IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. OF 2025 (ARISING FROM SLP (C) NO(S).16470-16471 OF 2023)

DURGA PRASAD (DEAD) THR LRS & ANR. …APPELLANT(S)

VERSUS

JOINT DIRECTOR & ORS. …RESPONDENT(S) O R D E R

• 1. Leave granted.
• 2. The instant appeals have been preferred against the order and judgment dated 04.01.2023 passed by the High Court of Judicature at Allahabad in Writ B No. 5317 of 1979 which was preferred by the instant appellants and was dismissed with cost of Rs. 2,00,000/- (Rupees two lakhs only) by the High Court.
• 3. Before we delve into the facts of the case, we find it pertinent to produce the undisputed family pedigree of the parties for a more convenient understanding of the dispute involved. In the following pedigree, in order to avoid confusion, the status of the parties is reflected as it stood before the High Court. At present,

the original parties to the dispute have passed away and have been replaced by their respective legal representatives on the record.

* The petitioners before the High Court are appellants before this Court other than Ram Prakash who is not an appellant here. However, his legal representatives were added to the instant SLP as Proforma Respondents No. 5 to 7. As per this Court's order dated 28.07.2023, notice was issued to contesting respondents only.

4. The dispute relates to Khata No. 203 consisting of plot nos. 452, 453, 454 and 481/1 situated in village Naunare, Uttar Pradesh. It is an admitted fact that

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the common ancestor of the parties, one Vishwanath, had purchased the rights of sikmi farmer i.e. tenure holder of the subject land and came to be recorded as such in the revenue records of year 1921. The sikmi farming rights were purchased by Vishwanath from one Dwarika Prasad who was the Bhumidar-Mafidar of the disputed land.

• 5. It is the appellants' case that Dwarika Prasad transferred his rights of mafidari in favour of Bhogi Lal and Bansidhar by means of a registered sale deed dated 03.09.1940. However, for making the abandonment of the land declared, a relinquishment deed was executed by Kali Charan and Bhawani Shankar (respondent no. 2) on 29.06.1942. It has been claimed that the appellants were recorded in possession in 1359 Fasli year (Year 1949 of Gregorian calendar), then they became adhivashi and subsequently sirdar in accordance with Section 20 of the U.P. Zamindari Abolition and Land Reforms Act, 1950.
• 6. As such, it has been claimed that it was only Bhogi Lal and Bansidhar, and subsequently their legal heirs, who had rights in the disputed land and none could be claimed by respondent no. 2.

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• 7. On the other hand, it is the case of respondent no. 2 that after the death of Vishwanath, the property in question came into the joint possession of three sons of Vishwanath being Ochchey Lal, Kali Charan and Chhote Lal. Although they were members of a joint Hindu family and no partition whatsoever had taken place, however the share in the property would naturally be in the ratio of 1/3rd each. Further, during the lifetime of the other two brothers, the youngest brother i.e. Chotey Lal died, so his share devolved onto his son, i.e. respondent no. 2. It was claimed that the sale deed of 1940, through which the appellants are deriving their right, would not in any manner affect the rights of the respondent no. 2 since even prior to the sale deed, the name of Dwarika Prasad has been recorded as Mafidar only while the descendants of Vishwanath were recorded as sikmi farmers.
• 8. It was also stated that the respondent no. 2 was a minor in 1942 when his uncle Ochchey Lal, in collusion with Kali Charan, purportedly got the relinquishment deed executed in order to craftily extinguish the share of respondent no. 2 in the property, whereas the respondent no. 2 was not even

a signatory to the said document and was only a witness.

• 9. Further, upon attaining the age of majority, the respondent no. 2 left the village in 1948 to serve in the fire brigade department as a driver where he served till 1975. It was in this absence of the respondent no. 2 that the appellants got his name expunged by the revenue authorities and got the changes made in the revenue record. As such, it has been submitted that the appellants have attempted to seize away the lawful right of respondent no. 2.
• 10. During the consolidation proceedings, at the time of the verification of Khatauni, when the consolidation authorities sought to include the name of respondent no. 2 as a tenure holder along with the appellants, it was then objected to by Bhogi Lal and others under Section 9 of the UP Consolidation of Holdings Act, 1953. That is the origin of the proceedings before the Consolidation Officer.
• 11. Thereafter, the Consolidation Officer, Ferozabad, Agra in Suit No. 209 and 210 passed an order dated 11.02.1975 and held that as per the records of Fasli Year 1356, names of Kali Charan and Bhawani

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Shankar were not recorded as being in possession or occupation of the land and as such, Bhogi Lal and sons of Bansidhar have exclusive rights over the land.

• 12. On an appeal preferred by the respondent no. 2 before the Assistant Settlement Officer Consolidation, Agra, an order dated 12.09.1975 was passed affirming the order of the Consolidation Officer and discarding the claim of respondent no. 2 over the disputed land.
• 13. As a result, the respondent no. 2 filed a Revision before the Joint Director of Consolidation, Agra under Section 48 of the U.P. Consolidation of Holdings Act, 1953 assailing the orders of Consolidation Officer and Assistant Settlement Officer Consolidation.
• 14. The Joint Director of Consolidation, Agra, vide order dated 12.07.1979, held that when the said land was purchased, the family was joint family and as there is no proof that Bhogilal and Bansidhar separately invested the amount in purchasing the land, therefore it cannot be held to be their separate property. Further, it was held that with regards to the relinquishment deed, there is a feeling of conspiracy

that the right of a minor has been curtailed by his uncle Kali Charan in connivance with the other uncle Ochchey Lal. Therefore, an equivalent share in the land was vested in respondent no. 2 as well as Ochchey Lal.

• 15. Aggrieved by the order dated 12.07.1979, the appellants preferred a Writ Petition before the High Court and sought quashing of order dated 12.07.1979 and also to issue a writ of mandamus directing the respondents not to interfere with the peaceful possession of the appellants over the plots in dispute during the pendency of the Writ Petition.
• 16. The High Court, vide the impugned order, held that the entire right of respondent no. 2 in the land was fraudulently relinquished and relief must be granted to him. As such, it was held that the claim of respondent no. 2 was wrongly rejected by the subordinate Consolidation Courts and upheld the order passed by Joint Director of Consolidation. Further, it was held that since the appellants have wrongly enjoyed the half share of the respondent no. 2 in the property in dispute since more than eight decades, they were directed to make a payment of

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Rupees two lakhs to the respondent no. 2 within a period of two months.

• 17. Aggrieved by the impugned order, the appellants are before us.
• 18. This Court, while issuing a notice in the matter on 28.07.2023, had directed that the amount that is to be deposited vide the impugned order shall be deposited with the Registry of this Court within a period of four weeks. Subject to the aforesaid deposit, there was to be an interim stay of the operation of the impugned order. As such, the said amount was deposited by the appellants with the Registry of this Court, which was subsequently put as a Fixed Deposit in a nationalized bank.
• 19. We have heard the learned counsel for the parties and perused the material on record.
• 20. It is an admitted fact that after Vishwanath, the names of Ochchey Lal, Kali Charan and Bhawani Shankar were recorded as the sikmi farmer. It was due to the reason that Chhote Lal had died during the lifetime of two brothers and his right had rightly devolved down to his son Bhawani Shankar, i.e.

respondent no. 2. As such, when the names of Ochchey Lal, Kali Charan and Bhawani Shankar were recorded as sikmi farmers and all of them were admittedly members of a Hindu Undivided Family (HUF) at the relevant time, the purported sale deed of 03.09.1940 shall not confer a separate title on the sons of Ochchey Lal.

• 21. Be that as it may, we do not find it relevant to delve into the validity of sale deed of 1940 or the relinquishment deed of 1942. At the cost of repetition, it is an established fact that the names of Ochchey Lal, Kali Charan and Bhawani Shankar were recorded as having the rights of sikmi farmer before the sons of Ochchey Lal got the name of respondent no. 2 expunged from the records somewhere around 1949, when the respondent no. 2 had admittedly already left the village in 1948 to serve in the fire brigade department. Such a dishonest removal of name of respondent no. 2 from the records shall not confer a lawful right on the appellants.
• 22. Instead, the rights of the parties shall be decided in accordance with Section 34 of the U.P. Tenancy Act, 1939 which reads as follows:

"34. [Succession under personal law in certain cases.] - When a permanent tenure holder, a fixed rate tenant, an occupancy or an Exproprietary tenant in Oudh or a tenant holding on special terms in Oudh, dies, the interest in his holding shall devolve in accordance with the personal law to which the deceased was subject."

• 23. Resultantly, the devolution of rights shall flow as per the Hindu Succession Act, 19561. It is clear that when Vishwanath died, each of the brothers inherited 1/3rd share each in the land. Since Chhote Lal had died during the lifetime of other two brothers, his 1/3rd right in the land flowed down to his son, Bhawani Shankar. Thereafter, Kali Charan died issueless in 1966. As per the Schedule to Section 6 of the HSA, a brother falls in Category II of Class II heirs whereas a brother's son falls in Category IV of Class II heirs. Therefore, on Kali Charan's demise, Ochchey Lal would rightfully inherit Kali Charan's 1/3rd right in the disputed land and such a right would not devolve onto the son of Kali Charan's brother i.e. respondent no. 2.
• 24. As such, Ochchey Lal would become the rightful owner of 2/3rd right in the land and respondent no. 2

<span id="page-9-0"></span>¹ HSA

shall inherit 1/3rd right in the land in question. We find no basis in allowing the respondent's claim to 50% share in the disputed land which has been allowed by the Revisional Court as well as the High Court.

• 25. Accordingly, the appeals are partly allowed and the impugned order is set aside partially. We hold that the appellants would be entitled to 2/3rd share, and the respondent no. 2 would be entitled to 1/3rd share of the subject property. For the sake of avoiding any further confusion, we also make it clear that the respondents no. 5 to 7 before this Court are the legal heirs of Ram Prakash, who was Petitioner No. 3 before the High Court and also belong to the lineage of Ochchey Lal. As such, it is clarified that the familial lineage of Ochchey Lal, in its entirety, shall be entitled to the above-stated 2/3rd share in the property.
• 26. Further, the amount of Rs. 2,00,000/- (now the amount of the Fixed Deposit Receipt (FDR) is Rs. 2,14,162/-) deposited by the appellants is directed to be released in their favour, alongwith accrued interest if any.

27. Pending application(s), if any, stands disposed of.

…………………………..J. [VIKRAM NATH]

…………………………..J. [SANJAY KAROL]

…………………………..J. [SANDEEP MEHTA]

New Delhi; February 19, 2025