MOHD HAMID Vs. DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) Questioning the legality and validity of the orders dated 28th of August, 1979 passed by the Deputy Director of Consolidation and the order dated 22. 7. 1979 passed by the Assistant Settlement Officer Consolidation, the present writ petition has been filed which arises out of consolidation proceedings under the provisions of U. P. Consolidation of Holdings Act, 1953. By means of the present petition the following reliefs have been prayed for:- (A) To issue a writ of certiorari, order or direction in the nature of certiorari quashing the order of the Deputy Director of Consolidation dated 28th August, 1979 (Annexure VI) and that of the order of the Assistant Settlement Officer Consolidation dated 22nd July, 1979 (Annexure V) respectively. (B) To issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case and to which the petitioners are entitled in law. (C ) To award costs of this writ petition in favour of the petitioners. The basic question involved in the present writ petition is about the extent of shares of petitioners and that of the contesting respondents in the Khata No. 283 which consists of 14 Gatas area 21-3-0 situate in village Purkhas, Pargana Chail, District Allahabad. All the three authorities have differed on the said issue. The facts of the case in brief may be noticed. The following pedigree furnished by the contesting respondents before the authorities below is almost undisputed and was not disputed before this Court also:- Najari During the consolidation operation against the entries in the basic year, different sets of objections were filed by the petitioners. It may be noticed that no objection was filed by the contesting respondents in respect of the aforesaid Khata. The objections were filed by the petitioners principally on the ground that the property in dispute belonged to their ancestors Abdullah with which the contesting respondents herein have no concern. Mohd. Siddiq (petitioner No. 3), Mohd. Hanif (petitioner no. 4) sons of Dildar Hussain stated that the respondents therein namely Mohd. Idris and Mohd. Hamid (petitioners no. 1 and 2) sons of Masiuddin are neither in possession nor have share over the property in question and the names of their ancestors which were recorded with collusion of Patwari be deleted. They claimed that in the disputed property Abdul Aziz, petitioner no. 5, has one half share and petitioner Nos. 3 and 4 (Mohd. Siddiq and Mohd. Hanif) have 1/4th share each. In reply to the objections, Mohd. Idris and Mohd. Hamid (petitioner nos. 1 and 2) sons of Mod. Dildar Singh disputed the aforesaid claim of the petitioners No. 3,4 and 5 and submitted that they have half share in the disputed property and their share may be carved out accordingly. The parties led evidence in support of their respective cases. The Consolidation Officer by its order dated 30th of September, 1977 held as follows:- Mohammad Siddiq 1/6 (Petitioner no. 2) Mohammad Haneef 1/6 (Petitioner no. 4) Abdul Aziz 1/3 (Petitioner no. 5) Mohammad Haneef } Rafiuddin } 1/3 (Opposite-parties nos. 4 to 9) Shafiuddin } Against the aforestated order three appeals were preferred which came up for consideration before the Assistant Settlement Officer Consolidation. One appeal was preferred by Mohd. Siddiq and other successors of Abdullah, the other appeal by Mohd. Haneef son of Mohd. Sarif and the third appeal was, by Mohd. Hamid son of Mohd. Idris. All the three appeals were heard and decided by a common order. The Assistant Settlement Officer Consolidation found that in Khata No. 283 two sets of plots taking into consideration their origin of acquisition were there. The first set consists of plot Nos. 1852, 1853, 1854, 1855, 1939, 1943, total area 6-15-0 Bighas and the other set consists of plot Nos. 1948, 1954, 1951, 1972, 2153, 2163, 2201 and 2232, total area 14-15-0 Bighas. The appeals were allowed by modifying the shares of the parties. The Assistant Settlement Officer Consolidation was of the view that in Khasra of 1333 Fasli with regard to the plots of the first set, the plots are recorded in the name of Abdullah and Jainab Bibi with the period of seven years tenancy, therefore, these plots cannot be said to be ancestral. He consequently allotted the shares in respect of first set in the following manner:- 1/2 share Mohammad Haneef s/o Mohd. Shareef, respondent No. 4. 1/4 share Mohammad Idris and Mohammad Hamid sons of Masiuddin, petitioner nos. 1 and 2. 1/8 share Mohammad Siddiq and Mohammad Haneef sons of Dildar Husain, petitioner Nos. 3 and 4. 1/8 share Abdul Aziz, son of Gulzar Husain, petitioner no. 5. In respect of second set which consists of plot Nos. 1948, 1954, 1951, 1972, 2153, 2163, 2201 and 2232 total area 14 bighs 13 biswas the shares were allotted in the following manner:- 1/4 share Mohammed Siddiq and Mohammad Haneef sons of Dildar Husain, petitioners no. 2 and 4. 1/4 Abdul Aziz son of Gulzar Husain, petitioner no. 5. 1/2 share Mohammad Idris and Mohammad Hamid sons of Masiuddin, petitioners no. 1 and 2. In other words, no land of second set was given to the contesting respondents. Parties being dissatisfied filed two sets of revisions before the Deputy Director of Consolidation. Mohd. Haneef (Respondent No. 4) son of Mohd. Sharif representing the branch of Amir Ali filed revision No. 1/6. Mohd. Hamid, Mohd. Idris sons of Masiuddin, Abdul Aziz son of Gulzar Husain, Mohd. Siddiq and Mohd. Haneef sons of Dildar Husain, these persons represent the branch of Abdullah and Amirullah and successors of Nakchched filed revision No. 12/115/5. These revisions were heard and decided by a common judgement dated 28th of August, 1979, impugned in the present writ petition. The Deputy Director of Consolidation proceeded to decide the lis between the parties on the footing that since all the parties are successors of a common ancestor Najari who had three sons Nakchched, Akbar Ali, Amir Ali, each branch inherited 1/3rd share, consequently, in the disputed property. Sri Sankatha Rai, learned senior counsel appearing for the petitioners, submits that Deputy Director of Consolidation was not justified in absence of any evidence to hold that the property in dispute was acquired by common ancestor of parties namely Najari. As a matter of fact, this was not the case of either of the parties before courts below. There is no iota of evidence to show that the disputed land in Khata No. 283 was ever recorded in the name of Najari. On the contrary, there is voluminous evidence in the shape of revenue extracts relating to rights i. e. Khatauni beginning from the year 1320 Fasli which corresponds to year 1913 to show that the disputed land was recorded and continued to be recorded in the name of Nakchched, the predecessor interest of the petitioners. Assuming even for a moment that the parties are the descendants of ancestor Najari, there is no presumption either of law or fact that the holding in dispute is the joint family property as the concept of jointness of the family as prevalent among Hindus is foreign to Muslims. Under the Personal Law of Muslims there is no presumption of joint family among the different branches of common ancestor. Elaborating the argument, he further submits that at any rate, no objection was filed by Mohd. Haneef, respondent no. 4, during the consolidation operation against the basic year entry nor by Rafiuddin and Safiuddin, the respondents no. 5 and 6 representing the branch of Akbar Ali, there was no justification on the part of the Deputy Director of Consolidation to hold that these persons also have got 1/3rd share in the disputed Khata. It was further submitted that the order of the Deputy Director of Consolidation is based on presumptions and assumptions in as much as there was no litigation among the parties under 145 Cr. P. C. nor the possession of any party was determined by the criminal court as wrongly assumed by the Deputy Director of Consolidation. Case No. 28/142 of 1956 was under section 218/109 of Indian Penal Code between Gulzar Husain and Ekramulullah and others against Lekhpal due to incorrect entry made by him. There was acquittal by the Magistrate, Ist Class and as such the Deputy Director of Consolidation was not correct in holding, on the basis of the aforesaid judgement that the opposite parties were declared in possession over the land in dispute by the said criminal court. There being no objection from the side of the contesting respondents representing the branches of Akbar Ali and Amir Ali, no order in their favour could have been passed by the Consolidation Authorities. In contra, Shri Shahid Masood, learned counsel for the contesting respondents, submits that findings returned by the Deputy Director of Consolidation are essentially findings of fact. He further submits that the Khatauni of 1320 Fasli is not at all relevant as it relates to Jiman 8 which confers only hereditary tenancy. In the said Khatauni, the period of one year has been mentioned. According to him, the relevant Khatauni is of the year 1333 Fasli wherein the period of tenancy has been mentioned as 7 years effective from 29 (i. e. 1329) to 1335 Fasli. Period has been mentioned as 5 years in the Khatauni. The said Khatauni is in respect of 6 plots only. The said entry was repeated in 1334 Fasli. A reading of Khataunis of 1333 Fasli, 1334 Fasli and 1356 Fasli, would show that although the name of Jainab Bibi wife of Jahid Husain was recorded as co-tenant along with Abdullah in 1333 Fasli and 1334 Fasli but her name is missing in 1356 Fasli. Since in the Khatauni of 1356 Fasli period of 28 years has been mentioned which relates back to 1329 Fasli and therefore, not withstanding the fact that name of Smt. Jainab Bibi is not there in 1356 Fasli, the tenancy remained the same and as such Mohd. Haneef, respondent no. 4 has acquired half share in 6 plots which were recorded jointly in the name of Abdullah and Jainab Bibi, his predecessor in intherest. He very fairly accepts the position that jointness of estate and the joint family concept as prevalent among the Hindus is not applicable to Muslim community. Considered the respective submissions of learned counsel for the parties and perused the record. Before coming to the main issue raised in the present petition, it is necessary to notice that from the record of the writ petition, it does not appear that any objection was filed by Rafiuddin and Safiuddin, respondents No. 5 and 6 representing the branch of Akbar Ali. The holding in dispute was never recorded in the name of their predecessor in interest. None appeared on their behalf before this Court even to support the order of the Deputy Director of Consolidation granting them 1/3rd share in the disputed holding. Rafiuddin and Safiuddin, therefore, have no right, title or interest in the disputed plots. Apart from above, the Deputy Director of Consolidation allotted them 1/3rd share in the disputed plots merely on the basis of the pedigree on the supposition that the property in dispute was ancestral property. But, as a matter of fact, it was not case of any of the parties that the property in dispute was ever recorded in the name of Najari, the common ancestor of the parties. This being the position, so far as the allotment of the share to the branch of Akbar Ali i. e. to Rafiuddin and Safiuddin, the respondents no. 5 and 6, by the impugned order is concerned, cannot be sustained. It is held that they have no right, title or interest either under law or on fact in the property in question. The main contest in the present writ petition is between the petitioners and the respondent no. 4, Mohd. Haneef son of Mohd. Sharif. In the writ petition it has been stated specifically that during the consolidation operation i. e. at the time of Chakbandi Partal no objection was filed by Mohd. Hanif son of Mohd. Sharif, the respondent no. 4. The said averment has been reiterated in paragraph no. 3 of the writ petition. The reply of the paragraph no. 3 has been given in para 5 of the counter affidavit of Mohd. Hanif wherein he has stated that he filed objections, a copy whereof has been annexed as Annexure-1 to the counter affidavit. A bare perusal of the annexure-1 to the counter affidavit which according to the respondent no. 4 is his objection would show that it is in respect of different Khata i. e. Khata No. 383. While in the present writ petition, the dispute relates to Khata No. 283. Now coming to the main issue involved in the present writ petition, for the sake of convenience, the plots in dispute may be categorized in two sets as was done by the Settlement Officer Consolidation also. The first set consists of plots no. 1852, 1853, 1854, 1855, 1939, 1943 total area 6-15-0 bighas. The second set consists of plots No. 1954, 1956, 1972, 2153, 2169, 2201, 2232 total area 14-3-0 bighas of land. With regard to the dispute relating to the plots of first set, the case of respective parties may be considered first. Shri Sankatha Rai, learned counsel for the petitioners in support of his case that the contesting respondents have no right, title or interest therein and the petitioners are the exclusive owners of the said plots, invited attention of the Court towards the Khatauni of 1320 Fasli. The said Khatauni is in respect of Khata No. 357. In the column against the name of tenant, Abdullah son of Nakchched, Sheikh by caste, has been written. In Khata No. 358 name of Abdullah son of Nakchched along with another co-tenant Ali Raza ( who has no concern here) with respect to the plots of first set are recorded. The period of six years is also mentioned therein. The next relevant documents are Khataunis of years 1333 Fasli, 1334 Fasli and 1356 Fasli. The crucial document according to the learned counsel for the respondents is 1333 Fasli. The controversy centers round the interpretation and the impact of the said Khatauni read with Khataunis of 1334 Fasli etc. . For the first time, in the Khatauni of 1333 Fasli name of Jainab Bibi wife of Jahid Husain along with Abdullah (which represents the branch of petitioners) finds place. The English translation of the entry for the sake of convenience is reproduced below:- "abdullah son of Nakchched, Jainab Bibi wife of Jahid Husain 29 to (Lagay) 35, time (Miyadi) 7 years. In the next column the period of 5 years has been mentioned. " The submission is that Agra Tenancy Act, 1926 came into force in the year 1926. The tenancy in question was granted jointly to Abdullah son of Nakchched and Jainab Bibi for a period of seven years commencing from 1329 Fasli to 1335 Fasli. The period 5 years had already completed and therefore, against the column Muddat - period of 5 years has been mentioned. The same entry was reiterated in the subsequent Fasli year 1334 with the modification that therein period of 6 years has been mentioned. It is also admitted case of the parties that the name of Jainab Bibi does not find place in any of the subsequent Khataunis. The learned counsel for the petitioners submits that no benefit can be drawn by the contesting respondents merely because in the Khatauni name of Jainab Bibi finds place. Under whose order, name of Jainab Bibi was added in the Khasra, according to him, is not clear and that is the reason that her name was not repeated after 1334 Fasli. Reliance was placed by him on few judgements to buttress his argument that mere revenue entries do not confer any right on the parties. In Ram Prasad Singh and others Vs. D. D. C. 1984 ACJ 38 it has been held in para 14 that a person cannot be declared co- tenure holder on the basis of entry of Khasra and Khatauni. Revenue entries are maintained by Revenue Department. They can be proved to be correct or wrong according to the facts of each case. The entries by itself could not be proof of title. Tenancy can be proved according the provisions of law. In other words, according to the said decision, entry can be a piece of evidence regarding the title of any person. There appears to be no dispute between the parties with regard to the genuineness or correctness of Khatauni 1333 Fasli. At this stage the argument of the learned counsel for the petitioners that unless there is an order for incorporation of the name of a tenure holder, the entry on the face of it is of no use, is required to be considered on the facts of the present case. As noticed herein before that the Agra Tenancy Act came into force in the year 1926 and was made applicable to the property in question to which there appears no difference of opinion in between learned counsel for the parties. A settlement had taken place and Revenue records were prepared accordingly in the light of provisions of the Agra Tenancy Act. On a plain reading of the said Khatauni of the year 1333 Fasli, it would show that it was a new tenancy for a period of 7 years beginning with 1329 Fasli to 1335 Fasli. When Khatauni of 1333 Fasli was prepared, by that time five years had already gone. It follows that it is a case of creation of new tenancy right by the then Zamindar in favour of Abdullah and Jainab Bibi and not a case of continuation of old tenancy which was in favour of Abdullah. The old tenancy by that time must have come to an end as there is no material on record to show the continuance of the old tenancy in favour of Abdullah. The only possible inference which can be drawn by a conjoint reading of Khataunis 1320 Fasli and 1333 Fasli is that whatever might be the position earlier, a new tenancy was created by the Zamindar for the first time in the year 1329 Fasli for a period of 7 years in favour of two persons recorded therein i. e. Abdullah and Jainab Bibi. The subsequent Khatauni of 1334 Fasli further fortifies the above conclusion. Much emphasis was laid by the petitioners' counsel on the fact that the name of Jainab Bibi is not there in 1356 Fasli. This aspect of the case requires serious consideration. True, in respect of 6 plots which falls in the first set, the name of Jainab Bibi in the Khatauni of 1356 Fasli does not find place. But it is not fatal to the respondents' case. There is no material to show that under what circumstances name of Jainab Bibi is not mentioned in 1356 Fasli. The Deputy Director of Consolidation was not impressed much with the omission of name of Smt. Jainab Bibi in 1356 Fasli. In my considered view, the omission of name of Smt. Jainab Bibi is only accidental and in any manner it has no adverse effect on her rights as also to the rights of the respondent no. 4, her successor in interest. There is intrinsic material to show that the omission of name of Smt. Jainab Bibi will have no impact on her rights of tenancy over the plots in dispute. The interesting thing to be noted in the said Khatauni of 1356 Fasli is that the period of tenancy has been mentioned as 28 years. This relates back to 1329 Fasli. The said document has been relied upon by the petitioners. There is absolutely no explanation from their side to show that how the period of 28 years of tenancy has been record. Taking into consideration the documents i. e. 1333f, 1334f and 1356f together, the submission made by learned counsel for the respondents that there was continuation of the tenancy which was started in 1329 Fasli, continued up to 1356 Fasli and thus the omission of name of Jainab Bibi in 1356 Fasli is of little consequence deserves acceotabce. The law is well settled that omission of of name of co-tenant in the Revenue record will not confer any benefit on the recorded tenure holder unless ouster or adverse title is proved, which is not the case here. At this stage, the Khatauni of 1348 Fasli was referred by the petitioners wherein name of Abdullah is recorded and period of tenancy is mentioned two years. The entry has been made in Jiman 7. It has also been mentioned therein at the top of Khatauni the plots on which the tenants are in occupation and who have completed 12 years or more in Khatauni 1333 Fasli. The said document does not in any manner advance the case of the petitioners. The most relevant document is 1356 Fasli which was prepared just before the commencement of the U. P. Zamindari Abolition Act. In Khatauni of 1359 Fasli names of Dildar Husain and Gulzar Husain, the predecessors of petitioners are recorded and the period of tenancy has been mentioned as 31 years. This document also relates to the original tenancy of 1329 Fasli. The Khatauni of 1356 Fasli also corroborates and supports the case of the respondent no. 4 that the tenancy continued to be joint tenancy of Abdullah and Smt. Jainab Bibi, the name of Jainab Bibi is omitted in the said Khatauni notwithstanding. In view of the above discussion, the view taken by the Assistant Settlement Officer Consolidation in this regard deserves acceptance. The Deputy Director of Consolidation was not justified to hold otherwise. The impugned order is vitiated as it based on ignorance of relevant material. As noticed herein before, the Deputy Director of Consolidation decided the issues between the parties on the presumption that the land in dispute originally belonged to common ancestor. Obviously, he has committed an error of law as there is no such evidence nor the pleadings of the parties to show that the land in dispute was ever recorded in favour of common ancestor, Najari. Viewed as above, it is held that in the first set of plots which consists of 1852, 1853, 1854, 1855, 1939, 1943 total area 6-15-0 bighas, Mohd. Haneef, respondent no. 4 has got half share and the other half belongs to the branch of Nakchched. The finding returned by the Assistant Settlement Officer Consolidation is, therefore, confirmed and the judgment and order of the Deputy Director of Consolidation is, therefore, set aside in this regard, accordingly. Now, I take up the second set of plots. It has not been found by the Deputy Director of Consolidation nor there is any pleading or evidence to show that these plots were recorded in the name of predecessor in interest of the contesting respondents ever. Shri Shahid Masood, learned counsel appearing for the contesting respondents very fairly accepts the position that there is no iota of evidence to show that these plots were ever recorded in the name of the predecessor in interest of the contesting respondents. The evidence to the contrary is that these plots were originally recorded in the name of Nakchched and thereafter in favour of Abdullah and thereafter in the name of Dildar Husain and Gulzar Husain, the predecessors in interest of the petitioners. The Deputy Director of Consolidation, however, proceeded to hold 1/3rd share of the branch of Akbar Ali and Amir Ali each. He was of the view that Abdullah was a Karta of joint family and was the eldest one. Then, he assumed that the proceedings under section 145 Cr. P. C. in respect of plot No. 2153 was initiated wherein it was found that the said plot was in possession of Mohd. Haneef son of Mohd. Sarif (Respondent no. 4 ). The said approach of the Deputy Director of Consolidation is faulty for the reasons more than one. The assumption that there was some proceeding under section 145 Cr. P. C. wherein possession of Mohd. Haneef son of Mohd. Sarif (Respondent no. 4) was found, is factually incorrect. In para 24 of the writ petition it has been stated that no such proceeding under section 145 of Cr. P. C. was ever started rather a case No. 28/148 of 1956 under section 218/109 I. P. C. was started between Gulzar Husain and Ekramul and others against Lekhpal due to incorrect entry made over this plot in the name of Jahid Husain and Samsuddin in 1361 Fasli. The contents of the said paragraph have been replied by the contesting respondent no. 4 in para 20 of the counter affidavit, wherein it has not been denied that the proceedings were under section 218/109 of I. P. C against the Lekhpal for the entry of possession of Jahid Husain. It follows that the Deputy Director of Consolidation in the impugned order has wrongly presumed the said proceeding under section 145 Cr. P. C vitiates the order. Secondly, the concept of Karta of family which is prevalent among Hindus is foreign to Mohammadan law. No attempt was made and rightly so by the learned counsel appearing for the contesting respondents to support the order of the Deputy Director of Consolidation in this regard. This being the position, the order of the Deputy Director of Consolidation cannot be sustained. In the impugned order there is jurisdictional error apparent on the face of record. It has proceeded to decide the dispute by not applying the correct principle of law. Viewed as above, the impugned order so far as it relates to the second set of plots is concerned, is unsustainable and is liable to be quashed. In other words, it is held that in the said plots, the branch of Abdullah has got the exclusive tenancy rights and the findings to the contrary are hereby set aside. By way of clarification it is added that neither Akbar Ali nor Amir Ali or their successors in interest including the contesting respondents has any interest in the second set of plots. In view of the above discussion, the writ petition succeeds and is allowed with costs. The order of Deputy Director of Consolidation is hereby quashed. The order of Settlement Officer Consolidation is restored back subject to the observations made above. .