MEDHA Vs. D D C & OTHERS

JUDGEMENT

(1.) Heard Sri Rahul Jain, Advocate holding brief of Sri Kunal Ravi Singh, counsel for the petitioner.

(2.) The facts of the case are that Dohal was the original Khatedar of the disputed khatas. Dohal had two sons, namely, Sheo Nath and Ramai. It is admitted that Sheo Nath pre-deceased Ramai. Rahasi was the widow of Sheo Nath. Medha i.e. the petitioner is the daughter of Rahasi and Sheo Baran (respondent no. 4) and Ganga, the predecessor in interest of respondent no. 7, were the son of Ramai: During the consolidation operations held in the village, a dispute arose between the different parties especially the petitioner and respondent nos. 4/7 regarding succession to the property of Dohal. Consequently, objections were filed by different parties including the petitioner and respondent no. 4 under Section 9A-(2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereafter referred to as, 'Act, 1953') before the Consolidation Officer regarding the disputed khatas. Amongst other, Case No. 42 of 1973 was registered before the Consolidation Officer and cases registered on objections filed by other persons were connected with the aforesaid Case No. 42 of 1973 which was taken as the leading case by the Consolidation Officer. The relevant issue framed by the Consolidation Officer in the aforesaid cases was whether the petitioner is entitled to succeed to the property of Rahasi and consequences of the aforesaid succession. The decision on the issue rested on the controversy regarding the date of death of Ramai and Rahasi. In case, Rahasi had pre-deceased Ramai, then, by virtue of Section 172 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950') read with Section 171-(f) of the Act, 1950 as it stood during the relevant time, interest of Sheo Nath in the holdings would have devolved on Ramai and consequently respondent no. 4. However, in case Ramai pre-deceased Rahasi, interest of Sheo Nath in the disputed holdings would have devolved upon the petitioner under Section 171-(g) of the Act, 1950, she being the daughter of Sheo Nath. After considering the different evidence on record especially the family register as well as the previous litigations contested between the parties, the Consolidation Officer vide his order dated 20.5.1973 held that Rahasi had pre-deceased Ramai and therefore under Section 171-(f) of the Act, 1950 as it then stood, interest of Sheo Nath devolved on Ramai and consequently on respondent no. 4. While recording the aforesaid findings, the concerned Consolidation Officer also relied upon the judgment of the civil court passed in original Suit No. 334 of 1962 which was instituted by the petitioner on behalf of her sons against respondent no. 4 and which was dismissed by the concerned court and the appeal filed against the judgment and decree of the trial court was also dismissed. Against the judgment dated 20.5.1973 passed by the Consolidation Officer, the petitioner filed appeals under Section 11(1) of the Act, 1953 before the Settlement Officer of Consolidation which were numbered as Appeal Nos. 9, 1191 and 1192 and the said appeals were dismissed by the Settlement Officer of Consolidation vide his order dated 31.5.1974. Consequently, the petitioner filed revisions before the Deputy Director of Consolidation, Azamgarh which were numbered as Revision Nos. 2134 and 2305 and the same were dismissed by the Deputy Director of Consolidation vide his order dated 28.12.1976. The judgments and order dated 20.5.1973, 31.5.1974 and 28.12.1976 have been challenged in the present writ petition.

(3.) It was argued by Sri Rahul Jain, Advocate holding brief of Sri Kunal Ravi Singh, counsel for the petitioner, that while recording a finding regrading the date of death of Ramai and Rahasi, the courts below have not considered the documentary evidence especially the family register filed by the petitioner which clearly shows that Ramai had pre-deceased Rahasi and therefore, the courts below have wrongly decided the issue regarding succession to the property of Sheo Nath. It has also been submitted by counsel for the petitioner that during the pendency of the writ petition before this Court, the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 was amended w.e.f. 28th of August, 2004 and by virtue of the aforesaid amendment, under Section 171(2)(b) of the Act 1950, married daughter has a preferential right over brother's son and therefore the petitioner had a preferential right over respondent no. 4 to succeed to the property of Sheo Nath, even if it was assumed that findings of the courts below regarding date of death of Ramai and Rahasi were correct, and has prayed that the writ petition may be decided after considering the amendments under Section 171 of the Act, 1950. A written argument was also submitted by counsel for the petitioner raising other questions which were not argued during the course of argument and are also not relevant for a decision of the writ petition in as much as question nos. 1, 2 and 3 raised in the written arguments were not argued on behalf of the petitioner before the consolidation authorities.