Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

SARJU MISHRA (D) THR. LRS. & ORS. …Appellant(s)
JANGI (D) THR. LRS. & ORS.           …Respondent(s)
1. This appeal arises out of the dismissal of a writ petition
challenging the outcome of the proceedings under Section 9­A(2)
of the U.P. Consolidation of Holdings Act, 1953.
2. We   have   heard   the   learned   counsel   for   the   respective
3. Since the litigation in which the parties are involved, is
nearly a century old, it may be necessary to begin the narration
with a genealogy tree of the family. The common ancestor of both
the parties was one Gajadhar Misra. He had three sons by name
Sita   Ram,   Ramesar   and   Jagesar.   Sita   Ram   died   issueless.
Ramesar had a son by name Bhagauti. This Bhagauti had two
sons by name Jangi and Triloki.
4. Jagesar   had   three   sons   by   name   Basdeo,   Sarju   and
Shabhu.  Each of them had his own lineage.  
5. The genealogy tree of the family is as follows:­
Gajadhar Misra
  Sita Ram  Ramesar Jagesar
(Died Childless) Bhagauti
    Jangi & Triloki         Basdeo    Sarju       Sabhu
    (R1)       (R2)
    Jhinku   Ramamuj
Ram Kripal   Rama Shankar & Krishna Shankar
Brijesh & Ambujesh
6. In the year 1928, Bhagauti filed a suit for partition, in suit
No.934 of 1928. When an objection to the jurisdiction of the
Court was raised, the plaint was returned for presentation to the
proper Court. Accordingly, it was presented to the Additional
Civil Court and numbered as Suit No.119 of 1929.
7. By   consent   of   parties,   the   dispute   was   referred   to
arbitration by elders and the arbitration award about the manner
of partition was accepted and the suit decreed in terms of the
8. It appears that Sita Ram as well as Ramesar, two of the
three sons of Gajadhar Misra died after the decree. The exact
dates   of   death   of   Sita   Ram   and   Ramesar   are   not   indicated.
However, it was claimed by one group that Ramesar pre­deceased
Sita Ram and that, therefore, Sita Ram’s 1/3rd  share went to
Jagesar by way of survivorship, making the share of Jagesar as
9. But Bhagauti, son of Ramesar filed a suit in Suit No.331 of
1944 claiming that the decree passed in the suit of the year 1929
was collusive and not binding. But the said suit was dismissed
by   the   trial   Court   by   a   Judgment   dated   21.01.1946.   The
dismissal was confirmed by the First Appellate Court.
10. It appears that mutation in the revenue records took place
in 1952 and thereafter objections were filed apparently by both
parties under Section 9 of the U.P Consolidation of Holdings Act,
1953. The rival contentions revolved around the validity of the
partition decree passed in Suit No.119 of 1929 and the dismissal
of the subsequent suit of the year 1944. One branch of the family
claimed that the partition decree was never given effect to and
that the land continued to be in their possession.
11. The   Consolidation   officer   passed   an   Order   dated
04.05.1973, holding that the share of Ramesar got separated in
the partition that took place in 1929 and that the shares of
Jagesar and Sita Ram were held jointly and that therefore, upon
the death of Sita Ram without any issues, his share would have
gone to Jagesar. As a consequence, the consolidation Officer held
that Jangi & Triloki, the children of Bhagauti, who was the son of
Ramesar will get only 1/3rd share and the children of Jagesar will
get 2/3rd share.
12. Both the branches filed appeals. The appeal of the persons
representing   the   branch   of   Jagesar   was   confined   to   a   self
acquired property, even in which the other branch was allotted
1/3rd share.
13. The Assistant Settlement Officer dismissed the appeal filed
by the members of the branch of Jagesar.
14. The above order led to the filing of two revision petitions by
the   branch   of   Jagesar   and   another   revision   petition   by   the
branch of Ramesar.
15. The Deputy Director of Consolidation allowed the revision
petition   filed   by   the   branch   of   Ramesar   and   dismissed   the
revision petitions filed by the branch of Jagesar.  This was on the
ground that the preliminary decree for partition granted in the
suit of the year 1929 was never given effect to. It was also held
that there was no evidence to show who among the two namely,
Sita   Ram   and   Ramesar   died   first.   The   revisional   Authority
therefore held that both the branches of Ramesar and Jagesar
are entitled to half share each.
16. Aggrieved by the order of the revisional Authority allowing
the revision petition filed by the branch of Ramesar, the other
branch filed a writ petition in WP No.5109 of 1974 on the file of
Judicature at Allahabad.  The said writ petition was dismissed by
the High Court by an Order dated 11.09.2009. It is against the
said order that the branch of Jagesar has come up with the
above appeal.
17. The main contention of Shri S. R. Singh, learned senior
counsel   for   the   appellants   is   that   the   authorities   under   the
Consolidation   of   Holdings   Act   cannot   go   beyond   the   decree
passed   by   the   Civil   Court   and   that   a   preliminary   decree   for
partition   attains   finality   as   regards   the   shares   to   which   the
parties are held entitled, even if no final decree has been passed
resulting in the actual division by metes and bounds. According
to the learned senior counsel for the appellants, the contention of
the respondents as though the decree for partition passed in the
suit of the year 1929 was collusive, already stood rejected in the
suit of the year 1944 and that therefore the authorities under the
Consolidation Act are obliged to give effect to the preliminary
decree for partition. 
18. On first principles, the learned counsel for the appellants is
correct.   But   the   aforesaid   contentions   of   the   learned   senior
counsel for the appellants overlook one crucial aspect. At the
time when the suit for partition of the year 1929 was decreed on
the basis of an arbitration award, all the three brothers namely
Sita Ram, Ramesar and Jagesar were alive. They were all held
entitled to 1/3rd share each. It was only subsequently that Sita
Ram died issueless. None of the parties have any clue as to the
exact date of death of Sita Ram or Ramesar.  The question as to
who pre­deceased whom, is not clear and there is a controversy
relating to the same. The claim of the branch of Jagesar was that
Ramesar pre­deceased Sita Ram and that, therefore, Sita Ram’s
1/3rd  share came to Jagesar by survivorship. This is why the
branch of Jagesar claimed 2/3rd share.
19. But even in the Judgment passed in Suit No. 331 of 1944,
no categorical finding was recorded in this regard. The relevant
portion of the Judgment dated 21.01.1946 passed in Suit No.
331 of 1944 reads as follows:­
“He also stated that Rameshar had died earlier to the
death of Sitaram.  There was no cross examination of
the deft no.1 on this point.  Therefore it is clear that
Rameshar father of the plaintiff pre­deceased Sitaram,
which Sitaram pre­deceased Jageshar.  Thus Jageshar
would be entitled to inherit his share to inheritance
bring a  nearer collateral heir them the plaintiff.  If he
died in joint a with him alive he would be entitled to
take his share by survivorship, hence in my opinion it
is not necessary to enquire this point.  However, as the
suit no.119 of 1929 must be decreed to have effected a
complete separation between all the parties and as no
union has been proved between Sitaram and Jageshar
must hold that Sitaram died separate from the defts
father.  Issue decided accordingly.”
20. The   above   portion   cannot   be   taken   to   be   a   categorical
finding on the specific issue as to whether Sita Ram died before
or after Ramesar and whether his 1/3rd share went to the branch
of  Jagesar as a consequence. The revisional authority under the
Consolidation Act has not actually gone beyond the Civil Court’s
decree for partition. At the time of partition all the three brothers
were  alive.  The  authorities   under   the  Consolidation  Act   were
confronted with two questions, namely, (i) whether Sita Ram or
Ramesar died first; and (ii) whether Sita Ram’s 1/3rd share would
go   to   Jagesar   by   way   of   survivorship,   if   he   had   died   after
Ramesar. The answer to this question did not depend upon the
decree for partition. Therefore, the only ground of attack to the
order of Deputy Director of Consolidation as confirmed by the
High   Court   cannot   be   sustained.   It   is   true   that   the   Deputy
Director of Consolidation did not articulate his discussion on this
issue with clarity. But that will not make his order vulnerable.
21. To   put   it   in   simple   terms,   Jagesar’s   branch   would   be
entitled to take Sita Ram’s 1/3rd  share only if it is established
that Ramesar had pre­deceased Sita Ram. This question was not
decided by the Civil Court in the partition suit and it was raised
only   before   the   consolidation   authorities.   Therefore   it   is   not
correct to say that the Consolidation authorities went beyond the
civil court’s decree. Finding that there was no evidence regarding
the dates of death, the Deputy Director of Consolidation found it
equitable to distribute Sita Ram’s 1/3rd  share equally between
the branches of Ramesar and Jagesar. Therefore, the High Court
was right in upholding the judgment of the Deputy Director of
Consolidation and we find no reason to interfere with the same.
Hence the appeal is dismissed.   There will be no order as to
    (Hemant Gupta)
(V. Ramasubramanian)
JULY  13, 2022


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