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Vishwa Nath And Others vs Deputy Director Of Consolidation … on 24 July, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

?Court No. – 7

Case :- CONSOLIDATION No. – 6293 of 1982

Petitioner :- Vishwa Nath And Others

Respondent :- Deputy Director Of Consolidation And Others

Counsel for Petitioner :- R.K.Srivastava,Ajai Prakash Mishra,Ram Kumar Singh,Ram Narain Gupta,S.P.Verma,Sheetla Prasad Verma

Counsel for Respondent :- C.S.C.,D.M.Maurya,H.A.Husain,Hrgurcharan,Rajendra Pratap Singh,Ram Dheeraj Yadav,S.C.Shukla,Surendra Pratap Singh,Vivek Tripathi

Hon’ble Rajan Roy,J.

Heard.

This writ petition was filed in the year 1982 challenging the order dated 08.12.1982, passed by the Dy. Director of Consolidation, Sultanpur, under Section 48 of the U.P. Consolidation of Holdings Act, 1953.

This Court while entertaining the writ petition, had passed an interim order on 24.12.1982 to the effect that the petitioner shall not be dispossessed from the land in dispute in pursuance to the impugned order, however, this order was subsequently vacated by a detailed order dated 29.3.1986 after hearing the parties.

The facts of the case in brief are that in the basic year ‘khatauni’ Kedarnath, Raghunath, Ram Sewak, Vishwanath sons of Sukhai and Smt. Kaushalya widow of Jagannath, the other son of Sukhai, were recorded as tenure holders in respect of khata no.5. A dispute was reported during consolidation operations regarding the estate of Kaushalya. Gokul Prasad the opposite party no.2 herein filed an objection claiming the rights and interest in the holding of Kaushalya on the ground that she had adopted him on 02.5.1969. The other recorded tenure holders also filed objections claiming their rights to the holding of Kaushalya on the basis of succession as per the provisions of UPZALR Act, 1950. The Consolidation Officer disbelieved the registered adoption deed and rejected the claim of Gokul Prasad. He accepted the claim of the other recorded tenure holders to the holding of Kaushalya. This was done vide his judgment dated 19.09.1981. Gokul Prasad filed an appeal before the Settlement Officer of Consolidation under Section 11 of the Act, 1953. The Settlement Officer of Consolidation dismissed the appeal by holding that the adoption was not proved. Being aggrieved, Gokul Prasad filed a revision before the Dy. Director of Consolidation under Section 48 of the Act, 1953. The revisional court vide its judgment dated 08.12.1982 allowed the revision, set-aside the orders of the Consolidation Officer and the Settlement Officer of Consolidation and ordered for mutation of name of Gokul Prasad in respect of the holding of late Kaushalya. It is against the aforesaid background that this writ petition was filed in the year 1982 as already stated hereinabove.

The contention of Shri Ram Kumar Singh, learned counsel for the petitioner was that the Settlement Officer of Consolidation had passed a reasoned order holding that the adoption was not proved but the DDC had set- aside the same merely on the ground that there was a presumption in law about the registered adoption deed. He further opined that the ingredients of a valid adoption were not satisfied in the existing case. He specifically asserted that Gokul Prasad was above 15 years of age on the date of adoption and in this regard he relied upon the statement of Raghunath Prasad, his natural father that at the time of death of Jagannath Prasad, Gokul Prasad was six or seven years old. He also contended that it was only to circumvent the legal requirement regarding the age not being more than 15 years that a story was set-up about an alleged adoption on 02.5.1969 whereas in fact no such adoption had taken place which is evident from the fact that the alleged adoption deed executed on 22.7.1977, a date prior to the death of Kaushalya on 23.7.1977, was presented for registration after her death and was initially declined to be registered by the Sub- Registrar but it is only under Section 73 of the Registration Act, 1978 that orders were passed for its registration.

The learned counsel for Gokul Prasad, Shri S.P. Singh contended that section 16 of the Hindu Adoption and SectionMaintenance Act, 1956, even without the State Amendment by SectionU.P. Act, 57 of 1976, raises a presumption about the registered adoption deed and as the deed had been registered, therefore, the burden was upon the petitioners herein to rebut the same but no tangible evidence was led by them to show that the adoption was invalid, illegal or void. It is the contention that the Consolidation Officer and the Settlement Officer of Consolidation adopted a wrong approach as if the burden for proving the validity of the adoption deed was upon Gokul Prasad, the adoptee son, ignoring the provision of Section 16. Therefore, the DDC rightly interfered in exercise of his revisional powers to set right the wrong committed by the said courts. He relied heavily upon the order of the Registrar passed under Sectionsection 73 of the Registration Act, 1908 to contend that all the relevant issues including objection to the age of Gokul Prasad were raised by way of objection which were considered in the appeal. The appellate authority rejected all these contentions which are being raised before this Court by a reasoned order dated 03.6.1979 which was never challenged by the petitioners nor was the registered adoption deed, therefore, he contends that there is no valid grounds for interference under SectionArticle 226 of the Constitution of India.

Having heard the learned counsel for the parties and perused the record the Court finds that Gokul Prasad the son of Raghunath one of the sons of Sukhai, the common ancestor was alleged to have been adopted by Kaushalya, wife of late Jagannath, another son of Sukhai, on 02.5.1969 after the death of her husband. However, the adoption deed is said to have been executed only on 22.7.1977 and it could not be executed earlier. Kaushalya died a day thereafter, i.e., on 23.7.1977. After her death the deed was presented for registration before the Sub-Registrar on 12.10.1977 but he vide order dated 21.11.1977 refused to register the same on the ground of Gokul Prasad’s date of birth which was said to be 06.01.1959 as mentioned in the family register and he being more than 15 years on the date of presentation of the deed as also the non-appearance of Kaushalya, the adoptee mother, who in fact had already died. This led to the filing of an application by Raghunath under Section 73 of the Registration Act, 1908. Needless to say that before the Sub-Registrar itself when the notices were published in the newspaper, the petitioners herein filed objection which led to the refusal of the Sub-Registrar to register the adoption deed, therefore, the petitioners herein were also parties in the proceedings and were heard. The Registrar considered the matter under Section 73 of the Act, 1908, the facts of the case, evidence on record, the arguments advanced in the light of the three issues formulated by him one of which was with regard to the age of Gokul Prasad, the other was with regard to the permissibility of the adoption deed being presented before the Sub-Registrar for registration after the death of Kaushalya and its acceptance. The third issue was framed by him with regard to the validity of the order of Registrar in declining to the register the adoption deed. Extensive evidence was led before the Registrar in the said proceedings who also got Gokul Prasad medically examined by the CMO, who submitted his report that as on 22.11.1977 Gokul Prasad was of 17 years of age. The Registrar also took into consideration the date of birth of Gokul Prasad as mentioned in the school leaving certificate which was 04.9.1960 and the date of birth mentioned in the family register, which was 06.01.1959 but, gave preference to the medical report of the CMO in this regard and based thereon opined that when the adoption took place on 02.5.1969 Gokul Prasad was below 15 years of age. Accordingly, he decided the issue no.1 in favour of the applicant. As regards issue no.2, he opined that Kaushalya having died and the other sons of Sukhai having a vested interest in the matter, Raghunath who was father of the Gokul Prasad the latter being a minor was entitled to present the adoption deed for registration before the Sub- Registrar which should not have been refused. As regards the third issue, he opined that the Sub- Registrar erred in declining to register the deed. The Court has perused the order of the Registrar dated 30.6.1979 and finds it to be a well considered order. Moreover, the petitioners never challenged this order though they could have done so. Not only this the petitioners never challenged the registered adoption deed which could also have been done by them. This was necessary as the jurisdiction of the Consolidation Courts when it comes to the validity of such deeds is confined to the question as to whether such a deed is void or not. If it is void then of course the Consolidation Court can ignore it but if it is voidable then it is not for the consolidation court to ignore it, meaning thereby, the effect of such a deed has to be given effect by the Consolidation Court. Legal position in this regard is very well settled. As regards the orders of the Registrar under Section 73, it is doubtful that its validity could be seen by the Consolidation Courts, therefore, it having remained unchallenged, the finding regarding therein in the circumstances of this case attained finality between the parties subject to the limited challenge to the deed on the question of its voidness. This Court has perused the order of Consolidation Officer which was passed apparently in ignorance of the provision contained in the Section 16 of the Act, 1956 which raises a presumption as to the validity of the adoption on the basis of which the initial burden imposed by law stands satisfied and the onus shifts upon the party challenging the deed to show that the adoption was void or voidable. Contrary to this presumption the consolidation officer proceeded as if it was for Gokul Prasad or Raghunath to prove the deed. Moreover, the reasoning given by the Consolidation Officer does not come within the purview of voidness. At best there could be a ground for challenging the deed as voidable but then this would be beyond the jurisdiction of the consolidation courts and would fall within the domain of the civil courts in regular civil proceedings wherein a challenge to the deed could be made which in fact was never made in this case. The Court has also perused the order of SOC and finds that he completely misdirected himself by adopting an erroneous approach as if the burden of proving the deed lay with Gokul Prasad and Raghunath ignoring the presumption in this regard in view of Section 16 of the Act, 1956. Entire approach of the Settlement Office of Consolidation was erroneous. He did not discuss any evidence led by the petitioners nor did he record any finding based on such evidence or evidence led by either of the parties, that the deed was void.

In view of this the Dy. Director of Consolidation cannot be faulted in exercise of his revisional jurisdiction as, courts below erroneously exercised their jurisdiction and in fact exceeded the same. The Dy. Director of Consolidation after appreciating the evidence led by the petitioners as also by Gokul Prasad had arrived at the conclusion that the adoption was valid. There was a presumption in this regard under section16 of the Act, 1956 on account of which the onus shifted on petitioners which they failed to discharge. He has also recorded a finding of fact based on the appreciation of evidence led by the opposite party herein also, to the effect that the oral and documentary evidence does not establish voidness of the deed. In this scenario this Court under SectionArticle 226 of the Constitution of India does not find any valid ground for interference with the findings and conclusions recorded by the Dy. Director of Consolidation.

Writ petition, therefore, lacks merit and is accordingly dismissed.

Order Date :- 24.7.2019

mks

 

 

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