Amitabh Singh And 2 Others vs Deputy Director Of Consolidation Lko. … on 6 June, 2025

Allahabad High Court

Amitabh Singh And 2 Others vs Deputy Director Of Consolidation Lko. … on 6 June, 2025

Author: Jaspreet Singh

Bench: Jaspreet Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:34992
 
Court No. - 4
 

 
Case :- WRIT - B No. - 558 of 2025
 
Petitioner :- Amitabh Singh And 2 Others
 
Respondent :- Deputy Director Of Consolidation Lko. And 4 Others
 
Counsel for Petitioner :- Virendra Kumar Shukla,Uma Shankar Sahai
 
Counsel for Respondent :- C.S.C.,Umesh Pratap Singh
 

 
Hon'ble Jaspreet Singh,J.
 

1. Heard Sri U.S. Sahai, learned counsel for the petitioner who has filed his Vakalatnama which is taken on record. Notice on behalf of respondent nos. 1 to 3 has been accepted by the office of the learned Chief Standing Counsel. Sri Umesh Pratap Singh, learned counsel has put in appearance on behalf of private respondent no. 4 on caveat.

2. The learned counsel for the petitioner has filed a supplementary affidavit which is taken on record.

3. Under challenge is the order dated 27.02.2025 passed by the Deputy Director of Consolidation, Lucknow who has rejected the revision preferred by the petitioners affirming the order passed by the Settlement Officer of Consolidation dated 19.02.2021.

4. The submission of learned counsel for the petitioners is that the disputed property in question was originally recorded in the name of Sri Pal. It is stated that upon the commencement of consolidation operations in the village in question, a compromise is said to have been arrived at between the present petitioners and Sri Pal.

5. On the basis of the alleged compromise dated 04.02.1981, it is stated that on 11.09.1981, the name of the petitioners came to be recorded.

6. It is also an admitted case of the petitioners that Sri Pal died in the year 2002 whereas Ram Asrey (father of the petitioners) died in the year 2000.

7. It is also urged that after the death of Sri Pal, the private respondent no. 4 claiming himself to be the son of Sri Pal had initially filed a suit under Section 229-B of the Uttar Pradesh Zamindri Abolition and Land Reforms Act, 1950 in the year 2014, after 37 years which later he withdrew with liberty to file afresh which was subsequently followed by another suit filed in the year 2018 which again was dismissed as not pressed with liberty to file afresh and thereafter an appeal under Section 11 of the Uttar Pradesh Consolidation of Holdings Act, 1953 was instituted before the Settlement Officer of Consolidation.

8. Before the Settlement Officer of Consolidation, the issue was regarding the fact whether the respondent no. 4 was the son of Sripal or not as well as the fact of filing the appeal with delay.

9. The Appellate Court returned findings in favour of respondent no. 4 which was challenged by the petitioners by filing a revision under Section 48 of the U.P. Consolidation of Holdings Act, 1953 which has also been dismissed by means of order dated 27.02.2025.

10. The submission of learned counsel for the petitioner is that the name of the petitioners were recorded in the Khatauni from 1981 onwards and they have been continuous in possession.

11. It is further urged that Sri Pal who was the original recorded owner during his lifetime never challenged the said entries. It is only after his death in the year 2002 that the private respondent no. 4 initially instituted a suit seeking declaration of his rights in the year 2014 which was withdrawn with liberty to file afresh and the second suit came to filed in the year 2018 that too was withdrawn with liberty to file fresh and then came the appeal before the Settlement Officer of Consolidation under Section 11 of the Act of 1953.

12. It is urged that both the Appellate Authority as well as the Revisional Authority have not considered the fact as to whether the private respondent no. 4 was the son of Sri Pal or not and moreover the two Authorities have also incorrectly given the benefit of condonation of delay. Thus, the two orders are bad in the eyes of law.

13. Sri Umesh Pratap Singh, learned counsel for the private respondent no. 4 has refuted the aforesaid submissions and has pointed out that admittedly at the time of the said compromise which is said to have been arrived at on 04.02.1981, only the petitioner no. 1 was major in age whereas the petitioner nos. 2 and 3 were minors.

14. He further submits that the compromise itself was fraudulent, inasmuch as, in the lifetime of Ram Asrey, the father of the petitioners, the petitioner no. 1 could not be treated to be the guardian of the petitioner nos. 2 and 3 nor they were competent to enter into a compromise and this aspect was not seen by the Assistant Consolidation Officer.

15. It is urged that this aspect of the matter has not been answered by the petitioners, coupled with the fact that the respondent had furnished several documents indicating that he was the son of Sri Pal.

16. Taking note of the aforesaid, both the Appellate Court as well as the Revisional Court have returned findings which are pure findings of fact and do not require any interference from this Court and the writ petition deserves to be dismissed.

17. Having considered the aforesaid submissions and from the perusal of the material on record, there are certain undisputed facts which are:-

(i) that the petitioners, in any case, do not fall in the line of succession of Sri Pal even remotely;

(ii) the only ground upon which the petitioners could have claimed their right is on the basis of the alleged compromise dated 04.02.1981 which is unregistered and unstampped.

(iii) it is also an undisputed fact that on the date when the compromise was arrived at, the petitioners no. 1 alone was major in age and the petitioners nos. 2 and 3 were minors while their father Ram Asrey was alive and continued to live till the year 2000;

18. Now, in the aforesaid backdrop and considering the submissions advanced by the learned counsel for the parties, three issues require to be seen by this Court; (i) whether the alleged compromise dated 04.02.1981 was valid and if so whether the respondent no. 4 could have initiated proceedings after 37 years; (ii) whether the two Authorities have considered the issued of condonation of delay appropriately (iii) Whether the respondent no. 4 is the son of Sripal.

19. Considering the first issue regarding the compromise dated 04.02.1981, it is an undisputed position that the alleged order dated 04.02.1981 could not be produced or placed on record by the petitioner either before the Settlement Officer of Consolidation, the Deputy Director of Consolidation or before this Court in this writ petition.

20. It is also an undisputed position that the petitioner no. 1 in the year 1981 was major in age whereas the petitioners nos. 2 and 3 were minors. It is also an undisputed position that the father of the petitioners namely Ram Asrey was alive when the alleged compromise dated 04.02.1981 took place.

21. At this juncture, it will be relevant to notice the provisions of Rule 14 of the Uttar Pradesh Consolidation of Holdings Rules, 1954 which reads as under:-

“14. [Section 54 (1)]. The Assistant Consolidation Officer shall, in consultation with the Consolidation Committee, appoint guardians, for purposes of proceedings under the Act, of such tenure holders who are minors, idiots or lunatics unless such guardians have been already appointed by order of a competent Court.

4[(2) The guardian appointed for a minor, idiot or lunatic under sub-rule (1) shall be his natural guardian unless the natural guardian possesses, an interest adverse to the interest of the minor, the idiot or the lunatic. If the natural guardian is not so appointed, the Assistant Consolidation Officer shall record reasons therefor and shall then appoint the nearest male relative of the minor, the idiot or the lunatic, not possessing an interest adverse to him, as guardian.

(3) A list of all such guardians together with the names of their wards shall be published in the village and any person interested in the ward may file an objection against such appointment before the Consolidation Officer within fifteen days of such publication, whose orders shall, subject, to the modification, if any, made by order passed under Section 48, be final.”

22. From the perusal of the aforesaid Rule, it would clearly indicate that the Assistant Consolidation Officer is duty bound to ensure that where the rights of minors are involved, the procedure as provided in Rule 14 has to be complied with. In the instant case, it is an admitted position, which has not been disputed by the petitioners, that the compliance of Rule 14 was not made.

23. Be that as it may, the learned counsel for the petitioners could not explain as to under what circumstances, the petitioner no. 1 was declared as the guardian of petitioners nos. 2 and 3 while their father Ram Asrey was alive.

24. It is also an undisputed fact that there was no order passed by any competent Court or by the Consolidation Officer appointing the petitioner no. 1 as the guardian of the petitioner nos. 2 and 3. This in itself raises clear doubts regarding the aforesaid compromise dated 04.02.1981.

25. Now, once it is found that the compromise as alleged did not meet the legal requirements, coupled with the fact that the order of compromise has also not been produced and merely because the entries remained recorded will not create any right in favour of the petitioners, inasmuch as, it is a judicial order which creates or extinguishes the right and not mere entries which are merely fiscal in nature.

26. Now, merely to shut out any proceedings behind the curtain of limitation where it impacts the substantive rights of the parties may not be justified especially when the issue of fraud is involved and a judicial order which does not have any legal backing nor its existence could have been established as shall be evident from the findings of the Settlement Officer of Consolidation as well as the Deputy Director of Consolidation, that the factum of the said compromise could not be found in the registers prepared by the Consolidation Authorities.

27. It is also well settled that in case of fraud, the Rule of limitation does not impact the rights of a party. In such circumstances, granting the benefit of limitation cannot be held to be unjustified for this Court to interfere in its discretionary jurisdiction under Article 226 of the Constitution of India especially where substantive justice has been done by permitting the parties to contest the proceedings on its own merit.

28. In view thereof, the first two issues are answered accordingly.

29. In so far as the third issue is concerned, it would indicate that it is the petitioners who raised an objection regarding the parentage of the respondent no. 4. It was prima facie their duty to have produced some material to indicate that the respondent no. 4 was not the son of Sripal, however, on the contrary, the respondent no. 4 furnished documentary proof including his identity cards, electoral card, Adhar Card, his document issued by the U.P. Homeopathic Medicine Board, U.P., Pariwar Register, documents issued by the Nagar Nigam. The respondent no. 4 also filed certain documents of his father such as Electoral Card which finds mention in the orders passed by the Settlement Officer of Consolidation as well as the Deputy Director of Consolidation. It is not the case of the petitioners that the documents filed by the respondent no. 4 are fraudelent nor any evidence was led by the petitioners to indicate that these documents could not have been taken note of. In view of the aforesaid, the third ground raised by the petitioners that the respondent no. 4 was not the son of Sri Pal is also turned down.

30. The learned counsel for the petitioners penultimately raised a submission that the respondent no. 4 had feebly raised a plea of fraud but without specific averments and therefore the same could not have been entertained in light of the decision of the Apex Court in ONGC Mangalore Petrochemicals Ltd. Vs. ANS Constructions Limited and Another; 2018 (3) SCC 373. He has relied upon para 23 and 24 of the said decision to state that both the Authorities have committed an error.

31. From the perusal of the aforesaid decision of the Apex Court, it would reveal that it relates to arbitration proceedings arising out of a contractual matter. The facts of the said case are quite different to the instant case. Moreover, in the instant case, the basis of the right claimed by the petitioners is the alleged compromise dated 04.02.1981 which in light of the material on record has been found to be against the principles of Rule 14 of the Rules of 1954. Hence, the decision of the Apex Court has no applicability to the facts of the instant case.

32. Sri Sahai, learned counsel for the petitioners has further raised another submission at the end that Ram Asrey and Sri Pal were related to each other as Ram Asrey was the brother-in-law (Sala) of Sri Pal and thus there was ample proximity of relationship which persuaded Sri Pal to enter into the compromise with the petitioners who were the son of Ram Asrey.

33. Even if this submission is noticed again that it has a major flaw therein i.e. to say that even in that case the present petitioners would have no proximity in terms of succession as per the Section 171 of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950.

34. Having said that and in order for the petitioners to have acquired any right for the first time, even though by an alleged compromise, then that compromise was required to be registered as the said compromise for the first time created rights in favour of the present petitioners.

35. In this regard, this Court in Agya Ram Vs. Joint Director of Consolidation and Others; MANU/UP/0481/2025 in paragraphs nos. 40 and 41 has held as under and the relevant portion thereof reads as under:-

“40. Now in case if the plea of family settlement and compromise is considered, it will worthwhile to state that both family settlement and the compromise operate and different spheres. It would be appropriate to notice the celebrated case of the Hon’ble Apex Court relating to family settlement which still holds goods is Kale and others Vs. Deputy Director of Consolidation and others : 1976 (3) SCC 119, the proposition laid down therein was followed by this Court while considering the plea of family settlement in Ram Milan Vs. Kripa Shanker and others : MANU/UP/2728/2023 wherein this Court had considered the aforesaid plea relating to a family settlement all the leading decisions right from Kale Vs. D.D.C.(supra) with the aid of several decisions of the Apex Court and the relevant portion of Ram Milan (supra) reads as under :-

“25. Sri Vibhansu Srivastava, learned counsel for the appellants has relied upon the decision of Khushi Ram (Supra) wherein the Apex Court dealing with the question as to whether a decree passed in a civil suit requires registration and after considering the provisions of Section 17 of the Registration Act, 1908 held that the decree if it relates to the subject matter of the suit, it was not required to be registered under Section 17 (2) (vi) of the Registration Act, 1908 and thus it was covered by the exclusionary clause.

26. The other question which was referred to the Apex Court regarding the family settlement, the Apex Court after relying upon the celebrated decision of the Apex Court in Kale Vs. DDC (supra) held that the propositions laid in Kale Vs. DDC (supra) was still binding and thus the Court is required to take a broad approach while dealing with family settlements, however, what needs to be seen in the said case that the issue was whether the parties could be treated as a family in order to enter into a family settlement and it is in the aforesaid context that the said decision was rendered.

27. In Korukonda (supra), the Apex Court noticing the earlier decisions on the issue of family settlement and requirement of its registration held that in case a document is in the nature of memorandum evidencing a family settlement already entered into and having been prepared as record so that there are no confusion in future, it need not be stand or register, however, where there has been a partition then there may be no scope for invoking the concept of antecedent rights as such then such a document would require registration.

28. The decision of Compac Enterprises (supra) relates to a consent decree wherein it has been held by the Apex Court that the consent decree are intended to create estoppel by judgment against the parties thereby putting an end to the future litigations, however, this is not an absolute formulation and a consent decree would not serve as an estoppel where the compromise was vitiated by fraud, misrepresentation or mistake.

29. As far as the decisions cited by Sri Chaudhary are concerned in Kale Vs. DDC (supra), the Apex Court has noticed the various nuances relating to the family settlement which are undobtedly followed till today and shall be appropriately considered while dealing with the respectful submissions of the parties.

30. Learned counsel for the respondents has relied upon a decision of Ripu Daman (supra) which is also in respect of an issue as to whether a compromise decree in respect of land which is not the subject matter of suit but is part of the settlement between the family members required compulsory registration and after noticing the provisions of Section 17 of The Registration Act, 1908 and other decisions of the Apex Court held that the compromise decree which declares a pre-existing rights and does not by itself create a new right or title in the property does not require registration, however, if the decree were to create a right for the first time or title or interest in the immovable property then it would require registration.

31. In J. Yashoda (supra), the Apex Court dealing with the Section 65 of The Evidence Act, 1872 has held that as a general rule, secondary evidence is admissible only in the absence of primary evidence and the law requires a proper explanation for absence of the primary evidence only then the secondary evidence can be admitted.

32. In the backdrop of the aforesaid propositions of law cited by the respective parties and noticing the questions of law required to be answered, it would be apposite to consider the effect of the family settlement filed as Exhibit-5 and the effect of the consent decree dated 01.11.1972 which is Exhibit-2.

“33. First and foremost, it will be relevant to notice what is a family settlement and how the same is to be construed and for the aforesaid purpose, the decision of the Apex Court in Kale Vs. DDC (supra) would be helpful and the relevant paragraphs of the said decision are being noticed hereinafter for ready reference:-

9??..By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. In this connection, Kerr in his valuable treatise Kerr on Fraud at p. 364 makes the following pertinent observations regarding the nature of the family arrangement which may be extracted thus:

“The principles which apply to the case of ordinary compromise between strangers do not equally apply to the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honestly made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to what their rights actually are, or of the points on which their rights actually depend.”

The object of the arrangement is to protect the family from long-drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain .and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term “family” has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes succession is so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. The law in England on this point is almost the same. In Halsbury’s Laws of England, Vol. 17, Third Edition, at pp. 215-216, the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made:

“A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour.

The agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term “family arrangement” is applied.

Family arrangements are governed by principles which are not applicable to dealings between strangers. The court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most for the interest of families, and has regard to considerations which, in dealing with transactions between persons not members of the same family, would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements.”

10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:

“(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;

(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;

(3) The family arrangement may be even oral in which case no registration is necessary;

(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;

(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;

(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.”

41. The Hon’ble Apex Court in the case of Bhoop Singh Vs. Ram Singh Major and others : (1995) 5 Supreme Court Cases 709, has held as under (relevant paragraph 12 ) :

“12. The aforesaid decisions do not cover the whole ground, according to us. They meet our approval as far as they go. But something more is required to be said to find out the real purport of clause (vi). It needs to be stated that sub- section (1) of section 17 mandates that the instrument enumerated in clauses (a) to (e) shall be registered compulsorily if the property to which they relate is immovable property, the value of which is Rs.100/- or upwards. When the document purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest therein, whether vested or contingent, it has to be registered compulsorily. The Act does not define “instrument”. Section 2(14) of the Indian Stamp Act, 1899, defines “instrument” to include every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded. Sub-section (2) of section 17 of the Act engrafts exceptions to the instruments covered only by clauses (b) and (c) of sub-section (1). We are concerned with clause (vi) of sub-section (2). Clause (vi) relates to any decree or order of a court, except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject matter of the suit or proceeding. Clause (v) is relevant which in contrast reads thus:

“Any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another instrument which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest.”

36. Thus, even the said plea does not come to the aid of the petitioners as neither the alleged compromise date 04.02.1981 or the order by which the compromise was accepted by the Consolidation Authority has never seen the light of the day, before any Authority and the petitioners are claiming right only on the basis of certain entries in the revenue records. Without the order itself, mere incorporation of the entry in the revenue records do not aid the petitioners in any way.

37. This Court in light of the aforesaid facts and circumstances find that interference in the aforesaid order would give life to an illegal order dated 04.02.1981 which this Court is not prepared to do in exercise of its power under Article 226 of the Constitution of India.

38. In view of the aforesaid, this Court does not find that there is any merit in the petition which is accordingly dismissed.

Order Date :- 6.6.2025

Asheesh/-