# Smt. Dhanraji & Ors v. Dy. Director of Consolidation, Varanasi & Ors

- **Citation:** (2023) 4 ILRA 272
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-03
- **Case number:** Writ-B No. 14278 of 1986
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-dhanraji-ors-v-dy-director-of-consolidation-varanasi-ors-50103
- **Pages:** 27

## Headnote

Civil Law-Constitution of India, 1950-Article
226-Uttar Pradesh Consolidation of Holdings
Act, 1953-Sections 5(c) (ii) & 12- Writ
petition against the orders rejecting the
petitioners' claim for mutation- Absolutely
no requirement of a previous written
permission from the Settlement Officer of
Consolidation in transferring the entire
holding by a bhumidhar during time that a
consolidation scheme is in force- Authorities
below have committed a manifest error of
law in holding the sale deed to be void for
violation of Section 5(c)(ii)- It is not this
Court's province to re appreciate evidence
but to ensure that the Authorities of fact
below do not omit relevant evidence by
basing their findings on stray St.ments here
and there.(Para 46, 47, 50)

Evidence Act, 1872-Sections 107 & 108-
Section 107 raises a presumption that a
4 All. Smt. Dhanraji & Ors. Vs. Dy. Director of Consolidation, Varanasi & Ors.
273
person is alive if it is shown that he/ she
was alive within thirty years, and the
burden of proving that he/ she is dead is
on the person who asserts the fact-
Section 108 is in the nature of a proviso to
Section 107, though
an
independent
Section, it opens with words 'Provided
that
when".
Harmoniously
construed,
Sections 107 and 108 form an integral
scheme on the question, who in the
normal course of events is to be presumed
alive and who can be presumed dead- A
presumption of civil death under Section
108 cannot be drawn merely because
some persons of acquaintance have not
heard of the missing person in the span of
seven
years
last
Impugned
orders
quashed-Matter
remitted
to
The
Consolidation Officer. (Para 55, 57, 74)

Petition Allowed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,688 of 93,498. This is a partial read: ask again with offset=39688 for what follows._

272 INDIAN LAW REPORTS ALLAHABAD SERIES
pensionary benefits as he was not fulfilling
the requirement of Rule, 14. Further, in that
case, minimum requirement for grant of
pension was 20 years of qualifying service
whereas in the present case, minimum
requirement of qualifying service for
pension as well as leave encashment is 10
years. It is the case of petitioner that he is
having qualifying service of 10 years,
which was not denied in the counter
affidavit. Learned counsel for respondentBank has also not produced any Rules
which prohibits for payment of pension and
other retiral benefits as in the case of State
Bank of India (Supra).

14. In the light of Clause 6(b) of
Settlement, 2002 as well as judgment of
Apex Court passed in Bank of Baroda
(Supra), petitioner is fully entitled for
retiral benefits and the same cannot be
taken away by the way of Circular, which
is in violation of Settlement, 2010.

15. Therefore, under such facts of the
case as well as law laid down by the Apex
Court, let a writ of certiorari is issued
quashing paragraph-3 of Circular dated
24.08.2010 as well as impugned orders
dated 13.10.2010 & 11.08.2014.

16. Accordingly, writ petition is
allowed.

17. No order as to costs.

18.

Respondents-authorities
are
directed to pay all retiral benefits including
pension/leave
encashment
provided
petitioner fulfils all other requirements
required under the Rules of Bank.

19. Liberty is given to the Bank to
adjust the amount of loan advanced to the
petitioner from the Bank and also from
Bank of India Employees Cooperative
Credit Society Ltd., if already not adjusted.
----------
(2023) 4 ILRA 272
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-B No. 14278 of 1986

Smt. Dhanraji & Ors. ...Petitioners
Versus
Dy. Director of Consolidation, Varanasi &
Ors. ...Respondents

Counsel for the Petitioners:
Sri Shashi Kumar Dwivedi, Sri Hanuman
Kinkar, Sri V.K.S. Chaudhary, Sri R.S.
Maurya, Sri Manoj Kumar Singh

Counsel for the Respondents:
Sri Triveni Shanker, Sri Awadhesh Kumar,
Sri R.K. Pandey, Sri S. Rai, Sri A.R. Dubey,
Sri L.P. Singh, Sri Manish Pandey

Civil Law-Constitution of India, 1950-Article
226-Uttar Pradesh Consolidation of Holdings
Act, 1953-Sections 5(c) (ii) & 12- Writ
petition against the orders rejecting the
petitioners' claim for mutation- Absolutely
no requirement of a previous written
permission from the Settlement Officer of
Consolidation in transferring the entire
holding by a bhumidhar during time that a
consolidation scheme is in force- Authorities
below have committed a manifest error of
law in holding the sale deed to be void for
violation of Section 5(c)(ii)- It is not this
Court's province to re appreciate evidence
but to ensure that the Authorities of fact
below do not omit relevant evidence by
basing their findings on stray St.ments here
and there.(Para 46, 47, 50)

Evidence Act, 1872-Sections 107 & 108-
Section 107 raises a presumption that a
4 All. Smt. Dhanraji & Ors. Vs. Dy. Director of Consolidation, Varanasi & Ors.
273
person is alive if it is shown that he/ she
was alive within thirty years, and the
burden of proving that he/ she is dead is
on the person who asserts the fact-
Section 108 is in the nature of a proviso to
Section 107, though
an
independent
Section, it opens with words 'Provided
that
when".
Harmoniously
construed,
Sections 107 and 108 form an integral
scheme on the question, who in the
normal course of events is to be presumed
alive and who can be presumed dead- A
presumption of civil death under Section
108 cannot be drawn merely because
some persons of acquaintance have not
heard of the missing person in the span of
seven
years
last
Impugned
orders
quashed-Matter
remitted
to
The
Consolidation Officer. (Para 55, 57, 74)

Petition Allowed. (E-15)

List of Cases cited:

1. E. Mahboob Saheb Vs N. Sabbarayan
Chowdhary & ors., (1982) 1 SCC 180

2. Narayanan Rajendran & anr. Vs Lekshmy
Sarojini & ors., (2009) 5 SCC 264

3. Kondiba Dagadu Kadam Vs Savitribai Sopan
Gujar & ors., (1999) 3 SCC 722

4. Smt. Ram Rati & ors. Vs Gram Samaj, Jehwa
and Ors., AIR 1974 All 106

5. Foran Singh & ors. Vs Deputy Director of
Consolidation & ors., 1993 (1) AWC 192

6. East Punjab Province Vs Bachan Singh & ors.,
AIR 1957 Punj 316

7. LIC of India Vs Anuradha (2004) 10 SCC 131

8. Fani Bhusan Banerjee Vs Surja Kant Roy
Chowdhury & anr., 1907 SCC OnLine Cal 20 :
(1906- 07) 11 CWN 883

9. Jeshankar Revashankar Vs Bai Divali, AIR
1920 Bom 85 (2)

10. Muhammad Sharif & anr. Vs Bande Ali &
ors., (1911) 8 ALJ 1052
11. Narayana Pillai Vs Velayuthan Pillai, AIR
1963 Mad 385

12. Saroop Singh Vs Banto & ors., (2005) 8 SCC
330

(Delivered by Hon'ble J.J. Munir, J.)

1. The petitioners, who are eight in
number, impugn the validity of the orders
dated
05.06.1986,
05.09.1985
and
02.11.1979 passed by the Deputy Director
of
Consolidation,
Varanasi,
Camp
Gyanpur, the Assistant Settlement Officer
of Consolidation, Varanasi (West) and the
Consolidation Officer, Gyanpur, District
Varanasi (now Bhadohi), respectively,
rejecting the petitioners' claim for mutation
of their rights over land, which shall be
hereinafter morefully described.

2. The facts giving rise to this petition
are required to be noticed about their
salient features, which are these:

One Balraji, widow of Chandra
Shekhar, was the recorded tenure holder of
the following plot numbers, which are
shown below in tabular form indicating the
old numbers and the new:

Old Number
New
Number
Chak
Number
292, 293/1, 293/2,
345,
346,
347,
348/1,
349,
363,
364, 521, 1161/347,
1162/346
366
68
196, 197, 198, 199,
200, 201, 202, 203
331
457, 475, 476, 479,
480 (mi.), 481
306अ
482/1, 482/2, 483,
484,
485,
488/1,
569, 570, 571, 572,
573/2,
474,
475,
306ब
274 INDIAN LAW REPORTS ALLAHABAD SERIES
481 (mi.)

3. Apart from the land, above
mentioned, that was agricultural and,
therefore, consolidated into a chak in Smt.
Balraji's name, bearing Chak No.68, Smt.
Balraji also owned certain plot numbers
that did not qualify as land under the Act of
1953 and were, therefore, excluded from
the consolidation scheme. Plots of land,
that were not included as part of Chak
No.68, belonging to Balraji, are shown
below, also in tabular form:

Land excluded fron consolidation
operations
Old Number
New Number
102
799
167ङ
899
150ङ
847
156ग
879
212क
53(min.)
218ई.
66(min.)
378ख
382

4. The dispute is with regard to land
recorded in the basic year in the name of
Smt. Balraji, comprising Chak No.68. It is
the petitioners' case that the land in dispute
was sold in favour of petitioner Nos.1 to 7
by petitioner No.8, Smt. Balraji vide
registered sale deed dated 29.05.1974.
Later on, a deed of rectification dated
12.07.1974 was excuted by Smt. Balraji,
inasmuch as in the sale deed dated
29.05.1974, one of the plots transferred in
favour of petitioner Nos.1 to 7 was
mentioned
as
Plot
No.161/347,
admeasuring 2 biswa 17 dhoor by an
inadvertent clerical error, whereas the
correct number of the plot sold was
1161/347 for the same area.

5. It is the petitioners' further case that
by time the sale deed dated 29.05.1974
came to be executed, the chak carved out
had been confirmed and the tenure holders
delivered possession over their respective
chak. Through the sale deed dated
29.05.1974, therefore, the entire area of
Chak No.68 was transferred by Balraji to
petitioner Nos.1 to 7. In addition, the sale
deed also transferred certain other plots of
land, that were outside the consolidation
scheme. The old plot numbers no longer
remained in existence and Chak No.68 had
become identifiable in terms of the four
new numbers as renumbered during the
consolidation operations. Therefore, it is
the petitioners' case that a typographical
error in the mention of one of the plots,
comprising the chak with reference to its
old number would not affect the identity of
the property transferred through the sale
deed dated 29.05.1974 (for short, 'the sale
deed').

6. It is also the petitioners' case that
though in the basic year Smt. Balraji was
recorded over a large tract of land, one
Smt. Devraji, a half sister of Balraji's
deceased husband, Chandra Shekhar and
another Ram Jag, an uncle of the late
Chandra Shekhar, filed objections during
the consolidation operations much before
the sale deed was executed, claiming a
share in Chandra Shekhar's land, that had
come to be recorded in Balraji's name. The
said objections were compromised and
Smt. Devraji given a share in the holding
inherited by Smt. Balraji from Chandra
Shekhar. It is the petitioners' case that
nobody else filed objections under Section
9-A of the Act of 1953.

7. At the end of the consolidation,
Chak No.68 was carved out in the name of
Smt. Balraji out of land comprising plots,
4 All. Smt. Dhanraji & Ors. Vs. Dy. Director of Consolidation, Varanasi & Ors.
275
which were already recorded in Balraji's
name. The petitioners' Chak No.68 largely
comprised of land that was held as
bhumidhari and some of it comprised
sirdari holding also. The sale deed under
reference, apart from transferring all that
comprised Chak No.68, also conveyed
Balraji's land, that was excluded from
consolidation operation, and shown as
excluded plots, detailed in the sale deed.
The dispute in this petition is with regard to
land comprising Chak No.68, which shall
hereinafter be referred to as 'the land in
dispute'.

8. It is also the petitioners' case that
petitioner Nos.1 to 6 are members of one
family, whereas petitioner No.7, Rudra
Prasad son of Khilodhar Pandey is
Balraji's brother. All of them having
acquired interest in the land in dispute
through the sale deed executed by Smt.
Balraji, filed an application under Section
12 of the Act of 1953, seeking mutation
of their name on the basis of the sale
deed. The application for mutation was
filed before the Consolidation Authorities
under Section 12 of the Act last
mentioned, because at the relevant time,
consolidation operations in the Village
had still not been denotified. The
petitioners' application under Section 12
was registered as Case No.611.

9. It is the petitioners' case that
proclamation
was
issued,
but
no
objections filed. At the hearing of the
application, Smt. Balraji, petitioner No.8,
gave testimony before the Assistant
Consolidation Officer supporting transfer
of title in favour of petitioner Nos.1 to 7
through the sale deed that she had
executed. The Assistant Consolidation
Officer allowed the application by his
order dated 16.07.1974. The order of
mutation
was
carried
out
in
the
consolidation records on 07.08.1974.

10. It appears that one Kamla
Shankar, who was the Village Pradhan,
filed an appeal on 12.09.1974 against the
order dated 16.07.1974 passed by the
Assistant Consolidation Officer, granting
the
mutation
application
made
by
petitioner Nos.1 to 7. No appeal was
carried by any other person aggrieved.
The Assistant Settlement Officer of
Consolidation allowed the appeal vide his
order dated 12.09.1974 and remanded the
case to the Consolidation Officer for
decision afresh. The petitioners appeared
before the Consolidation Officer, but they
say that the case was adjourned at the
instance of Kamla Shankar, the Village
Pradhan, who was inimically disposed
towards them.

11. On 24.11.1975 another set of
objections were filed by Asharam under
Section 12 of the Act of 1953 claiming
bhumidhari rights on the basis of some
kind of an agreement to sell between him
and Smt. Balraji. In the alternate, Asharam
claimed sirdari rights to the land in dispute
on the basis of possession. It must be
remarked here that in the objections filed
by Asharam, a copy of which is annexed as
Annexure No.4 to the writ petition, there is
no case of an heirship pleaded by him,
entitling him to inherit the land in dispute
from Balraji upon the latter's demise
intestate. Though, Asharam has said that
Balraji was issueless and an aunt of his, it
is not indicated by any precise description
of
relationship
through
bloodline
or
marriage, how Asharam was an heir of
Balraji's, entitling him to inherit the land in
dispute.
There
is
no
pedigree
also
propounded by Asharam in his objections/
application under Section 12 filed before
276 INDIAN LAW REPORTS ALLAHABAD SERIES
the Consolidation Officer, connecting him
to Balraji as an heir. All that Asharam says
in his objection is that about 7 or 8 years
ago, Smt. Balraji expressed her wish to go
on a pilgrimage. Asharam thereupon paid
her a sum of Rs.5000/- in order to enable
her to perform the pilgrimage. Smt. Balraji
in lieu of aforesaid money that she
received, put Asharam in ownership
possession of the land in dispute and said
that once back from pilgrimage, she would
execute a sale deed in Asharam's favour,
after receiving a further consideration of
Rs.10,000/-. The objections proceed that
Smt. Balraji never returned from her
pilgrimage to Village Duhia.

12. It is also pleaded in the
application/ objections filed by Asharam
that he had come to know that some
persons had set up an imposter for Balraji
and got a forged sale deed executed on her
behalf relating to the land in dispute (in
order to cause wrongful loss to Asharam).
The further objection is that Asharam is in
possession of the land in dispute and no
one else has any right, title or interest
therein.

13. In substance, as already remarked,
the application for mutation or objection to
the petitioners' claim for mutation on behalf
of Asharam, is based on a right arising
from an oral agreement of sorts between
Balraji and Asharam, and in the alternate,
upon possession of the land in dispute
being given to the latter, entitling him to
sirdari rights under the U.P. Z.A. & L.R.
Act.

14. Apart from the objections/
application moved by Asharam, objections
were also filed on behalf of the Gaon
Sabha by the Pradhan, Kamla Shankar,
saying that Balraji went to pilgrimage 10
years ago and has not returned till date nor
has she been heard of. It was also the Gaon
Sabha's case that she has no heir entitled to
inherit, and, therefore, her land would vest
in the Gaon Sabha. The Gaon Sabha,
therefore, prayed that after expunging Smt.
Balraji's name from the revenue records,
the said land be recorded in the Gaon
Sabha's Khata.

15. On the pleaded case of parties, the
Consolidation Officer framed the following
issues (translated into English from Hindi):

"1. Whether Dhan Raji and
others, on the basis of the sale deed
executed by Mst. Balraji, are bhumidhars
in possession of the land in dispute?

2. Whether Smt. Balraji went to
pilgrimage and until the present time has
not returned; and, she has not executed the
sale deed? If yes, its effect?

3. Whether the sale deed in
favour of Dhan Raji and others is valid?

4. Whether Mst. Balraji has died
issueless and the land is vested in the Gram
Sabha?

5. Whether the objections filed by
the Gram Sabha are valid?

6.
Whether
Asharam
is
bhumidhar in possession over the land in
dispute in accordance with his objections?"

16. The Consolidation Officer has
dealt with Issues Nos.1, 2 and 3 together.
The Consolidation Officer has remarked
that the sale deed has been executed in
favour of seven persons by Smt. Balraji or
the woman claimed to be her, and all these
persons are residents of different districts,
to wit, Varanasi, Mirzapur and Jaunpur. In
her testimony, Balraji, who has appeared,
has said that she does not know the vendees
and that she has not executed any sale deed
in their favour. It has also been remarked
4 All. Smt. Dhanraji & Ors. Vs. Dy. Director of Consolidation, Varanasi & Ors.
277
that none of the vendees has been produced
as a witness. It is then observed by the
Consolidation Officer that the sale deed
shows payment of a sale consideration of
Rs.35,808/-, out of which Rs.17,200/- are
shown to be paid to some creditor on a
pronote, but no pronote or receipt has been
produced. Rs.3700/- are said to have been
paid earlier, but no witness about this
transaction has been produced. It is then
remarked that witness, Surendra Nath has
identified his signatures on the sale deed,
but has not identified Smt. Balraji's thumb
mark.

17. It is then noticed by the
Consolidation Officer that Smt. Balraji,
who has been produced, has been called an
imposter by Asharam and not the real
Balraji. Smt. Balraji, who has testified, has
said that her eyesight is weak, and has
further said that two years ago when she
executed the sale deed, her eyesight was
weak at the time. Balraji has been noted to
have said in her testimony that no
permission for execution of the sale deed
had been secured by her. She has said that
she came once to the Registrar's office.
Coming once to the Registrar's office has
been frowned upon by the Consolidation
Officer, because there is also a deed of
rectification said to be executed by Smt.
Balraji.

18. The Consolidation Officer has
picked up disjunct pieces of evidence from
the testimony of Balraji's father, Khilodhar
to say that Khilodhar has stated that
Balraji's brother did not attend the
Registrar's office on the date the sale deed
was executed, whereas Balraji says that all
the seven vendees were present in the
Registrar's office when the deed was
executed and registered. It has also been
noticed that Balraji says that she had
received Rs.35,000-36,000/- before the
Registrar and had affixed her thumb mark
twice.

19. It is also noticed that Balraji has
testified that she had spoken to the vendees
about the proposed sale, but has said at the
same time that she had not executed the
sale deed in favour of Visheshwar Barhai's
son or in favour of Kaluram Barhai. She
has also said that she does not know Jai
Shankar or Vinod Kumar (petitioner Nos.4
and 5) and had not executed any sale deed
in their favour. From these facts, the
Consolidation Officer has opined that the
sale deed is not one executed by Balraji.

20. About a certain witness, Rama
Shankar, the Consolidation Officer has
observed that though this witness is one,
who has identified Smt. Balraji, but Smt.
Balraji has testified that she does not know
him, nor has the said witness witnessed the
sale deed. It is then observed that
Khilodhar in his testimony has testified that
he is Balraji's father and further said that he
did not know that Balraji, who had
executed a sale deed in favour of Dhan Raji
and others, was the same person, who had
executed a sale deed in his son Rudra
Prasad's favour. He has also said that on the
date of execution of the sale deed, he was
accompanying Balraji. It is then remarked
by the Consolidation Officer that there is
no reason why he has not identified Balraji.
It is observed that this gives rise to
suspicion about the petitioners' case.

21. There is a reference to the
testimony of the petitioners' witness,
Doodhnath, who has said that on the date of
the sale deed, the petitioners were in
possession. The witness has further been
noticed to have said that none of the
vendees was present, whereas Balraji has
278 INDIAN LAW REPORTS ALLAHABAD SERIES
said that on the date of execution of the sale
deed, all the vendees were present in the
Registrar's office. It is remarked by the
Consolidation Officer that there is no sale deed
executed in favour of Doodhnath and, therefore,
there is no question of possession being
delivered to him. His testimony has been
discarded as untrustworthy. It is remarked that
no evidence has been led on behalf of Smt.
Dhan Raji and others (the petitioners), which
may prove that they are in possession of the
land in dispute. It is also observed that some of
the plots comprising the land in dispute were
held as sirdari by Smt. Balraji, about which it is
said that she paid 20 times the land revenue on
the date she executed the sale deed, but no
bhumidhari sanad has been placed on record.
On the basis of the aforesaid findings, it is
concluded that the sale deed executed by Smt.
Balraji is not valid.

22. The Consolidation Officer then
proceeded to observe that on behalf of
Asharam,
Jagdamba,
Sabhajeet,
Girdhari
Yadav and Mahendra Nath, the Panchayat
Secretary, Village Duhia have testified. They
have produced the Family Register relating to
the Village and in the said register, Balraji's
name is not entered. The Consolidation Officer
has drawn an inference that the absence of
Balraji's name in the Family Register of the
Village shows for the 10 years past, she did not
live in Village Duhia. It is then noticed that
Jagdamba Prasad, Vijay Nath and Sabhajeet in
their testimony have said that Smt. Balraji had
proceeded on pilgrimage, but never returned. It
is held by the Consolidation Officer that there is
no reason to disbelieve the testimony of these
witnesses. There is then an abrupt remark by
the Consolidation Officer that from these facts,
it is proved that Smt. Balraji is missing
(laapata) for more than seven years and her
civil death has to be presumed. On 29.07.1974,
the presence of Balraji is not established. The
said fact has also been acknowledged by Kamla
Shankar, Pradhan that Smt. Balraji had
proceeded on a pilgrimage and her whereabouts
are not known since. The conclusion reached by
the Consolidation Officer from these facts is
that Smt. Balraji was not alive on 29.05.1974,
and, therefore, could not have executed the sale
deed in favour of Dhan Raji. Smt. Dhan Raji
does not, therefore, derive any title under the
sale deed. It is in this manner that Issues Nos.1,
2 and 3 were answered by the Consolidation
Officer.

23. Issues Nos.4 and 6 were dealt with
together by the Consolidation Officer with the
opening remark that the two issues being interrelated, were being answered at once. It is
noticed by the Consolidation Officer that
Kamla Shankar, the Village Pradhan, Village
Duhia has said that Smt. Balraji had proceeded
on a pilgrimage 10 years ago and her
whereabouts are not known since. As such, her
civil death has to be presumed. It is further
noticed that the Village Pradhan has said that
Smt. Balraji has left no heir. Therefore,
according to the Pradhan, the land in dispute
would vest in the Gaon Sabha. The
Consolidation Officer has noticed on the other
hand, that Asharam, respondent No.4 here, has
claimed himself to be Balraji's lawful heir,
entitled to inherit the land in dispute. In his
objections, he has propounded a pedigree, that
has been set out by the Consolidation Officer in
his findings on Issues Nos.4 and 6. The said
pedigree is to the following effect:
4 All. Smt. Dhanraji & Ors. Vs. Dy. Director of Consolidation, Varanasi & Ors.
279

24. It has then been observed that
Asharam saying that Chandra Shekhar predeceased his father, Ram Manorath and
further that at the time of Ram Manorath's
demise, his brother, Ram Sundar was alive,
the pedigree propounded being proved by
Jagdamba Prasad, a native of Village Duhia
as well as by Kamla Shankar, the Pradhan,
there is no reason to disbelieve the
pedigree. It is also observed that Sabhajeet
and
Girdhari
Yadav,
witnesses
for
respondent No.4, Asharam, have said that
Asharam is in possession of the land in
dispute and further that Smt. Balraji is
Asharam's aunt (Chachi). This assertion
has also been read in aid of believing the
pedigree. It is then held on the basis of the
pedigree that by virtue of Section 171 of
the U.P. Z.A. & L.R. Act, Asharam would
be Smt. Balraji's heir, entitled to inherit. The
Gaon Sabha's claim based on escheat and that
of the petitioners founded on the sale deed, has
been discarded by the Consolidation Officer. At
the same time, the claim of Asharam,
respondent No.4, based on heirship founded on
the pedigree, entitling him to inherit the land in
dispute, presuming a civil death for Balraji, has
been accepted by the Consolidation Officer. He
has, therefore, ordered that name of Balraji be
expunged from the land in dispute and that of
Asharam, respondent No.4, be recorded in her
stead as her heir. The objections of the Gaon
Sabha and those of petitioners Nos.1 to 7 were
ordered to be rejected.

25.

The
order
passed
by
the
Consolidation Officer was questioned by
petitioner Nos.1 to 6 by means of Appeal
No.319, under Section 11(1) of the Act of 1953.
Another appeal was preferred by Gaon Sabha
from the same order, which was numbered as
Appeal No.329.

26.

The
petitioners
filed
an
application for additional evidence at the
stage of appeal, seeking to bring on record
the following documents:

(i) A copy of the Patwari's report
in connection with deaths and mutations
relating to Village Duhia for the year 1288
Fasli;

(ii) A copy of the Dakhal Dehani
in Case No.12 of Village Duhia, decided on
12.06.1901; and,

(iii)
A
certificate
dated
05.08.1985 issued by the Union Bank of
India, Branch Koirauna, certifying that
there was a deposit of Rs.15,000/- in the
name of Smt. Balraji, the certificate being
one dated 28.01.1981.

27. The first of the two documents
were produced in additional evidence to
show that the name of Ram Sundar's father
was not Devi Das, but Jai Mangal, a fact
incorrectly testified to on behalf of the
respondents; also, incorrectly introduced
through a pedigree, that was mentioned in
the testimony on behalf of Asharam. The
certificate from the Bank was produced to
show that the money held in deposit in Smt.
Balraji's account by the Bank were
proceeds of the sale that she had received
after paying off her creditor. These
documents if considered could prove many
other things regarding the petitioners' case.
The
Assistant
Settlement
Officer
of
Consolidation, who heard the two appeals,
treating Appeal No.319 by the petitioners
as the leading case, proceeded to dismiss
both by his order dated 05.09.1985,
affirming
the
Consolidation
Officer.
Amongst many others, the petitioners make
a grievance that the documents that were
produced and admitted in additional
evidence by the Assistant Settlement
Officer of Consolidation were not at all
considered
by
him
while
rendering
judgment in the appeal.
280 INDIAN LAW REPORTS ALLAHABAD SERIES

28. The petitioners and the Gaon
Sabha, both preferred revisions from the
orders of the Consolidation Officer and the
Assistant
Settlement
Officer
of
Consolidation under Section 48(1) of the
Act of 1953. The petitioners' revision was
numbered
as
Revision
No.795/874,
whereas that of the Gaon Sabha as
Revision
No.892.
Here,
again
the
petitioners' revision was heard by the
Deputy Director of Consolidation as the
leading case and decided by means of a
common
judgment
and
order
dated
05.06.1986. The
Deputy
Director
of
Consolidation dismissed both the revisions,
affirming the Authorities below.

29. Aggrieved, this writ petition has
been preferred.

30. Pending the writ petition, the first
petitioner, Smt. Dhan Raji has passed away
and was represented on record by her sons,
Chandu Lal and Dudhnath, petitioner
Nos.1/1 and 1/2, respectively. Further on,
during the long pendency of the writ
petition, Dudhnath also passed away and is
represented on record by his seven sons,
Anoop,
Raj
Kumar,
Prem
Kumar
Chaurasiya, Vijay Chaurasiya, Ashish
Kumar, Ravi Shankar Chaurasiya and Nand
Kumar Chaurasiya, petitioner Nos.1/2/1,
1/2/2, 1/2/3, 1/2/4, 1/2/5, 1/2/6 and 1/2/7,
respectively.
The
fourth
respondent,
Asharam also passed away pending the writ
petition and his heirs too were brought on
record, to wit, Karta Ram Shukla and Ram
Abhilash Shukla, both sons of Asharam.
Ram Abhilash Shukla also passed away
meanwhile and, therefore, Ram Abhilash's
interest and ultimately that of Asharam was
represented by the latter's sons, Jai Prakash
Shukla, Sada Nand Shukla, Shailesh
Shukla, Rajesh Kumar Shukla and Pawan
Kumar Shukla. Karta Ram Shukla has been
substituted as respondent Nos.4/1, whereas
the late Ram Abhilash Shukla is shown in
the array as deceased respondent Nos.4/2,
represented by his five heirs and LRs,
numbered as respondent Nos.4/2/1 to 4/2/5.

31. Heard Mr. Shashi Kumar
Dwivedi, learned Counsel appearing for
petitioner Nos. 1/1, 1/2/1, 1/2/2, 1/2/3,
1/2/4, 1/2/5, 1/2/6, 1/2/7, 2, 3 and 5, Mr.
Hanuman
Kinkar,
learned
Counsel
appearing on behalf of petitioner No.4 and
Mr. Triveni Shanker, Advocate along with
Mr. Awadesh Kumar and Mr. R.K. Pandey,
learned Counsel appearing on behalf of
respondent nos. 4/1, 4/2/1, 4/2/2, 4/2/3,
4/2/4 and 4/2/5.

32. It is argued by Mr. Shashi Kumar
Dwivedi and Mr. Hanuman Kinkar, learned
Counsel appearing for the petitioners that
Asharam in his objections under Section 12
never came up with a case of inheritance as
an heir of Balraji's. It was after the
petitioners' evidence had closed in support
of their case based on the sale deed that
Asharam in his evidence in support of a
case that was never about heirship,
propounded a pedigree for the first time
and laid claim on its basis. It is urged that
the Consolidation Officer committed a
manifest error in holding Asharam to be
Balraji's heir while Smt. Balraji was alive
and testified before the Consolidation
Officer. It is also argued that the finding of
the Consolidation Officer that Balraji was
an imposter is perverse, because there is
overwhelming testimony on record by
Balraji's father, whose identity has not been
doubted, identifying Balraji as his daughter,
testifying in Court.

33. It is urged on behalf of the
petitioners that the sale deed has not been
cancelled till date by a Court of competent
4 All. Smt. Dhanraji & Ors. Vs. Dy. Director of Consolidation, Varanasi & Ors.
281
jurisdiction and no one has challenged the
deed of rectification. It is, particularly,
argued that the Consolidation Authorities
have concurrently erred in holding it to be a
case of transfer of a part of the holding by
Smt. Balraji, attracting the consequences
under Section 5(c)(ii) of the Act of 1953 as
the transfer embodied in the sale deed was
one made without permission from the
Settlement Officer of Consolidation. It is
argued that the deed of rectification is not
about a plot that was left out in the sale
deed, but about the incorrect mention of a
plot number, going by the old numbering.
The sale deed conveyed the whole of Chak
No.68, which would include every part and
all plots therein, including the one that was
rectified from one mentioned as Plot
Nos.161/347 to 1161/347, both of which
bear reference to the same plot with an
identical area of 2 biswa 17 dhur.
According to the learned Counsel, there is,
thus, no case of part transfer of the holding
so as to render the sale deed executed by
Smt. Balraji, admittedly without permission
from the Settlement Officer, void under
Section 5(c)(ii) of the Act of 1953.

34. It is also argued that the
Authorities
below
have
perversely
concluded that Smt. Balraji, who appeared
before the Consolidation Officer was an
imposter, inasmuch as she was identified,
amongst other witnesses by Khilodhar, her
father and Rudra Prasad, her brother, both
of whom testified in support of the
petitioners' case. Their identity was not
doubted.

35. It is also submitted that the
Deputy Director of Consolidation has
incorrectly remarked that Balraji had not
affixed her thumb impression on all pages
of the sale deed, which runs into a number
of seven. It is submitted that Balraji's
testimony has been perversely read by the
Authorities below to conclude that she
affixed her thumb impression on two pages
alone, whereas what Balraji said in her
evidence was that she twice thumb marked
the sale deed. The only inference from
Balraji's testimony is that she once thumb
marked the document at the time of
execution, and a second time, before the
Sub-Registrar, when it was registered. It is
urged that every page of the sale deed is
thumb marked.

36. It is also argued that Surendra
Nath Srivastava, who is the Scribe of the
sale deed as well as the deed of
rectification, was examined on behalf of the
petitioners as PW-1. The witness has said
that he knew the parties well before hand
and testified to the fact that the deed was
executed by Balraji. It is also argued that
the presumption about Balraji's death has
been wrongly drawn, because she was
admitted to be alive within 30 years and no
one had seen her die. There is absolutely no
evidence of her reputed or acknowledged
death, and the presumption about the death
of a person, who has not been heard of for
seven years would only arise, if it is proved
that he/ she has not been heard of for the
period of seven years by those who would
have naturally heard of him/ her, if alive. It
is argued that Balraji's father and brother,
who have testified, are persons, who would
have naturally heard of her and they have
said that Balraji, who was before the Court,
was the same person. There is evidence of
witnesses that Balraji was staying with her
father at Gopalpur. Asharam or his
witnesses in Village Duhia are not men,
who would naturally hear of Balraji, if she
was staying with her father at Gopalpur.
The submission of the learned Counsel for
the petitioners is that no presumption about
Balraji's death under the circumstances can
282 INDIAN LAW REPORTS ALLAHABAD SERIES
arise. Rather, there is a presumption of her
being alive in view of Section 107 of the
Evidence Act. It is argued that all the
Authorities below have committed a
manifest error in raising a presumption
about Balraji's death and then accepting it.
The findings on the state of evidence,
according to the learned Counsel for the
petitioners, is perverse.

37.

The
learned
Counsel
for
respondent No.4, Mr. Triveni Shanker has
argued that the Consolidation Officer has
recorded findings to the effect that the sale
deed was not in respect of the entire
holding owned by Balraji and, therefore,
void under Section 5(c)(ii) of the Act of
1953. It is pointed out that the sale deed is
void, because admittedly no permission
was secured from the Settlement Officer of
Consolidation to transfer a part of the
holding. It is further argued that the
Consolidation Officer has held that the
woman,
who
appeared
before
the
Consolidation Officer, was not Balraji, but
an imposter. It was observed by the
Consolidation Officer that the woman, who
appeared for Balraji, stated that she had not
executed the sale deed in the petitioners'
favour nor were the petitioners known to
her. The further finding, according to the
learned Counsel for respondent No.4
recorded by the Consolidation Officer, is
that payment of sale consideration was not
proved. Also, Surendra Nath could not
prove Smt. Balraji's thumb impression,
supporting the inference that the Balraji
produced to prove the sale deed, was
indeed an imposter. The most crucial
finding that has been emphasized by the
learned Counsel for respondent No.4 is that
the Consolidation Officer, the Assistant
Settlement Officer of Consolidation and the
Deputy Director of Consolidation have
unanimously held the sale deed relied upon
by the petitioners to be one not executed by
Balraji.

38. It is also pointed out that the
Consolidation Officer has observed that
Ram Chandra, who was the sole attesting
witness of the sale deed and the one who
had identified Smt. Balraji at the time of
execution of the said deed, was not
identified
by
Balraji
before
the
Consolidation Officer. Balraji, who was
produced before the Consolidation Officer,
stated that she did not know Ram Chandra.
There is much contradiction, according to
the Consolidation Officer, between the
statements of witnesses, who appeared for
the petitioners regarding the execution of
the sale deed. It is also a finding recorded
by the Consolidation Officer that no
reliable evidence was produced by Smt.
Dhan Raji and others, to wit, the petitioners
to prove that they were in possession of the
land in dispute. No bhumidhari certificate
was obtained for the plots that were sirdari.
As such, the sale deed was void. Much
emphasis has been laid on the fact that
Balraji was unheard of for more than seven
years, and, therefore, her civil death has to
be presumed.

39. The Consolidation Officer has
recorded the fact that in the Family
Register of the Gaon Sabha Duhia since
Balraji's name was not there, it has to be
inferred that Smt. Balraji was not present
on 29.05.1974 in the village. It is most
importantly emphasized by the learned
Counsel for respondent No.4 that the
Consolidation Officer has recorded a
finding that the person, who appeared in
the witness-box impostering as Balraji,
stated that she did not know any of the
purchasers nor had she executed any sale
deed in their favour. None of the
purchasers were examined in support of the
4 All. Smt. Dhanraji & Ors. Vs. Dy. Director of Consolidation, Varanasi & Ors.
283
sale deed. The sale deed does not mention
the manner of payment of consideration,
where it is not said that a part of the sale
consideration was paid to the creditor to
discharge Balraji's liability on the alleged
pronote. No receipt about payment to the
creditor has been filed. It is emphasized
that the Consolidation Officer has observed
that Surendra Nath, one of the witnesses for
the petitioners, identified his signatures on
the sale deed, but did not identify Smt.
Balraji's thumb impression.

40. About Asharam's claims, it is
pointed out by the learned Counsel that the
Consolidation Officer has held that he had
proved
his
pedigree.
The
pedigree
propounded by Asharam was also proved
by
the
testimony
of
his
witnesses,
Jagdamba as also that of Kamla Shankar,
the Pradhan of the Village, who testified to
the fact that Asharam belongs to Balraji's
family. It was also held, according to the
learned Counsel, by the Consolidation
Officer that Asharam was proved by the
testimony of Sabhajeet and Girdhari to be
in possession of the land in dispute. It has
also been held by the Consolidation Officer
that Asharam was Balraji's heir under
Section 171 of the U.P. Z.A. & L.R. Act
and the Gaon Sabha had no right therein.

41. Most of these findings have been
affirmed by the Settlement Officer of
Consolidation and the Deputy Director of
Consolidation. Learned Counsel for the
respondent, Mr. Triveni Shanker, submits
that these findings recorded by the three
Authorities below consistently are pure
findings of fact, which cannot be disturbed
by this Court in exercise of our jurisdiction
under Article 226 of the Constitution. In
support of his contention, learned Counsel
for respondent No.4 has relied upon the
decisions in E. Mahboob Saheb v. N.
Sabbarayan Chowdhary and others,
(1982) 1 SCC 180, Narayanan Rajendran
and another v. Lekshmy Sarojini and
others, (2009) 5 SCC 264 and also on the
decision of the Supreme Court in Kondiba
Dagadu Kadam v. Savitribai Sopan
Gujar and others, (1999) 3 SCC 722.

42. It is also urged with much
emphasis that execution of the sale deed on
29.05.1974 and a later deed of rectification
dated 12.07.1974 make both a case of
transfer of a part of Balraji's holding, which
being done admittedly without a permission
by the Settlement Officer of Consolidation,
brings the transfer within the mischief of
Section Section 5(c)(ii) of the Act of 1953.
In support of this contention of his, Mr.
Triveni Shanker has placed reliance upon
the Full Bench Decision of this Court in
Smt. Ram Rati and Ors. v. Gram Samaj,
Jehwa and Ors., AIR 1974 All 106.
Reliance has also been placed upon the
decision of this Court in Foran Singh and
others
vs.
Deputy
Director
of
Consolidation and others, 1993 (1) AWC
192.

43. I have carefully considered very
detailed submissions advanced by the
learned Counsel on both sides and perused
the record.

44.