Tarun Chatterjee, J. - (1.) This appeal is directed against the judgment and order dated 22nd of May, 1998 passed by a learned single judge of the High Court of Judicature at Allahabad (Lucknow Bench) in W.P. No. 2016 of 1981 whereby the High Court had dismissed the writ petition filed by the appellants against an order of the Assistant Director of Consolidation, Sultanpur holding the sale deed dated 21st of May, 1969 in favour of the appellants to be illegal.
(2.) This case has a chequered history, which would be clear from the following facts leading to the filing of this appeal. The appellants alleged that by virtue of a registered sale deed dated 21st of May, 1969, they are the vendees of 1/2 of the land in Khata No. 98 (in short "the suit property") recorded in the name of the vendors viz., Bhagirati, Putai, Ram Newaj, Matadin, Bachai and Ram Avadh alias Avadhu (in short "Bhagirati and Ors.") who are co-tenure holders with the respondents. A notification under Section 4 of the U. P. Consolidation of Holdings Act, 1953 (in short "the Act") was issued for consolida tion operation. The appellants filed objections under Section 9(2) of the Act before the Consolidation Officer for recording their names in place of Bhagirati and Ors. in the revenue records contending that they had obtained the registered sale deed dated 21st of May, 1969 but by mistake of the Lekhpal, their names could not be recorded in the revenue records. The respondents also filed objections claiming that Bhagirati and ors. or their father Faqir had no share in the suit property and that the suit property belonged to one Sanehi exclusively and therefore, Bhagirati and Ors. did not have any right to sell the same. Accordingly, the respondents strongly contested the case of the appellants who prayed for inclusion of their names in place of Bhagirati and Ors. By an order dated 15th of March 1970, the Consolidation Officer allowed the objections of the appellants and directed that their names be recorded against the suit property. The respondents preferred an appeal under section 11(1) of the Act before the Settlement Officer, Consolidation but the same was dismissed by the or der dated 18th of December, 1970. Feeling aggrieved, the respondents filed a revi sion under Section 48 of the Act before the Assistant Director - Consolidation, which was allowed by an order dated 16th of August 1971. Against this order passed in revision, the appellants filed a writ petition being WP No. 1797 of 1971 and the same was allowed on 14th of November, 1978 and the matter remanded to the Assis tant Director - Consolidation for deciding the revision afresh. The Assistant Direc tor-Consolidation allowed the revision this time also by his order dated 20th of Feb ruary 1981. Feeling aggrieved, the appellants filed a writ petition before the High Court being 2016 of 1981, which, however, was dismissed by the judgment and order dated 22nd of May 1998. It is this decision of the High Court, which is now impugned in this appeal.
(3.) Before we proceed further, considering the fact that concurrent findings of fact arrived at by the Consolidation Officer and the Settlement Officer-Consolidation were set aside by the Assistant Director-Consolidation in revision, whose decision was affirmed by the High Court in the impugned judgment, we deem it expedient to look at the findings of High Court and the Consolidation Officer. Let us first look at the findings of the High Court relying on which the writ peti tion of the appellants was dismissed. The findings are as under :- i) At the time of Third settlement, Sanehi was the only recorded tenure-holder of the land in question and Faqir was not recorded as a co-tenure holder. ii) The name of Faqir was recorded only in the year 1356 Fasli without there being any order showing the title of Faqir or showing the ground on account of which his name was entered as a co-tenure holder of the suit property and therefore, there was no evidence on record to show how his name could be entered as a co-tenure holder in the year 1356 Fasli. iii) The mere fact that in the Khetauni of 1356 Fasli, it was mentioned that the tenure-holders were occupying the land for 15 years, the same could not confer any title on Faqir whose name did not find place at the time of the Third settlement. iv) Unless it was shown by Bhagirati and Ors. that the title of the suit property was acquired by Faqir before 1356 Fasli and unless the mode of acquisition of title was shown, the mere recording of Faqir name as a co-tenure holder of Sanehi in the year 1356 Fasli would not make Faqir a co-tenure holder of Sanehi in the suit land. v) The Assistant Director of Consolidation in revision had rightly held that the entry in favour of Faqir was fictitious and could not have been relied upon by the Consolidation Officer and the Assistant Settlement Officer (Consolidation) to con fer any title on Faqir, his heirs Bhagirati and Ors. and their vendees, the appellants. vi) In connection with the land of another village, it was mentioned that Sanehi had not taken patta of land for the benefit of his brother Faqir and that being so, the jointness with regard to the suit property could also not be assumed. vii) Since the appellants were the transferees from Bhagirati and Ors. and since the title of Faqir, the ancestor of Bhagirati and Ors. could not be established, the Appellants were rightly denied the relief by the Assistant Director of Consolidation. viii) The benefit of the authority of the Supreme Court reported in Sri Nath Singh and Ors. vs. Board of Revenue (AIR 1968 SC 1351 ) was not available to the appellants because the entry of 1356 Fasli in favour of Faqir was fictitiously recorded and therefore, no right of co-tenure holder could be said to have accrued to Faqir. As noted herein earlier, the High Court dismissed the writ petition of the Appellants on the above findings and affirmed the decision and the findings of the Assis tant Director-Consolidation passed by the latter in revision.;