DEVI SHANKER Vs. DY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) IN the present case the dispute relates to Khata No. 4 situate in village A jaipur, Parana Kodari Purvi, District Sitapur. IN the basic years Khatauni the disputed land was recorded in the names of petitioners Harnath and Shital son of Chandra Bhal along with Govind as Sirdars. During verification of Khatauni made by consolidation staff, three disputes were recorded, firstly, it was found that Govind one of the recorded tenure-holder had died and it was alleged that his minor son Ram Sagar alias Babbu was the legal heir and successor ; secondly, Ram Sanehi, Munna, Chhotkan and Kuttu Lal sons of Ram Autar, opposite parties 5 to 8 claimed to be co-tenants in the disputed holding and thirdly, one Chhote Lal son of Parmeshwar claimed to have acquired Sirdari rights by adverse possession over one of the plots of the disputed holding namely, plot No. 1783/1. An objection was filed by the petitioners wherein they asserted that Govind had died unmarried and he had not left any heir. It was further asserted that Ram Singh and others were not co-tenure-holders in the disputed holding. Chhote Lal withdrew his claim with regard to the plot No. 1783/1. Thus the dispute remained between the petitioners and opposite parties 4 to 8. The Consolidation Officer after taking evidence of parties upheld the claim of opposite parties 5 to 8 and held them to be co-tenure-holders along with the petitioners. He also upheld the claim of opposite party No. 4 and held him to be son of Govind and directed that his name be recorded as co-tenure-holders in place of Govind. Petitioners and opposite party No. 4 were held to be entitled to 1/6th share each and opposite parties 5 to 8 were held to be entitled to 1/8th share each. Petitioners preferred appeal which was dismissed by the Settlement Officer Consolidation, Sitapur, vide judgment and order dated 10th of November, 1976. Thereupon petitioners preferred revision which was dismissed on 19th May, 1978. Petitioners have challenged these orders in this writ petition.

(2.) LEARNED counsel for the petitioners Sri P. L. Misra urged that the opposite parties 1 to 3 have erred in holding Ram Sanehi and others as co-tenure-holders in the disputed holding on the basis of the alleged compromise filed in the revenue suit 5/68 under Section and 176 of U. P. Zamindari Abolition & Land Reforms Act. He urged that the said suit filed by Ram Avtar father of Ram Sanehi and others was dismissed in default on 16-4-1968. He disputed the genuineness of the compromise and further urged that at any rate the opposite parties 5 to 8 could not be given co-tenancy rights on the basis of alleged admission contained in the said compromise which was not acted upon nor any decree was passed in pursuance of the alleged compromise. LEARNED counsel further contended that the petitioners have established that the land in dispute was acquired by their father Chandra Bhal and so merely on the basis of the alleged admission contained in the so called compromise cannot confer co-tenancy rights. He urged that the said compromise cannot operate as an estoppel between the parties nor co-tenancy rights could accrue on its basis. LEARNED counsel further urged that the Consolidation Officer had proceeded to decide the case treating the land in dispute to be joint family holding. He further urged that the Consolidation Officer merely on the basis of the alleged compromise has held the opposite parties 5 to 8 to be co-tenure -holders. LEARNED counsel further pointed out that the perusal of the order passed by the Settlement Officer Consolidation would indicate that the case of Ram Sanehi was that the land in suit was ancestral (Paitrik) and that the name of Chandra Bhal was recorded in the representative capacity. LEARNED counsel by referring to the finding recorded by the Deputy Director of Consolidation urged that the Deputy Director of Consolidation had made out a new case for the parties holding that the land in dispute was acquired by Chandra Bhal and Ram Avatar Jointly. He had, therefore, not adverted himself to the case set up by opposite party in court below to the effect that the land in dispute is ancestral joint family property. LEARNED counsel for the petitioner pointed out that the Deputy Director of Consolidation has observed that since the land in dispute was acquired jointly by Ram Avatar and Chandra Bhal some 50 years ago when they were members of the joint family, and, as such, it would be immaterial if the land in dispute has not been proved to be ancestral. LEARNED counsel further urged that while recording this finding regarding joint acquisition of land by Ram Avatar and Chandra Bhal, the Deputy Director of Consolidation has not referred to any evidence whatsoever in support of that finding. Thus, apart from a new case being set up by the Deputy Director of Consolidation himself for the opposite parties 5 to 8, the impugned judgment passed by him cannot be sustained as he has by a non-speaking order recorded said finding. He has also failed to consider the evidence, if any or record, in support of his finding. LEARNED counsel thus urged that the impugned orders passed by the consolidation authorities deserve to be quashed.

(3.) IT is next to be seen as to what would be the legal value and the worth of the alleged compromise. Learned counsel for the opposite party had urged that the said compromise would operate as estoppel between the parties and the petitioners would be bound by the admissions contained in the compromise regarding title and share of the opposite parties 5 to 8 in the holding in dispute. In other words his contention was that although a decree was not passed in terms of the said compromise, but the admission contained in the compromise and the compromise itself would not become non' est. The petitioners would be estopped from urging against their own admission contained in the said compromise which was filed and verified before the court in the said suit. He urged that the petitioners cannot now urge that their admission in the said compromise was erroneous or untrue and that the land exclusively belonged to their father Chandra Bhal. In reply learned counsel for the petitioners urged that the admission contained in any deed or document is not conclusive or true in respect of the matter stated therein. IT cannot be shown to be erroneous or untrue unless operates as estoppel.