S.U. Khan, J.
1. Heard learned Counsel for the parties.
2. This writ petition arises out of consolidation proceedings and involves question of title.
3. There were two brothers Sheobhikh and Sheoratan. Petitioner No. 1 and 2 are sons of Beni and petitioners 3 to 5 are sons of Bhagwandin, Beni and Bhagwandin were sons of Sheoratan. Contesting respondents are descendants of Sheobhikh. Respondent No. 3 Ram Sumer and Respondent No. 7 Balbhadra are sons of Sheobhikh. The other respondents i.e. respondents 4 to 6 are sons of Gayadin who was third son of Sheobhikh.
4. Dispute relates to Khata No. 92 containing plot Nos. 343, 346/1 and 346/2. In the basic year (i.e. the year immediately preceding start of consolidation operation in the area in question) the name of Ram Sumer, respondent No. 3 was recorded as Sirdar of the land in dispute. Petitioners and respondents 4 to 7 tiled objections before CO under Section 9(2) of U.P.C.H. Act contending therein that Sheobhikh and Sheoratan were brothers hence property recorded in the name of Sheobhikh was joint even though the name of Sheoratan and his descendants were never recorded in the revenue records. They claimed co-tenancy on the basis of pedigree given by them and alleged joint tenancy of Sheobhikh and Sheoratan. Respondent No. 4 to 7 could very well file separate objection contending that even if Sheobhikh was exclusive tenure holder, their names should be entered in the revenue records as they were his descendants. Objections before Consolidation Officer (CO) Rajapur, Allahabad were registered as case No. 1.46 Gayadin v. Ram Sumer. CO accepted the objections and directed recording of names of petitioners and respondents 4 to 7 also along with the name of respondent No. 3. CO decided the matter on 13.9.1972. Against the said judgment respondent No. 3 filed appeal No. 777 of 1974. Assistant Settlement Officer Consolidation (ASOC), Allahabad allowed the appeal in part on 21.12.1974. ASOC directed recording of the names of respondents 4 to 7 along with the name of respondent No. 3 in the revenue records. Claims of petitioners were rejected and order in that regard passed by CO was set-aside. Against the said judgment and order petitioners filed revision No. 19/121/44 Jagdeo and Ors. v. Ram Sumer and Ors.. Deputy Director of Consolidation (DDC) Allahabad dismissed the revision on 19.6.1976, hence this writ petition.
5. ASOC held that right from 1320 Fasli (1912-1913 A.D) name of Sheobhikh was recorded in the revenue records and name of Sheoratan was never recorded in the revenue records. The claim of descendants of Sheoratan was barred on the principle of estoppel. For 50 years, neither the petitioners nor their ancestors took any steps for getting their names recorded in the revenue records. Even at the time of Zamindari Abolition they did not raise any objections.
6. It was also argued before the courts below as well as this Court on behalf of the petitioner that a judgment in respect of some other properties in between the same parties operates as res judicata. The other property is situate in village Ramnathpur. However in respect of the land situate in Ramnathpur in the basic year, the names of descendants of both Sheobhikh as well as Sheoratan were recorded in the revenue records. In the said case petitioners asserted that the name of Ram Sumer should be deleted from the revenue records. The said claim was rejected. ASOC and DDC rightly held that the said judgment does not operate as res judicata.
7. In Mangaroo v. Ram Sumer Writ Petition No. 2013 of 1973 decided on 26.5.2006, 1 have held as follows:
In consolidation matters, often it happens that people start challenging revenue entries standing for more than half, half or quarter century. The presumption attached with the correctness of revenue entries particularly if they are continuing for a very long time and since before Zamindari Abolition can not be lightly taken to be rebutted. Oral evidence of the things which may have happened long before is not easy to find except in rare cases where something extra ordinary is shown to exist. Certainty in respect of property rights is very essential. General uncertainty in respect of revenue entries standing since long and before Zamindari Abolition may lead to anarchy. In several cases consolidation courts have done exactly the same. The purpose of consolidation is taken to be resurrection of dead (buried) disputes or revival of dormant ones. In fact this is not the sprit of consolidation Act. Under Section 9(2) of U.P.C.H. Act only disputes of recent past may be raised. Consolidation Act provides a new forum for adjudication of disputes but not a new opportunity for the same. In some cases people assert their rights on the basis of revenue entries which discontinued about 1OO years before and consolidation courts seriously entertain the said objections and some times direct reversal of revenue entries continuing for about 1OO years. There are several doctrines of law on the basis of which such exercise is prohibited like Limitation, Acquiescence, Estoppel, Presumption of Correctness of Official Acts including revenue entries becoming stronger and stronger by passage of time, waiver, implied surrender and implied ouster etc. However independently of all these principles, such exercise is to be nipped in the bud on the doctrine of public policy. It is against public policy to permit a person to seek reversal of state of affairs continuing for scores of years. A certain but some what erroneous state of affairs is better than almost correct but uncertain state of affairs. To maintain state of affairs continuing since very long which may have some elements of inaccuracy is better than to thoroughly analyse the inaccuracy after expiry of long time since inception of the said affairs and reverse the same after thorough discussion of attending circumstances at the time of start of said state of affairs.
Revenue entries in respect of agricultural lands have got great value. A meticulous procedure has been prescribed for recording, correcting and maintaining the same under U.P. Land Revenue Act, 1901 and Land Record Manual. Of course it is true that revenue entries do not confer title, however, short of that, revenue entries are most important evidence in respect of rights in respect of agricultural lands and possession thereof. These entries can not be equated with entries for the purposes of house tax etc. under Municipalities Act (or Nagar Mahapalika Adhiniyam) in respect of buildings.
If some one wants to purchase agricultural land, he checks the right of vendor from revenue records. If some one wants to take loan from Bank etc by mortgaging his agricultural property, the lender asks for only extracts from revenue records. Injunction suit in Civil Court is maintainable in respect of agricultural land on the basis of revenue entries.
8. Apart from the above the following aspects are also relevant and required to be considered in this regard.
9. Section 49 of U.P. Consolidation of Holdings Act (hereinafter referred to as the 'Act') is quoted below:
BAR OF CIVIL JURISDICTION:
(1) Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure holders in respect of land lying in an area for which a notification has been issued under Sub-section (2) of Section 4, or adjudication of any other rights arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the proinsions of this Act and no civil or revenue court shall entertain any suit or proceedings with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act.
10. This Section has been interpreted to contain two types of bars. The first is in respect of matters actually raised before and adjudicated by consolidation authorities. The other part of the bar is in respect of rights of tenure holders in respect of agricultural land in regard to which a proceeding could or ought to have taken under the Act (hereinafter referred to as 'could' or 'ought' bar'). In respect of first type of bar (matters actually decided), reference may be made to the authority of the supreme Court reported in Sitaram v. Chhota Bhondey : AIR1991SC249 . In the said case the matter was decided by the Consolidation Courts i.e. Consolidation Officer, Settlement Officer Consolidation and Deputy Director of Consolidation and thereafter High Court in writ petition. Thereafter suit was filed before civil court questioning the said decisions. The Supreme Court held that such suit was barred under Section 49 of U.P. Consolidation of Holdings Act. In the said case objections were filed by persons whose names were not recorded since long in the revenue records, basing their claims upon alleged joint tenancy, which was acquired scores of years before. Normally in most of the matters before consolidation courts similar pleas are taken by the parties.
11. As far as the other type of bar contained under Section 49 of the Act i.e. 'could' or 'ought' bar is concerned, reference may be made to the authority of the Supreme Court reported in Narender Singh and Ors. v. Jai Bhagwan and Ors. : AIR2005SC582 . The facts of the said case were that in a suit for specific performance of an Agreement for sale of agricultural land executed by recorded tenure holder / defendant, his sons filed objections on the ground that they were also the joint tenure holders even though only the name of their father was recorded in the revenue records. In the said authority the earlier authority of Sitaram (supra) was also considered and quoted with approval. Paragraphs 11 and 12 of Narender Singh's authority are quoted below:
11. The argument that revenue entry in the name of father should have been treated as in representative capacity for sons is misleading. Whether the father was Karta and Manager of the family and as such could be recorded in representative capacity for all co-owners in the family was also a question of title, which fell within exclusive jurisdiction of the authorities under the Act.
12. Apart from the bar under Section 49 of the Act of 1953, there is no equity in favour of defendant and his legal representatives. The Jurisdiction exercised under Specific Relief Act is both legal and equitable. The father entered into an agreement of sale when the sons were major. In his oral evidence, plaintiff states that one of the sons took part in the negotiations of sale. In this appeal, learned Counsel appearing submits that the sons were not parties to the suit in trial court and the statement of plaintiff against them can not be accepted without availability of any opportunity to lead evidence in rebuttal.
12. It is, therefore clear that a claim that the name of a person in the revenue records was in the representative capacity and other persons particularly brothers were also joint tenants with him is also in the nature of title dispute.
13. If consolidation has intervened and no such claim is put forward then the same is barred by Section 49 of U.P.C.H. Act.
14. As far as the first part of the bar created by Section 49 of U.P.C.H. Act is concerned, it is more or less the doctrine of res judicata as incorporated in Section 11 of C.P.C. As far as the second bar (could or ought bar) is concerned, it is also not an altogether new doctrine for the first time introduced by U.P. Legislature. It is merely an express provision based upon several other doctrines particularly the doctrine of estoppel. What is expressed in the second type of bar provided under Section 49 of U.P.C.H Act is already implied in the principles of estoppel etc.. The underlying principle of doctrine of estoppel is that if a person has got an opportunity to assert his right but he fails to do so then he is precluded in future from asserting the right.
15. If revenue entries are continuing since long and much before Zamindari Abolition then independently of Section 49 U.P.C.H. Act, unrecorded tenure holder is estopped from asserting his right on the basis that the revenue entries are benami in nature and at the time of acquisition of the tenancy or Zamindari his ancestor was joint with the original tenant/ Zamindar.
16. In respect of tenures of agricultural land radical / almost revolutionary changes were made by U.P.Z.A.L.R Act. In the statement of object and reasons of the said Act in para 3 it was mentioned 'it is considered necessary to substitute the bewildering variety of the existing tenures by a simple and uniform scheme' Basically the Act created only two forms of tenures i.e. Bhumidhari and Sirdari. The Act created altogether new rights in respect of agricultural lands. The Supreme Court in R.S.A. Singh v. Allahabad Bank : [1962]2SCR441 (followed in Vishwanath v. Chandra Bhan : AIR1996SC919 has held that Bhumidhari right created by U.P.Z.A.L.R Act was an altogether new right. Similar is the position of Sirdari right created by the Act. After enforcement of U.P.Z.A.L.R Act, in respect of agricultural lands, the old rights as well as old claims/ disputes came to an end. Fresh settlements of all types of agricultural lands came into existence by virtue of Section 16, 18 and 19 thereof. Khasra of 1356 fasli and Khatauni of 1359 fasli were given paramount importance by the Act. Khasra is record of possession and Khatauni is record of right. Under different provisions of the Act particularly Section 20(b) simple entry in revenue record of 1356 fasli is sufficient to confer the right without any enquiry as to its correctness unless of course entry is shown to be fraudulent one vide Wali Mohammad v. Ram Surat : AIR1989SC2296 , Udai v. D.D.C. : AIR1990SC471 , Amba Prasad v. A.N. Khan : [1964]7SCR800 and S.N. Singh v. Board of Revenue : [1968]3SCR498 .
17. Similar is the position under Section 16 and Rule 177-A which are quoted below:
Section 16. Occupant of land in which no superior rights exist to be a hereditary tenant.-
Every person who was recorded as occupant of any land-
(i) in a record revised under Chapter IV of the United Provinces Land Revenue Act, 1901 (U.P. ACT III of 1901), or corrected by an officer specifically appointed by the State Government for the correction of annual registers in any tract and who, on the date immediately preceding the date of vesting, was in possession of the land or was entitled to regain possession thereof under Clause ( c) of Sub-section (27) of the United Provinces Tenancy (Amendment) Act, 1947 (U.P. Act X of 1947), or
(ii) in the record- of rights prepared under Clause (e) of Section 32 of the United Provinces Land Revenue Act, 1901 (U.P. Act III of 1901) for the year 135-fasli and who, on the date aforesaid, was in possession of the land.
Shall be deemed to be hereditary tenants of the land liable to pay rent on the said date at rates applicable to such tenants.
Explanation...
177-A All persons recorded in Khatauni 1359-F, as occupiers of land other than land mentioned in Section 212), when there is no one already recorded in column 5 of the Khasra who have not acquired the rights of a Sirdar in accordance with Section 16, read with Section 19 of the Act shall-
(a) if the land belongs to any of the classes mentioned in Section 132 be deemed to be asami of the [Gaon Sabha] liable to pay rent equal to an amount computed at hereditary rates, and
(b) in other cases, be deemed to be sirdars, liable to pay land revenue at an amount equal to the amount computed at hereditary.
A statement showing all such persons shall be prepared in Z.A. Form 59-C, and land revenue determined. The statement shall be checked by the Supervisor Kanungo and the Z.A. C. Naid-Tahsildar. When the statement has been prepared and signed by the Sub-Divisional Officer (after satisfying himself about its accuracy) the necessary entries shall be made in the Register of Alterations in the jamabandi and in the addendum].
18. In view of this a person who remained silent at the time of Zamindari Abolition and did not seek correction of revenue entries on the basis of joint tenancy or did not initiate legal proceedings immediately after Zamindari Abolition for declaration of his right and correction of revenue entries is subsequently estopped from seeking declaration of his right in consolidation proceedings. In fact. Zamindari Abolition was much more important phenomenon in respect of agricultural lands than surveys conducted before Zamindari Abolition or consolidation proceedings after Zamindari Abolition.
19. In the following authorities, it has been held that under U.P. Tenancy Act, 1939, tenancy rights could be acquired through estoppel and in case someone's name was recorded in the revenue record as co-tenant then without any evidence or proof of any settlement by Zamindar, the person whose name was entered as co-tenant can be declared to be the co-tenant under U.P. Tenancy Ad 1939 on the principle of estoppel.
(i) Dodh Nath Kori v. Smt Dhamrajja 1964 R.D. 324
(ii) Bhagan Ram v. State of U.P. 1967 R.D. 396
(iii) Mewa Ram v. Shanker 1974 (Suppl) R.D. 95
(iv) Babu Singh v. D.D.C. 1976 ALR 203
(v) Gaya Singh v. D.D.C. 1976 (2) R.D. 142
(vi) Gokul v. Board of Revenue 1999 R.D. 63 (In this authority all the previous authorities have been considered.)
(vii) Ralawati v. C.O. 1968 ALJ 126
(viii) Jagrani v. D.D.C. 1972 R.D. 96
(ix) Budh Lal v. D.D.C. 1982 R.D. 324 (D.B.)
20. The doctrine of estoppel basically deals with relinquishment or extinction of rights. Acquisition of right through estoppel is an extension of or corollary to the classical doctrine of estoppel. Accordingly if through estoppel co-tenancy can be acquired then all the more reason to hold that through estoppel co-tenancy can be relinquished. If the name of objector or his predecessor or ancestor was never recorded in the revenue records and that position continued for several decades then even if he or his ancestor had any right of co-tenancy, the same came to an end on the basis of doctrine of estoppel.
21. The Supreme Court in B.L. Sreedhar v. K.M. Munireddy : AIR2003SC578 has thoroughly examined the doctrine of estoppel and has referred to several classical textbooks and landmark judgments in respect thereof.
22. The dispute in the said case arose out of Mysore Village Offices Abolition Act, 1961. In para 10 of the said authority the Supreme Court held that even if the regrant was in the name of one of the members of family benefit enured to the whole family. The regrant had been made in favour of one of the sons of plaintiff. The said son was defendant No. 3 who sold the property. Plaintiff questioned the said sale deed on the ground that defendant No. 3 was not the sole owner. The Supreme Court held that right of plaintiff and other family members extinguished on the basis of estoppel. From Para 14 to 38 concept of estoppel was dealt with. Some of the observations are quoted below:
Estoppel is a disability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear.
Truth appears to have been frequently shut out by the intervention of an estoppel where reason and good policy required that it should be admitted.
Estoppel though a branch of the law of evidence is also capable of being viewed a substantive rule of law in so far as it helps to create or defeat rights which would not exist or be taken away but for that doctrine.
An estoppel which enables a party as against another party to claim a right of property which in fact he does not possess is described as estoppel by negligence or by conduct or by representation or by holding out ostensible authority.
(Similar view was taken by the Privy Council in
Lapse of time and delay are most material when the plaintiff, by his conduct may be recorded as waiving his right, or where his conduct, though not amounting to a waiver, has placed the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards asserted.
23. In the above authority of Sreedhar an earlier authority of the Supreme Court reported in : [1989]2SCR401 P.C. Dalui v. B. Banerji was quoted in Para 35 wherein it was held that waiver means the forsaking the assertion of a right at the proper opportunity.
24. Accordingly the doctrine of waiver and estoppel which is also the basis of second type of bar under Section 49 U.P. C.H. Act precludes an unrecorded person from asserting before consolidation courts that long standing revenue entries which are continuing since much before Zamindari Abolition shall be reversed and he must be declared to be joint Bhumidhar / Sirdar on the ground that the original tenant and ancestor of claimant were joint and the acquisition was by both of them even though the name of his ancestor was not recorded in the revenue records.
25. There is one more aspect, which requires consideration. If it is alleged that the family of the person in whose name the first entry was made was Joint Hindu Family and his brothers also acquired rights in the land then it must be shown that the Joint Hindu Family had some income yielding business/property prior to the acquisition of property in dispute from the income of which it was for the first time acquired. Merely because two brothers belonged to a Joint Hindu family, property acquired by one can not be held to be joint property of both of them unless it is shown that there was joint nucleus/ fund to acquire the said property.
26. Under Para 233 (2) of Mulla's Principle of Hindu Law 17th Edition, it is provided as under (on Page 346);
To render the property joint, the plaintiff must prove that the family was possessed of some property with the income of which property could have been acquired or from which the presumption could be drawn that all the property possessed by the family is joint family property or that it was purchased with joint family funds such as proceeds of sale of ancestral property or by joint labour.
Where it is established or admitted that the family possess some joint property which from its nature and relative value may have form the nucleus from which the property in question may have been acquired. The presumption arises that it was joint property and the burden shifts to the property alleging self-acquisition to establish affirmative that the property was acquired without the aid of the joint family. However no such presumption would arise if the nucleus is such that with its hell the property claimed to be joint could not have been acquired. In order to give rise to the presumption the nucleus must be such with its hell the property claimed to be joint could have been acquired.
27. In para 233(1) of the same book (on page 344) it is provided that
the presumption (that a joint family continues to be joint) is stronger in the case of brothers than in the case of cousins and the farther you go from the founder of the family the presumption becomes weaker and weaker, the reason is that brothers are for the most part undivided; second cousins are generally separated; and third cousins are for the most part separated.
28. In para 236 (page 361) of the same book, it is provided that joint family property is ordinarily managed by the father or other senior member for the time being of the family who is called 'Karta'.
29. In view of the above, even if plea of joint acquisition is allowed to be raised gap of several generations (absence of name of a branch of the family in the revenue records for several generations) makes it almost impossible to prove the claim. Apart from principle of estoppel and bar of such types of claim after enforcement of U.P.Z.A.L.R Act, the following ingredients are necessary to be proved for establishing such type of claim,
(i), When the property was first acquired there was a nucleus of the joint family from which the property in dispute could be acquired.
(ii) After the death of the original recorded tenure holder the name of eldest member of the joint family was entered in the revenue records and the same procedure followed till the claim was raised for the first time in consolidation proceedings.
(iii) Since the time of acquisition of the property till the filing of the claim in consolidation proceeding the family of cousins ( first, second, third, fourth ....) and uncles remained joint.
(iv) Since the time of initial acquisition till the filing of the claim what other properties were acquired by the members of entire joint family and whether they were treated to be joint properties.
30. Almost in no case, before consolidation authorities these ingredients are proved.
31. In the instant case also no attempt has been made to prove any of the above ingredients.
32. In some authorities a contrary view has been taken, however no authority has considered the various aspects dealt with by me hereinabove.
33. Some more authorities have been cited by the learned Counsel for the petitioner to contend that DDC should have given a detailed judgment. In my opinion as DDC agreed with the finding of SOC hence it was not necessary for him to give detailed reasons. In any case in this very judgment I have dealt with each and every point raised by the petitioner hence the said alleged deficiency stands cured.
34. Accordingly there is no merit in the writ petition hence it is dismissed.