chhedu.

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It was also pointed out that Anant had attended school upto class 5, however, he did not bring any document on record. In this context as in the school record the parentage as well as the date of birth of Anant would have been recorded.

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An Attempt was also made by the petitioners to call for such records from Anant but he did not place the same on record. In the proceedings before the Consolidation OfÏcer neither the Parivar Register nor the school certificate nor voter list or other authenticated documents were placed by Anant to establish his parentage and in absence of the same the claim of private respondent no.2 did not find favour with the Consolidation OfÏcer.

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An extract of the Parivar Register relating to house No.465 was placed on record wherein name of Chhutkau thereafter the name of Chhedu son of Chhutkau, wife of Chhedu Ramkali and name of Anant son Chhedu was placed on record. This was taken note of by the Consolidation OfÏcer, hence it ruled in favour of the petitioners and rejected the claim of Anant vide order dated 29.12.1977.

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This was assailed by Anant in appeal which was allowed on 09.04.1980 and the revision preferred by the petitioners also came to be dismissed on 07.11.1984. The Settlement OfÏcer of Consolidation and the Deputy Director of Consolidation noticed that during the appellate stage Anant had filed extracts of the Parivar Register as well as School Certificate, according to which the name of Anant was shown as son of Bihari. The documents were relied upon by the Settlement OfÏcer of Consolidation and the Deputy Director of Consolidation to reverse the findings of the Consolidation OfÏcer while ruling in favour of

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Anant.

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This Court finds that even though the Parivar Register as well as the School Certificate which were filed by Anant during appellate proceedings but the same could not have been relied blindly without getting the same proved in accordance with law especially when the said documents which not available while the proceedings were contested before the Consolidation OfÏcer and had not been placed on the record before Consolidation OfÏcer.

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This assumes significance for the reason that these documents were not free from suspicion as there were several over writing and cutting which though were noticed for the Settlement OfÏcer of Consolidation and the Deputy Director of Consolidation but yet they have been accepted in evidence and relied upon without getting the said documents proved. It would have been one thing to state that the documents were admitted to the parties and in such circumstances even if the said documents may not have been proved as per law yet they could be considered by the court it it was otherwise admissible and not disputed. However, in the instant case, there was a clear contest and specific issues have been framed by the Consolidation OfÏcer in this regard and during proceedings before the Consolidation OfÏcer, the said documents were not placed on record or proved.

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The documents produced before the Settlement OfÏcer of Consolidation clearly indicated that there were cutting and over writing and in this view the same could not have been relied by the Settlement OfÏcer of Consolidation without having it proved in accordance with law. Without putting the said documents to proof any inference drawn by the Settlement OfÏcer of Consolidation as well as the Deputy Director of Consolidation was not justified. The issue before the consolidation courts was a serious issue which not only related to the succession to the property of Bihari but it also involved the parentage which should have been decided in law after taking due care and caution after getting the documents

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proved as per law.

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Learned counsel for the respondent could not explain as to why the said documents were not produced before the Consolidation OfÏcer and even if they were placed before the Settlement OfÏcer of Consolidation who took notice of it and relied upon but the said documents were not proved and in such situation relying upon a document which was otherwise disputed and also as observed by the Settlement OfÏcer of Consolidation and the Deputy Director of Consolidation that the over writing and cutting on the said documents was suspicious and yet relying upon the same without bringing it to proof was a serious error committed by the Deputy Director of Consolidation.

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The inference drawn by the Settlement OfÏcer of Consolidation as well as the Deputy Director of Consolidation that the Parivar Register had over writing and first it appeared the name of Anant son of Bihari was recorded which have been scored off thereafter name of Anant as son of Chhedu is recorded which again has been scored off to read Anant son of Bihari.

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Relying upon such a document especially in light of the evidence which was available before the Consolidation OfÏcer was dicey. The appropriate course should have been to permit the parties to lead evidence on this issue and thereafter the same should have been considered on merits but that has not been done.

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Learned counsel for the respondent also could not indicate that upon the death of Bihari admittedly he was survived by his widow Hardai and at the relevant time Anant was a minor in such circumstances how could the name of Anant be recorded simplicitor without the name of Hardai being recorded as the guardian of Anant and even otherwise as the widow of Bihari Hardi succeed to be a estate and her name also must have been recorded but there was no evidence in this regard.

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There was a clear discrepancy available on record before the Settlement OfÏcer of

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Consolidation; inasmuch as in the extract of the Parivar Register relating to House No.465 which indicated the members of the family and Chhutkau which included Anant shown as son of Chhedu and on the other hand there was another extract of the Parivar Register which indicates that Anant as the son of Bihari but this document has several over writings and cuttings. The Settlement OfÏcer of Consolidation has not given any reason as to how he preferred to accept the extract of the Parivar Register showing the name of Anant son of Bihari which though had over writing and cutting and which in the opinion of the Settlement OfÏcer of Consolidation was also suspicious yet he ignored the impact of the Parivar Register of House No.465.

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This was an error which was committed by the Settlement OfÏcer of Consolidation and especially when the issue of parentage was involved coupled with the fact that the issue of succession to the property of Bihari was involved and in such circumstances, it was incumbent to have first determined the date of death of Bihari as that would be material for ascertaining the order of succession in terms of Section 171 of the U.P. Z.A. & L. R. Act. This is necessary to be determined also for an another reason that the order of succession as provided in Section 171 of the U.P. Z.A. & L.R. Act has been amended from time to time and it ought to have been seen that once Bihari died what was the order of succession prevelant at that point of time.

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Whether at the relevant time, the widow would have a right or even in presence of the widow the property would devolve on the son exclusively (as alleged by the respondent no.2) would have to be seen. In case if upon the death of Bihari, his property would devolve on his widow and son then upon the death of Hardai, widow of Bihari, how would the estate further devolve is also to be determined and for this fact that the date of death of Hardai would also be material especially to determine whether the petitioners at that point of time were married or unmarried.

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These were all important issues and aspects

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which had to be considered in order to get a categorical evidence but unfortunately this aspect has not been dealt with by the Settlement OfÏcer of Consolidation in any manner Even the Deputy Director of Consolidation has merely echoed the sentiment of the Settlement OfÏcer of Consolidation but has not entered into the aforesaid questions in order to decide the issues involved.

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Learned counsel for both the contesting parties could not point out that any evidence in this regard was led before the three consolidation authorities and they too agree that this aspect was not considered by either the Settlement OfÏcer of Consolidation or the Deputy Director of Consolidation.

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For the aforesaid reasons, this Court finds that the order of the Settlement OfÏcer of Consolidation as well as the Deputy Director of Consolidation cannot be sustained and essential issues which was required to be adjudicated has not been done. This Court has no option but to set aside the order passed by the Settlement OfÏcer of Consolidation dated 09.04.1980 and the order passed by the Deputy Director of Consolidation dated 07.11.1984 and remand the matter to the Court of Settlement OfÏcer of Consolidation who shall after affording full opportunity of hearing to the parties to lead evidence in this regard, shall redetermine the issues no.2, 4 to 6 and the parties shall be permitted to lead evidence only in respect thereto which shall be considered and decided by the Settlement OfÏcer of Consolidation afresh in light of the observations made by this Court in the proceeding paragraphs.

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Since the matter is quite old and has been engaging the attention of this Court since 1985, accordingly this Court directs that the parties shall appear before the Settlement OfÏcer of Consolidation concerned on 24.02.2025 and the Settlement OfÏcer of Consolidation concerned shall after permitting the parties to lead evidence shall re-decide the matter afresh preferably within a period of six months from the date the parties appear before him on 24.02.2025 as per law.

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It is made clear that in case if any of the parties try to misuse the liberty, it will be open for the Settlement OfÏcer of Consolidation to proceed in accordance with law.

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For the foregoing reasons, the writ petition is allowed . The impugned orders dated 09.04.1980 passed by the Settlement OfÏcer of Consolidation and 07.11.1984 passed by the Deputy Director of Consolidation are set aside. Costs are made easy.

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Order Date :- 24.1.2025 ank

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Digitally signed by :- ALI NEWAZ KHAN High Court of Judicature at Allahabad, Lucknow Bench

Krishan Devi v. D.D.C.and Ors.

Case brief

What is this about?

What did the court decide?

Krishan Devi v. D.D.C.and Ors.

Case brief

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What did the court decide?

What the court decided

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