Dharamraj & Ors vs Chhitan & Ors

This appeal is directed against the judgment and order dated 12th March 1987 passed in W.P. No. 2736/1976 by the High Court of Judicature at Allahabad (Lucknow Bench ) whereby the Writ Petition filed by Chhitan, Chandrika and Karia, a minor son of Jai Ram, represented by his mother and guardian Smt. Sonara being respondent Nos. 1 to 3 in this appeal were allowed and decision of the consolidation authorities were set aside. By allowing the said Writ petition, the appellants were deprived of their alleged shares in ancestral tenancy and giving sole tenancy rights to respondent Nos. 1 to 3 over the land of Khata No.111 in Village Balrampur, Pargana and Tehsil Tanda, District Faizabad (hereinafter referred to as the "said land"). We are not concerned with the other plots relating to Khata No.13 as the disputes raised in this case appeal does not relate to the said land. Therefore, we restrict ourselves in this appeal in respect of the dispute only relating to the said land. Objections filed under section 9A(2) of the U.P. Consolidation of Holdings Act 1953 ( in short "the Act") by the parties in this appeal in respect of the entries in Khata No.111 and 13 relating to basic year 1378 Fasli were referred to the Consolidation Officer for adjudication. We may reiterate, as noted herein earlier, that in this appeal the questions need to be decided only in respect of the lands in Khata No.111 and not Khata No.13. It is not in dispute that the lands relating to Khata No.111 in the basic year were recorded in the name of Saltanati. Subsequently, in the year 1338 F this land was recorded in the name of Adhin by way of settlement. On the death of Adhin the said land was recorded in the name of Jabbar and then subsequently in the name of Jai Ram. Since Jai Ram was not traceable in his place Smt. Sonara his wife and minor son Karia had represented the estate as the legal heirs and representatives of Jai Ram. Smt. Sonara entered into a settlement with Chittan son of Dubri, Chandrika son of Sripat. Thereby the minor Karia represented by his mother Smt. Sonara agreed to have co- tenancy rights in respect of Khata No.111, with Chittan and Chandrika. On the other hand, the appellants representing Daya Ram and others jointly claimed co- tenancy rights in respect of the said land on the ground that the said lands were acquired by their ancestor Saltanati and thereafter Jokhan son of Adhin was recorded in the representative capacity. According to the appellants, the family remained joint till some time when the land was recorded in the name of Adhin. Binda and Sanehi on the death of Salatanati separated from their joint family and Adhin separated with his nephews Bhulai and Dukhi. In this manner, the said land of Jokhan and Salatanati were distributed in the joint family and the shares were divided equally. However, the said lands continued to be recorded in the name of Adhin. After some time, Bhulai and Dukhi, who were joint with Adhin also separated from him and by partition the lands were divided. In the same manner, Binda and Sanehi lived jointly for some time and thereafter separated by partition. The entire lands of Khata No.111 continued to remain recorded in the name of Adhin, even though Dukhi, Bhulai, Binda and Sanehi cultivated their lands separately. After the death of Adhin, the said lands came to be recorded in the name of his son Jabbar and thereafter on the death of Jabbar the same was recorded in the name of his son Jai Ram. At this stage, to understand the Pedigree of the parties, it would be appropriate to give a Pedigree chart herein now which is not now in dispute as was given by the appellants.

It is this order of the revisional authority passed in the aforesaid revision cases Daya Ram and others filed a writ application in the High Court of Allahabad, which came to be registerd as W.P. No.2838/1976. It was, inter-alia, the case made out by Daya Ram and others in the aforesaid writ application that the Deputy Director of Consolidation acting as revisional authority had erred in not holding the appellants who ought to have been held as co-tenure holders of the said land along with respondent Nos. 1 to 3 and also remaining plots of Khata No.111. On the other hand, the respondent Nos. 1 to 3 also filed a writ application being W.P. No. 2736/1976 against the order passed by the Deputy Director, Consolidation in revision cases challenging the order of the Deputy Director, Consolidation on the ground that in the admitted facts of the present case respondent Nos. 1 to 3 ought to have been held to be sole tenure holders in respect of the said lands.

As noted herein earlier, the Deputy Director held the respondent Nos. 1 to 3 in this appeal to be exclusive tenure holders of ten plots and in respect of the remaining plots of this Khata, the Deputy Director, Consolidation directed the names of the appellants as well as the respondent Nos. 1 to 3 should be recorded as co-tenure holders.

As noted herein earlier, Dr. Padia contended that since two of the co-tenure holders were not made parties in the writ application, who are Ram Bachan and Subhash Chandra appellant Nos.13 and 14 in this appeal, the writ petition ought to have been dismissed by the High Court solely on the ground that in their absence the writ petition could not be said to be maintainable in law. This submission of Dr. Padia cannot be accepted for the simple reason that Ram Bachan and Subhash Chandra appellant Nos. 13 and 14 claimed their share in the said land being descendants of Saltanati. In view of our findings made herein above that Saltanati had lost his right, title and interest in respect of the said land because of the fact that the said land was resettled and recorded in the name of Adhin, it cannot be said that Ram Bachan and Subhash Chandra, appellant Nos. 13 and 14, herein ought to have been made parties to the writ application as they were not found to be co-tenure holders in respect of the said land. Accordingly, for non- inclusion of Ram Bachan and Subhash Chandra appellant Nos. 13 and 14 in the Writ Petition filed before the High Court, it cannot be said that the writ petition was not maintainable in law. In view of the aforesaid finding, the question of abatement on the death of Siya Ram (father of Subhash Chandra) could not arise at all. Accordingly, in our view, Ram Bachan and Subhash Chandra appellant Nos.13 and 14 were not at all necessary parties to the Writ Petition No.2736/1976 and the question of non-maintainability of the writ petitions before the High Court in their absence could not arise. It is, therefore, not necessary to deal with the decisions cited by Dr.Padia in connection with the question of abatement on the death of Siya Ram and maintainability of the writ petition for their non- inclusion. Accordingly, this question is answered in the negative.

For the reasons aforesaid, this appeal fails and the same is dismissed without any order as to costs.