# Smt. Godawari Devi v. The Deputy Director of Consolidation, Deoria & Ors

- **Citation:** (2023) 10 ILRA 1080
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-15
- **Case number:** Writ-B No. 8084 of 1984
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-godawari-devi-v-the-deputy-director-of-consolidation-deoria-ors-49262
- **Pages:** 16

## Headnote

Civil Law - U.P. Consolidation of Holdings
Act, 1953 - Sections 9-A(2) , 11-C, &
48(1) - U.P. Zamindari Abolition and Land
Reforms Act, 1950 - Sections 19, 122-B &
229-B - U.P. Tenancy Act, 1939 - Sectiosn
56 & 57 - Title Dispute - Sirdari Rights -
Validity of Patta - Possession - Article 226
The petitioner, Smt. Godawari Devi, claimed
sirdari rights over Plot No.337/2 (1.66 acres)
based on a patta dated 28.12.1950 from the
erstwhile zamindar, asserting continuous
possession.
The
Gaon
Sabha
and
respondent No.6, Ganesh, contested her
claim, asserting the land vested in the St.
and was settled with the Gaon Sabha, which
granted
a
patta
to
respondent
No.6,
recorded as bhumidhar.

Held: (1) The writ petition was dismissed,
and the interim stay vacated. (2) The
petitioner failed to discharge her evidential
burden
under
Section
9-A(2)
of
the
Consolidation Act to establish sirdari rights,
as the patta was unregistered and lacked
attestation under Section 57 of the U.P.
Tenancy Act, 1939, rendering it invalid for
conferring rights. (3) The Settlement Officer of
Consolidation's finding that the patta was not
executed by the zamindar was perverse, as
evidence from the zamindar's Karinda confirmed
the zamindar's signature, but the lack of
registration or attestation was fatal. (4) The
petitioner's possession, recorded only from
1363 fasli (post-vesting), did not establish
lawful possession on the date of vesting to
claim sirdari rights under Section 19 of the
Z.A. & L.R. Act, per Budhan Singh Vs Babi
Bux. (5) The Gaon Sabha's failure to
produce rebuttal evidence was irrelevant, as
the petitioner's evidence did not raise a
triable issue. (6) The dismissal of earlier
Section 122-B proceedings did not confer
res judicata, as they were summary in
nature. (7) The Settlement Officer validly
set aside the petitioner's Class-IV recording
under Section 11-C of the Consolidation Act.
(8) No jurisdictional error or violation of law
warranted interference under Article 226.

Case Law Cited:

## Text

_Characters 0–39,949 of 55,069. This is a partial read: ask again with offset=39949 for what follows._

1080 INDIAN LAW REPORTS ALLAHABAD SERIES
the time of execution of the sale deed by
his mother, in respect of his share,
admittedly deserves opportunity to raise his
claim before the competent court having
jurisdiction. From the perusal of the
document annexed with this writ petition, it
is evident that the aforesaid Siddhant
Gupta-respondent no. 2 did not get due
opportunity to present his case before the
court of Tehsildar who passed the order for
mutation and further, the Board of Revenue
on finding that no notice was issued to the
parties on the transfer of the case from the
court of Naib-Tehsildar, Padrauna to the
Court of Naib-Tehsildar, Khadda, renders
the mutation order ex-parte which amounts
to violation of the principle of audi alteram
partem. As such, the order passed by the
Board of Revenue remanding the matter to
the court of Tehsildar, Khadda to pass
order
on
merits
after
affording
opportunity of hearing is reasonable and
justified.

34. In view of all that is stated
hereinabove, the finding as recorded by
the Board of Revenue in the impugned
order to the extent of adverting to the
legality of sale deed dated 11.06.2009
and directing the Tehsildar to decide the
matter in the light of the said findings; is
wholly unwarranted being dehors of
jurisdiction. I have no doubt that the
Board of Revenue ought not to have
made such a finding. By recording such a
finding, the Board of Revenue in a
summary
proceeding
has
virtually
assumed the powers and functions of Civil
Court. This Court, therefore, expunges the
findings in respect of the legality of the
Sale Deed 11.06.2023 as mentioned in
paragraphs (5), (7) and (8) of the impugned
order dated 05.06.2023 passed by the
Board of Revenue.

35. The order passed by the Board of
Revenue setting aside the aforesaid order
dated 02.02.2022 passed by the Tehsildar,
Khadda, Kushinagar, needs no interference.
So far as the said order of Board of
Revenue remanding the matter to the Court
of Tehsildar, Khadda, Kushinagar is
concerned, the same is affirmed only to the
extent
that
the
Tehsildar,
Khadda,
Kushinagar shall decide the matter afresh
strictly in accordance with the provisions of
the U.P. Land Revenue Act, 1901, after
affording due opportunity of hearing to
concerned parties, within a period of four
months.

36. It is made clear that the Tehsildar,
Khadda, Kushinagar shall decide the matter
afresh, without being influenced by the
findings recorded by the Board of Revenue
regarding the legality of the said sale deed
dated 11.06.2009.

37. With the aforesaid observation,
the instant writ petition is partly allowed.

38. No order as to cost.

----------
(2023) 10 ILRA 1080
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2023

BEFORE

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

Writ-B No. 8084 of 1984

Smt. Godawari Devi ...Petitioner
Versus
The Deputy Director of Consolidation,
Deoria & Ors. ...Respondents

Counsel
for
the
Petitioner:
10 All. Smt. Godawari Devi Vs. The Deputy Director of Consolidation, Deoria & Ors.
1081
Sri Shashi Nandan, Sri Udayan Nandan, Sri
Sanjiv Kumar

Counsel for the Respondents:
S.C., Sri R.C. Singh, Sri Shriprakash
Shrivastava, Sri Narayan Dutt Shukla

Civil Law - U.P. Consolidation of Holdings
Act, 1953 - Sections 9-A(2) , 11-C, &
48(1) - U.P. Zamindari Abolition and Land
Reforms Act, 1950 - Sections 19, 122-B &
229-B - U.P. Tenancy Act, 1939 - Sectiosn
56 & 57 - Title Dispute - Sirdari Rights -
Validity of Patta - Possession - Article 226
The petitioner, Smt. Godawari Devi, claimed
sirdari rights over Plot No.337/2 (1.66 acres)
based on a patta dated 28.12.1950 from the
erstwhile zamindar, asserting continuous
possession.
The
Gaon
Sabha
and
respondent No.6, Ganesh, contested her
claim, asserting the land vested in the St.
and was settled with the Gaon Sabha, which
granted
a
patta
to
respondent
No.6,
recorded as bhumidhar.

Held: (1) The writ petition was dismissed,
and the interim stay vacated. (2) The
petitioner failed to discharge her evidential
burden
under
Section
9-A(2)
of
the
Consolidation Act to establish sirdari rights,
as the patta was unregistered and lacked
attestation under Section 57 of the U.P.
Tenancy Act, 1939, rendering it invalid for
conferring rights. (3) The Settlement Officer of
Consolidation's finding that the patta was not
executed by the zamindar was perverse, as
evidence from the zamindar's Karinda confirmed
the zamindar's signature, but the lack of
registration or attestation was fatal. (4) The
petitioner's possession, recorded only from
1363 fasli (post-vesting), did not establish
lawful possession on the date of vesting to
claim sirdari rights under Section 19 of the
Z.A. & L.R. Act, per Budhan Singh Vs Babi
Bux. (5) The Gaon Sabha's failure to
produce rebuttal evidence was irrelevant, as
the petitioner's evidence did not raise a
triable issue. (6) The dismissal of earlier
Section 122-B proceedings did not confer
res judicata, as they were summary in
nature. (7) The Settlement Officer validly
set aside the petitioner's Class-IV recording
under Section 11-C of the Consolidation Act.
(8) No jurisdictional error or violation of law
warranted interference under Article 226.

Case Law Cited:

1. Budhan Singh (dead) by LRs Vs Babi Bux and
another, AIR 1970 SC 1880;

2. Sher Singh (dead) through LRs Vs Joint
Director of Consolidation & ors., AIR 1978 SC
1341;

3. Ram Pyari & ors. Vs Board of Revenue, 1983
All LJ 527;

4. Rizwan and another Vs Deputy Director of
Consolidation, Saharanpur & ors., (2003) 6 AWC
5065;

5. Pravir Singh & ors. Vs Board of Revenue &
ors., 2003 (94) RD 375;

6. Gaon Sabha, Tappal Vs Sri Satya Deo
Sharma, 2004 All LJ 3597;

7. Mahendra Lal Jaini Vs St. of U.P., AIR 1963
SC 1019;

8. K. K. Handique Vs Member, Board of
Agricultural Income-tax, Assam, AIR 1966 SC
1191;

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

1. This writ petition arises out of title
objections under Section 9-A (2) of the
Uttar Pradesh Consolidation of Holdings
Act, 1953 (for short, 'the Consolidation
Act'), decided by the statutory Authorities
against the petitioner.

2. The dispute in this petition is about
the title to Plot No.337/2 (new Plot No.484)
of Khata No.706, admeasuring 1.66 acres,
situate in Village Jungle Belwa, Tappa
Chaura Badgaon, Tehsil Padrauna, District
Kushinagar (earlier District Deoria). The
aforesaid property shall hereinafter be
1082 INDIAN LAW REPORTS ALLAHABAD SERIES
referred to as 'the property in dispute'. The
petitioner, Godawari Devi, claims herself to
be the sirdar of the property in dispute on
ground that she has been in continuous
possession since before the abolition of
zamindari, holding the said property on the
basis of a patta dated 28.12.1950, executed
in her favour by the erstwhile zamindar.

3. It is also the petitioner's case that
taking her possession to be unlawful,
proceedings for eviction were initiated
against her under Section 122-B of the
Uttar Pradesh Zamindari Abolition and
Land Reforms Act, 1950 (for short, 'the
Z.A. & L.R. Act') on a report of the
Lekhpal before the Tehsildar, Padrauna.
These proceedings were registered as Case
No.179. The defence to the petitioner's
possession, based on the patta dated
28.12.1950 executed by the erstwhile
zamindar, was accepted by the Tehsildar
and the notice discharged. In a related
development, the Gaon Sabha, treating the
property in dispute as theirs', executed a
patta thereof in favour of Ganesh son of
Rampati, since impleaded as respondent
No.6 to the writ petition under orders of
this Court. On the basis of the said patta,
respondent No.6 claims himself to be the
title-holder in possession of the property in
dispute. He claims to have been recorded
initially as a
bhumidhar with nontransferable rights, and, subsequently, as a
bhumidhar with transferable rights in the
khatauni for the fasli year 1418-1423.

4. The contest in this case, therefore,
is between the petitioner, claiming herself
to be a sirdar on the basis of the zamindar's
patta dated 28.12.1950, on the foot of
which, she asserts continuous possession,
and on the other, respondent No.6, claiming
that the said land vested in the State and
settled with the Gaon Sabha, who executed
a patta in favour of the said respondent.
According to the stand of the Gaon Sabha
and respondent No.6, it is the said
respondent, who is in possession and his
rights have enlarged into a bhumidhari.
Before
this
Court,
effectively
it
is
respondent No.6, who has defended his title
and possession on the foot of the Gaon
Sabha patta and contested the matter.

5. After the case for ejectment
brought by the Gaon Sabha under Section
122-B of the Z.A. & L.R. Act was
dismissed by the Tehsildar vide order dated
27.09.1971,
the
petitioner
sued
for
declaration of her title based on the
zamindar's patta under Section 229-B of
the Z.A. & L.R. Act. The petitioner's suit
for declaration, however, abated because
consolidation operations intervened. It is
then that the proceedings, leading to the
orders impugned in the present writ
petition, commenced with the petitioner
lodging objections under Section 9-A (2) of
the Consolidation Act. The petitioner's
objection before the Consolidation Officer,
registered as Case No.12123, was contested
by the Gaon Sabha. The following issues
were framed (translated into English from
Hindi):

"(1) Whether Godawari Devi is
sirdar of Gata No.337/2 on the basis of
possession?

(2) Whether Gata No.337/2 is
Gaon Sabha land?"

6. Both the issues were answered
together by the Consolidation Officer. He
considered the testimony of PW-1, Ram
Sanehi and PW-2, Kedar Nath. The Gaon
Sabha did not produce any evidence. The
evidence that was heard and considered by
the Consolidation Officer, as well as his
reasoning, would be dealt with in the
10 All. Smt. Godawari Devi Vs. The Deputy Director of Consolidation, Deoria & Ors.
1083
course of this judgment. For the present,
suffice it to say that the Consolidation
Officer rejected the petitioner's case
claiming title in herself on the basis of the
zamindar's patta as a sirdar. Instead, the
Consolidation
Officer
directed
the
petitioner to be recorded over the property
in dispute in Class-IV (land held as
occupier without title, when there is no one
already recorded in Column 4 of the
khasra).

7. The petitioner appealed the said
order
to
the
Settlement
Officer
of
Consolidation, Padrauna. The Settlement
Officer of Consolidation not only dismissed
the petitioner's appeal, affirming the
Consolidation Officer, but modified the
Consolidation Officer's order to the extent
that the direction to record the petitioner in
Class-IV was set aside. This order was
made by the Settlement Officer of
Consolidation
on
20.12.1980.
The
petitioner challenged the order dated
20.12.1980 before the Deputy Director of
Consolidation under Section 48(1) of the
Consolidation Act. The Deputy Director of
Consolidation, by the impugned order
dated 23.02.1984, dismissed Revision No.
886 preferred by the petitioner and
affirmed the Authorities below.

8. Aggrieved, this writ petition was
instituted before this Court on 23.05.1984.
It was admitted to hearing on 23.05.1984
and by a separate order of the said date
passed on the stay application, it was
ordered that the dispossession of the
petitioner from the property in dispute shall
remain stayed, provided she has already not
been dispossessed.

9. Pending this petition, Smt.
Godawari
Devi
died
and
has
been
substituted by her heir and LR, Dharm
Chandra son of Shiv Haran Dass, who has
been arrayed as petitioner No.1/1. Any
reference to the petitioner would, therefore,
be construed as a reference to Smt.
Godawari Devi, represented by her heir and
LR, petitioner No.1/1.

10. Heard Mr. Udayan Nandan,
learned Counsel for the petitioner, Mr.
Sriprakash
Shrivastava,
Advocate
appearing for respondent No.6 and Mr.
A.K. Trivedi, learned Standing Counsel
appearing on behalf of respondent Nos. 1,
2, 3 & 5. No one appears on behalf of
respondent No.4.

11. It is submitted by Mr. Udayan
Nandan, learned Counsel for the petitioner
that the petitioner had, in support of her
objections, filed the patta dated 28.12.1950
and rent receipt for the fasli year 1356, both
of which show her possession over the
property in dispute on the date of abolition
of zamindari. It is also pointed out that an
extract of the Khasra for the fasli year 1359
was also produced in evidence by the
petitioner to prove her case of possession
on the date of vesting. It is submitted that,
conversely, no documentary evidence was
filed on behalf of the Gaon Sabha to rebut
the petitioner's case. It is urged that in the
face
of
evidence
on
record,
the
Consolidation Officer, while passing the
order
impugned
dated
23.11.1979,
concluded in manifest error that the
property in dispute belongs to the Gaon
Sabha without any evidence to that effect
being produced by them.

12. It is next submitted that the
appellate order passed by the Settlement
Officer of Consolidation is also manifestly
illegal, inasmuch as the patta dated
28.12.1950 was duly proved by producing
the Karinda of the erstwhile zamindar,
1084 INDIAN LAW REPORTS ALLAHABAD SERIES
Kedar Nath Lal as PW-2. His testimony
was not challenged, according to Mr.
Udayan Nandan, by the Gaon Sabha in the
sense that no evidence in rebuttal was
produced.
Learned
Counsel
for
the
petitioner points out that Kedar Nath Lal
proved the execution of the patta by the
zamindar in the petitioner's favour, which
goes to show that the petitioner was in
agricultural possession of the property in
dispute. This evidence, according to Mr.
Udayan Nandan, was completely ignored
by the Settlement Offier of Consolidation
to reject the petitioner's case. It is next
submitted by the learned Counsel for the
petitioner that the Settlement Officer of
Consolidation committed a manifest error
of law in recording the finding that the
zamindar had not executed the patta, which
was, therefore, of no worth. Learned
Counsel says that this finding is manifestly
illegal because the Settlement Officer of
Consolidation failed to acknowledge the
fact, that at the relevant time, documents
relating to grant of lease etc. were, in fact,
written and executed by the Karinda of the
zamindar and the zamindar would append
his signatures to the document, which
showed his approval to its contents. In the
present case, the signature of the zamindar
was duly proved by Kedar Nath Lal, and,
thus, the execution of the patta by the
zamindar was well proven.

13. It is submitted that on the basis of
the said patta, the petitioner was in
cultivatory possession of the property in
dispute. The Appellate Authority has
completely ignored the testimony of Kedar
Nath Lal, the zamindar's Karinda and the
patta executed in the petitioner's favour in
reaching his conclusions. It is submitted by
Mr. Udayan Nandan that the Settlement
Officer of Consolidation has manifestly
erred in recording a finding to the effect
that the patta was not executed by the
zamindar and, therefore, not worth taking
into
consideration,
inasmuch
as
the
execution of the patta would, of course, be
in the Karinda's hand, but the zamindar had
duly appended his signatures to the
document. It is urged that Kedar Nath Lal
proved the zamindar's signatures on the
patta, which he had scribed on the
zamindar's instructions. There is just no
way that the execution of the patta can be
doubted.

14. Mr. Udayan Nandan next submits
that so far as finding of the Settlement
Officer of Consolidation that the patta
dated 28.12.1950 was not registered, and,
therefore, no right on its basis accrues to
the petitioner, is also manifestly illegal,
inasmuch as, the Appellate Authority failed
to consider the provisions of Section 57 of
the U.P. Tenancy Act, 1939 (for short, 'the
Tenancy Act'), which provide that any
document of lease or grant that stipulates
rent not exceeding Rs.100/- annually need
not be registered, and, the same instead,
may be attested by a competent Revenue
Court or an officer appointed by the State
Government. It is urged that the Authorities
below ought to have recorded a finding
whether according to the terms of Section
57 of the Tenancy Act, the patta was
admissible in evidence, and if those
conditions were at all fulfilled for a fact.
The Authorities below, ignoring from
consideration the provisions of Section 57
of the Tenancy Act, passed the orders
impugned.

15. It is also argued that the Deputy
Director of Consolidation dismissed the
petitioner's revision, in a perfunctory
manner, without considering all the issues
that have hitherto been pointed out. It is
brought to this Court's attention that before
10 All. Smt. Godawari Devi Vs. The Deputy Director of Consolidation, Deoria & Ors.
1085
the Deputy Director of Consolidation, the
Gaon Sabha remained absent and, without
any evidence being produced by the Gaon
Sabha before the Authority of first instance,
the Deputy Director of Consolidation
committed a manifest error of law in
recording a finding that the land belongs to
the Gaon Sabha.

16. It is next argued that the patta
dated 28.12.1950, which was proved by the
petitioner, showed her possession over the
property in dispute, prior to abolition of
zamindari and the extract of the khasra for
the fasli year 1359 clearly shows that the
petitioner was in continuous possession of
the property in dispute. It is emphatically
argued by Mr. Udayan Nandan that the
patta dated 28.12.1950 was valid, and, as a
matter of law, not hit by the provisions of
Section 24 of the Z.A. & L.R. Act. He says
so because, according to him, the lease
executed by the zamindar after 01.07.1948
would be void in respect of increase in the
rehabilitation grant but all other rights
flowing to the beneficiary of the lease,
would not be nullified under Section 24 of
the Z.A. & L.R. Act. In support of the
aforesaid proposition of the law, Mr.
Udayan Nandan has placed reliance upon
the decision of a Division Bench of this
Court in Ram Pyari and others v. Board
of Revenue, 1983 All LJ 527.

17. It is next urged that the petitioner
became a hereditary tenant under the
provisions of Section 29 of the Tenancy
Act, and upon coming into force of the
Z.A. & L.R. Act, acquired rights under
Sections 19 and 20 of the last mentioned
Act, that is to say, sirdari rights. This
position of the law that emerges from
established facts has been ignored by all the
three Authorities below while passing the
impugned orders. It is on the foot of all
these submissions that Mr. Udayan Nandan
says that the impugned orders deserve to be
quashed and the objections under Section
9-A (2) of the Consolidation Act allowed.

18. Mr. Shriprakash Shrivastava,
learned Counsel appearing for respondent
No.6, on the other hand, has contended
contrariwise. He says that this is a title
matter where the petitioner claims herself
to be a sirdar of the property in dispute on
the basis of fake documents. He submits
that the patta dated 28.12.1950 is a
document, to which no weight can attach,
because it is undated; secondly, it is
unregistered; and, thirdly, there are no
signatures of the zamindar appended to it to
prove its due execution. It is also urged that
it has not been proved by producing
counterfoils of the document. It is argued
by the Mr. Shrivastava that the petitioner
filed objections under Section 9-A (2) of
the
Consolidation
Act
before
the
Consolidation Officer and the objection
was partly allowed on 23.11.1979, holding
the petitioner an occupant of the property in
dispute in Class-IV.

19. The petitioner filed an appeal
from the said order, but the Settlement
Officer of Consolidation not only dismissed
the appeal but set aside the order holding
the petitioner entitled to be recorded under
Class-IV. It is argued by Mr. Shrivastava
that the patta in the petitioner's favour has
rightly
been
rejected
by
the
three
Authorities below. It is further submitted
that the Gaon Sabha has granted a patta to
respondent No.6 on 29.02.1976, and,
thereafter, he is in physical possession. The
sixth respondent's name has been mutated
in the revenue records, to wit, the khatauni
as well as the khasra. A copy of these
documents is annexed to the counter
affidavit.
1086 INDIAN LAW REPORTS ALLAHABAD SERIES

20. It is next argued on behalf of
respondent No.6 that proceedings under
Section 122-B of the Z.A. & L.R. Act are
summary proceedings and cannot have the
effect of res judicata. In title proceedings
under Section 9-A (2), the petitioner,
without holding title of an occupier of the
property in dispute, cannot be declared a
sirdar of the property by any Court, which
is Gaon Sabha land. The petitioner's name
was never recorded in the revenue records,
that is khatauni for the period 1356-1359
fasli. It is also pointed out that under
Section 11-C of the Consolidation Act, the
Settlement Officer of Consolidation, while
hearing an appeal under Section 11, may
direct that any land which is vested in the
State Government or the Gaon Sabha or
any other Local Body or Authority, may be
recorded in their name, even though no
objection, appeal or revision has been filed
by such Government, Gaon Sabha, Local
Body or Authority. It is urged, therefore,
that the Settlement Officer of Consolidation
was perfectly right in setting aside the
direction made by the Consolidation
Officer,
erroneously,
to
record
the
petitioner in Class-IV. The absence of an
appeal would not inhibit the Settlement
Officer of Consolidation in passing that
order in view of the provisions of Section
11-C of the Consolidation Act. In support
of these various contentions that Mr.
Shrivastava has urged, he has placed
reliance upon Budhan Singh (dead) by his
Legal representatives and another v.
Babi Bux and another, AIR 1970 SC
1880, Rizwan and another v. Deputy
Director of Consolidation, Saharanpur
and others, (2003) 6 AWC 5065, Pravir
Singh and others v. Board of Revenue
and others, 2003 (94) RD 375 and Gaon
Sabha, Tappal v. Sri Satya Deo Sharma,
2004 All LJ 3597. Reference to these
authorities, wherever relevant to the point
urged on behalf of the sixth respondent, or
the point that is considered, would be made
during the course of this judgement.

21. This Court has considered the
rival submissions advanced on behalf of
learned Counsel appearing for the parties
and perused the record.

22. The Consolidation Officer has
recorded a finding that the petitioner's
possession is recorded in 1363 fasli. He has
also remarked that the order of the
Tehsildar dated 27.09.1971 in proceedings
under Section 122-B of the Z.A. & L.R.
Act
shows
that
the
Tehsildar
has
discharged the notice on the basis of the
patta dated 28.12.1950. In view of these
proceedings
and
documents,
the
Consolidation Officer has concluded that
the petitioner is in possession of the
property in dispute, a fact also verified by
the report of the Assistant Consolidation
Officer in Case No.207 of 1979, which says
that the property in dispute is part of Gata
No.342 and in the petitioner's possession.
The Consolidation Officer has, however,
held that since the possession of the
petitioner is not proven to be uninterrupted
for 30 years, she has no right to be declared
a sirdar or bhumidhar. She is a person in
occupation of Gaon Sabha land and,
therefore, entitled to be recorded in ClassIV.

23. The Settlement Officer of
Consolidation has looked more carefully
into the evidence with reference to the
parties' case. He has held that the property
in dispute is Gaon Sabha land. It is
remarked that the patta, on the basis of
which the petitioner claims, shows that it is
unregistered and not executed by the
zamindar. It is signed by the Karbardar or
Karinda, Kedar Nath Lal and there is no
10 All. Smt. Godawari Devi Vs. The Deputy Director of Consolidation, Deoria & Ors.
1087
mention of a date on it. The inference
drawn is that the patta cannot be regarded
as a valid disposition. It has then been
observed that there is no basis to grant
sirdari rights on Gaon Sabha land based on
mere possession. With these remarks, the
appeal was dismissed, but with a further
order setting aside the entry made in the
petitioner's favour regarding her being an
occupant in Class-IV.

24.

The
Deputy
Director
of
Consolidation has, more or less, written an
order of affirmation, without assigning
much reasons of his own, but agreeing with
the Settlement Officer of Consolidation.

25. The foremost issue to be
examined here is if the patta dated
28.12.1950 executed in the petitioner's
favour is a valid document. Does it create
any right in the petitioner's favour on the
date it was executed? It is true, as Mr.
Udayan Nandan says, that no evidence has
been led on behalf of the Gaon Sabha to
rebut the petitioner's evidence. It is true,
generally speaking, that once evidence is
let in on behalf of the party, upon whom
onus probandi, as distinguished from
burden of proof lies, in the sense the two
distinct concepts are understood under
Sections 101 and 102 of the Indian
Evidence Act, the onus shifts upon the
other side to lead evidence in rebuttal. Else,
the party, upon whom the onus has shifted,
would fail on account of non-discharge of
his onus or evidential burden, as it is called.
Generally, applying the principles of the
Evidence Act, though not strictly and
proprio vigore, we are of opinion that the
submission of Mr. Udayan Nandan on this
this score cannot be accepted. The reason is
that, while there is no cause to doubt the
principles about the shifting and discharge
of the onus, but in order that the
consequence of non-discharge of the
shifted onus may ensue, it is imperative to
see if at all the party, who bore the initial
onus, has discharged it successfully. If by
the evidence that a party adduces, upon
whom the onus probandi lies, the evidence
is not sufficient to raise the issue for trial,
the onus cannot be regarded as shifted.

26. Here, the petitioner is the objector
under Section 9-A (2) of the Consolidation
Act. Therefore, apart from bearing the
burden of proof to establish her case on
Issue No.1, it is the petitioner's onus
probandi also to let in evidence, sufficient
in weight, to raise the issue for trial. If the
evidence
by
which
the
petitioner
endeavours to discharge the onus is not
sufficient to make Issue No.1 triable, the
petitioner herself would fail on account of
non-discharge of her onus probandi.

27. The issue is if the petitioner is
sirdar of the property in dispute. That is the
formal rendition of the issue. But, in order
to discharge her evidential burden, by
sufficient evidence led to raise this issue for
trial, it is to be shown prima facie how the
petitioner is a sirdar of the property in
dispute. The petitioner's case is that she has
acquired that kind of a right under the
zamindar's
patta
dated
28.12.1950.
Therefore, the Authorities below have
looked into the patta to find out if it is
indeed a genuine disposition of his property
by the zamindar unto the petitioner. The
Consolidation Officer has not looked much
into the validity of the patta and has
endeavoured to find out if the petitioner by
virtue of her long possession has become
entitled to sirdari rights, upon which he has
found against her. That finding is not very
convincing.
However,
the
Settlement
Officer of Consolidation has looked into
the patta claimed by the petitioner from the
1088 INDIAN LAW REPORTS ALLAHABAD SERIES
zamindar in order to find out what right it
confers upon the petitioner. It is remarked
that the patta is the document, to which the
petitioner traces her possession. It is then
said
by
the
Settlement
Officer
of
Consolidation
that
the
patta
is
an
unregistered document and has not been
executed by the zamindar. It bears the
signatures
of
Kedar
Nath
Lal,
the
zamindar's Karinda. It is also said that the
document does not bear a date. It is opined
that on the basis of this document, the
petitioner cannot be granted any rights and
certainly not sirdari rights over the property
in dispute, which is Gaon Sabha land.

28. To this Court's understanding, the
Settlement Officer of Consultation has not
found even a triable case made out by the
petitioner on the first issue, based on the
zamindar's patta. The Deputy Director of
Consultation in his brief remarks has said
that the petitioner has failed to show by her
evidence
that
prior
to
abolition
of
zamindari, she had any kind of a settlement
or right in her favour relating to the
property in dispute. This finding too holds
the petitioner to have utterly failed in
discharging her evidential burden.

29. Along with a supplementary
affidavit, learned Counsel for the petitioner
has filed a xerox copy and a true copy of
the patta dated 28.12.1950, as also the two
receipts relating to the lagaan paid in terms
of the patta. A perusal of the xerox copy of
the original document shows it to be very
faint, but reading it together with the true
copy thereof, this Court finds that the
Settlement Officer of Consolidation has
committed an error apparent in saying that
the patta does not bear a date. It clearly
bears the date on its extreme left corner,
which is 28.12.1950. It has also been
incorrectly remarked by the Settlement
Officer of Consolidation that the patta has
not been executed by the zamindar and that
it is signed by the Karinda or Karbardar,
Kedar Nath Lal. A xerox copy of the patta,
that has been filed, is, as already said, a
very faint document and does not show the
signatures of the zamindar, Kunwar Laxmi
Pratap Narain Singh of Jagdishgarh Estate,
Padrauna. But, this Court is inclined to
think that the document does bear the
zamindar's signatures. This is so for the
reason that the Karinda, who has proved
the document has stated in his examinationin-chief before the Consolidation Officer,
thus:

"२८-१२-५० को मैं क ुंवर लक्ष्मी प्रताप नरायन ससुंह
मासलक जगदीश गढ़ स्टेट पडरौना का कायय परदार था। मैं सन
१९६५ तक उनका म लासजम रहा। मौ० जुंगल वैलवा के क ुंवर लक्ष्मी
प्रताप नरायन जमीदार थे। आराजी नुं० ३३७ क ुंवर लक्ष्मी प्रताप
नरायन के सहस्से की थी। आराजी नुं० ३३७ सम । १-६६ सड० का
इन्तजाम क ुंवर लक्ष्मी प्रताप नरायन ससुंह ने श्रीमती गोदावरी के पक्ष
में ५ रूपया १ आना सालाना लगान पर सकया। आराजी सनο का
पट्टा क ुँवर लक्ष्मी प्रताप नरायन ससुंह के आदेशान सार सलखा गया।
यह पट्टा मेरे लेख में है। सजसमे मेरा हस्ताक्षर है। और मेरे मासलक
क ुंवर लक्ष्मी प्रताप नरायन ससुंह का भी हस्ताक्षर है। सजसको मैं
पहचानता ह ुं, और तसदीक करता ह ुं| जो इकज० क १ है, सन
१३५९ व १३५८ फसली का रसीद इकज० क२ है, जो इसी भूसम
का है। इस पर भी मेरे हस्ताक्षर है। तभी से गोदावरी देवी इस भूसम पर
कासवज दखील है।"

(emphasis by Court)

30. In the cross-examination of this
witness at the instance of the Gaon Sabha,
all that is said is:

"सजरह सम० गाुंव सभा -

इस वक्त मेरे पास ऐसा कोई कागज नहीं है सजससे
यह सासवत हो सक मैं लक्ष्मी प्रताप का काररन्दा रहा ह ुं। समन आया
था। इस वक्त खेत मै नहीं देखा है।

यह कहना गलत है सक कागज जाला है।
10 All. Smt. Godawari Devi Vs. The Deputy Director of Consolidation, Deoria & Ors.
1089

स नकर तसदीक सकया।"

31. The witness has not been
confronted with the document, which he
was proving before the Court on the point
that it does not bear the zamindar's
signatures, a fact to which he has testified a
few breathes away. The only inference that
can be drawn is that the patta was signed
by the zamindar. Else, there is no earthly
reason why the witness would not have
been confronted with this very obvious
falsehood in his testimony. This Court is
inclined to believe that the remarks of the
Settlement Officer of Consolidation that the
patta does not bear the zamindar's
signatures are perverse. Nevertheless, the
Settlement Officer's finding that the patta is
an unregistered document is sound and
undisputed for a fact.

32. The next question to be answered
is, if a patta, before the Z.A. & L.R. Act
came into force, relating to agricultural
land, for a period exceeding one year or
from year to year on an annual rent of less
than Rs.100/-, could be made without a
registered instrument. The patta by its clear
terms is one that demises on a yearly rent
with no time period fixed. The patta is,
therefore, one from year to year. The patta
was admittedly executed on 28.12.1950,
when the disposition was governed by the
provisions of the Tenancy Act. Section 56
of the Tenancy Act provides:

"56 - Registration of Leases-

A lease for a period exceeding
one year or from year to year shall be made
by a registered instrument only."

33. The patta, therefore, as a rule, had
to be made by registered instrument and not
otherwise. But, this brings in the other
submission of Mr. Udayan Nandan that the
patta being for a rent not exceeding
Rs.100/- annually, it could validly be made
without registration. Section 57 of the
Tenancy Act reads:

"57 - Attestation in Lieu of
Registration-

(1) When, under provisions of
this Act or the Indian Registration Act,
1908 (XVI of 1908), or any other
enactment for the time being in force any
lease, counterpart, grant, or agreement is
required
to
be
made
by
registered
instrument, and such lease, counterpart,
grant or agreement,-

(a) is with respect to land held by
a grove-holder as such, or to land let or
granted for the purpose of planting a grove,
or

(b) relates to a tenancy, and
stipulates for rent not exceeding one
hundred rupees annually, the parties to such
lease, counterpart, grant or agreement may,
in lieu of registering the same, obtain the
attestation thereto of a Revenue court or of
a Revenue officer, not inferior in rank to a
Qanungo or such other person as the [State
Government] may, by general or special
order in this behalf, appoint and subject to
such conditions, if any, as the [State
Government] may by rules made under this
Act, direct.

(2) Such court, officer or other
person shall, after satisfying himself as to
the identity of the parties and their
acquaintance with, and assent to, the term,
of
the
lease,
counterpart,
grant
or
agreement, make, sign, and date an
endorsement thereon to the effect that he
has so satisfied himself.
1090 INDIAN LAW REPORTS ALLAHABAD SERIES

(3) No such instrument shall be
accepted for attestation under this section,
unless
presented
within
the
period
prescribed for presentation for registration
under Part IV of the Indian Registration
Act, 1908 (XVI of 1908)."

34. It is true that the rent of the patta
here does not exceed Rs.100/- annually, the
patta being admittedly granted for an
annual rent of Rs.5/-. Therefore, by virtue
of the exception to the rule in Section 56 of
the Tenancy Act, carved out by Section 57,
there is no imperative for registration.
Nevertheless, Section 57 relaxes the rule of
registration, in case of rent being less than
Rs.100/- a year, by requiring that in lieu of
registration, there must be an attestation of
the document by the Revenue Court or a
Revenue Officer, not inferior in rank to a
Kanoongo or such other person as the
State Government may, by order, general
or special, appoint in this behalf.

35. There is no case at all that the
patta dated 28.12.1950 was ever attested
by the Kanoongo or by any other person
empowered in this behalf by the State
Government. The said case not being
raised at all, there was no reason for the
Authorities below to have looked into
evidence about the fact, if the document
was attested in the manner provided by
Section 57. This Court may dare say
that the argument about the patta being
valid by resort to the provisions of
Section 57 of the Tenancy Act is a
submission
based
on
Mr.
Udayan
Nandan's ingenuity. Unfortunately, it
has no foothold in the parties' case
pleaded before the three Authorities
below. For this reason, the submission
of Mr. Udayan Nandan, though admirable
for its incisive approach, cannot be
accepted.

36. Mr. Udayan Nandan has placed
reliance upon the authority of the Supreme
Court in Sher Singh (dead) through LRs
v. Joint Director of Consolidation and
others, AIR 1978 SC 1341, where it has
been observed by their Lordships:

"25. A close scrutiny of the facts
and circumstances of the case in the light of
the above quoted provisions of law leaves
no room for doubt in our mind that Sher
Singh acquired the rights of a Bhumidhar
as hereinafter stated. As already indicated,
there is nothing on the record before us to
establish that the aforesaid lease deed in
favour of Sher Singh was fictitious or that
the entries made in the revenue record on
the basis of that deed were not genuine or
did not conform to the true factual position
and that Sher Singh was not in actual
possession of the fields in question on his
own behalf. Consequently as Sher Singh
was holding the said fields as a hereditary
tenant on the date immediately preceding
the date of vesting he became entitled to
retain possession thereof as a Sirdar under
S. 19 of the Act and on depositing to the
credit of the State Government in the
manner provided in S. 134 and other allied
provisions of the Act an amount equal to
ten times the land revenue payable or
deemed to be payable, he became entitled
to a declaration that he had acquired the
rights of a Bhumidhar mentioned in S. 137
of the Act, in respect of the said fields and
to the grant of a certificate to that effect."

37. This Court is of opinion that the
said decision hardly has application to the
facts here. In Sher Singh, it was not much
in issue that there were entries in favour of
Sher Singh based on the registered lease
deed dated 30th July, 1945, executed by
Chaudhari
Vijay
Kunwar
Singh
and
Virendra Kunwar Singh, Zamindars of
10 All. Smt. Godawari Devi Vs. The Deputy Director of Consolidation, Deoria & Ors.
1091
Mitthanpur, leasing him out ten plots of
land admeasuring 6.63 acres, situate in
Mahal
Safed,
Mauza
Mahendri,
Sikandarpur, Pargana Amroha, District
Moradabad. The land was khudkast and the
lease was for a period of ten years
commencing 1353 fasli and ending 1362
fasli. The issue arose out of a pre-emption
suit after the two Zamindars and their
mother executed a sale deed dated 6th
September,
1945,
conveying
their
proprietary right and interest in the leased
land in favour of Kale Singh, Harbansh
Singh and Nihal Singh, brothers of Sher
Singh and another Chhajju Singh. Sher
Singh claimed to be in possession of the
property in dispute and was recorded as a
hereditary tenant in the revenue records.
This is all what makes for the difference in
Sher Singh and the present case. There,
there was no quarrel that Sher Singh was
recorded on the date of vesting and,
therefore, a hereditary tenant, who under
Section 19, after the date of vesting, was
entitled to become a sirdar. In the present
case, there are no recorded rights in favour
of the petitioner, except the unregistered
patta and the two rent receipts. The earliest
entry that finds mention in the orders of the
Authorities below relates to 1363 fasli,
which is much after the date of vesting.
Also, in Sher Singh, the lease deed was a
registered instrument, unlike the present
case, where the unregistered document
seems to have spelt doom for the
petitioner's case.

38. The next judgment/ authority on
which reliance has been placed by Mr.
Udayan Nandan is Smt. Ram Pyari
(supra). The principle in Ram Pyari, to
which our attention was drawn, reads:

"17. There is nothing in the above
Section to limit its application to only those
leases which were executed after the first
day of July, 1948 with a view to enhance
the rent under the existing lease. The words
used in the aforesaid Section are very wide
whereby even any new lease executed after
the first day of July, 1948, entitling an
intermediary to receive a higher amount of
rehabilitation grant would also be covered
by the aforesaid. Section. To our mind, the
interpretation put forth by Hon'ble B.
Dayal, J. in Ranjit Singh v.