KALPNATH RAI Vs. DY DIRECTORS OF CONSOLIDATION AZAMGARH

JUDGEMENT

(1.) BINOD Kumar Roy, J. The petitioners pray to quash the Revisional Order dated 11. 4. 1975 passed by the, Deputy Director of Consolidation Azamgarh allowing Revision No. 212 preferred by Respondent Nos. 2 and 3. The Facts :

(2.) FROM perusal of the various annexures attached to this writ application following facts emerge. The dispute concerns right title and interest of the petitioners and Respondents Nos. 2 and 3 in regard to the lands bearing Khata Nos. 4, 198, 200, 434 and 327 of village Jamuwawan in the District of Azamgarh. Khata No. 4 is bhumidhari and stands recorded in the name of original petitioner No. 1 Kalpanath Rai (son of Kamal Rai) orginal. petitioner No. 3 Deep Chand (son of Mahadeo) and Patiraji (widow of Sahadeo ). Khata No. 198 stands recorded in the name of Petitioners No. 2 Anagad Rai and original Petitioner No. 1 Kalpnath Rai (son of Komal) original Petitioner No. 3 Deep Chand (son of Mahadeo) Petitioner Nos. 5 and 6 Bishwanath and Munni (sons of Davanarain ) and Patiraji (widow of Sahadeo ). Khata No. 327 stands recorded in the name of Bishwanath and Munni (sons of Dayanarain), Deep Chand (son. of Mahadeo) and Patiraji (widow of Sahadeo ). Khata No. 200 stands recorded in the name of Angad. Kalpanath (sons of Komal) and Deep Chand (sons of Mahadeo ). These four khatas are shown as sirdari. By virtue of a compromise decree in suit No. 141 of 1932 (copy appended as. Ahnexure-4) the lands described therein of village Mahuwari and Jamuwawan were given only for maintenance to Mst. Patiraji widow of Sahadeo Rai and Mst. Parkali widow of Bharat Rai who had filed that suit against Dhaneshwer Rai son of Mahadeo Rai. It further appears that Respondent Nos. 3 and 2 Girija and Kanflaiya filed original Suit No. 265 of 1956 for partition claiming l/8th share in the lands described in the plaint claiming to be sons of Dhaneshwar who remarried Patiraji after the death of Sahadeo about 20 years ago according to Hindu Widow's Remarriage Act and they were born of them and that Dhaneshwar died about 7 years ago leaving behind them as his heirs. The suit was cont ested by the predecessors of the writ petitioners on the grounds inter alia, that the plaintiffs are hot the sons of Dhaneshwar and that Patiraji was living as widow of Sahadeo and receiving maintenance in accordance with the terms of the compromise decree in Suit No. 141 of 1932. By his judgment and decree dated 28. 2. 1960 the 2nd Addl. Munsif Azamgarh dismissed that suit. As the judgment of that suit has not been appended by any party this Court is not in a position to say whether any positive finding was recorded in regard to the 2nd defence aforesaid though the 1st defence was accepted. On the record of (his writ petition there is a copy of the appellate judgment dated 11. 5. 1961 of the Addl. Civil Judge, Azamgarh in Civil Appeal No. 268 of 1960 preferred against the judgment and decree of the suit aforesaid perusal of which shows that (i) the Appeal of the plaintiffs was dismissed holding inter alia that if it was a fact that Patiraji had. remarried Dhaneshwar then she would have lost all rights in the properties of her previous husband and there was no question of her getting maintenance allowance from Dhaneshwar Rai or from other members of the family (ii) an inference was drawn up against them for not examination Patiraji their own mother who was one of the defendants-respondents 2nd set. (iii) Plaintiff No. 1 Girija Rai had stated in1 his evidence that his mother was getting l/8th share in the grains from before their birth and even now which supports the defence version that Patiraji is getting maintenance from the defendants as widow of Sahadeo under the compromise decree passed in her favour in 1932. It further appears that Respondent Nos. 2 and 3 claiming -right title and interest in regard to lands of village Mahuwari filed an objection under Section 9-A (2) of the Act before the Assistant Consolidation Officer on the ground that they are sons of the recorded tenant Patiraji who had died leaving behind them, as her legal heirs. Their claim. was contested by the writ petitioners and rejected upto the Revisional authority vide Revision No. 656 disposed of on 21. 7. 1971 by the Deputy Director of Consolidation, Azamgarh (a copy of which has been appended as Annexure-1) holding as follows :- (i) FROM the judgment of 2nd Munsif Azamgarh in original suit No. 226 of 1956 it appears that the remarriage of Patiraji with Dhanes hwar was not proved and that the Revision Petitioners were held to be sons of Dhaneshwar. (il ). Patiraji's name was not entered due to her own rights but as the widow of Sahadeo. (iii) Patiraji was also not in possession of those lands. Respon dents 2 and 3 again filed an objection under Section 9-A (2) of the Act in regard to the lands of the village Jamuwawan mentioned as above setting forth similar claim. The peti tioner again resisted their claim. The Consolidation Officer rejected their claim against which Respondents 2 and 3 went up in Appeal No. 44. The appellate order dated 13. 1. 1974 in appeal No. 44 passed by the Assis tant Settlement ,, Officer, Consolida tion (copy appended as -Annexure-2) shows that the appeal of the Respondents 2 and 3 was dismissed holding as follows : (i) Since Khata No. 200 is not recorded in the name of Patiraji the appellants (Le. Respondents 2 and 3 herein) who claim to be sons of Dhaneshwar cannot succeed Patiraji widow of Sahdeo. (ii) Patiraji was never in possession separately nor was her name entered on the strength of her own rights, (iii) Patiraji had died prior to coming into force of Hindu Women's Right to Property Act, 1937 and hence could not acquire interest of Sahdeo who was also not accepted as a co-tenant vide the compromise of decree in Suit No. 141 of 1932 and shall be deemed to be a licensee, (iv) The decree of the civil suit and the judgment- of the Revisional Authority will operate as retjudicata, as held in 1967 RD 101. (v) The appellants have not claimed that the lands were self-acquisition of Patiraji rather ancestral and claimed title on the basis of the pedegree. While allowing the Revision of Respondents 2 and 3 by the impugned order the Revisional authority, however, held as follows : (1) The petitioners have claimed on the basis of title of Patiraji and not of Dhaneshwar's title. (2) It was not categorically held that the petitioners are not sons of Patiraji and there is also no material on the record to show that they are not the sons of Patiraji. (3) By virtue of a long possession the right of Patiraji became absolute. Apparently the findings and observation recorded in earlier suit and appeal, extracted as above was not considered by the revisional authority though the finding of the appellate authority that Patiraji had died prior to coming into force of the Hindu Women Right to Property Act, 1937 appears to be erroneous inasmuch as Patiraji was made a party to the suit and appeal. The submissions :