Case: Kale and Others Vs. Deputy Director of Consolidation Others

his is an appeal by special leave against the judgment of the Allahabad High Court dated May 17, 1966 by which the appeal against the decision of a Single Judge of the High Court rejecting the writ petition of the appellants had been dismissed. An application for granting a certificate for leave to appeal to this Court was made by the appellant before the High Court which was also dismissed by order of the High Court dated August,case had a rather chequered career and the disputes between the parties were sometimes settled and sometimes reopened. In order, however, to understand the point involved in the present appeal, it may be necessary to enter into the domain o f the contending claims of the respective parties put forward before the Revenue Courts from time to time. To begin with the admitted position is that one Lachman the last propitiator was the tenant and the tenure holder of the property in dispute which consists of 19.73 acres of land contained in Khatas Nos. 5 &90 and 19.4 acres of land comprising Khatas Nos. 53 &204. Lachman died in the year 1948 leaving behind three daughters, namely, Musamat Tikia, Musamat Har Pyari and Musamat Ra m Pyari. Musamat Tikia was married during the life time of Lachman and the appellant No. 1 Kale is the son of Musamat Tikia. Thus it would appear that after the death of Lachman the family consisted of his two unmarried daughters Har Pyari and Ram Pyari and his married daughters son Kale. Under the U.P. Tenancy Act, 1939 which applied to the parties only unmarried daughters inherit the property. The first round of dispute appears to have arisen soon after the death of Lachm an in the year 1949 when Panchayat Adalat of the village was asked to decide the dispute between Prem Pal nephew of Lachman and the appellant Kale regarding inheritance to the property left by Lachman. Har Pyari and Ram Pyari appear to have been parties to that dispute and the Panchayat Adalat after making local enquiries held that Har Pyari having been married had lost her right in the estate and Ram Pyari was also an heir so long as she was not married and after her marriage the legal heir to the property of Lachman would be the appellant Kale. In the year 1952 the U.P. Zamindari Abolition and Land Reforms Act, 1950 was made applicable to the tenure holders also. This Act was further amended on October 10 , 1954 by Act 20 of 1954 by which, amongst the list of heirs enumerated under the statute, "unmarried daughter" was substituted by daughter only. According to the appellant in this Court as also in the High Court Ram Pyari respondent No. S w as married on February 25, 1955 and thereafter the appellant filed a petition before the Naib Tahsildar, Hasanpur, for expunging the names of respondents 4 and 5 from the disputed Khatas because both of the daughters having been married ceased to have any interest in the property. It was therefore prayed that the appellant was the sole heir to the estate of Lachman under s. 3 of the U.P. Tenancy Act, 1939, he alone should be mutated in respect of the`property of Lachman. By ord er dated December S, 1955 the Naib Tahsildar, Hasaknpur, accepted the contention of the appellant and expunged the names of respondents 4 &5 from the Khatas in dispute and substituted the name of the appellant Kale. Soon thereafter on January 11, 1956, respondents 4 &5, i.e. Musamat Har Pyari and Ram Pyari daughters of Lachman, filed an application before the Naib Tahsildar for setting aside his order dated December 5, 1955 which had been passed behind their back and without their knowledge. While this application of respondents 4 &5 was pending adjudication the Revenue Court was informed that talk of compromise was going on between the parties which ultimately culminated in a compromise or a family arrangement under which the appellant Kale was allotted, Khatas Nos. 5 90 whereas respondents 4 &5 were allotted Khatas No. 53 &204 as between them. A petition was filed on August 7, 1956 before the Revenue Court informing it that compromise had been arrived at and in pursuance thereof the name of the parties may be mutated in respect of the khatas which had been allotted to them. This petition was signed by both the parties and ultimately the Assistant Commissioner, 1 Class, passed an order dated March 31, 1957 mutating the name of the appellant Kale in respect of Khatas Nos. 5 &90 and the names of respondents 4 &5 in respect of Khatas Nos. 53 and 204. Thereafter it is not disputed that the parties remained in possession of the properties allotted to them and paid land revenue to the Government. Thus it would appear that the dispute between the parties was finally settled and both the parties accepted the same and that benefit thereunder. This state of affairs continued until the year 1964 when proceedings for revision of the records under s. 8 of the U.P. Consolidation of holdings Act, 1953 were started in the village Hasanpur where the properties were situated in the course of which respondents 4 &5 were entered in Form C.H. 5 as persons claiming co-tenure holders to the extent of 2/3rd share with the appellant Kale who was entered in the said form as having 1/3rd share in all the Khatas. In view of this sudden change of the entries which were obviously contrary to the mutation made in pursuance of the family arrangement entered into between the parties in 1956, the appellant Kale filed his objections before the Assistant Consolidation officer for changing the entries in respect of those Khatas. As the Assistant Consolidation officer found that the dispute was a complicated one he by his order dated May 7, 1964 referred the matter to the Consolidation officer. It might be mentioned here that when the proceeding s for revision of the records were started, while the appellant filed his objections, respondents 4 &5 seem to have kept quiet and filed no objections at all. In fact under s. 9 (2) of the U. P. Consolidation of Holdings Act, 1953, the respondents could have filed their objections, if they were aggrieved by the entries made on the basis of the compromise. Sub-section (2) of s. 9 of the U.P. Consolidation of Holdings Act runsperson to whom a notice under sub-section (1) has been sent, or any other person interested may, within 21 days of the receipt of notice, or of the publication under sub-section (1), as the case may be, file, before the Assistant Consolidation officer, objections in respect thereof disputing the correctness or nature of the entries in the re cords or in the extract furnished there from, or in the Statement of Principles, or the need foris a very important circumstance which speaks volumes against the conduct of the respondents which will be referred to in detail in a later part of our judgment and seems to have been completely brushed aside by all theConsolidation officer to whom the dispute was referred, by his order dated July 27, 1964, framed a number of issues, and after trying the suit, removed the name of the appellant Kale from Khatas 5 &90 and substituted the names of appellant No. 2 Musamat Tikia and those of respondents 4 &5. We might also mention here that for the first time respondents 4 &5 raised a dispute before the Consolidation officer denying that the appellant Kale was the grandson of Lachman. The Consolidation officer framed an issue on this question and after taking evidence clearly found that the objection raised by respondents 4 &5 was absolutely groundless and that the appellant Kale was undoubtedly the grandson of Lachman. The Consolidation officer pointed out that even before the Panchayat Adalat as also in the mutation petition which was filed before the Naib Tahsildar respondents 4 &5 never disputed that the appellant Kale was the grandson of Lachman being the son of his daughter Musamat Tikia who is appellant No. 2.Thereafter the appellant and the respondents 4 &5 filed an appeal before the Settlement officer who by his order dated November 28, 1964, restored the mutation made by the Naib Tahsildar on the basis of the compromise, namely the appellant was mutated in respect of Khatas Nos. 5 &90 and respondents 4 &5 in respect of Khatas Nos. 53 &204.Thereafter respondents 4 &5 filed a revision petition before the Deputy Director of Consolidation who by his order dated January 22, 1965, reversed the order of the Settlement officer and expunged the name of the appellant Kale from Khatas Nos. S &90 and recorded the name of respondent No. 5 Musamat Ram Pyari in respect of these Khatas on the ground that she was the sole tenure holder in respect of those Khatas.Thereafter the appellant Kale and his mother Musama Tikia appellant No. 2 filed a writ petition in the Allahabad High Court against the order of the Deputy Director of Consolidation. The writ petition was heard in the first instance by a Single Judge who dismissed the petition upholding the order of the Deputy Director of Consolidation The appellant then filed a special appeal to the Division Bench of the Allahabad High Court which also affirmed the judgment of the Single Judge and dismissed the appeal-hence this appeal by special leave.

Reasoning: In these circumstances there can be no doubt that even if the family settlement was not registered it would operate as a complete estoppel against respondents 4 & 5. Respondent No. 1 as also the High Court, therefore, committed substantial error of law in not giving effect to the doctrine of estoppel as spelt out by this Court in so many cases. The learned counsel for the respondents placed reliance upon a number of authorities in Rachcha v. Mt. Mendha, (AIR 1947 All. 177.) Chief Controlling 6 Revenue Authority v. Smt. Satyawati Sood and Others (AIR 1972 Delhi 171.) and some other authorities, which, in our opinion have no bearing on the issues to be decided in this case and it is therefore not necessary for us to refer to theview of our finding that the family settlement did not contravene any provision of the law but was a legally valid and binding settlement in accordance with the law, the view of Respondent No. 1 that it was against the provisions of the law was clearly wrong on a point of law and could not be sustained. Similarly the view of the High Court that the compromise required registration was also wrong in view of the clear fact that the mutation petition filed before the Assistant Commissioner did not embody the terms of the family arrangement but was merely in the nature of a memorandum meant for the information of the Court. The High Court further in law in not giving effect to the doctrine of estoppel which is always applied whenever any party to the valid family settlement tries to assail The High Court further erred in not considering the fact that even if the family arrangement was not registered it could be used for a collateral purpose, namely, for the purpose of showing the nature and character o possession of the parties in pursuance of the family settlement and a o for the purpose of applying the rule of estoppel which followed from the conduct of the parties who having taken benefit under the settlement keep their mouths shut for full seven years and later try to resile from the settlement. In Shyam Sunder and others v. Siya Ram and another (AIR 1973 All. 382  , 389.) it was clearly held by the Allahabad High Court that the compromise could have been taken into consideration as a piece of evidence even if it was not registered or for that matter as an evidence of an antecedent title. The High Court observed asdecision in Ram Gopal v. Tulshi Ram, AIR 1928 All. 641 (FB)-is clear that such a recital can be relied upon as a piece ofis clear, therefore, that the compromise can be taken into consideration as a piece of evidence. x x x To sum up, therefore, we are of the view that the compromise could have been relied upon as an admission of antecedent title."On a careful consideration of the facts and the circumstances and the law discussed above, we are clearly of the opinion that-the orders of the High Court as also that of Respondent No. 1 suffer from a substantial error of law resulting in serious injustice to the appellant by re- opening a dispute which had been settled almost seven to eight years before the proceedings for re-opening the same were started. In not interfering to correct the clear error of law committed by Respondent No. 1, the High Court failed to exercise jurisdiction vested in it by law and, therefore, the order of the High Court itself was legally erroneous and cannot be sustained. The contentions raised by the appellant are well founded and must prevail, while the contentions advanced by the respondent fail.