At, High Court of Judicature at Allahabad
By, THE HONOURABLE MR. JUSTICE RAM SURAT RAM (MAURYA)
For the Appellant: Aalok Kumar Srivastava, Advocate. For the Respondents: -----------.
Ram Surat Ram (Maurya), J.
1. Heard Sri Aalok Kumar Srivastava for the petitioner. The writ petition has been filed against the order of Deputy Director of Consolidation dated 31.10.2013 and Consolidation Officer dated 31.12.1999 passed in title proceedings under UP Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).
2. The dispute relates to the land of khata 268 of village Nakalai, tappa Nagwa Teekar, pargana Silhat, district Deoria. In basic consolidation records, the land in dispute was recorded in the names of Tirth Raj, Brij Raj, Abhi Raj and Darbari sons of Ram
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Dhari. The petitioner filed an objection claiming co-tenancy of 1/2 share in the khata in dispute on the ground that land in dispute was joint family property of Dashrath and Gokul. However, due to mistake of lekhpal, name of Gokul was alone recorded over it in representative capacity as such after his death, names of his branch alone recorded over it although both the branch through out remained in joint possession over it. The objection of the petitioner was contested by the respondents on the ground that the land in dispute was self acquired property of Gokul and was inherited by his son Ram Dhari and thereafter by the contesting respondents and the petitioner has no share in it. There were some other objections between the respondents also. Both the parties adduced their documentary as well as oral evidence before Consolidation Officer. The petitioner, apart from documentary evidence examined Raj Pari and Ram Autar as witnesses. The petitioner filed an extract of khatauni 1323-F, in which name of Dashrath son of Shiv Nandan was noted as joint owner, in remark column by order dated 22.4.1915. A part from this document there is no other document in which the name of branch of the petitioner was recorded in the khatauni. The respondents examined Abhi Raj, Mustaq Ahmad and Khelari as their witnesses. They also filed extract of khatauni 1323-F, 1333-F, 1359-F, 1362-F and 1378-F, showing that the land in dispute was exclusively recorded in the name of Gokul and his descendents as hereditary tenancy. The Consolidation Officer, by the order dated 31.12.2009 found that the land in dispute was hereditary tenancy of Gokul and there is no evidence to show that it was ever recorded in the name of Shiv Nandan, the common ancestor. Apart from the endorsement of remark column in 1323-F there is no any other document to support the claim of the petitioner. As such it was held that the land in dispute was exclusive property of Gokul and Dashrath or his descendants have no share in it.
3. The petitioner filed an appeal from the aforesaid order. In appeal the petitioner has filed an affidavit of Darbari son of Ram Dhari, admitting the claim of the petitioner. The appeal was heard by Settlement Officer Consolidation who by order dated 20.4.2006 held that as from the khatauni 1359-F it is proved name of both the branches were jointly recorded in other khata as such the family of Gokul and Dashrath were joint family. Relying upon the endorsement in the remark column of khatauni 1323-F it was held that land in khata in dispute was also joint family property accordingly the petitioner was declared co-sharer of half share in the land in dispute. The respondents filed a revision from the aforesaid order which has been allowed by the impugned order dated 31.10.2013 and the order of Settlement Officer Consolidation was set aside. Deputy Director of Consolidation summoned original khatauni of 1323-F, in which there was no endorsement in remark column as such extract of khatauni produced by the petitioner was held as forged document. He further found that even in khatauni 1292-F, name of Gokul alone was recorded. There is no evidence that the property in dispute was over recorded in the name of Shiv Nandan as such the petitioner could not prove that the property in dispute was either inherited from common ancestor or it was jointly acquired by Gokul and Dashrath. On this finding the revision was allowed and the order of Settlement Officer, Consolidation was set aside. Hence this writ petition has been filed.
4. The Counsel for the petitioner submits that one of the co-sharer namely Darbari filed his affidavit before the appellate Court admitting the petitioner to be co-sharer in the land in dispute and his affidavit was admissible in evidence. Deputy Director of Consolidation has illegally ignored affidavit of Darbari. From the record of other khata, it is proved that even up to 1359-F the family was joint and the property was jointly recorded in the names of both the branches of Dashrath and Gokul. Since the property in dispute was acquired during jointness of the family as such there was a presumption that it was a joint family property and the order of Settlement Officer, Consolidation was not liable to be set aside.
5. I have considered the argument of the Counsel for the petitioner and examined the record. So far as the findings recorded by Deputy Director of Consolidation that the petitioner has filed a forged document i.e. khatauni 1323-F, to prove his title is concerned, this findings has been challenged by the petitioner. The property in dispute was exclusively recorded in the name of Gokul alone as hereditary tenancy since 1292-F. There cannot be presumption regarding the tenancy property belongs to the joint family. Even one member of the joint family can acquire the tenancy property. Admittedly, apart from the forged documents the name of the petitioner or his ancestor was never recorded in any revenue record over the last 100 years. Supreme Court in Sudha Devi v. M.P. Narainan 1988 RD 286 (SC), held that affidavit is not an evidence. Unless the Court direct for filing affidavit under Order XIX C.P.C Affidavit of Darbari has no evidential value. In the light of mass of documentary evidence showing that the land in dispute was exclusively recorded in the name of Gokul since 1292-F, affidavit of Darbari has been rightly ignored. The finding of fact recorded by Deputy Director of Consolidation is not liable to be interfered by this Court. The writ petition has no merit and is dismissed.