Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 62 of 2004 (M/S) Pooran Singh S/o Late Sri Kalu R/o Village Manakmajara Pargana-Bhagwanpur Tehsil-Roorkee, District Haridwar. ……Petitioner. Versus 1. Deputy Director of Consolidation Haridwar, District Haridwar. 2. Smt. Sukhda, W/o Pal singh R/o Village-Mahandipur Pargana-Haroda, District Saharanpur. 3. Meena, W/o Madan R/o Village-Girahu Pargana-Haroda, District Saharanpur. 4. Gangadai, W/o Harpal R/o Village Manakmajara Pargana-Bhagwanpur, Tehsil Roorkee District Haridwar. .……….Respondents. Shri Lok Pal Singh and Shri Tapan Singh, Advocates for the petitioner. Shri Ghanshyam Joshi and Ms. Monica Pant, Advocates holding brief of Shri Arvind Vashistha, Advocate for respondent No. 4. Per:-Hon’ble Prafulla C. Pant, J. By means of this writ petition, moved under Articles 226 and 227 of Constitution of India, the petitioner has challenged order dated 20.12.2003, passed by Deputy Director of Consolidation, Haridwar, in revision No. 793 of 2003, whereby the order dated 08.05.2003, passed by Settlement Officer of Consolidation, and order dated 12.09.2002, passed by Consolidation Officer, Roorkee West, have been affirmed. 2 2. Heard learned counsel for the parties, and perused the papers on record. 3. Brief facts of the case are that Ram Singh, son of Harsukh, was admittedly bhumidhar of the property in dispute, bearing Khasra No. 269, measuring 1 bigha 8 biswa 5 biswansi, situated in Village Manakmajara, Pargana Bhagwanpur, Tehsil Roorkee, District Haridwar. Respondent No. 2-Sukhda and respondent No. 3- Meena, are his daughters. Kalu, petitioner’s father was real brother of Ram Singh. After death of Ram Singh, in August 1989, respondents No. 2 and 3, the two daughters, claimed their title over the property in dispute on the basis of will dated 07.08.1989. On the other hand, Kalu, brother of the deceased (Ram Singh), claimed title over the property on the basis of the will dated 12.08.1989. Respondents No. 2 and 3, earlier moved an application for mutation before Tehsildar, which was allowed and their names were directed to be recorded vide order dated 15.10.1991. It appears that petitioner’s father, later moved an application for recall of the order dated 15.10.1991, as the same was passed exparte. Additional Tehsildar, vide his order dated 23.06.1994 (copy annexure-2 to the writ petition), recalled the order and simultaneously observed that the proceedings stand abated in view of the fact that meanwhile the village had come under 3 consolidation operations. Thereafter, the consolidation authorities, issued form No. C.H.5 in which the possession of the property in dispute was shown that of Kalu (brother of the petitioner). Respondents No. 2 and 3, moved an objection under Section 9(2) of U.P. Consolidation of Holdings Act, 1953, stating that possession of Kalu, has wrongly been recorded at the time of ‘PARTAL’. On the other hand, the petitioner also moved his objection under Section 9(2) of the Act, for declaration of his title over the land in dispute on the basis of will dated 12.08.1989. Meanwhile, the respondents No. 2 and 3, transferred the property in dispute in favour of respondent No. 4, through a registered sale deed dated 20.07.1992. Consolidation Officer, Roorkee East, after recording the evidence and hearing the parties, vide his order dated 26.02.1996, dismissed the objections of petitioner’s father Kalu and allowed objections of respondents No. 2 and 3, and directed that name of Gangadai (respondent No. 4) be recorded as bhumidhar of the property in dispute. However, on the appeal, filed by Pooran (petitioner) after death of his father Kalu, the Settlement Officer of Consolidation, vide its order dated 26.08.1996, passed in appeal No. 1146, set aside the order of Consolidation, and remanded back the matter for fresh decision. Consolidation Officer after hearing the parties, again decided the matter vide its order dated 12.09.2002, in 4 favour of respondents No. 2,3 and 4, and against the petitioner. This order was challenged by the petitioner, by filing appeal No. 755, before Settlement Officer of Consolidation, which was dismissed vide order dated 08.05.2003, after hearing the parties. Finally, the petitioner challenged order dated 08.05.2003, passed by Settlement Officer, before the Consolidation Officer by filing revision No. 793 of 2003, before Deputy Director of Consolidation. Said authority, vide impugned order dated 20.12.2003, dismissed the revision, upholding the order passed by Settlement Officer of Consolidation. Hence this writ petition. 4. I have gone through the affidavit and counter affidavit, filed on behalf of the parties, and considered the submissions of learned counsel for the parties. Learned counsel for the petitioner argued that under Section 171 of U.P. Zamindari and Land Reforms Act, 1950, the married daughters, before amendment in said Section, were not the legal heirs in respect of the agricultural land of their father and as such, Kalu (father of the petitioner) being legal heir, under said Section, inherited the property in the year 1989. On the other hand, learned counsel for respondent No. 4, argued that Ram Singh, admitted bhumidhar of the property in suit, executed will dated 07.08.1989, in favour of his 5 daughters –Sukhda (respondent No. 2) and Meena (respondent No. 3), as such, the provision of Section 171 of the aforesaid Act, were not applicable to the present case. Section 169 of U.P. Zamindari Abolition and Land Reforms Act, 1950, empowers non Schedule Caste or non Schedule Tribes bhumidhar with transferable rights to bequeath his property by a will. Perusal of the impugned order shows that respondent No. 1 (Deputy Director of Consolidation, Haridwar), has clearly upheld the finding recorded by the Settlement Officer of Consolidation and that of Consolidation Officer that property in dispute was succeeded by respondent No. 2-Sukhda, respondent No. 3-Meena, through will dated 07.08.1989, executed by their father Ram Singh. The plea taken by the petitioner and his father Kalu that Ram Singh, executed will dated 12.08.1989, in favour of Kalu, was rejected by all the three consolidation authorities, on the ground that from the record, it was established that Ram Singh had died on 08.08.1989, and as such, there was no question of his making a will on 12.08.1989. In support of this finding, respondent No. 1 has clearly mentioned that in the family register of the village also date of death of Ram Singh was shown as 08.08.1989. 5. Shri Lok Pal Singh, learned counsel for the petitioner, contended that neither the 6 Consolidation Officer framed issues properly nor did he appreciate the evidence on record correctly in reaching to the conclusion that respondents No. 2 and 3, had succeeded in proving their title on the basis of will dated 07.08.1989. After going through the impugned orders, passed by the Consolidation authorities, this Court is of the view that in its writ jurisdiction it cannot look into the finding of fact, recorded by the competent authorities, that too when it is concurrent and cannot be said to be perverse. 6. On behalf of the petitioner, it is further submitted that the authorities below have erred in law in treating respondents No. 2 and 3 (daughters of Ram Singh), as recorded tenure holders of the property in dispute, particularly when vide order dated 23.06.1994, order allowing their mutation application had already been recalled. I have gone through said order dated 23.06.1994 (copy of which is annexure-2 to the writ petition), passed by Additional Tehsildar, Roorkee, whereby the order dated 17.07.1991, allowing the mutation application of respondents No. 2 and 3, has been recalled. In said order dated 23.06.1994, while recalling the order dated 17.07.1991, it is mentioned that the proceedings of mutation stand abated, as the village (after 17.07.1991) had come under consolidation operations. It is true that order dated 17.07.1991, 7 after being recalled vide order dated 26.03.1994, cannot be said to be in existence. But merely for that reason, it cannot be said that respondents No. 2 and 3, were not bhumidhars on the date they transferred the land to respondent No. 4- Gangadai. In fact title over the property stood vested on respondents No. 2 and 3 (daughters of Ram Singh), after the death of the executant on 08.08.1989. As such, since transferable rights of bhumidhar were succeeded by Sukhda and Meena (respondents No. 2 and 3), through will dated 07.08.1989, and merely for the reason that order dated 17.07.1991, passed on mutation application, was recalled vide order dated 23.06.1994, it cannot be said that they had no right to transfer the property. Needless to say that mutation proceedings are summary in nature, and the jurisdiction of the consolidation authorities to declare the title, on the objections, filed before it under Section 9 of U.P. Consolidation of Holdings Act, 1953, pertains to regular proceedings under said Act and the consolidation authorities have after recording the evidence and hearing the parties, given concurrent finding against the petitioner, holding that respondents No. 2 and 3, were bhumidhars of the property in dispute, which was transferred by them to respondent No. 4-Gangadai. 8 7. For the reasons, as discussed above, this Court finds no sufficient reason to interfere with the orders, challenged in this writ petition. Accordingly, the petition is liable to be dismissed. The writ petition is dismissed. No order as to costs. (Prafulla C. Pant, J.) Dt: 28.07.2009 Sweta 9 10 11 12 13