# Ram Dularey Singh & Ors v. Deputy Director of Consolidation & Ors

- **Citation:** (2024) 5 ILRA 1873
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-09
- **Case number:** Writ B No. 739 of 1982
- **Bench:** Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-dularey-singh-ors-v-deputy-director-of-consolidation-ors-51900
- **Pages:** 6

## Headnote

order
passed
by
Settlement Officer, Consolidation and Revisional
order impugned-undisputed fact between the
parties that the identity of the holdings has been
changed-was not in the identical form as it was
at the time of common ancestor and admitting
1874 INDIAN LAW REPORTS ALLAHABAD SERIES
the resettlement then it cannot be said that the
entry was made in favour of one Harnam Singh
in the representative capacity of his joint familypresumption with respect to jointness of family
and if proved then property inherited from
common ancestor will be deemed to be a joint
property of all-impugned order quashed-W.P.
allowed. (E-9)

List of Cases cited:

## Text

5 All. Ram Dularey Singh & Ors. Vs. Deputy Director of Consolidation & Ors.
1873

20. We are also not oblivious to the
fact that mere suspicion cannot constitute
"misconduct".
Any
"probability"
of
misconduct needs to be supported with oral
or documentary material, even though, the
standard of proof would obviously not be on
a par with that in a criminal trial. While
applying these yardsticks, the High Court is
expected to consider the existence of
differing
standards
and
approaches
amongst
different
Judges.
There
are
innumerable instances of judicial officers
who are liberal in granting bail, awarding
compensation under MACT or for acquired
land, back wages to workmen or mandatory
compensation in other cases of tortious
liabilities. Such relief-oriented judicial
approaches cannot by themselves be
grounds to cast aspersions on the honesty
and integrity of an officer.

21.
Furthermore,
one
cannot
overlook the reality of ours being a country,
wherein countless complainants are readily
available without hesitation to tarnish the
image of the judiciary, often for mere pennies
or
even
cheap
momentary
popularity.
Sometimes, a few disgruntled members of the
Bar also join hands with them, and the officers
of the subordinate judiciary are usually the
easiest target. It is, therefore, the duty of the
High Courts to extend their protective
umbrella and ensure that the upright and
straightforward judicial officers are not
subjected to unmerited onslaught."

17. A judicial order should inspire
confidence and a judicial order which does
not inspire confidence shall be set aside and
the manner of passing the order should be
above reproach and should be just, fair and
reasonable and should not leave any room
for suspicion or arbitrariness.

18. Arbitrariness in passing the order
dated 28.09.2000 is writ large on the face of
the order and the order sheet. The dates were
changed and the order sheet deliberately
manipulated so as to pass the order before
his superannuation. Such an exercise by a
Judicial
Officer
or
Revenue
Officer
discharging judicial functions is strongly
condemned.

19. From the discussion made above as
well as in view of the arguments raised by
the petitioners, no ground for interference in
the matter by this Court is made out. Hence
the prayer made by the petitioners in the
present writ petition are declined.

20. The writ petition being devoid of
merits is dismissed.
----------
(2024) 5 ILRA 1873
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.05.2024

BEFORE

THE HON'BLE MANISH KUMAR, J.

Writ B No. 739 of 1982

Ram Dularey Singh & Ors. ...Petitioners
Versus
Deputy Director of Consolidation & Ors.
 ...Respondents

Counsel for the Petitioners:
S. Mirza, Ashok Kumar Verma, Jagdish,
Nirmal Singh

Counsel for the Respondent:
C.S.C., Ashok Kumar Verma, Harguru
Charan, K.P Singh

Consolidation-Appellate
order
passed
by
Settlement Officer, Consolidation and Revisional
order impugned-undisputed fact between the
parties that the identity of the holdings has been
changed-was not in the identical form as it was
at the time of common ancestor and admitting
1874 INDIAN LAW REPORTS ALLAHABAD SERIES
the resettlement then it cannot be said that the
entry was made in favour of one Harnam Singh
in the representative capacity of his joint familypresumption with respect to jointness of family
and if proved then property inherited from
common ancestor will be deemed to be a joint
property of all-impugned order quashed-W.P.
allowed. (E-9)

List of Cases cited:

1. Jagdamba Singh & ors. Vs Dy. Director of
Consolidation & ors. reported in 1984 (2) LCD
page 398

2. Jai Narain Vs D.D.C. & ors. reported in (1979)
RD 198,

3. Bodh Raj Vs Joint Director of Consolidation
Faizabad & ors., in Writ Petition No.676 of 1980
connected with Writ Petition No.23 of 1980,
decided on 22.09.1995

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

1. Heard learned counsel for the
petitioners and Sri Ashok Kumar Verma,
learned counsel for the private respondents
and Sri Hemant Kumar Paney, learned
Additional Chief Standing Counsel.

2. During the pendency of the present
writ petition, after the demise of petitioner
no. 1, his legal heir /representative has been
substituted by Petitioner No. 1/1, after
demise of Petitioner No.3 his legal heirs
have been substituted by Petitioner No.3/1
and Petitioner No.3/2 and after the demise of
Petitioner No.3/1 his legal heir has been
substituted by petitioner No.3/1/1. Similarly
after the demise of respondent nos. 5 and 8,
their legal heirs have been substituted as 5/1
to 5/3 & 8/1 to 8/2 respectively, whereas
Respondent Nos.6 and 7 have died issueless.

3. The present writ petition has been
preferred for quashing of the impugned
appellate order dated 3.2.1981 passed by the
Settlement Officer, Consolidation and the
revisional order dated 16.01.1982 passed by
the Deputy Director of Consolidation.

4. Learned counsel for the petitioners
has submitted that Gata Nos. 210, 211,
212/1, 212/2, 214, 215, 216, 248, 249, 250,
251 and 252/1 situated at Village -
Pooremani, Pargana - Surajpur, Tehsil -
Ramsanehi Ghat, District - Barabanki is
under dispute between the parties. It is
further submitted that initially the lease of
Gata Nos. 123, 210, 211 and 251 was in
favour of Sheo Charan Singh, who had
expired in the year 1915. The petitioners are
grandson of Sheo Charan Singh i.e. son of
his
eldest
son
Harnam
Singh.
The
respondents are the great grandson of Sheo
Charan Singh being son of Awadhraj, who
was
son
of
Markandey
Singh
and
Markandey Singh was the second son of
Sheo Charan Singh.

5. It is further submitted that after the
demise of Sheo Charan Singh in the year
1915 the fresh lease was granted by the
zamindar in favour of father of the
petitioners Harnam Singh of Gata Nos.210,
211, 212/1, 212/2, 214, 215, 216, 248, 249,
250, 251 and 252/1 including Gata Nos. 210,
211 and 251 except Gata No. 123 which
were initially leased in favour of Sheo
Charan Singh. After a fresh lease executed
in favour of Harnam Singh, the father of the
petitioners, it could not be said to be
ancestral property on the basis of which the
respondents could claim their co-tenancy in
the same.

6. It is further submitted that the
holding had not come down and intact in the
identical form it was resettled in favour of
Late Harnam Singh the father of the
petitioners.
5 All. Ram Dularey Singh & Ors. Vs. Deputy Director of Consolidation & Ors.
1875

7. It is further submitted that the
finding given in the appeal by the Settlement
Officer, Consolidation that the respondents
have co-tenancy right in Gata No.210, 211
and 251. The original gatas which were
leased in favour of Sheo Charan Singh and
also held that the respondents are having cotenancy rights in Gata No.212/1, 212/2, 214,
215, 216, 248, 259, 250 and 252/1, newly
leased in favour of the petitioners, as the
same has been acquired from the ancestral
property without their being any evidence
that the newly leased gatas had been
acquired out of the funds of ancestral
property.

8. The revisional court without
appreciating this submission advanced by
the learned counsel for the petitioners had
affirmed the order passed by Settlement
Officer, Consolidation, feeling aggrieved by
the same the present writ petition has been
filed.

9. It is further submitted that after the
demise of Sheo Charan Singh neither
Markandey Singh nor Awadhraj Singh had
never raised any claim on the said gatas
newly settled with father of the petitioners
as mentioned above, even after the
resettlement in favour of Harnam Singh the
ancestor of the petitioners, thus it is clear
that the ancestors of the present respondents
had never laid any claim in respect of the
newly settled gatas consisting of 12 gatas.

10. It is further submitted that in other
villages the petitioners had not raised any
objection at the time of entry of names of the
respondents in the revenue records but only
in the present village it has been opposed.

11. On the other hand Sri Ashok
Kumar Verma, learned counsel for the
private respondents has submitted that it is
an ancestral property and name of Harnam
Singh was entered in representative capacity
being 'Karta' of the family.

12. It is further submitted that the
grandfather of the respondents expired in the
year 1919 and the father of the respondents
expired in the year 1955, at that time the
respondents were minor and living with
Harnam Singh father of the petitioners, who
was taking care of the respondents, so they
were living jointly and jointness of family is
proved from the said fact.

13. It is further submitted that the
statement were given by the witnesses
adduced by the respondents that it is a joint
family and the property acquired by the joint
family and being the eldest son name of
Harnam Singh was entered in the revenue
record in a representative capacity, so there
is no illegality in the orders passed by the
Settlement Officer, Consolidation and the
Deputy Director of Consolidation.

14. It is further submitted that the
respondents had established by the evidence
that the landlord had settled the land with
late Harnam Singh in the representative
capacity for all other members of the family
as well and that all the member of the joint
family come into possession over the land
which is blended and treated as Joint Hindu
Family
property.
In
support
of
his
submission,
learned
counsel
for
the
respondents has relied upon the judgement
of this Court passed in the case of Jagdamba
Singh and others vs. Dy. Director of
Consolidation and others reported in 1984
(2) LCD page 398, the relevant para relied
by the learned counsel for the respondent is
quoted hereinbelow:

"27. The acquisition of land in the
representative capacity either by the Karta
1876 INDIAN LAW REPORTS ALLAHABAD SERIES
or a member of joint family can be
established by the evidence led directly to
establish the fact that the landlord had
settled
the
land
with
him
in
the
representative capacity for all the other
members of the family as well and that all
the members of the joint family came into
possession over the land which was blended
and treated as joint family property. The
evidence establishing the fact about joint
possession of all the members of the joint
family, on the land of holding till it remained
undivided or over specific plots of the
holding by members of the family to the
extent of their respective shares, by way of
mutual partition in the event of separation in
the family and the payment of land revenue
by them either directly to landlord or
through the recorded person, would, no
doubt, be very material circumstance and a
piece of admissible corroborative evidence
to establish the fact regarding acquisition of
land in the representative capacity by the
recorded person. It may, however, be
expressed to clarify that merely by being in
possession over certain plots would alone be
not enough to establish that the land was
acquired by the recorded tenant in the
representative capacity because no amount
of common living and the use and enjoyment
of the land jointly or severally would make
the claimant a co-sharer in the holding or
for treating it to be joint family property
acquired in representative capacity. It has to
be established by cogent evidence that the
land was, in fact, acquired by the recorded
person as Karta in the representative
capacity for the benefit of all the members of
the joint family and it was blended and
always treated as joint family property by
the recorded persons without any objection
by the landlord to it and that the claimants
have remained in possession over the land
of the holding to the extent of their share in
it and paid its rent. It be also shown that the
possession of claimants over the land of the
disputed holding was in their own right and
not by way of any arrangement as licensee
on behalf of the recorded tenant or for any
other consideration on his behalf."

15. In reply, learned counsel for the
petitioners has also relied upon the same
judgement as relied by the learned counsel
for the respondents and drawn attention of
this Court to Para 15 of the judgement
passed in the case of Jagdamba Singh and
others
(Supra),
which
is
quoted
hereinbelow:

"15. In all the aforesaid decisions
it has been consistently held that in order to
uphold the claim of co-tenancy rights on the
ground of land being ancestral, it is
essential that the entire land of the holding
of the common ancestor must have come
down in the identical form an it must have
remained unchanged and intact. It would,
however, be correct to say that where as a
result of survey made during settlements, the
area of some plots might have decreased or
increased or that some plot or plots are
eliminated for some explained reason from
the holding in question viz. having fallen in
the bed of river due to the alluvial and
deluvial action of the river or by the
construction of the canal etc., then in such
event it cannot be said that there is break in
the identity of the holding in dispute. The
slight change like elimination of certain plot
or the increase or decrease in the area of
certain plots, for the aforesaid reasons
shown, would not operate to destroy the
identity of the holding coming down in
identical form in the family from the time of
common ancestor. But in order to uphold the
claim of co-tenancy rights on the ground of
land being ancestral it must be established
by the claimant that the holding has come
down intact and in identical form that it has
not been sub-divided or resettled with one or
5 All. Ram Dularey Singh & Ors. Vs. Deputy Director of Consolidation & Ors.
1877
some of the heirs or with the strangers.
Thus, where the disputed holding has not
come intact in the identical form and only
some of the plots of the holding belonging to
common ancestor are found included as in
the present disputed holding it would not
make it ancestral holding so as to give a
share in it to the claimants on that ground
nor it would be permissible to pick up those
plots from the holding and declare them to
be ancestral property and give a share in
those plots to the claimant."

16. After hearing the learned counsel
for the parties and going through the record
of the case the dispute is with regard to the
gata numbers as mentioned in the preceding
paragraphs. The issue which is to be decided
by this Court is whether the gata numbers
mentioned above could be treated as an
ancestral property for the purpose of giving
right of co-tenancy to the respondents or not
and whether apart from the gata numbers
which were originally leased in favour of
Sheo Charan Singh whether in that the
respondents have any co-tenancy right or
not.

17. It is an admitted case between both
the parties that the lease which was granted in
favour of Sheo Charan Singh was with regard
to Gata Nos.123, 210, 211 and 251 and after
his demise in the year 1915 the resettlement
was made in favour of Harnam Singh for Gata
Nos.210, 211, 251 (original gatas for which
the lease was in favour of Sheo Charan Singh),
leaving out Gata No.123 which was also in
original lease. The new lease included 9 more
new gatas alongwith 3 old gatas i.e. Gata
Nos.212/1, 212/2, 214, 215, 216, 248, 249,
250 and 252/1.

18. Learned counsel for the petitioners
has submitted that by the resettlement the
identity of holding has been changed and it is
not the same which was at the time of earlier
lease in favour of Shiv Charan Singh, so the
settlement cannot be said to be in the
representative capacity of the joint family.

19. Learned counsel for the respondents
has very fairly submitted that the respondents
are not in a position to dispute the change of
the identity of the holdings as record speaks
from itself. It is also very fairly submitted by
Sri Ashok Kumar Verma that the respondents
are not disputing the resettlement in favour of
Harnam Singh but the only thing is that the
said settlement is for the whole family and the
name of Harnam Singh was entered in the
representative capacity of the joint family.

20. The judgement which has been relied
by the learned counsel for the parties i.e. the
Case of Jagdamga Singh (Supra), wherein it
has been held that in order to uphold the claim
of co-tenancy right on the ground of being a
common ancestor, it must be established by
the claimant that the holdings has come down
intact and in identical form.

21. The undisputed fact between the
parties that the identity of the holdings has been
changed and it was not in the identical form as it
was at the time of common ancestor and
admitting the resettlement then it cannot be said
that the entry was made in favour of Harnam
Singh in the representative capacity of his joint
family.

22. The finding given by the appellate
court that 9 gata numbers as discussed above
was acquired from the proceeds of original gatas
leased in favour of Sheo Charan Singh for
admitting the case of the respondents of cotenancy could also not sustained for the reason
that the re-settlement of all the gatas in a one go.
It is not the case that initially the gata numbers
which were leased in favour of Sheo Charan
Singh was leased in favouir of Harnam Singh,
1878 INDIAN LAW REPORTS ALLAHABAD SERIES
thereafter the nine other gatas were acquired
subsequently.

23. Once the identity of the holding has
completely changed, more particularly one Gata
No.123 which was originally leased in favour of
Sheo Charan Singh was not part of the
resettlement in favour of Harman Singh
alongwith new gatas, it could not be said that it
is a property of common ancestor.

24. The respondents though examined
witnesses in their favour, who had given
statements but none of the statements supported
by any documents, rather it is an undisputed
case, even on the part of the respondents that the
identity of the holdings has been changed and the
fresh resettlement was made.

25. The findings of jointness would not
lead to inference that the property is ancestral
property as it has been held by Hon'ble Supreme
Court as well as by this Court in catena of
decisions. In the case of Jai Narain v. D.D.C. &
others reported in (1979) RD 198, it was held
that the presumption is only in respect of
jointness and not that any property acquired by
members of the family is a joint family property
and this is a matter of evidence and not of
presumption. In the present case, the respondents
have failed to adduce any evidence that the
property is a joint family property.

26. In the case of Bodh Raj v. Joint
Director of Consolidation Faizabad and
Others, in Writ Petition No.676 of 1980
connected with Writ Petition No.23 of 1980,
decided on 22.09.1995, wherein it has been held
that there is a presumption with respect to the
jointness of family and if it is shown or proved to
the satisfaction of the Court then property
inherited from a common ancestor will be
deemed to be a joint property of all. It is also
clarified in the said judgement that joint family
funds must be used for purchase of the property
in order to make it joint and property is entered
in the name of one person then it has to be proved
by other party, who claims to be a joint property
that it was acquired by the joint family funds,
which the respondents have failed to establish.

27. As far as submission of learned counsel
for the petitioners that in other villages, the
petitioners had not objected when the names of
respondents were entered into revenue records
but only in the village of Pooremani, the
objection has been raised. It infers that where the
respondents have their lawful claim, the
respondents had not objected and where they are
not entitled to get the right of co-tenancy, it has
been objected.

28. Under these circumstances, the
appellate order and the revisiaonal order are not
sustainable and are liable to be quashed.

29. Accordingly, the writ petition is
allowed.

30. The impugned appellate order dated
3.2.1981 passed by the Settlement Officer
(Consolidation) and the revisional order dated
16.01.1982 passed by the revisional court are set
aside.
----------
(2024) 5 ILRA 1878
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.05.2024

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ B No. 5686 of 1980

Gaya Prasad & Ors. ...Petitioners
Versus
J.D.C. & Ors. ...Respondents

Counsel for the Petitioners: