POONAM SRIVASTAV, J. - (1.) HEARD learned counsel for the parties Since the questions involved in both writ petitions are common, the writ petitions are decided by a common order. Counter and rejoinder affidavits have been exchanged between the parties which are on record.
(2.) BOTH the writ petitions arise out of common orders passed by the Deputy Director of Consolidation dated 5.8.1994 and by the Consolidation Officer dated 20.6.1967 whereby Smt. Brijbasi has been given 1/3rd share in Khata No. 37, now renumbered as 233. Claim of the petitioner Smt. Brijbasi in Writ Petition No. 2195 of 1995 is that in addition to 1/3rd share by adverse possession, she is also entitled to entire share of her father Maggan in Khata No. 164, 395 and 466 of village Sidhaut. Initial claim of Smt. Brijbasi was on the basis of a Will executed by her father Maggan as well as uncle Mahadeo. For a ready reference pedigree relied upon in Writ Petition No. 2195 of 1995 is detailed herein below:- Ram Phal ------------------------------------------------------------------------------------------ I I I Laxman Mahadeo Maggan Smt. Asharfi I I Bindesari Smt. Brij Basi I P. Raj Narain R. 4 Pedigree given by Raj Narain Tewari petitioner in Writ Petition No. 35653 of 1994 and respondent no. 4 in the case of Smt. Brijbasi, is detailed below: Ramphal Tewari ------------------------------------------------------------------------------------------ I I I Laxman Mahadeo Maggan I I Bindeshwari Smt. Brij Basi (Father of petitioner) (Respondent no. 1) 4. Initially the dispute arose when Smt. Brijbasi claimed title over the land in dispute on two grounds; firstly that she was daughter of Maggan and relied upon two Will deeds allegedly executed by her father and uncle and alternatively claimed title on the ground of adverse possession. 5. The Consolidation Officer did not accept the Will alleged to be executed by Mahadeo, one of the brother of Maggan and Bindeshwari. Mahadeo died issueless. Finding recorded by the Consolidation Officer at the relevant time was that at the time of death of Maggan, admittedly Smt. Brijbasi was married and she could not inherit the land in dispute which fell in the share of her father Maggan. The Consolidation Officer accepted the Will executed by father of Smt. Brijbasi and came to a conclusion that she had 1/3rd share in Khata No. 37 which was renumbered as Khata No. 233. So far Sirdari Khata is concerned, it could not be bequeathed. Both the parties went up in appeal before the Settlement Officer Consolidation. The Settlement Officer Consolidation set aside order of the Consolidation Officer on the basis that the Will alleged to be executed by Maggan father of Smt. Brijbasi because the same was not proved. A revision was preferred by Smt. Brijbasi before the Deputy Director of Consolidation who agreed with the findings of the Settlement Officer Consolidation and discarded the Will and concluded that the same was not proved. However, the Deputy Director of Consolidation came to a conclusion that she was entitled to 1/3rd share on the ground of equity since the Will executed by Maggan was registered will. No finding was recorded on adverse possession. The Deputy Director of Consolidation restored order of the Consolidation Officer vide order dated 22.1.1970 so far 1/3rd share in Khata No. 37 was given to Smt. Brijbasi. 6. A writ petition was preferred in the High Court vide Writ Petition No. 2200 of 1970-Bindeshwari Tiwari Vs. D.D.C. and others. Smt. Brij Basi wife of Dalsingar was arrayed as respondent no. 3 in the said writ petition. The writ petition was allowed. Order of the Deputy Director of Consolidation was set aside since the Will was held to be fictitious but the matter was remanded to the Deputy Director of Consolidation to record its findings on the argument raised by Smt. Brijbasi on the alternative plea of adverse possession. In fact share given to Smt. Brijbasi on the basis of Will was set at naught as the Will itself was found fictitious by the High Court. 7. The present dispute arises out of second round of litigation after remand. The pedigree set up in the first round by petitioner was slightly altered since Smt. Asharfi was introduced as wife of Maggan. However, Smt. Asharfi died in the year 1968 and petitioner Brijbasi claims her entitlement to the share of Maggan by virtue of Section 172 of U.P.Z.A. and L.R. Act. This was never raised in the first round of litigation till the writ petition No. 2200 of 1970 was decided on 30.10.1974. The High Court remanded the case to decide alternative plea of adverse possession raised by the petitioner but after remand it appears that entire case was given a different twist. This raised a number of questions such as in case Smt. Asharfi widow of Maggan was alive, why her name was not disclosed by the petitioner before any of the consolidation courts previously. Most of the land in dispute was Sirdari, if Smt. Asharfi was in existence as widow of Maggan why she did not claim Sirdari land herself through her mother Asharfi. There is not even a whisper by Smt. Brijbasi regarding claim of her mother. The Consolidation Officer vide order dated 20.6.1967 categorically held that Brijbasi can not acquire any right in a Sirdari land on the basis of a Will which was alleged to be executed in the year 1948 by Maggan Tiwari. After this finding, there is no reason or explanation why Smt. Asharfi did not come on the forefront or at least the petitioner should have come with a plea that she succeeds Sirdari land through her mother Smt. Asharfi as widow of Maggan. Even at the stage of Assistant Settlement Officer Consolidation, no such plea was raised and, therefore, it is apparent that Smt. Asharfi was never in existence and she was introduced as an after thought when the case was remanded by the High Court. 8. I have noticed that remand order was only for a specific purpose whether she can claim her right on the basis of adverse possession or not. Apparently the case set up by the petitioner on the ground of adverse possession is without any basis. There is nothing to corroborate the fact that the petitioner was in possession of the disputed land for a long period and that too it was hostile possession viz-a-viz contesting respondents. I am of the considered view that the plea of adverse possession set up by the petitioner has no legs to stand and, therefore, the writ petition fails on the ground of adverse possession. 9. So far the other question is concerned regarding 1/3rd share in plot No. 37, this again is only on the basis of Will which the High Court has completely negated and the consolidation authorities had also held that it was not proved in accordance with law. The 1/3rd share was given only on the ground of equity since the Will was registered one but this alone can not validate a document which is otherwise held to be invalid consecutively by the courts below as well as the High Court. Therefore, I am of the considered view that the petitioner is not entitled for any share whatsoever in the property. 10. In the circumstances, there is no merit in the writ petitions. The writ petitions are accordingly dismissed. Interim order stands discharged.;