Supreme Court of India
DHARAMRAJ AND ORS.versusCHHITAN AND ORS.
- Citation
- 2006 INSC 789
- Decided
- 6 November 2006
- Disposal
- Dismissed
- Bench
- ARIJIT PASAYAT
Holding
A High Court may not interfere with the factual findings of consolidation authorities unless they are perverse or lack evidential support; the High Court’s reversal was therefore erroneous.
Summary
The dispute concerned co‑tenancy rights over land recorded in Khata No. 111 in Faizabad, Uttar Pradesh. The appellants claimed ancestral rights based on a pedigree tracing back to the original ancestor Saltanati, while the respondents asserted exclusive rights as successors of Adhin, whose name was entered after a settlement in 1338 Fasli. The Consolidation Officer initially held the appellants as co‑tenants; the Deputy Director of Consolidation later gave the respondents exclusive rights over ten plots and co‑tenancy for the remainder. The Allahabad High Court, exercising its writ jurisdiction under Article 226, set aside those findings and recorded the respondents as sole tenants for the entire Khata, prompting the appellants to appeal. The Supreme Court held that a High Court may interfere with the factual findings of consolidation authorities only when they are perverse or unsupported by evidence, which was not the case here. Consequently, the Court dismissed the appeal, upholding the consolidation authorities' findings and confirming the respondents' exclusive tenure.
Issues considered
- Whether the High Court can set aside the findings of fact of the consolidation authorities under Article 226 of the Constitution.
- Whether the identity of the land changed due to the 1338 F settlement, thereby affecting the appellants' claim of ancestral co‑tenancy.
- Whether the non‑inclusion of certain co‑tenants (appellant Nos. 13 and 14) renders the writ petitions non‑maintainable.
Legislation cited
- Constitution of Indias. Article 226
- U.P. Consolidation of Holdings Act, 1953s. 9A(2)
Subjects
co‑tenancyconsolidation of holdingsArticle 226writ jurisdictionancestral landUttar PradeshSection 9Aland settlementmaintainability
Judgment
DHARAMRAJ AND ORS. A
v.
CHHITAN AND ORS.
NOVEMBER 6, 2006
[ARJIT PASAYAT AND TARUN CHATTERJEE, JJ.]
U.P. Consolidation ofHoldings Act, 1953-Section 9A(2)-Land acquired
and recorded in revenue records in the name of common ancestor-
Subsequently land re-settled and recorded in the name of anotf!er family C
member-Co-tenancy rights claimed in land on the basis that land is ancestral
land-Successor-in-interest of family members in whose name subsequently
the lands were recorded claiming exclusive co-tenancy rights in /and-held, the
identity of land changed and the successors in interest ofperson whose name
was duly recorded in place of common ancestor were entitled to succeed to
the said lands on the basis of identity and resettlement of land D
Constitution ofIndia, 1950-Article 226-Writ jurisdiction-Interference
with finding of fact arrived at by consolidation authorities-When-Held,
when such findings offact are either perverse or based on no evidence-High
Court can correct decision of consolidation authorities or declare law on the
basis offacts and proof of such facts-In the facts, held, High Court has only E
declared the question of law on the admitted facts and the finding of fact
arrived at by consolidation authorities-Practice and procedure.
Objections were filed under Section 9A(2) of the U.P. Consolidation
of Holdings Act, 1953 by both appellants and respondents in respect of
entries in Kha:ta No. 111 relating to the basis year 1378 fasli. Appellants F
claimed joint co-tenancy rights along with respondent nos. 1 to 3 in respect
of lands recorded in Khata no. 111 on the ground that the said lands were
ancestral of lands as they were acquired by the common ancestor of
parties, S, and were recorded in the name of S and thereafter it was
recorded in the name of A in representative capacity Respondent Nos. 1 G
to 3 being succesrnrs in interest of A claimed exclusive co-tenancy rights
on the ground that lands recorded on Khata No. 111 which initially
belonged to S was resettled by the then landlord with A and was recorded
in the name of A in 1338 F. The Consolidation Officer held appellants to
385 H
386 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R. •
A be co-tenure holders in respect of said lands with respondent nos. 1 to 3
and determined share on the basis of pedigree set up by appellants.
Appeals filed by parties before the Appellate Authority were dismissed.
Revision filed by parties before the Deputy Director, Consolidation were
partly allowed by holding respondent nos. 1 to 3 to be exclusive tenure
B holders of ten plots and by directing recording of names of appellants and
respondent nos. 1 to 3 as co-tenure holders in respect of remaining plots
of the Khata. Both parties filed writ petitions challenging the order of
Deputy Director, Consolidation. High Court dismissed the writ petition
filed by appellants and allowed the writ petitions filed by respondent Nos.
1 to 3 and reversed the findings and order of the Deputy Director,
C Consolidation by holding that lands recorded in the entire Khata No. 111
must be recorded in the names of respondent Nos. 1 to 3. Hence the present
appeal by persons claiming through S.
Appellants contended that it was not open to the High Court to set
aside findings of fact arrived at by the consolidation authorities in exercise
D of its extraordinary jurisdiction under Article 226 of the Constitution of
India ; that Higl: Court ought to have dismissed the writ petition on the
ground of maintainability as two of the co-tenure holders were not made
parties in the writ petition ; and that appellants were entitled to get share
as per pedigree set up by the appellants on the ground that land was
E ancestral property.
Respondent Nos. 1 to 3 contended that High Court has only declared
the law on admitted facts and findings arrived at by the consolidation
authorities ; and that land in dispute was acquired by their predecessor
by way of settlement and on his dea~h it devolved upon them exclusively.
F
Dismissing the appeal, the Court
HELD: 1.1. It is now well settled law that in the exercise of its extra
ordimuy writ jurisdiction High Court is not supposed to interfere with
the findings of fact arrived at by the consolidation authorities unless and
G until High Court concludes that such findings of fact are either perverse
or based on no evidence. It is-well settled position of law by catena of
decisfons of this Co&rt that •n the··writ jurisdietfon of the High Court, it
is always permissible for it to correct the decision of the consolidation ____
authorities or to declare the law on the basis of facts and proof of such
facts. {393-B, DJ
H
, DHARAMRAJ v. CHHITAN 387
Mukunda Bore v. Bangshidar Buragohain and Ors., AIR (1980) SC A
1524, Syed Yakoob v. K.S. Radhakrishnan and Ors., [1964) 5 SCR 64 and
State of West Bengal v. A.K. Shaw, AIR (1990) SC 2205, relied on.
1.2. The High Court while reversing the order of the Deputy Director,
Consolidation had not set aside the findings of fact arrived at by them
but on the other hand has declared the question of law on the admitted B
facts and the findings of fact arrived at by the consolidation authorities.
[396-F, G)
2. It is not in dispute that the lands relating to Khata No. 111 in the
basic year were recorded in the name of S. Subsequently, in the year 1338
F this land was recorded in the name of A by way of settlement. It is C
therefore clear that although originally the said land had belonged to S
but subsequent event had clearly indicated that it was recorded in the
name of A and therefore the respondent Nos. 1 to 3, admittedly the
successors in interest of the estate of A, were entitled to succeed.
Accordingly, there cannot be any doubt that the identity of the said land
·was changed from S to A and thereafter to respondent Nos. 1 to 3. Even D
all the findings arrived at by the Deputy Director, Consolidation in respect
· of 10 plots in Khata No. 111, as noted herein earlier, the names of
respondent Nos. 1 to 3 would exclusively be entered. At the same time,
the Deputy Director, Consolidation had also held that the names of the
appellants should be included in remaining plots of Khata No. 111. From E
the above admitted fact, it is clear that the lands recorded in the said Khata
were directed to be recorded in different names. From this it is apparent
that the identity of the lands in Khata No.111 were directed to be changed
which is not permissible in law. (389-C, D; 395-F, G; 396-A, BJ
3. It must be held that the respondent Nos. 1 to 3 being the successors
in interest from the side of A whose name was duly recorded in respect of F
the said land were entitled to succeed to the said land on the basis of
identity and resettlement of the same. If the identity of the land has been
changed, the appellants could not get the property on the basis that
originally this land had been recorded in the name of S and that the said
land was their ancestral property. Therefore, the pedigree set up at the G
instance of the respondent Nos. 1 to 3, even if it cannot be relied on, the
respondent Nos. 1 to 3 were entitled to succeed on the basis of the aforesaid
fact. (396-B, C, DJ
4. That it was not disputed before the consolidation authorities nor
H
388 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.
i
A it was disputed by the counsel for the appellants that the identity of the !
said land had changed in view of the resettlement in favour of A. That l l
being the position, it must be held that the appellants could not acquire
·any co-tenancy rights even if the appellants succeeded in proving the
pedigree set up by them and also acquisition of the land by common
..
I
ancestor. Accordingly, the Deputy Director of Consolidation was in error
B in giving co-tenure holder rights to the appellants herei~ in some of the.
plots of Khata No. 111 on the ground that those plots initially belonged
·to S and it was ancestral holding of appellants. (396-D, E, F]
5. The appellant Nos. 13 and 14 claimed their share in the said land
C being descendants of S. In view of the findings made that S had lost his
right, title and interest in respect of the said land becimse of the fact that
.the said land was resettled and recorded in the name of A, it cannot be
said that 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. The appellant Nos. 13 and 14 were not at all
D necessary parties to the Writ Petition and the question of non-
maintainability of the writ petitions before the High Court, fot their
absence could not arise. Accordingly, for non-inclusion of the 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. [397-A, B, C)
E CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7507 of 1997.
From the Judgment and Order dated 12.3.1987 of High Court of
Judicature at Allahabad, Lucknow Bench, Lucknow in Writ Petition No.
2736 of 1976.
F R.G. Padia, Bharat Ram and Praveen Swarup for the Appellants.
O.P. Sharma, R.C. Gubrele, K.R. Gupta, Nanita Sharma and Trilok
Nath Saxena for the Respondents.
The Judgment of the Court was delivered by
G
T ARUN CHATTERJEE, J. 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,
H represented by his mother and guardian Smt. Sonara being respondent Nos.
DHARAMRAJ v. CHHITAN [TARUN CHATTERJEE, J.] 389
I to 3 in this appeal were allowed and decision of the consolidation authorities A
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. I to 3 over the land of Khata No. I I I 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.l l l and 13 relating to
basic year 1378 Fasli were referred to the Consolidation Officer for c
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.11. l
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 D
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 E
have co-tenancy rights in respect of Khata No. I I I, 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.
F
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 G
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 H
390 SUPREME COURT REPORTS [2006) SUPP. 8 S.C.R.
A 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 b_e appropriate to give a
Pedigree chart herein now which is not now in dispute as was given by the •
B appellants.
The Pedigree chart which was set up by the appellants is given below:-
The Consolidation Officer by his order dated 6th June 1972 declared
the appellants or their predecessor in interest as co-tenure holders in respect
C of the said land along with Jai Ram and determined the share on the basis of·
the Pedigree, as noted above.
Aggrieved by the order dated 6th June 1972 of the Consolidation Officer
respondent Nos. I to 3 filed an appeal whereas Daya Ram and others preferred
an appeal also. However, the appeals filed by the parties before the appellate
D authority i.e. Assistant Settlement Officer were dismissed. Revisions were
filed by the parties before the Deputy Director, Consolidation which were
disposed of by allowing the same partly and the following order was passed:
"It is ordered that over the basic year in Khata No. 13 the names of
Chhitan (respondent No. I), Jai Ram (Respondent No.2) and Chandrika
E (Respondent No.3) alone shall be entered. In Khata No.I 11 over plot
Nos. 152, 154, 161, 425, 435, 442, 475, 48I, 465 and 511 also the
names of the respondent Nos~ 1 to 3 shall only be entered Over the
remaining plots of Khata No. I I I in accordance with the orders of
Consolidation Officer and Assistant Settlement Officer, Consolidation,
the names of both the parties shall be entered as co-tenants. "
F
At this stage, let us take up the question of accepting the Pedigree chart
set up by the contesting parties. It was the case of Daya Ram and others
(appellants herein) that Bekaru was the son of Jokhan whereas the case of
respondent Nos. I to 3 was that Bekaru was the son of Saltanati. However,
G the respondent Nos. I to 3 had failed to prove that Bekaru was the son of
Saltanati.
On a finding of fact arrived at by the consolidation authorities particularly
the revisional authorities, it is not in dispute now that Bekaru was the son of
Jokhan and therefore the Pedigree set up by the appellants must be accepted.
H
DHARAMRAJv. CHHITAN [TARUNCHATTERJEE, J.] 391
As quoted herein above, the Deputy Director, Consolidation held that A
in Khata No.I I I plot Nos. 152, 154, 161, 425, 435, 442, 475, 481, 465 and
511 the names of Chittan, Jai Ram and Chandrika be entered and over the
remaining plots of Khata No. I I I the findings of the Consolidation Officer
and the Assistant Settlement Officer were accepted by him. That is to say in
respect of the remaining plots in Khata No. I I I, the respondent shall be
entered as co-tenure holders in respect of the remaining plots ofKhata No.I I I. B
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 C
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. I to 3 and
also remaining plots of Khata No. I I I. On the other hand, the respondent
Nos. I 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 D
challenging the order of the Deputy Director, Consolidation on the ground
that in the admitted facts of the present case respondent Nos. I to 3 ought to
have been held to be sole tenure holders in respect of the said lands.
By the impugned judgment, the High Court after hearing the parties
disposed of the aforesaid two writ petitions by passing the following order: E
"In the result, the writ petition No.2838/76 filed by Daya Ram
and others is dismissed being devoid of merits and writ petition No.
2736/76 filed by Chittan and others is hereby allowed and the order
dated 13.8.1976 passed by Deputy Director, Consolidation in so far p
as it relates to ten plots of Khata No. I I I mentioned in the said order
by which Daya Ram and others have been given co-tenancy rights is
hereby quashed and the petitioners Chitan, Chandrika and Karia under
guardianship of Smt. Somura are directed to be recorded as sole
tenure holders to entire land of Khata No. I I I and also Khata No. 13 ,
of village Balrampur, Tehsil and Pargana Tanda, District Faizabad. G,
No order as to costs."
While disposing of the writ petitions, the High Court held in substance
as under:-
A. The land in dispute did not devolve upon Adhin from Saltanati. H
392 SUPREME COURT REPORTS [2006) SUPP. 8 S.C.R.
A B. The land in Khata No.111 was resettled by then landlord giving
certain parts to Adhin and certain other plots to others. Therefore,
it was a fresh settlement and there was no continuity in the
identity of the holding.
C. Accepting the findings arrived at by.the consolidation authorities
B or on the admitted facts, the High Court held that the disputed
holding did not come in tact in the identical fonn and only some
of the plots of the holdings belonging to common ancestral were
found included in the disputed holding and therefore that would
not make an ancestral holding so as to give a share in it to the
appellants on that ground nor it would be pennissible to pie~ up
c those plots from the holding and declare them to be the ancestral
property and give a share in those plots to the appellants.
It is this order of the High Court, which is under challenge before us
in respect of which leave was granted. We have heard the learned counsel on
D either side and examined carefully all the orders of the Consolidation
authorities and finally the impugned judgment of the High Court;
It must be brought on record that before us, no submission has been
made in respect of the appeal filed by Daya Ram and others challenging the
portion of the order which had gone against them. We restrict ourselves only
E on the question whether the claims of respondent Nos. 1. to 3 in respect of
Khata No.111 were justified or not as granted by the High Court.
On behalf of the appellants, the main contention of Dr. R.G. Padia,
learned senior counsel appearing for them was to the effect that it was not
open to ·the High Court to set aside the findings of fact arrived at by the
F consolidation authorities in the exercise of its extra ordinary jurisdiction under
Art. 226 of the Constitution. It was, however, not the submission of Dr. Padia
that it was not open to the High Court to exercise its jurisdiction when the
consolidation authorities had erred in deciding a question of law on the facts
admitted or proved by the parties before them. Dr. Padia thus contended that
the High Court erred in setting aside the finding of fact of the consolidation
G authorities by substituting its own views on the question of fact under Art.
226 of the Constitution.
Secondly, it was contended by Dr. Padia that since two of the co-tenure
holders were not made parties in the writ application who are appellant Nos.
H 13 and 14 in the appeal, the writ petitions heard and disposed of in their
DHARAMRAJ v. CHHITAN [TARUN CHATTERJEE, J.] 393
absence could not be said to be maintainable in law. A
The aforesaid two-fold submissions of Dr. Padia were, however,
contested by Mr. O.P. Sharma, the learned senior counsel who appeared for ·
the respondent Nos. l to 3. Let us therefore examine the main question, as
raised by the learned counsel for the parties and noted herein earlier in detail.
We have already discussed the impugned judgment of the High Court and the B
order of all the three consolidation authorities. It is now well settled law that
in the exercise of its extra ordinary writ jurisdiction High Court is. not supposed
to interfere with the findings of fact arrived at by the consolidation authorities
unless and until High Court concludes that such findings of fact are either
perverse or based on no evidence. It may also be kept in mind that Mr. ,C
Sharma appearing for the respondent Nos. l to 3 also had not advanced any
submission to the extent that the findings of fact of the authorities in the facts
and circumstances of the case could at all be said to be perverse or based on
no evidence. It was the submission of Mr. Sharma that on the admitted fact
and the findings arrived at by the consolidation authorities the High Court
has only declared the law on such admitted and proved facts. D
It is well settled position of law by catena of decisions of this Court
that in the writ jurisdiction of the High Court, it is always permissible for it
to correct the decision of the consolidation authorities or to declare the law
on the basis of facts and proof of such facts. For this proposition, we may
usefully refer to a decision of this Court in the case of Mukunda Bore v. E
Bangshidhar Buragohain & Ors., reported in AIR (1980) SC 1524 in which
this Court indicated as to when High Court can interfere with the orders of
quasi judicial authority. This observation may be quoted which is as follows:
"While on facts the order of the Board under appeal is not
impeccable, we must remember that under Art. 226 of the Constitution F
a finding of fact of a domestic tribunal cannot be interfered with. The
High Court in the exercise of its special jurisdiction does not act as
a Court of Appeal. It interferes only when there is a jurisdictional
error apparent on the face of the record committed by the domestic
tribunal. Such is not the case here. It is true that a finding based on G
no evidence or purely on surmises and conjectures or which is
manifestly against the basic principles of natural justice, may be said
to suffer from an error of law. In the instant case, the finding of the
Board that the appellant does not possess the necessary financial
capacity, is largely a finding of fact under Rule 206(2) of the Assam H
394 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.
A Excise Rules, an applicant for settlement of a shop is required to give
full information regarding his financial capacity in the tender. Such
information must include the details of sources of finance, cash in
hand, bank balance, security assets, etc. Then, such information is
verified by the Inquiry Officer."
B (Underlining is ours)
In Syed Yakoob v. KS.Radhakrishnan & Ors., reported in [1964] 5
SCR 64 this Court observed as follows:-
"finding of fact cannot be challenged in· a proceeding on the
C ground that the relevant and material evidence was insufficient to
sustain the finding and that adequacy or sufficiency of evidence or an
inference of fact to be drawn from the evidence or finding of fact are
entirely within the jurisdiction of the Tribunal."
Again in the case of State of West Bengal v. A.K. Shaw reported in AIR
D (I 990) SC 2205 this Court held that if the quasi judicial tribunal had
appreciated the evidence on record and recorded the findings of fact, those
findings of fact would be binding to the High Court. By the process of
judicial review, the High Court cannot appreciate the evidence and record its
own findings of fact. If the findings are· based on no evidence or based on
E conjectures or surmises and no reasonable man would on given facts and
circumstances come to the conclusion reached by the quasi-judicial authority
on the basis of the evidence on record, certainly the High Court would
oversee whether the findings recorded by the authority is based on no evidence
or beset with surmises or conjectures.
F In view of the law settled by this Court on the question under
consideration, let us consider whether the High Court was justified in reversing
the order of the consolidation authorities -by declaring· that the ilarries ·of·
Respondent Nos. I to 3 should be entered as co-tenure holders in respect of
the plots recorded in Khata No.111. It would be fruitful for us to look into ·
the findings arrived at not only of the High Court but also of the consolidation
G authorities. The Consolidation Officer as the original authority under the Act
on consideration of the material on record held the appellants to be co-tenure
holders in respect of the said land with respondent Nos. I to 3. In appeal, the
Assistant Settlement Officer held that the Consolidation Officer was justified
in holding that the names of the appellants with ·respondent Nos. I to 3
H should be entered in respect of the lands recorded in Khata No.111, i.e. the
DHARAMRAJ v. CHHITAN [TARUN CHATTERJEE, J.] 395
case made out by the respondent Nos. I to 3 that they may be declared as A
sole tenure holders in respect of Khata No. I I I was not accepted.
As noted herein earlier, the Deputy Director held the respondent Nos.
I to 3 in this appeal to be exclusive tenure holders often 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. I to 3 ' B
should be recorded as co-tenure holders.
We have already put on record that the High Court, however, reversed
the findings and order of the Deputy Director, Consolidation by holding that
the lands recorded in the entire Khata No. I I I must be recorded in the names C
of respondent Nos. I to 3. It was the case of the appellants in this appeal
before the High Court that since the lands recorded in Khata No. I I I initially
belonged to Saltanati and they represented his branch and that of Bekaru, son
of Jokhan, they were entitled to get shares as per pedigree set up by the
appellants. It was also contended before the High Court that the Deputy
Director, Consolidation fell in error in holding the respondent Nos. I to 3 to D
be the exclusive tenure holders of ten plots of Khata No. l l l which according
to them belonged to Saltanati. On the other hand, it was the stand of the
respondent Nos. I to 3 that the entire holding of the said Khata was acquired
by Adhin and was recorded in his name in 1338 F. Therefore, lands recorded
in Khata No. l 11 which initially belonged to Saltanati was resettled by the
then landlord with Adhin and others. It was the stand of the respondent Nos. E
l to 3 that the lands recorded in the said Khata in the name of Adhin in the
year 1338 F, certain other plots were also recorded therein. Accordingly, it
was urged that the land in dispute was acquired by Adhin by way of st:ttlement
which continued to be in his possession and on his death it had devolved
upon respondent Nos. l to 3 exclusively. The appellants cannot claim any p
right, title and interest in respect of entire Khata No.11 l nor can they acquire
co-tenure holders rights on the ground that the land was ancestral holding.
From the above discussion, it is therefore clear that although originally
the said land had belonged to Saltanati but subsequent event had clearly
indicated that it was recorded in the name of Adhin and therefore the G
respondent Nos. I to 3, admittedly the successors in interest of the estate of
Adhin, were entitled to succeed. Accordingly, there cannot be any doubt that
the identity of the said land was changed from Saltanati to Adhin and thereafter
to respondent Nos. l to 3. Even· all the findings arrived at by lhe Deputy
· Director, Consolidation in respect of 10 plots in Khata No.l l l, as noted H
396 SUPREME COURT REPORTS [2006) SUPP. 8 S.C.R.
A herein earlier, the names of respondent Nos. I to 3 would exclusively be
entered. At the same time, the Deputy Director, Consolidation had also held
that the names of the appellants should be included in remaining plots of
Khata No. I I I. From the above admitted fact, it is clear that the lands recorded
in the said Khata were directed to be recorded in different names. From this
B it is apparent that the identity of the lands in Khata No. I I I were directed to
be changed which is not permissible in law.
Such being the position, it must be held that the respondent Nos. I to
3 being the successors in interest from the side of Adhin whose name was
duly recorded in respect of the said land were entitied to succeed to the said
C land on the basis of identity and resettlement of the same. If the identity of
the land has been changed, the appellants could not get the property on the
basis that originally this land had been recorded in the name of Saltanati and
that the said land was their ancestral property. Therefore, the pedigree set up
at the instance of the respondent Nos. I to 3, even if it cannot be relied on,
the respondent Nos. I to 3 were entitled· to succeed on the basis of the
D aforesaid fact.
We must also keep it on record that it was not disputed before the
consolidation authorities nor it was disputed by the learned counsel for the
appellants before us that the identity of the said land had changed in view of
the resettlement in favour of Adhin. That being the position, we must hold
E that the appellants could not acquire any co-tenancy rights even if the appellants
succeeded in proving the pedigree set up by them and also acquisition of the
land by common ancestor.
Accordingly, the Deputy Director of. Consolidation was in error in giving
~,,
F co-tenure holder rights to the appellants herein in some of the plots of Khata
No. I I I on the ground that those plots initially belonged to Saltanati and it
was ancestral holding of appellants.
In view of our discussions made herein above, we therefore come to
the conclusion that the High Court while reversing the order of the Deputy
G Director, Consolidation had not set aside the findings of fact arrived at by
them but on the other hand has declared the question of law on the admitted
facts and the findings of fact arrived at by the consolidation authorities.
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
H Bachan and Subhash Chandra appellant Nos.13 and 14 in this appeal, the writ
DHARAMRAJ v. CHHITAN [TARUN CHATTERJEE, J.] 397
petition ought to have been dismissed by the High Court solely on the ground A
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 B
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 C
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/ D
1976 and the question of non-maintainability of the writ petitions before the
High Court in their absenqe 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. E
For the reasons aforesaid, this appeal fails and the same is dismissed
without any order as to costs.
A.K.T. Appeal dismissed.
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