KALE Vs. DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) This is an appeal by special leave against the judgment of the Allahabad High Court dated May 17, 1966 by which the appeal against the decision of a Single Judge of the High Court rejecting the writ petition of the appellants had been dismissed. An application for granting a certificate for leave to appeal to this Court was made by the appellants before the High Court which was also dismissed by order of the High Court dated August 7, 1967.

(2.) The case had a rather chequered career and the disputes between the parties were sometimes settled and sometimes re-opened. In order, however, to understand the point involved in the present appeal, it may be necessary to enter into the domain of the contending claims of the respective parties put forward before the Revenue Courts from time to time. To begin with the admitted position is that one Lachman the last propositor was the tenant and the tenure holder of the property in dispute which consists of 19.73 acres of land contained in Khatas Nos. 5 and 90 and 19.24 acres of land comprising Khatas Nos. 53 and 204. Lachman died in the year 1948 leaving behind three daughters, namely, Musamat Tikia, Musamat Har Pyari and Musamat Ram Pyari. Musamat Tikia was married during the lifetime of Lachman and the appellant No. 1 Kale is the son of Musamat Tikia. Thus it would appear that after the death of Lachman the family consisted of his two unmarried daughters Har Pyari and Ram Pyari and his married daughter's son Kale. Under the U.P. Tenancy Act, 1939 which applied to the parties only unmarried daughters inherit the property. The first round of dispute appears to have arisen soon after the death of Lachman in the year 1949 when Panchayat Adalat of the village was asked to decide the dispute between Prem Pal nephew of Lachman and the appellant Kale regarding inheritance to the property left by Lachman. Har Pyari and Ram Pyari appear to have been parties to that dispute and the Panchayat Adalt after making local enquiries held that Har Pyari having been married had lost her right in the estate and Ram Pyari was also an heir so long as she was not married and after her marriage the legal heir to the property of Lachman would be the appellant Kale. In the year 1952 the U.P. Zamindari Abolition and Land Reforms Act, 1950 was made applicable to the tenure holders also. This Act was further amended on October 10, 1954 by Act 20 of 1954 by which, amongst the list of heirs enumerated under the statute, "unmarried daughters" was substituted by "daughter" only. According to the appellant in this Court as also in the High Court Ram Pyari respondent No. 5 was married on February 25, 1955 and thereafter the appellant filed a petition before the Naib Tahsildar, Hasanpur, for expunging the names of respondents 4 and 5 from the disputed Khatas because both of the daughters having been married ceased to have any interest in the property. It was therefore prayed that as the appellant was the sole heir to the estate of Lachman under Section 36 of the U.P. Tenancy Act, 1939, he alone should be mutated in respect of the property of Lachman. By order dated December 5, 1955 the Naib Tahsildar, Hasanpur, accepted the contention of the appellant and expunged the names of respondents 4 and 5 from the Khatas in dispute and substituted the name of the appellant Kale. Soon thereafter on January 11, 1956, respondent 4 and 5, i.e. Musamat Har Pyari and Ram Pyari daughter of Lachman, filed an application before the Naib Tehsildar for setting aside his order dated December 5, 1955 which had been passed behind their back and without their knowledge. While this application of respondents 4 and 5 was pending adjudication, the Revenue Court was informed that talk of compromise was going on between the parties which ultimately culminated in a compromise or a family arrangement under which the appellant Kale was allotted Khatas Nos. 5 and 90 whereas respondents 4 and 5 were allotted Khatas Nos. 53 and 204 as between them. A petition was filed on August 7, 1956 before the Revenue Court informing it that a compromise had been arrived at and in pursuance thereof the names of the parties may be mutated in respect of the Khatas which had been allotted to them. This petition was singed by both the parties and ultimately the Assistant Commissioner, I Class, passed an order dated March 31, 1957 mutating the name of the appellant Kale in respect of Khatas Nos. 5 and 90 and the names of respondents 4 and 5 in respect of Khatas Nos. 53and 204. Thereafter it is not disputed that the parties remained in possession of the properties allotted to them and paid land revenue to the Government. Thus it would appear that the dispute between the parties was finally settled and both the parties accepted the same and took benefit thereunder. This state of affairs continued until the year 1964 when proceedings for revision of the records under Section 8 of the U. P. Consolidation of Holdings Act, 1953 were started in the village Hasanpur where the properties were situated in the course of which respondents 4 and 5 were entered in Form C. H. 5 as persons claiming co-tenure-holders to the extent of 2/3rd share with the appellant Kale who was entered in the said form as having 1/3rd share in all the Khatas. In view of this sudden change of the entries which were obviously contrary to the mutation made in pursuance of the family arrangement entered into between the parties in 1956, the appellant Kale filed his objections before the Assistant Consolidation Officer for changing the entries in respect of those Khatas. As the Assistant Consolidation Officer found that the dispute was a complicated one he by his order dated May 7, 1964 referred the matter to the Consolidation Officer. It might be mentioned here that when the proceedings for revision of the records were started, while the appellant filed his objections, respondents 4 and 5 seem to have kept quiet and filed no objections at all. In fact under Sec. 9 (2) of the U. P., Consolidation of Holdings Act, 1953, the respondents could have filed their objections, if they were aggrieved by the entries made on the basis of the compromise. Sub-section (2) of Section 9 of the U. P. Consolidation of Holdings Act runs thus:

(3.) The Consolidation Officer to whom the dispute was referred, by his order dated July 27, 1964, framed a number of issues, and after trying the suit, removed the name of the appellant Kale from Khatas 5 and 90 and substituted the names of appellant No. 2 Musamat Tikia and those of respondents 4 and 5. We might also mention here that for the first time respondents 4 and 5 raised a dispute before the Consolidation Officer denying that the appellant Kale was the grandson of Lachman. The Consolidation Officer framed an issue on this question and after taking evidence clearly found that the objection raised by respondents 4 and 5 was absolutely groundless and that the appellant Kale was undoubtedly the grandson of Lachman. The Consolidation Officer pointed out that even before the Panchayat Adalat as also in the mutation petition which was filed before the Naib Tahsildar respondents 4 and 5 never disputed that the appellant Kale was the grandson of Lachman being the son of his daughter Musamat Tikia who is appellant No. 2.