SITARAM Vs. CHHOTABHONDEY

JUDGEMENT

(1.) This appeal by special leave arises from the judgment of the High Court of Judicature at Allahabad dated April 18, 1975, dismissing the Second Appeal filed by the appellant.

(2.) Teja, the common ancestor, had five sons:Nanha, Mulle, Manna, Chhota and Ram Sahai. All of them have died. Appellant Sita Ram is the son of Nanha. Mulle had a son Nokhey who died in 1953 without any issue. Respondent No. 2 Soney Lal is the son of Manna. Smt. Kailasho Devi, respondent No. 3 is the widow of Ram Sahai. Chhota Bhondey respondent No. 1, claims to be the son of Chhota which is disputed by the appellant. The dispute in the appeal relates to sirdari holdings in Khata Nos. 72 and 73 in village Sambhalpur Sheoli in the State of Uttar Pradesh. Lands in Khata No. 72 were originally entered in the names of Nanha, Manna and Ram Sahai in the revenue records and on their deaths the names of the appellant and respondents Nos. 2 and. 3 were entered. Respondent No. 3 sold her shares in these lands. The lands in Khata No. 73 were entered in the name of Nanha alone and on his death the same were entered in the name of the appellant. Consolidation proceedings under the provisions of U.P. Consolidation of Holdings Act, 1953 (U.P. Act No. 5 of 1954) hereinafter referred to as 'the Act' commenced in Village Sambhalpur Sheoli in the year 1969. Respondent No. 1 filed objections to the entries and claimed one fourth share in the holdings in both the Khatas on the basis that Director allowed the revision of respondent he is the son of Chhota and that the said lands belonged to the joint Hindu family consisting of the sons of Tej Ram. Respondents Nos 2 and 3 filed objections claiming shares in the lands in Khata No. 73 on the ground that the said holding was jointly acquired by Nanha and his brOTHERS Manna and Ram Sahai, and the name of Nanha was recorded in a representative character. The appellant contested the said claims and claimed that lands in Khata No. 73 were acquired by Nanha in his individual capacity and not on behalf of his family. The appellant further claimed that respondent No. 1 could claim no interest in the holdings as he is not a member of the family. The case- of the appellant was that respondent No. 1 is not the son of Chhota but is the son of one Heera who was a resident of a different village. The objections were considered by the Consolidation Officer, who, by order dated August 31, 1970, held that respondent No. 1 is the son of Heera alias Chhota. He gave half share to the appellant and one fourth share each to respondents Nos. 1 and 2 in all the plots of the Khata -No. 73 except plots Nos. 140, 141, 142/ 2, 142/3 and 143/3 which were given to the appellant exclusively. The appellant as well as respondents Nos. 2 and 3 filed appeals against the said order of the Consolidation Officer. The Assistant Settlement Officer (Consolidation), by Order dated February 8, 1971, allowed the appeal of the appellant and directed that Khata No. 73 will be continued in the name of the appellant alone in as much as the lands of the said Khata were acquired by Nanha between 1927 and 1931 before the birth of respondent No. 1 and the said land was not the ancestral acquisition nor Nanha had acquired it in a representative capacity. The Assistant Settlement Officer, however agreed with the findings of the Consolidation Officer that respondent No. 1 is the son of Heera alias Chhota and belongs to the family to which the appellant and respondent No. 2 belong. The respondents went in revision against the said order of the Assistant Settlement Officer. The said revisions were decided by the Deputy Director of Consolidation by his Order dated May 13, 1971. The Deputy Director allowed the revision of respondent No. 1 in full and held that he has got a share in Khata No. 72 along with the appellant and respondent No. 2 and since respondent No. 3 has already sold her share of Khata No. 72 the remaining three branches namely the appellant and respondents Nos. 1 and 2 are entitled to one third share each in the lands included in. this Khata. As regards lands in Khata No. 7J the Deputy Director disallowed the claim of the respondents in respect of plots Nos. 140, 141, 142 and 143. But with regard to other plots of Khata No. 73 the Deputy Director held that the name of Nanha was entered only in a representative capacity and that the branches of Manna, Chhota and Ram Sahai also had a share in these plots and that the respondents had acquired equal shares along with the appellant in these plots and their names may also be recorded over the same. The appellant filed a writ petition in the High Court to challenge the said decision of the Deputy Director of Consolidation, but the said writ petition was dismissed in limine by the High Court by order dated July 23, 1971. The application filed by the appellant for grant of certificate of fitness to appeal to this Court under Article 133 of the Constitution was also rejected by the High Court by its order dated November 9, 1972.

(3.) The appellant, thereafter, filed the civil suit giving rise to this appeal on January 25, 1973 for a declaration that the order of the Deputy Director of Consolidation dated May 13, 1971, is without jurisdiction. The said suit was contested by respondent No. 1. He raised a preliminary objection that the suit was barred by Section 49 of the Act. The Munsiff Hawali, Kanpur, by judgment dated August 16, 1974 decided the said preliminary objection in favour of respondent No. 1 and dismissed the suit on the ground that it was barred by Section 49 of the Act. The said judgment and decree of the Munsiff Hawali was affirmed in appeal by the Additional District and Sessions Judge, Kanpur-Etawah by judgment dated January 17, 1975. The Second Appeal filed by the appellant against the said judgment was dismissed in limine by the High Court by the judgment under appeal.