# Jawahar & Ors v. D.D.C. Faizabad & Ors

- **Citation:** (2021) 7 ILRA 121
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-12
- **Case number:** Consolidation No. 117 of 2005
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jawahar-ors-v-d-d-c-faizabad-ors-47148
- **Pages:** 8

## Headnote

C.S.C., M.A. Siddiqui

Consolidation
Proceedings
-
U.P.
Zamindari Abolition and Land Reforms
Act, 1950: Section 171- In case the name
of any person has been left to be recorded
by mistake or for some other reasons it
cannot be said that the right of a male
lineal descendant accrued to him by
operation of law has been extinguished.
(Para 16).

During verification of records at the time of
consolidation proceedings, it was found that the
petitioners are also entitled for half of the
shares in the land in dispute therefore an
objection was filed. (Para 17)

Writ Petition Allowed. (E-8)

List of Cases cited:

## Text

7 All. Jawahar & Ors. Vs. D.D.C. Faizabad & Ors.
121
period of six months from the date a copy
of ordered produced before it.

17. The writ petition is partly
allowed.

18. Since both the parties are
represented before this Court, this Court
feels it appropriate to fix a date before
learned Appellate Court for appeal to be
taken up. Let the Appeal be taken up for
hearing before the District Judge, Lucknow
on 28.07.2021.
----------
(2021)07ILR A121
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.07.2021

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Consolidation No. 117 of 2005

Jawahar & Ors. ...Petitioners
Versus
D.D.C. Faizabad & Ors. ...Respondents

Counsel for the Petitioners:
Radhey Shyam Tiwari, Vinod Kumar Singh

Counsel for the Respondents:
C.S.C., M.A. Siddiqui

Consolidation
Proceedings
-
U.P.
Zamindari Abolition and Land Reforms
Act, 1950: Section 171- In case the name
of any person has been left to be recorded
by mistake or for some other reasons it
cannot be said that the right of a male
lineal descendant accrued to him by
operation of law has been extinguished.
(Para 16).

During verification of records at the time of
consolidation proceedings, it was found that the
petitioners are also entitled for half of the
shares in the land in dispute therefore an
objection was filed. (Para 17)

Writ Petition Allowed. (E-8)

List of Cases cited:

1. Beni Prasad & ors. Vs Deputy Director of
Consolidation, Allahabad & ors. 1986 All. 999
I(followed)

2. Shri Ram & ors. Vs Deputy Director of
Consolidation, Allahabad & ors. 2011 (29) LCD
764 (followed)

3. Shahid Khan & ors. Vs Deputy Director of
Consolidation, Gautam Buddha Nagar & ors.
2011 (113) RD 723 (followed)

4. Bhagwat Sharan (Dead through LRs.) Vs
Purshottam
&
ors.
2020
(6)
SCC
387
(distinguished)

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Sri R.R. Upadhyaya,
learned counsel for the petitioner and Sri
Aftab Ahmad, Advocate holding brief of
Sri M.A.Siddiqui, learned counsel for the
respondents no. 2 and 3. Notice on behalf
of respondent no.1 has been accepted by
learned Chief Standing Counsel.

2. The instant writ petition has been
filed
challenging
the
order
dated
27.11.2004 passed by the Deputy Director
of Consolidation, Faizabad (respondent
no.1) in Revision No.986 / 165.

3. The brief facts, for adjudication of
the present case, are that the land in dispute
relating to Khata No.169 situated in
Village- Chandipur Nagahra was recorded
in the name of Tulsi Ram son of Ram
Sanehi, Khata No.87 situated in Bansawa
was recorded in the name of Ram Sanehi
122 INDIAN LAW REPORTS ALLAHABAD SERIES
son of Sahti and Khata No.857 situated in
the Village- Mehdauna was recorded in the
name of Tulsi Ram son of Ram Sanehi in
the basic year. The dispute was also
recorded, showing the mistake and on the
basis of enquiry, that the petitioners are the
co-tenure holders of the land in dispute so
their names should also be recorded. On
publication of records, an objection was
filed
under
Section
9(2)
of
the
Consolidation of Holdings Act, 1953 (herein-after referred as the Act of 1953) by the
father of the petitioners about half share in
above Khatas i.e. in the land in dispute
before Assistant Consolidation Officer
(here-in-after referred as the A.C.O.). The
matter could not be settled therefore A.C.O.
referred the matter to the Consolidation
Officer for adjudication. The Consolidation
Officer, after consolidating all the cases,
framed six issues on the basis of pleadings
of the parties. After considering the
evidence adduced by the parties and the
pleadings,
the
Consolidation
Officer
allowed the objection and directed to
record the name of the petitioners also as
per their shares by means of the order dated
08.02.2002 as their father had died during
pendency of the case. The respondents no.2
and 3 filed an appeal because their father
had also died during pendency of the case
before the Consolidation Officer.

4. The Appeal No.6297 / 5474 under
Section 11(1) of the Act of 1953 was
dismissed
by
the
Settlement
Officer
Consolidation (here-in-after referred as
S.O.C.) by means of the order dated
18.04.2003. Being aggrieved a revision
under Section 48 of the Act of 1953 was
filed before the Deputy Director of
Consolidation (here-in-after referred as
D.D.C.), Faizabad now Ayodhya which was
allowed by means of the order dated
19.11.2004 and the orders passed by the
Consolidation Officer and the S.O.C. have
been quashed. Hence the present writ
petition has been filed.

5. Submission of learned counsel for
the petitioners was that the land in dispute
was acquired by a common ancestor of the
petitioners and the respondents no.2 and 3,
Sahti son of Bandhan. Sahti had two sons;
Ram Sanehi and Budhai. Budhai was a
dancer and living out in Burma for the
purposes of earning therefore the name of
only Ram Sanehi was recorded and the
name of Budhai; predecessor-in-interest of
the petitioners was left to be recorded in the
records after death of Sahti, while the land
in dispute which was coming from the
common ancestor was devolved on both the
sons as per section 171 of the U.P.
Zamidari Abolition and Land Reforms Act,
1950 (here-in-after referred as the Act of
1950). Therefore in case the name of the
predecessor in interest of the petitioners
was left to be recorded it can not be said
that their right was extinguished. Therefore
at the time of verification of records during
the consolidation proceedings a dispute was
recorded in CH Form-5 to the effect that
the petitioners are also entitled for half of
the
share
in
the
land
in
dispute.
Accordingly objection was duly considered
and allowed after considering the evidence
adduced by the parties.

6. The father of the respondents no.2
and 3 had admitted in his evidence that
Budhai
i.e.
the
grandfather
of
the
petitioners was his uncle. He further
submitted that the objection regarding
Section 11(A) was neither raised nor any
issue was framed by the Consolidation
Officer therefore it could not have been
considered. The appeal filed by the
respondents no.2 and 3 was also dismissed
but the revision has been allowed without
7 All. Jawahar & Ors. Vs. D.D.C. Faizabad & Ors.
123
considering the aforesaid and setting aside
the findings recorded by the Consolidation
Officer and the S.O.C. only on the ground
that no objection was filed at the time of
first consolidation.

7. He had also submitted that the
learned D.D.C. has wrongly and illegally
held that it could not be proved that the
land in dispute was acquired by the
common ancestor and was coming in the
same form. He had also submitted that the
respondents had tried to create a doubt by
making a new plea of another pedigree
before the appellate court which was
rejected. He had also submitted that there
was no issue of jointness of family or joint
nucleus because the land was coming from
a common ancestor but the learned D.D.C.
has wrongly and illegally considered it and
held that it could not be proved.

8. On the basis of above, learned
counsel for the petitioners had submitted
that the impugned order is not sustainable
in eyes of law and liable to be quashed and
the writ petition is liable to be allowed. He
relied on Beni Prasad and Others Vs.
Deputy
Director
of
Consolidation,
Allahabad and Others; 1986 All. 999, and
Shri Ram and Others Vs. Deputy Director
of Consolidation, Allahabad and Others;
2011 (29) LCD 764.

9. Per contra, learned counsel for the
respondents no.2 and 3 had submitted that
the petitioners' grandfather had not filed
any objection
at
the
time
of
first
consolidation which was held around the
year
1962
therefore
in
the
second
consolidation he could not have filed any
objection and it was barred by Section
11(A) of the Act of 1953. The respondents
no.2 and 3 had raised a ground in the
appeal but the same was not considered and
the revisional authority after considering it
has rightly allowed the revision on the
ground that the objection raised by the
petitioners is barred by Section 11(A) of the
Act of 1953. There is no illegality or
infirmity in it. The writ petition has been
filed on misconceived and baseless ground
which is liable to be dismissed. He relied
on Shahid Khan and Others Vs. Deputy
Director
of
Consolidation,
Gautam
Budhha Nagar and Others; 2011 (113) RD
723 and Bhagwat Sharan (Dead through
LRs.) Vs. Purshottam and Others; 2020
(6) SCC 387.

10. I have considered the submissions
of learned counsel for the parties and
perused the record.

11. The dispute relates to Khata
No.169 situated in Village- Chandipur
Nagahra, Khata No.87 situated in Village-
Bansawa and Khata No.857 situated in
Village- Mehdauna. On publication of
records after enquiry in the consolidation
proceedings, an objection under Section
9(2) was filed by Budhai, grandfather of
the petitioners no.1 and 2 which was
objected by the father of the respondents
no.2 and 3. The claim was set up on the
basis of following pedigree:-

Bandhan

 I

_______Sahti________

I

I

Ram Sanehi
Budhai

I

 I

Tulsi Ram

Ram Bahore

(died during case) (died during case)
124 INDIAN LAW REPORTS ALLAHABAD SERIES

___________I____________
_______I_________________
I

 I

I
I
 I
Ram Nath Gaya Prasad Jawahar Ram
Anjore Smt. Bhagwanta
(O.P. No.2) (O.P. No.3) (Pr. No.1) (Pr.
No.2) (Pr. No.3)

12.
 The
learned
Consolidation
Officer, after examining the records and the
evidence adduced before it, recorded a
categorical finding that the land in dispute
was recorded in the name of Sahti son of
Bandhan in the earlier records which were
of 1356-65 Fasli, 1362-65 Fasli, 1360-66
Fasli and 1368 Fasli etc. He has also
recorded that the name of common ancestor
of the parties Sahti is recorded in the
documents which have been filed by the
respondents also in support of their claim.
Tulsi Ram, the father of the respondents
no.2 and 3, who got himself examined in
evidence had also admitted that मेरे बाबा का
नाम सहती था। उनको सहतु भी कहते थे। मेरे
बाबा के बाप का नाम बंिन था। सहतु के दो
लड़के राम सनेही, बुिई थे। बुिई के लड़के राम
बहोर है तथा राम सनेही का मै लड़का हूँ। बुिई
मेरे सगे चाचा थे। बुिई कब मरे मै समझता नहीं
हूँ। उनकी शक्ल मैंने देखा नहीं था। यह सही है
णक राम सनेही बुिई सगे भाई थे । बुिई राम
सनेही कब अलग हुए थे मैं नहीं जानता हूँ। A
copy of the statement has been filed as
annexure no.19 to the writ petition. As such
it was admitted by the respondents that
Sahti was the common ancestor of the
parties and Budhai was the real brother of
Ram Sanehi and when they separated, it
was not known, therefore partition has not
been proved. It was also proved from the
record that the land in dispute was acquired
by Sahti son of Bandhan. Therefore after
death of Sahti, the land devolved on Ram
Sanehi and Budhai both and the names of
both should have been recorded but since
the name of only Ram Sanehi was recorded
and Budhai was left to be recorded by
mistake
therefore
the
objection
was
allowed.

13. In the objection filed by the
respondents
before
the
Consolidation
Officer the plea of Section 11 (A) was not
taken but in the appeal a plea was taken
that the objection is barred by Section
11(A) and a fresh case was also sought to
be set up by presenting a fresh pedigree and
depicting that Budhai had two sons; Sahti
and Bahti and Ram Sanehi was the son of
Sahti and it was acquired by Sahti. It was
also pleaded that the partition had already
taken place therefore the petitioners are not
entitled for any co-tenancy and share. The
learned appellate court, after examining the
records and evidence, found that the
pedigree set up by the respondents is off the
record and this plea was not taken before
the lower court. The land in dispute was
recorded in the name of Sahti son of
Bandhan who was the common ancestor of
the
parties.
Accordingly
the
S.O.C.
dismissed the appeal holding that the
respondents have failed to prove that
Bandhan had two sons; Sahti and Bahti
whereas it was admitted by Tulsi Ram in
his evidence that the name of his
grandfather was Sahti who was used to be
called Sahtoo also and the name of his
father was Bandhan. Sahti had two sons;
Ram Sanehi and Budhai and Budhai was
his real uncle. Therefore, it is apparent that
the respondents had tried to deny the claim
to the petitioners fraudulently on the basis
of false pleading.

14. The respondents no.2 and 3 had
filed
the
revision.
The
revisional
authority recorded a finding that the
petitioners have failed to prove the
jointness of two families from any
7 All. Jawahar & Ors. Vs. D.D.C. Faizabad & Ors.
125
document while it is apparent from the
oral evidence that the partition had taken
place at the time of ancestor of the
petitioners namely Budhai therefore the
findings recorded by the revisional
authority are not sustainable because on
the one hand he is saying that on the basis
of oral evidence, it has been found that
the partition had taken place at the time
of Budhai against the admission of
Tulsiram that he does not know when
Budhai and Ram Sanehi had separated
and it has also not been proved that if
separated
what
was
given
to
the
petitioners. On the other hand he has
recorded a finding that jointness of two
families could not be shown by any
documentary evidence while it was not
the case of anybody therefore it is not
sustainable in the eyes of law. This Court
also failed to find from any record placed
before this Court that there was any issue
of jointness of two families or joint
nucleous whereas the case in hand is that
the land in dispute was acquired by
common ancestor of the parties, Sahti son
of Bandhan, therefore it was devolved on
both the sons of Sahti equally as per
Section 171 of the Act of 1950 or not. If
it was devolved on both the sons, the
name of the petitioners should also be
recorded.

15. The revisional authority has
allowed the revision on the ground of
bar under Section 11(A). While this
plea was not taken in the memo of
revision which is annexed as annexure
no.5
to
the
writ
petition.
The
revisional
authority,
also
without
setting
aside
the
factual
and
concurrent findings recorded by the
Consolidation Officer and S.O.C.,
held that it is not proved that the land
in dispute was recorded in the
name of the common ancestor of the
parties and it was coming in the same
form while a categorical finding has
been recorded by the Consolidation
Officer
and
the
S.O.C.
after
considering the evidence and previous
records also and giving the old and
new
numbers
of
plots.
Learned
Revisional Authority has also failed to
consider that the grandfather of the
petitioners lived his most of the life
out and he had come only four years
ago whereas Ram Sanehi was living
here, which has not been disputed by
the
opposite
parties.
In
these
undisputed facts and circumstances, if
the name of the petitioners could not
be recorded, it can not be a ground to
deny
the
rightful
claim,
if
the
petitioners are entitled for the same in
accordance with law.

16. Section 171 of the Act of
1950 provides that Subject to the
provisions of Section 169, when a
bhumidhar or asami, being a male
dies, his interest in his holding shall
devolve upon his heirs being the
relatives specified in sub-section (2).
Sub-section 2 (A) provides widow,
unmarried daughter and the male
lineal descendant per stirps. Therefore
on the death of a bhumidhar or asami
his land shall devolve on his male
lineal descendant i.e. sons and others,
if any, by operation of law. The names
are to be recorded in the revenue
records
in
accordance
with
the
procedure
prescribed
by
law.
Therefore, in case the name of any
person has been left to be recorded by
mistake or for some other reasons it
can not be said that the right of a male
126 INDIAN LAW REPORTS ALLAHABAD SERIES
lineal descendant accrued to him by
operation
of
law
has
been
extinguished.

17. In the present case, during
verification of records at the time of
consolidation proceedings, it was found that
the petitioners are also entitled for half of the
shares in the land in dispute therefore this
dispute was also recorded. As such on
objection being filed it can be examined in
case it is found that there are valid reasons the
right can not be taken away because in view
of Section-9, 9(A) and 11(A) it is the duty of
A.C.O. to make an enquiry and in case it is
found that there are some other legal heirs
also he has to record it and refer the matter to
the Consolidation Officer for adjudication,
who has to adjudicate after considering the
pleadings and evidence adduced by the
parties.

18. So far as the ground of Section
11(A) is concerned, this plea was neither
raised nor any issue was framed and
considered by the Consolidation Officer so
it can also not be said as to whether the
land in dispute was in consolidation or not
in earlier consolidation operation, and if it
was, any notice was issued and served on
the predecessor-in-interest of petitioners or
not. Section 9(2) of the Act provides that
any person to whom a notice under subsection (1) has been sent, or any other
person interested may, within 21 days of
the receipt of notice, or of the publication
under sub-section (1), as the case may be,
file before the Assistant Consolidation
Officer, objections in respect thereof
disputing the correctness or nature of the
entries in the records or in the extracts
furnished therefrom, or in the Statement of
Principles, or the need for partition. A
substantive right accrued to a person can
not be taken away merely on the basis of
some procedural lapse, however it would
be material and may be fatal in case any
other person was claiming the land in
dispute on the basis of adverse possession
or otherwise.

19. This Court, considered similar
issue in the case of Shri Ram and Others
Vs. Deputy Director of Consolidation,
Allahabad and Others (Supra), which was
decided by a Division Bench on being
referred by a Single Judge. In the said case
the objection of the respondent no.3 therein
and the appeal was dismissed on the ground
that the claim of the respondent no.3 is
barred under Section 49 of the Act, 1953,
since the claim of co-tenancy was not
raised during the earlier consolidation
proceeding but the revision filed by the
respondent no.3 was allowed and he was
declared co-tenant to extent of half of the
share. The Division Bench has held that the
Act, 1953, was enacted with the object of
ensuring compactness of holdings and also
to provide a forum for settlement of
disputes of all nature including rules in
relation of land, mistakes in the revenue
records and shares of tenure holders etc. It
has further held that in filing objection no
kind of limitation can be read in filing
objection under Sections 9 and 9A, nor
there can be any classification on the
ground of disputes of recent past or dispute
of remote past. When an objection can be
filed by any interested person, objection
can be raised on any conceivable or valid
ground and to read any prohibition in the
provision that objection should relate to
only recent disputes is doing violence to the
express provision of the Act. It has further
been observed that law pertaining to land
tenure is principally for determining rights
of peasants of this country who earn their
livelihood from agriculture. Most of them
are not literate enough to know their rights
7 All. Jawahar & Ors. Vs. D.D.C. Faizabad & Ors.
127
and vigilantly assert their rights. The other
relevant paragraph nos.57 to 61, 63 and 64
are extracted below:-

"57. The Assistant Consolidation
Officer, under Section 9Aof the Act, 1953, is
entitled to settle the disputes even in cases
where any objection is not filed on the basis
of conciliation for eg. with regard to a plot,
name of one branch of a family is recorded
and the name of two other branches are not
recorded. A dispute is raised at the time of
partal (survey) which is noticed by the
consolidation officials and if no objection
is filed by the person claiming co-tenancy
right, the Assistant Consolidation Officer is
fully empowered under Section 9A, of the
Act, 1953 to decide the dispute on the basis
of conciliation between the parties in
accordance with the rules.

58. Taking a case, where the
parties agree for conciliation and by
conciliation, shares are allotted and the
dispute is decided according to rules, the
same shall be perfectly in accordance with
the scheme of the Act.

59. Taking a converse case, i.e. if
objections are filed claiming co-tenancy
rights by a branch of a family whose name
is not recorded for the last say 50 years, if
the interpretation put by the learned Single
Judge is accepted, such objections are to be
treated as barred.

60. Thus for the same dispute
although by conciliation it can be decided,
but on objection it cannot be decided would
lead to anomalous results, which cannot be
the intention of the legislature. Thus no
such implied bar for filing objections can
be read into the provisions of Section 49.

61. The entries in the revenue
records raise only a presumption which is a
rebuttable presumption. There is one more
principle i.e. presumption of correctness of
entries can apply to only genuine not
forged or fraudulent entries. If the bar is
read in filing objections against such
entries it would lead to injustice.

63. It is relevant to note that even
the records prepared in consolidation
proceedings
raise
only
a
rebutabble
presumption. Section 27(1)) and 27 (2) of
the Act, 1953 are quoted below:

"27.(1) As soon as may be, after
the final Consolidation Scheme has come
into force, the district Deputy Director of
Consolidation shall cause to be prepared
for each village, a new map, field-book and
record
of
rights
in
respect
of
the
consolidation area, on the basis of the
entries in the map, as corrected under
Section 7 7, the Khasra chakbandi, the
annual register prepared under Section 10
and the allotment orders as finally made
and
issued
in
accordance
with
the
provisions of this Act. The provisions of the
Uttar Pradesh Land Revenue Act, 1901,
shall, subject to such modifications and
alterations as may be prescribed, be
followed in the preparation of the said map
and records.

(2). All entries in the record of
rights prepared in accordance with the
provisions of sub-section (1) shall be
presumed to be true until the contrary is
proved."

64. Thus, when the revenue
entries raise only a rebuttable presumption
a party objecting to the said entry can
always by sufficient evidence rebut the
presumption. Shutting out such objections
at the very threshold cannot be said to be in
accordance with the provisions of the Act,
1953."

20. This Court, in the case of Beni
Prasad and Others Vs. Deputy Director of
Consolidation, Allahabad and Others
128 INDIAN LAW REPORTS ALLAHABAD SERIES
(Supra), has held that if sections 9, 9A and
11A are read together the only possible
conclusion is that even in these cases where
no objections has been filed, the Assistant
Consolidation Officer would make an
enquiry and he would refer the matter to
the Consolidation Officer and he shall
decide the same in accordance with the
procedure prescribed particularly in view of
Rule 25 A(2), Rule 26 and Rule 27 of the
rules framed under the U.P. Consolidation
Of Holdings Act. Therefore, once a dispute
was
recorded
by
the
Assistant
Consolidation Officer and on objection
being filed the same was referred to the
Consolidation Officer, it is incumbent to
the Consolidation Officer to decide the
same in accordance with law.

21. This Court, in the case of Shahid
Khan and Others Vs. Deputy Director of
Consolidation, Gautam Buddha Nagar
and Others (Supra), has held that there is a
bar also created during the consolidation
operations
itself
under
Section
11-A
therefore the petitioners will have to
establish that there was a cause of action
existing so as to allow them to file
objections under Section 9-A in the second
round of consolidation proceedings. In the
present case undisputedly the predecessor
in interest of petitioner at the relevant point
of time i.e. at the alleged time of earlier
round of consolidation proceeding was out
and it has also not been proved that any
notice was served to him. This plea was
also not taken before the Consolidation
Officer, therefore it could not be examined
so it can not be said that the objection filed
by the petitioner could not have been filed
or examined. During enquiry (Padtal) it
was recorded that the petitioners are
entitled for half share, therefore it has
rightly been examined and decided.

22. The judgment of Hon'ble Supreme
Court in the case of Bhagwat Sharan
(Dead through LRs.) Vs. Purshottam and
Others (Supra) relied by learned counsel
for the opposite parties no.2 and 3 is in
regard to the Hindu undivided family
which is not applicable on the facts and
circumstances of the present case.

23. In view of above, this Court is of
the considered view that the impugned
Judgment and order is not sustainable in the
eyes of law and liable to be quashed.

24. The writ petition is, accordingly,
allowed. The
impugned
order
dated
27.11.2004 passed by A.D.M. Executive /
Deputy Director of Consolidation, Faizabad
in Revision No.986 of 165 contained in
annexure no.1 to the writ petition is hereby
quashed. No order as to costs.

25. The consequences shall follow
accordingly as per law.
----------
(2021)07ILR A128
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.07.2021

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Consolidation No. 4845 of 1985

Ram Lakhan ...Petitioner
Versus
J.D.C. & Ors. ...Respondents

Counsel for the Petitioners:
A.S.
Chaudhary,
Arun
Kumar
Yadav,
Prabhakar Vardhan Chaudha

Counsel for the Respondents:
C.S.C., S.P. Tiwari