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Friday, April 25, 2014

Section 49 of the UP Consolidation of Land Holdings Act and Section 331 of the UP Zamindari Abolition and Land Reforms Act, - when sonship was challenged , a civil suit for declaration of his status and cancellation of Revenue records from the date of Knowledge is maintainable and is not barred by limitation - Apex court held that The appellant has contended that he had no idea about the Consolidation order and was made aware of it only when he asked for his half share of crop which the defendants refused to him, and that he was made to sign an agreement in which he signed over his rights to the property and that he has been taken advantage off due to his illiteracy. We find all this extremely murky and it was incumbent upon the Consolidation Officer to properly enquire into the ownership of the land before recording the defendant’s name in the revenue records. We further hold that the appellant - Amar Nath is entitled to be recorded in the revenue records by the competent authorities as half share owner of the land in dispute, as he has a right to half the share in the property and crops, as it being the ancestral property of his father – Vaij Nath. It has been proved by examining the evidence on record, such as the election identity card, that Amar Nath is indeed the s/o Vaij Nath thereby it has demolished the contention of the defendants that the appellant is not the s/o Vaij Nath.= AMAR NATH ……… APPELLANT Vs. KEWLA DEVI & ANR. ………RESPONDENTS = 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41447

Section 49 of the UP Consolidation of Land Holdings Act and Section  331  of the UP Zamindari Abolition and Land Reforms Act, - when sonship was challenged , a civil suit for declaration of his status and cancellation of Revenue records from the date of Knowledge is maintainable and is not barred by limitation - Apex court held that The appellant  has  contended  that  he  had  no  idea  about  the Consolidation order and was made aware of it only when he  asked  for  his
half share of crop which the defendants   refused to him, and that he  was made to sign an agreement in which  he  signed  over  his  rights  to  the property and that he has been taken advantage off due to  his  illiteracy. We  find  all  this  extremely  murky  and  it  was  incumbent  upon   the Consolidation Officer to properly enquire into the ownership of  the  land before recording the defendant’s name in the revenue records.  We  further hold that the appellant - Amar Nath is entitled  to  be  recorded  in  the revenue records by the competent authorities as half share  owner  of  the land in dispute, as he has a right to half the share in the  property  and
crops, as it being the ancestral property of his father –  Vaij  Nath.  It has been proved by examining the evidence on record, such as the  election identity card, that Amar Nath is indeed the s/o Vaij Nath thereby  it  has demolished the contention of the defendants that the appellant is not  the s/o Vaij Nath.=



a. Whether the High  Court  was  correct  in  deciding  the  appeal
           without formulating substantial questions of law and whether the
           matter must be remitted back to the High Court?

    We do not think it necessary to remit the matter back to the  High  Court
for fresh consideration. We feel it is sufficient to set aside the  impugned
judgment and uphold the well-reasoned judgment of the first appellate  court
where it was held that the very fact that the trial court held that  it  was
proved that Amar Nath was s/o Vaij Nath based on  the  evidence  on  record,
then automatically the court should have  given  half  the  portion  of  the
disputed land to the  appellant  along  with  defendant  no.1,  Kewla  Devi.
Instead, the trial court as well as the Consolidation  Officer  have  passed
judgments that are bad in law as they have failed to see that the  right  of
the appellant cannot simply be extinguished because of the defendants’  plea
that he has entered into a  compromise.  The  defendants  have  taken  undue
advantage of the appellant’s illiteracy and the  Consolidation  Officer  has
abdicated his role  by  allowing  the  objection  of  the  appellant  to  be
withdrawn and by not examining whether or not the appellant was  indeed  the
S/o Vaij Nath who was the S/o Gaya. The order of the  Consolidation  Officer
is thus bad in law and it has resulted in a grave  miscarriage  of  justice.
We think it fit to restore the judgment  and  decree  passed  by  the  first
appellate court wherein the court declared that the appellant, Amar Nath  is
S/o Vaij Nath who was son of Gaya thereby holding that the order  passed  by
the Consolidation Officer is void and illegal and the trial court was  wrong
in not quashing the order of the Consolidation Officer and that  nowhere  in
the revenue record was his name recorded and  fraud  was  committed  against
him as defendant no.1, Kewla Devi has got her  name  recorded  in  each  and
every revenue record.  The judgment of the first appellate  court  is  legal
and valid as it is fair and keeping with  the  principles  of  justice.  The
trial court in its answer to issue nos. 1 and 10 has rightly held that  Amar
Nath is S/o Vaij Nath who was undisputedly the son of Gaya and if that  fact
was proved, then  we  see  no  reason  why  it  was  not  directed  for  the
appellant’s name to be recorded in the revenue records.  The  right  of  the
appellant over the suit schedule  property  cannot  be  extinguished  simply
because objection was withdrawn, over  which  there  is  a  cloud  of  doubt
anyway and also, the appellant has pleaded that he had  no  idea  about  the
order of the Consolidation Officer in the first place.  We  find  it  highly
likely that fraud was committed on him by the  defendants  as  well  as  the
Consolidation Officer by not recording his name in the  revenue  records  as
the defendants have taken undue advantage of  his  illiteracy  so  that  the
whole property goes to the defendants.

  b. Whether the suit of the appellant was barred by  Section  49  of
           the UP Consolidation of Land Holdings Act and Section 331 of the
           UP Zamindari Abolition and Land Reforms Act?


       10. Answer to point no.2:
The question whether the original suit of the  appellant  was  barred  under
Section 49 of the UP Consolidation of Land Holdings Act and Section  331  of
the UP Zamindari Abolition and Land Reforms Act, we answer in the  negative.
The suit was not barred under the aforesaid provisions as the  UP  Zamindari
Abolition and Land Reforms Act has no jurisdiction to deal with the  subject
matter. On the issue of Section 49 of the UP Consolidation of Land  Holdings
Act, we hold that the present case is not barred under this  section  as  it
is a suit for possession of the  suit  schedule  property  based  on  title,
which is not within the jurisdiction of the authorities under the  aforesaid
Act. In the case of Suba Singh v. Mahendra Singh & Ors.[5], it was  observed
by this Court that Section 49 does not bar jurisdiction of civil  courts  in
matters of title to the land stating that -
               “9. …The result is that the plea of bar of the civil courts’
               jurisdiction to investigate and adjudicate upon the title to
               the land or the sonship of the plaintiff has no substance….”




Therefore, since the present case too involves a question  of  ‘sonship’  of
the plaintiff  who  is  the  appellant  herein,  there  is  no  bar  to  the
jurisdiction of civil courts under Section  49  of  the  aforesaid  Act,  in
deciding the question of the appellant’s right to the land he has  inherited
from his father.
 c. Whether the order passed  by  the  Consolidation  Officer  dated
           14.02.1970 must be declared illegal and void?


        d. What order/decree to be passed?
11. Answer to point nos.3 & 4:
      The order of the Consolidation Officer dated 14.2.1970 was obtained on
the basis of fraud  by  the  defendants.  We  feel  that  the  Consolidation
Officer has also committed fraud on the appellant, by  accepting  withdrawal
of his objection and not going into the issue of whether he is the s/o  Vaij
Nath or not, and therefore whether he is the rightful heir, with a right  in
half-share of the disputed  property.  The  Consolidation  Officer  has  not
discharged his duties properly and keeping with law has  not  given  details
of the objection or why the objection was not pressed by  the  appellant  in
his order. He has permitted a gross miscarriage of justice  to  continue  by
recording of the name of defendant no.1 as the only  rightful  heir  to  the
land in dispute. In the case of S.  Partap  Singh  v.  State  of  Punjab[6],
Ayyangar J. in his portion of  the  judgment  at  para  6  has  quoted  Lord
Denning (in the case Lazarus Estates Ltd. v. Beasley 1956 1 All  ER  341  at
p.345) stating:
              “No judgment of a Court,  no  order  of  a  Minister  can  be
              allowed to stand if it has been obtained by fraud.”


The Consolidation officer without examining the alleged  statement  made  on
behalf of the appellant and  verifying  the  correctness  of  the  same  has
accepted the withdrawal of his objection and has passed  the  order  without
examining the rights of the parties  with  reference  to  the  documents  in
relation to the suit schedule property.


12. We therefore hereby declare the order of the Consolidation Officer  to
be null and void on grounds of patent illegality  and  acting  with  legal
malice. The appellant  has  contended  that  he  had  no  idea  about  the
Consolidation order and was made aware of it only when he  asked  for  his
half share of crop which the defendants   refused to him, and that he  was
made to sign an agreement in which  he  signed  over  his  rights  to  the
property and that he has been taken advantage off due to  his  illiteracy.
We  find  all  this  extremely  murky  and  it  was  incumbent  upon   the
Consolidation Officer to properly enquire into the ownership of  the  land
before recording the defendant’s name in the revenue records.  We  further
hold that the appellant - Amar Nath is entitled  to  be  recorded  in  the
revenue records by the competent authorities as half share  owner  of  the
land in dispute, as he has a right to half the share in the  property  and
crops, as it being the ancestral property of his father –  Vaij  Nath.  It
has been proved by examining the evidence on record, such as the  election
identity card, that Amar Nath is indeed the s/o Vaij Nath thereby  it  has
demolished the contention of the defendants that the appellant is not  the
s/o Vaij Nath.

13.  In view of the foregoing reasons, we hold that  the  appellant  is  the
half share owner of the land in question and further  uphold  his  right  to
the ancestral property. We direct the  competent  authority  to  record  the
name of the appellant – Amar Nath in  the  revenue  records  as  half  share
owner of the land in  dispute.  Thus,  we  hereby  set  aside  the  impugned
judgment and decree of the High Court and uphold the judgment of  the  first
appellate court.  The appeal is allowed  in  the  aforesaid  terms  with  no
order as to costs.
2014 ( April.Part ) judis.nic.in/supremecourt/filename=41447
GYAN SUDHA MISRA, V. GOPALA GOWDA

REPORTABLE




                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO.1918 OF 2007






AMAR NATH                                    ……… APPELLANT


                                     Vs.


KEWLA  DEVI & ANR.                      ………RESPONDENTS










                               J U D G M E N T




V.GOPALA GOWDA J.





      This appeal is directed against the impugned judgment and order  dated
08.04.2005 of the High Court of Uttar Pradesh at Allahabad wherein the  High
Court allowed the appeal filed by the respondents and set  aside  the  order
passed by the Additional District Judge  and  upheld  the  findings  of  the
trial court. The  appellant  has  appealed  against  the  impugned  judgment
urging various legal and factual  contentions,  the  main  contention  being
that the High Court has  allowed  the  appeal  without  framing  substantial
question/questions of law although it is mandatory as  per  Section  100  of
the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’).

2. The relevant facts of the case in brief are stated hereunder:
       The appellant, Amar Nath is the plaintiff whose father, Vaij Nath  is
the brother of Ram Nath and Ram Dev. The respondent no.1 - the defendant  is
the only daughter of Ram Nath. Ram  Dev,  the  third  brother  died  without
issue. The appellant, Amar Nath filed a suit  for  possession  of  the  suit
schedule property and prayed for quashing of order dated  14.02.1970  passed
by the Consolidation Officer during the  Consolidation  proceedings  on  the
ground that  defendant  no.1  in  connivance  with  defendant  no.2,  taking
benefit of the appellant’s mental  weakness  and  illiteracy  have  recorded
their name over the land in dispute, and the Consolidation Officer  rejected
the appellant’s objection holding that it was not pressed and directed  that
existing entries shall continue. He prayed for quashing  the  order  of  the
Consolidation Officer on the ground that fraud was played on him and he  had
no knowledge of the order. The trial court on the  basis  of  the  pleadings
has framed 12 issues and after trial, it has decided issue  nos.  1  and  12
against the appellant, holding that the appellant is not  co-bhumidhar  over
the land in dispute and further held that the suit is barred by  limitation.
The trial court also held that the suit is barred by Section 331 of  the  UP
Zamindari Abolition and Land Reforms Act, 1950 and he should instead file  a
suit before the Revenue Court for his  bhumidhar  right  over  the  disputed
land and for the relief of possession also of the  suit  schedule  property.
It was further held that the  suit  is  barred  by  Section  49  of  the  UP
Consolidation of Holdings Act, 1953 as well  as  by  limitation.  The  trial
court also held that the suit is barred by  the  principle  of  estoppel  as
well as under Sections  34  and  41  of  the  Specific  Relief  Act  as  the
defendant has got exclusive possession over the land  in  dispute.  Although
the trial court held that the appellant had cause  of  action  to  file  the
suit, it went on to hold that as the appellant did not press  the  objection
filed by him  in  the  consolidation  proceedings  and  he  entered  into  a
compromise with the defendant, handing over  his  share  in  favour  of  the
defendant which is not based on fraud, coercion or  undue  pressure  and  no
allegation of the same has been mentioned  in  the  suit,  and  no  evidence
either was placed on record. Hence, the trial court held that the  appellant
is not entitled for the relief as  prayed  for  in  the  suit,  and  thereby
dismissed the suit  with  costs.  Importantly,  even  though  the  suit  was
dismissed the trial court demolished the contention of the  defendants  that
Amar Nath, the appellant was not Vaij Nath’s son. The trial court held  that
Amar Nath was indeed the son of Vaij Nath,  relying  on  the  deposition  of
witnesses examined on behalf of the appellant and  on  documentary  evidence
produced on his behalf i.e. the copy  of  electoral  register  of  1991  and
ration card in which it is recorded that he is Amar Nath s/o Vaij Nath.  The
trial court took into account the admission of DW-1,  Shyama  Chand  Tiwari,
the husband of defendant no.1 who has recorded his statement on oath in  the
court wherein he has himself stated  that  ‘Amar  Nath  s/o  Vaij  Nath  had
himself withdrawn his case from the consolidation proceedings’.

3. The appellant appealed against the  judgment  and  decree  of  the  trial
court by filing a civil appeal under Section 96 of  the  CPC  in  the  first
appellate court, through the Court of the  Additional  District  Judge.  The
first appellate court held vide judgment and decree  dated  01.02.2005  that
the appellant had only to prove that he is son of Vaij Nath who was the  son
of Gaya and he  is  their  legal  heir  and  the  trial  court,  instead  of
examining important and  reliable  evidence  of  the  witnesses  has  rather
examined  different  interested  persons,  ignoring  the  records  available
before it which constituted complete evidence in favour  of  the  appellant.
If evidence were that Amar Nath was son of Vaij Nath then automatically  the
court should have  given  half  portion  of  the  land  in  dispute  to  the
appellant along with defendant Kewla Devi. The appeal  was  allowed  as  the
conclusion arrived  at  by  the  trial  court  were  not  supported  by  the
pleadings and evidence available on record.

4. The respondents-defendants filed the second appeal before the High  Court
against the judgment and  decree  of  the  first  appellate  court.  It  was
contended by the  respondents  that  the  disputed  land  was  inherited  by
respondent No.1 from her father  during  consolidation  proceedings  in  the
year 1969-1970 and some opponent of theirs set up the appellant to  file  an
objection which was later on withdrawn  by  him  by  moving  an  application
dated 14.02.1970. It was alleged that the appellant does not belong  to  the
family of the respondents and he is not the  heir  of  Gaya.  The  appellant
alleged that fraud was committed on  him  and  the  order  dated  14.02.1970
passed by the Consolidation Officer was fraudulent  and  liable  to  be  set
aside. He pleaded that he was defrauded by the  respondents  and  they  made
him to believe that they are managing the  disputed  land.  The  High  Court
held that as per Order 6 Rule 4 of the CPC,  when  fraud,  breach  of  trust
etc. are alleged, particulars of the same must be  stated  in  the  pleading
and in the present case, no particulars of fraud were made as  part  of  the
pleading and in the absence of such pleading no evidence can be looked  into
and a finding that the  order  has  been  fraudulently  procured  cannot  be
given. As a result, the second appeal of the  respondents  was  allowed  and
the High Court set aside the judgment and  decree  of  the  first  appellate
court.  Hence, this civil appeal.
5. The learned  counsel  for  the  appellant  contends  that  the  appellant
pleaded about the fraud played and further clarified it in the evidence  led
by him and that he was assured by the husband of respondent  No.1  that  his
share will be recorded in his name and that he committed fraud upon him.  He
further stated that the appellant had no knowledge about  the  consolidation
order dated 14.02.1970 and that he had not  filed  any  application  in  the
Consolidation Court. He  contended  that  the  suit  was  not  barred  under
Section 49 of the UP Consolidation of Land Holdings  Act  and  also  Section
331 of the UP Zamindari Abolition and Land Reforms Act, 1950  as  by  filing
the present suit, the appellant prayed  for  quashing  of  the  order  dated
14.02.1970 which, he contended, was obtained by fraud and the  power  to  do
this lies only with the civil court. Further, the trial court has  committed
a grave error by not decreeing the suit by giving half the  portion  of  the
disputed property to the appellant when the trial court itself had  held  in
para 18 of its judgment that the appellant was the son of Vaij Nath and  the
legal heir of Gaya. The appellant then contended that  the  High  Court  has
committed a serious  error  of  procedure  by  allowing  the  second  appeal
without framing any substantial  question  of  law  as  per  requirement  of
Section 100 of the CPC.

6. The learned counsel for the respondent has submitted that the High  Court
has dealt with the appeal without framing substantial question of law  which
is mandated as per Section 100 of the CPC. Further, the High Court  has  not
gone into the question whether the suit was barred by Section 49 of  the  UP
Consolidation of Land Holdings Act and  Section  331  of  the  UP  Zamindari
Abolition and Land Reforms Act. The learned counsel relied on  the  case  of
Madan Mohan Mishra v. Chandrika Pandey (Dead)  by  LRs[1]  to  contend  that
this Court has clearly held that  the  jurisdiction  of  a  civil  court  is
barred in respect of agricultural land and in Madan Mohan Singh  &  Ors.  v.
Rajni Kant & Anr.[2], it was held that the statutory authorities  under  the
Consolidation of Holdings Act enjoy the powers of a civil court as  well  as
a revenue court as all matters pending before the  civil  court  abate  once
notification of initiation of  proceedings  is  issued  under  the  Act.  He
stated that the authorities under the Consolidation Act have been  conferred
the powers of a civil court to adjudicate upon any matter of title or  right
to inherit  property.  Therefore,  it  was  submitted  that  the  matter  be
remitted to the High Court for formulating substantial question of  law  and
then decide the second appeal on its merits or this Court may be pleased  to
consider the effect of Section 49 of the UP Consolidation of  Land  Holdings
Act and Section 331 of the UP Zamindari Abolition and Land  Reforms  Act  on
merits.

7. We have heard the learned counsel for both  the  parties.  The  following
questions arise before us:

        a. Whether the High  Court  was  correct  in  deciding  the  appeal
           without formulating substantial questions of law and whether the
           matter must be remitted back to the High Court?


        b. Whether the suit of the appellant was barred by  Section  49  of
           the UP Consolidation of Land Holdings Act and Section 331 of the
           UP Zamindari Abolition and Land Reforms Act?


        c. Whether the order passed  by  the  Consolidation  Officer  dated
           14.02.1970 must be declared illegal and void?


        d. What order/decree to be passed?


We will deal with each of these issues separately along  with  supplementary
issues that would arise out of them.

8. Answer to point no.1:
      In our considered viewpoint, the High  Court  has  committed  a  grave
error in procedure by not framing substantial question of  law  and  setting
aside the judgment and decree of the first appellate court. The  finding  of
fact recorded by the first appellate court on  the  contentious  issues  was
based on re-appreciation  of  the  pleadings  and  evidence  on  record  and
careful perusal of the law and the High Court has failed  to  discharge  its
duty by not framing the mandatory substantial questions of law in  order  to
examine the correctness of the judgment  and  decree  passed  by  the  first
appellate court. In the interest of justice, the judgment and decree of  the
High Court has to be set aside  as  it  has  omitted  to  frame  substantial
questions of law and answer the same and thus has failed  to  discharge  its
duty under S.100 of the CPC. The learned  counsel  for  the  respondent  has
relied on the cases of Surat Singh v. Hukam Singh Negi[3] and  Hardeep  Kaur
v. Malkiat Kaur[4]  in order to establish that the High Court  is  bound  to
formulate substantial questions of law at the initial  stage  itself  if  it
has to satisfy itself that the  matter  deserves  to  be  admitted  and  the
second appeal to be heard and decided on such questions and further even  at
the time of hearing of the second appeal, it is open to the  High  Court  to
reformulate substantial questions of law. In the judgments relied upon,  the
impugned judgments of the High Court were  set  aside  and  the  matter  was
remitted to the High Court for consideration  afresh  after  formulation  of
the substantial questions of law. The learned counsel  for  the  respondents
has prayed for the same.

9. We do not think it necessary to remit the matter back to the  High  Court
for fresh consideration. We feel it is sufficient to set aside the  impugned
judgment and uphold the well-reasoned judgment of the first appellate  court
where it was held that the very fact that the trial court held that  it  was
proved that Amar Nath was s/o Vaij Nath based on  the  evidence  on  record,
then automatically the court should have  given  half  the  portion  of  the
disputed land to the  appellant  along  with  defendant  no.1,  Kewla  Devi.
Instead, the trial court as well as the Consolidation  Officer  have  passed
judgments that are bad in law as they have failed to see that the  right  of
the appellant cannot simply be extinguished because of the defendants’  plea
that he has entered into a  compromise.  The  defendants  have  taken  undue
advantage of the appellant’s illiteracy and the  Consolidation  Officer  has
abdicated his role  by  allowing  the  objection  of  the  appellant  to  be
withdrawn and by not examining whether or not the appellant was  indeed  the
S/o Vaij Nath who was the S/o Gaya. The order of the  Consolidation  Officer
is thus bad in law and it has resulted in a grave  miscarriage  of  justice.
We think it fit to restore the judgment  and  decree  passed  by  the  first
appellate court wherein the court declared that the appellant, Amar Nath  is
S/o Vaij Nath who was son of Gaya thereby holding that the order  passed  by
the Consolidation Officer is void and illegal and the trial court was  wrong
in not quashing the order of the Consolidation Officer and that  nowhere  in
the revenue record was his name recorded and  fraud  was  committed  against
him as defendant no.1, Kewla Devi has got her  name  recorded  in  each  and
every revenue record.  The judgment of the first appellate  court  is  legal
and valid as it is fair and keeping with  the  principles  of  justice.  The
trial court in its answer to issue nos. 1 and 10 has rightly held that  Amar
Nath is S/o Vaij Nath who was undisputedly the son of Gaya and if that  fact
was proved, then  we  see  no  reason  why  it  was  not  directed  for  the
appellant’s name to be recorded in the revenue records.  The  right  of  the
appellant over the suit schedule  property  cannot  be  extinguished  simply
because objection was withdrawn, over  which  there  is  a  cloud  of  doubt
anyway and also, the appellant has pleaded that he had  no  idea  about  the
order of the Consolidation Officer in the first place.  We  find  it  highly
likely that fraud was committed on him by the  defendants  as  well  as  the
Consolidation Officer by not recording his name in the  revenue  records  as
the defendants have taken undue advantage of  his  illiteracy  so  that  the
whole property goes to the defendants.





10. Answer to point no.2:
The question whether the original suit of the  appellant  was  barred  under
Section 49 of the UP Consolidation of Land Holdings Act and Section  331  of
the UP Zamindari Abolition and Land Reforms Act, we answer in the  negative.
The suit was not barred under the aforesaid provisions as the  UP  Zamindari
Abolition and Land Reforms Act has no jurisdiction to deal with the  subject
matter. On the issue of Section 49 of the UP Consolidation of Land  Holdings
Act, we hold that the present case is not barred under this  section  as  it
is a suit for possession of the  suit  schedule  property  based  on  title,
which is not within the jurisdiction of the authorities under the  aforesaid
Act. In the case of Suba Singh v. Mahendra Singh & Ors.[5], it was  observed
by this Court that Section 49 does not bar jurisdiction of civil  courts  in
matters of title to the land stating that -
               “9. …The result is that the plea of bar of the civil courts’
               jurisdiction to investigate and adjudicate upon the title to
               the land or the sonship of the plaintiff has no substance….”




Therefore, since the present case too involves a question  of  ‘sonship’  of
the plaintiff  who  is  the  appellant  herein,  there  is  no  bar  to  the
jurisdiction of civil courts under Section  49  of  the  aforesaid  Act,  in
deciding the question of the appellant’s right to the land he has  inherited
from his father.

11. Answer to point nos.3 & 4:
      The order of the Consolidation Officer dated 14.2.1970 was obtained on
the basis of fraud  by  the  defendants.  We  feel  that  the  Consolidation
Officer has also committed fraud on the appellant, by  accepting  withdrawal
of his objection and not going into the issue of whether he is the s/o  Vaij
Nath or not, and therefore whether he is the rightful heir, with a right  in
half-share of the disputed  property.  The  Consolidation  Officer  has  not
discharged his duties properly and keeping with law has  not  given  details
of the objection or why the objection was not pressed by  the  appellant  in
his order. He has permitted a gross miscarriage of justice  to  continue  by
recording of the name of defendant no.1 as the only  rightful  heir  to  the
land in dispute. In the case of S.  Partap  Singh  v.  State  of  Punjab[6],
Ayyangar J. in his portion of  the  judgment  at  para  6  has  quoted  Lord
Denning (in the case Lazarus Estates Ltd. v. Beasley 1956 1 All  ER  341  at
p.345) stating:
              “No judgment of a Court,  no  order  of  a  Minister  can  be
              allowed to stand if it has been obtained by fraud.”


The Consolidation officer without examining the alleged  statement  made  on
behalf of the appellant and  verifying  the  correctness  of  the  same  has
accepted the withdrawal of his objection and has passed  the  order  without
examining the rights of the parties  with  reference  to  the  documents  in
relation to the suit schedule property.


12. We therefore hereby declare the order of the Consolidation Officer  to
be null and void on grounds of patent illegality  and  acting  with  legal
malice. The appellant  has  contended  that  he  had  no  idea  about  the
Consolidation order and was made aware of it only when he  asked  for  his
half share of crop which the defendants   refused to him, and that he  was
made to sign an agreement in which  he  signed  over  his  rights  to  the
property and that he has been taken advantage off due to  his  illiteracy.
We  find  all  this  extremely  murky  and  it  was  incumbent  upon   the
Consolidation Officer to properly enquire into the ownership of  the  land
before recording the defendant’s name in the revenue records.  We  further
hold that the appellant - Amar Nath is entitled  to  be  recorded  in  the
revenue records by the competent authorities as half share  owner  of  the
land in dispute, as he has a right to half the share in the  property  and
crops, as it being the ancestral property of his father –  Vaij  Nath.  It
has been proved by examining the evidence on record, such as the  election
identity card, that Amar Nath is indeed the s/o Vaij Nath thereby  it  has
demolished the contention of the defendants that the appellant is not  the
s/o Vaij Nath.

13.  In view of the foregoing reasons, we hold that  the  appellant  is  the
half share owner of the land in question and further  uphold  his  right  to
the ancestral property. We direct the  competent  authority  to  record  the
name of the appellant – Amar Nath in  the  revenue  records  as  half  share
owner of the land in  dispute.  Thus,  we  hereby  set  aside  the  impugned
judgment and decree of the High Court and uphold the judgment of  the  first
appellate court.  The appeal is allowed  in  the  aforesaid  terms  with  no
order as to costs.
                                ………………………………………………………………………J.
                         [GYAN SUDHA MISRA]

                                    ………………………………………………………………………J.
                                     [V. GOPALA GOWDA]
New Delhi,                                              April 22, 2014
-----------------------
[1] (2009) 3 SCC 720
[2] (2010) 9 SCC 209
[3] (2010) 15 SCC 525
[4] (2012) 4 SCC 344
[5] (1974) 1 SCC 418
[6] AIR 1964 SC 72


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