TAHIR Vs. DEPUTY DIRECTOR OF CONSOLIDATION GONDA

JUDGEMENT

(1.) -In the present writ petition dispute relates to three plots, namely, plots Nos. 763, 1321 and 1355 of Khata No. 24 situate in village Utraula, District Gonda. These plots were recorded in the names of Bachchu Lal deceased opposite party no. 4 in the basic year records. Bachchu Lai died during the pendency of this writ petition and his heirs and legal representatives are substituted. Although name of Bachchu Lal was recorded as Sirdar tenant on Khata No. 24 in the basic year Khatauni, but the name of petitioner Tahir son of Ramjan was recorded in Class 9 in part II of basic year records. Upon the publication of records under section 9 of U. P. Consolidation of Holdings Act, hereinafter referred to as ' as the Act ', petitioner filed objection claiming Sirdari rights in the aforesaid plots on the basis of adverse possession. Two more objections were filed in respect of the plots in question. Smt. Mulha widow of Bismilla filed objection claiming Sirdari rights in the Khata in dispute on the basis of possession. Another objection was filed by one Riyazul Rauf claiming to be Sirdar tenure holder of the plots in dispute. Smt. Mulha did not pursue her objection. It was accordingly dismissed for want of prosecution. Riyazul Rauf and petitioner Tahir claimed Sirdari rights in separate objections which were contested by deceased opposite party no. 4 Bachchu Lal who asserted to be tenure-holder and in possession over the land in dispute. Riyazul Rauf claimed that he had filed a suit under section 209 of the U. P. Zamindari Abolition and Land Reforms Act against Bachchu Lal. This suit No. 112 of 1957 was decreed exparte and possession was delivered on 13-7-1959. The Consolidation Officer after considering the relevant entries in revenue records, rejected the claim of Riyazul Rauf and held that exparte decree was obtained by him when Bachchu Lal was lodged in jail. He also held that Riyazul Rauf was in possession only upto 1367 Fasli. The claim of petitioner Tahir was rejected by the Consolidation Officer merely on the ground that it had been established as to on what basis his name was recorded in the revenue records since 1368 F. Learned counsel held that since entries in favour of Tahir recorded from 1368 F. were not made in accordance with the law, and, as such, he could not be held to have acquired Sirdari rights on the basis of those entries. He, however, did not discuss any other evidence led by the parties. Aggrieved by order dated 27-2-1975 passed by the Consolidation Officer petitioner as well as Riyazul Rauf filed appeals which were dismissed, vide order dated 11-2-1976 passed by the Settlement Officer Consolidation. He also rejected the claim of the petitioner on the same ground as was rejected by the Consolidation Officer. Appeal filed by Riyazul Rauf was also rejected. Aggrieved by it petitioner preferred a revision. No revision was filed by Riyazul Rauf. Before the revisional court petitioner filed a copy of the decree dated 28-11-1970 passed in suit filed by Bachchu Lal against petitioner Tahir u/Sec. 229-B and 209 of the U. P. Zamindari Abolition and Land Reforms Act. This suit was said to have been decided on the basis of compromise filed by the parties, a true copy of which has been annexed as Annexure 4 to the writ petition. In this compromise it is recited that plaintiff Bachchu Lal is Sirdar and in possession over plot No. 1321 while defendant Tahir is in possession as Sirdar tenant over plot nos. 763 and 1355 and the plaintiff Bachchu Lal had no concern with these plots and the same be recorded in the name of defendant Tahir. This suit was thus decreed in terms of the compromise on 28-11-70. Learned Deputy Director of Consolidation permitted petitioner to file the said documents. He also summoned the original records of said suit filed under sec. 229-B/209 of the Act decided on 28-11-1970, wherein petitioner Tahir was declared to be Sirdar-tenant of the aforesaid two plots in dispute, namely, plots nos. 763 and 1355. The revision of the petitioner was, however, dismissed by the Deputy Director of Consolidation viae order dated 13-9-1977 by holding that the compromise decree did not operate as res-judicata although the same may operate as estoppel, but since pleadings with regard to estoppel had not not been specifically raised by the petitioner, and. as such, he could not get any benefit of the said compromise decree Thus relying upon a decision of the Court reported in 1973 RD 339, learned Deputy Director of Consolidation held that the question with regard to binding effect of the aforesaid decree between the parties could not be permitted to be raised in the revision for want of pleadings to that effect. So far as Class 9 entries are concerned, learned Deputy Director of Consolidation observed that no evidence had been led by the revisionist Tahir to show that any PA 10 was issued and served on the recorded tenure-holder. Learned Deputy Director of Consolidation considered no other evidence with regard to possession and title as set up by the petitioner and rejected the revision by the impugned order on 13-9-1977. These orders have been challenged by the petitioner in the present writ petition.

(2.) LEARNED counsel for the petitioner Sri Jai Pal Singh holding brief of Sri Hari Shanker Sahai, Advocate, vehemently urged that in the suit tiled by the deceased opposite party no. 4 Bachchu Lal against the petitioner under section 229-B/209 of the U. P. Zamindari Abolition and Land Reforms Act, a compromse was arrived at between the parties which was filed and verified and thereupon on its basis the suit was decreed on 28-11-1970. LEARNED counsel stressed that although the genuineness of the compromise decree passed in the said suit between the parties was not challenged but the original record was also summoned to ascertain genuineness of the same. LEARNED counsel, however, urged that the Deputy Director of Consolidation committed manifest error in not taking into consideration the aforesaid compromise decree passed in the said sui- to which the parties were bound. The decree could not be ignored and the same was binding on opposite party No. 4 who since 1970 had not taken steps to avoid the same nor it was ever challenged by him. LEARNED counsel urged that the case of the petitioner could not have been rejected merely on technicalities of pleadings as has been done by the Deputy Director of Consolidation and in support of his contention he referred to a decision in Jugun v. Deputy Director of Consolidation, Gorakhpur, 1984 Revenue Judgment 142, wherein it has been held that the technical rule of pleadings does not apply to the consolidation authorities and consolidation courts have to decide the cases after considering evidence on record tendered by the parties in support of their respective claims. LEARNED counsel thus urged that the Deputy Director of Consolidation committed a manifest error in not taking into consideration the aforesaid decree dated 28-11-1970 and in not ordering the petitioner to be recorded as Sirdar-tenant of plot Nos. 763 and 1355. LEARNED counsel further contended that the said decree would not become ineffective and unenforcible in law merely on the statement of the petitioner recorded in the case wherein he had under some confusion and mis-understanding could not state about the said decree passed in aforesaid suit on compromise especially when the genuineness of the said decree could not be doubted and it stood verified by the perusal of the original record which was summoned by the Deputy Director of Consolidation. LEARNED counsel further contended that the Deputy Director of Consolidation wrongly observed in the impugned order that the petitioner had not led any evidence to establish the fact that PA 10 was issued and served upon opposite party No. 4 in respect of the land in dispute recording possession of the petitioner. He referred to the order passed by the Consolidation Officer wherein it has been mentioned that the petitioner had filed extract of Khasra of 1364 F to 1379 F. and Khatauni for 1377 F. to 1379 F. and also extract of PA 10, copy of which was obtained from the record of 1368 F. Petitioner has also filed extract of Khatauni 1377 F. wherein he is recorded in clause 9. LEARNED counsel thus urged that the Deputy Director of Consolidation committed a manifest error in rejecting the claim of the petitioner on assumption of wrong facts and taking erroneous view with regard to the aforesaid decree in question He, thus, urged that the order passed by the Deputy Director of Consolidation and also passed by subordinate consolidation authorities deserve to be quashed and the petitioner deserves to be declared as Sirdar tenants in respect of the aforesaid two plots namely 763 and 1355 for which he was held to be Sirdar tenant and over which he has proved his continuous possession right from 1368 F. onwards. It was pointed out by the learned counsel that clause 9 entry was made in pursuance of the order passed oh the issue of PA 10 in respect of the land in dispute. LEARNED counsel thus urged that the order passed by the consolidation authorities rejecting the claim of the petitioner deserves to be quashed and the petitioner deserves to be declared Sirdar tenant of the land in dispute.

(3.) LEARNED counsel further urged that since opposite party No 4 was a Sirdar tenant, and, as such, no compromise could be entered between the parties recognising sirdari rights of the petitioner in the aforesaid two plots. Such a compromise would amount the illegal transfer in respect of these plots, which could not be done either voluntarily or involuntarily. Thus according to the learned counsel the Deputy Director of Consolidation committed no error in not giving effect to said compromise decree especially when the petitioner had not based his claim on it. It was also urged by the Iearned counsel that the Consolidation Officer as well as the appellate and revisional courts have committed no error in rejecting the clause 9 entry in favour of the petitioner and also to Khasra entries regarding possession of the petitioner from 1369 F. onwards as the entries in revenue record were not made in accordance with the provisions of U. P. Land Record Manual. LEARNED counsel urged that although extract of P.A. 10 was filed by the petitioner but no evidence was led to the effect that it was also served on the petitioner. Clause 9 entry was thus not made in accordance with the provisions of the Land Record Manual, and, as such, the same has rightly been rejected. He thus submitted that no interference is called for by this court in exercise of powers under Article 226 of the Constitution.