SARJU MISHRA (D) THR. LRS. & ORS. Versus JANGI (D) THR. LRS. & ORS.
SARJU MISHRA (D) THR. LRS. & ORS. Versus JANGI (D) THR. LRS. & ORS.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3818 OF 2012
SARJU MISHRA (D) THR. LRS. & ORS. …Appellant(s)
JANGI (D) THR. LRS. & ORS. …Respondent(s)
J U D G M E N T
V. RAMASUBRAMANIAN, J.
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:
Sita Ram Ramesar Jagesar
(Died Childless) Bhagauti
Jangi & Triloki Basdeo Sarju Sabhu
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
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
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
JULY 13, 2022