R.M.Sahai, J. - (1.) It is admitted that Bal Krishna had three sons Ram Saran, Gaya and Ram Charan. The dispute in this petition is regarding share of Gaya. After his death the land devolved on Smt. Sampata his widow who also died during pendency of Agra Tenancy Act. It was claimed by petitioners who are descendants of Ram Charan's branch that as Bhikam and Mahatam two sons of Ram Charan were alive at the time when Smt. Sampata died and they were nearest collateral's they succeeded to share of Gaya. According to opposite parties both were entitled to half and half. All the three consolidation authorities have accepted the case of opposite parties and maintained basic year entry. It has been argued by learned counsel for petitioners' that it having been found that Bhikam and Mahatam were alive at time of Smt. Sampatas death and they being nearest collateral's it shall be deemed that they co-shared with her at the time of her death and therefore all the consolidation authorities committed manifest error of law in rejecting petitioners claim. Reliance has been placed on AIR 1925 All 794 and on a number of decisions of the Board of Revenue. In AIR 1925 All 794 it was held that if mortgagee was in possession his possession shall be deemed to be on behalf of real owners and they shall be deemed to be co-sharing with mortgagee. Learned counsel argued that if constructive possession of mortgagee could be taken to be co-sharing by the nearest collateral's there was no reason to consider that Bhikam Singh and Mahatam who were nearest collateral's and members of the joint family were not entitled to land in dispute as it shall be deemed that they were co-sharing with Smt. Sampata. Learned counsel maintained that in a joint khata as cultivation is carried on, on behalf of either covenants as well it shall be deemed that Smt. Sampata was cultivating on behalf of Bhikam and Mahatam as well. The argument is no doubt attractive but if it is accepted it shall run counter to proviso of Section 24 of Agra Tenancy Act which runs as under - "Provided that no such daughters son or collateral relative shall be entitled to inherit who did not share in the cultivation of the holding at the time of tenants death." The proviso is an exception to the order of succession mentioned in the section. It adds further condition that a daughters son or nearest collateral mentioned in clauses (6) and (7) of Section 24 shall be entitled to inherit only if they co-shared in cultivation of the holding at the time of tenants death. This cannot be assumed. It was a matter of evidence. The appellate authority found that two witnesses produced on behalf of petitioners namely Chhanga and Hari Ram are aged only 40 years and they could not have seen Bhikam and Mahatam cultivating along with Smt. Sampata as both Gaya and Smt. Sampata died 49 years ago. In other words he did not place any reliance on petitioner's evidence in respect of co-sharing. In absence of any evidence the co-sharing of nearest collateral's could not be assumed. The argument of learned counsel for petitioners that in a joint khata it has to be assumed that all the members were co-sharing with the person who was cultivating the land in dispute cannot be accepted. As pointed out above if this would have been the intention of the legislature then proviso would not have been worded as it is. Nor can the principle laid down in AIR 1925 All 794 be helpful as possession of mortgagee can be said to be possession on behalf of mortgagor as well. That principle cannot be extended in this case as Smt. Sampata was cultivating in her own right and not on behalf of Bhikam and Mahatam.
(2.) Learned counsel for petitioner then argued that Deputy Director has recorded finding that as khata was joint and collateral's and relatives were co-sharing in cultivation along with Smt. Sampata therefore all were equally entitled. According to him on this finding the claim of petitioner should succeed as amongst collateral's who co-shared in cultivation it is the nearer collateral who is entitled to succeed. The argument is no doubt correct but the finding of Deputy Director appears to be based without any evidence and under misapprehension of fact. The appellate authority having found that there was no evidence of co-sharing the Deputy Director only drew an inference of co-sharing from the fact that the khata was joint. This he could not do.
(3.) Learned counsel also relied on the counter affidavit filed on behalf of respondent wherein in para 11 it has been found that all parties who were collateral's were co-sharing in cultivation along with Smt. Sampata. The affidavit has been given by a person who is aged only 30 years. For the reasons given by appellate authority this affidavit cannot be relied on for deciding whether at the time of death of Smt. Sampata Bhikam, Mahatam or any other collateral was co-sharing; for the same reason no reliance can be placed on allegation of para 7 of supplementary counter affidavit. It has been argued by learned counsel for petitioner that as it was admitted in counter affidavit and supplementary counter affidavit that all collateral's co-shared the petitioner did not file the evidence which was filed before consolidation authorities and this admission should be treated as binding on opposite parties. It is difficult to accept the argument as before counter affidavit was filed it was petitioner who was aggrieved by order passed by Deputy Director and Settlement Officer Consolidation. They should have filed evidence to satisfy that the Deputy Director or Settlement Officer Consolidation committed an error in ignoring the evidence or misreading the same. As the evidence has not been filed it cannot be assumed that finding recorded by appellate authority that petitioner examined only two witnesses is incorrect or there was any other evidence which was ignored by him.;