K. M. Dayal, J. - (1.) THIS writ petition under Article 226 of the Constitution of India is directed against the order dated 31st July, 1972 passed by the Deputy Director of Consolidation in proceedings under section 9-A (2) of the U. P. Consolidation of Holdings Act (hereinafter referred to as the Act).
(2.) IN the present case the dispute relates to plot nos. 300/1, 307/1M and 420/1M situate in village Chak Majid alias Chakia, Pargana Zamania, District Ghazipur. IN the basic year Khatauni the names of the petitioner and respondents nos. 4 to 7 were recorded as Bhumidhar on the aforesaid plots, besides other portion of the plots in dispute. Opposite party no. 8, Brahmdeo Rai filed objection under section 9-A (2) of the said Act claiming to be Bhumidhar and in possession of the land in dispute and prayed that his name be recorded as such after expunging the name of the petitioner and opposite parties nos. 4 to 7 from the land in dispute. The case was contested only by the petitioners. Other opposite parties nos. 4 to 7 did not contest the claim of opposite party no. 8. IN evidence, opposite party no. 8 in support of his claim filed a registered lease deed dated 28-12-50 executed by Parma Nand Rai, opposite party no. 7 in his favour. Although this lease was granted for the purpose of cultivation but in the body of the lease it was provided that the lessee would be entitled to plant grove or to construct house etc. on the land in question. The lessee had paid a sum of Rs. 2500 to opposite party no. 7 who had executed a perpetual lease in favour of Sri Brahmdeo Rai who claimed to be in possession ever since then. Opposite party no. 8 also filed extract of Khasra of 1357 F. wherein lessor Sri Parmanand Rai was recorded in exclusive possession over the plots in respect of which he had executed lease in favour of opposite party no. 8. He also filed extract of Khasra for the year 1363 to 1365 F. wherein he was recorded to be in possesion over the plots in question. Opposite party no. 8 had also filed copy of the order dated 2nd September, 1959 passed by the Sub-Divisional Officer for recording his name on the plots in question on the basis of the aforesaid lease. The petitioner, on the other hand, filed copy of order dated 25th November, 1959 passed by the appellate court whereby order passed by the Sub-Divisional Officer was set aside as the case involved determination of question of title and no correction could be ordered in the summary proceeding for correction of papers. The parties also led oral evidence' in support of their respective claim. The Consolidation Officer by order dated 11-1-1971 rejected the objection filed by opposite party no. 8. An appeal was filed by opposite party no. 8 which too was dismissed on 22-9-1971 by the Assistant Settlement Officer (Consolidation). Aggrieved by those orders opposite party no. 8 filed revision which was allowed by the Deputy Director of Consolidation vide order dated 31-7-1972 and his claim was upheld. The Deputy Director of Consolidation directed that the names of the petitioner and opposite parties nos. 4 to 7 be expunged from the land in dispute and the name of opposite party no. 8 Brahmdeo Rai be recorded. The petitioner alone challenged the said order by filing the present writ petition in this Court. Learned counsel for the petitioner contended that the lease deed dated 28-12-50 was invalid and inoperative as all the co-sharers had not joined with opposite party no. 7, Parma Nand Rai in executing the lease in favour of opposite party no. 8 Brahmdeo Rai. In support of his contention he referred to the provision of section 246 of the U. P. Tenancy Act which reads : "Suit etc. by co-shares in undivided property :- (1) Except as otherwise provided in sub-section (3) or in section 245, where there are two or more co-sharers in any right, title or interest, all things required or permitted to be done by the possessor of the same shall be done by them conjointly, unless they have appointed an agent to act on bahalf of all of them". The learned counsel conteded that in view of the aforesaid provisions no lease could be executed by the opposite party no. 7, who was one of the co-sharer in the land in dispute which was admittedly sir land of petitioners and opposite parties nos. 4 to 7. In support of his contention the learned counsel placed reliance upon a Full Bench decision of the Board of Revenue Mst. Sonapati v. Bhagauti Kunbi, 1957 AWR 116 (Revenue) wherein it was held : "Where a person is admitted to tenancy not by all but only by some co-sharers the lease is invalid and the person so admitted is a trespasser and the suit for ejectment lies under section 180 as section 183 of the U. P. Tenancy Act, 1939 is not applicable because the defendants were admitted only by some of the Zamindars and they are not holding therefore, on behalf of the entire co-parcenary body which alone constitutes land holder as that word is used in section 183." There is no dispute with regard to the proposition laid down in the aforesaid case by the Board of Revenue. The granting of lease of agricultural plot is permitted by Tenancy Act and every owner of agricultural plot of land is, therefore, competent to grant the lease of the same. But if the plot is owned by two or more co-sharers, the right to grant lease can be exercised jointly by them. Each co-sharer has the right to enjoy possession of joint agricultural land in conjunction with his other co-sharer, but has no right, without the concurrence of other co-sharers, to introduce a tenant on the joint plots. It Is this principle that has been given legislative sanction by section 246 of the U. P. Tenancy Act and by Sec. 266 of the Agra Tenancy Act and the same principle was incorporated in section 194 of the North Western Provinces Tenancy Act, 1901. In the present case, however, the facts are altogether different and in view of finding recorded by the Deputy Director of Consolidation to the effect that the opposite party no. 7 was the sole owner and in exclusive possession over the plots in question which he has leased out to opposite party no. 8, the said argument is not available to the petitioner.
(3.) IN the present case the opposite party no. 8 had led evidence to establish that opposite party no. 7 Sri Parmanand Rai, who had held 1/2 share in the land in dispute, was in exclusive possession in the year 1357F. Sri Parmanand Rai came into possession over the land in dispute on the basis of private partition of Sir land amongst his other co-sharers namely the petitioner and opposite parties nos. 4 to 6 and by the said mutual partition Sri Parmanand Rai became exclusive owner of the land in dispute and his exclusive possession was also recorded as such in the year 1357F. He was, therefore, entitled to let out the land which was in his exclusive possession and of which he was the sole sir-holder. Thus the provisions contained in section 246 of the said Act would not make the lease deed dated 28-12-1950 invalid which was granted by Sri Parmanand Rai to contesting opposite party no. 8, as he was the sole sir-holder and in exclusive possession on the basis of partition effected mutually amongst the co-sharers. The Deputy Director of Consolidation has held that the possession of Sri Parmanand Rai in 1357F. indicates that he was in possession of the land in dispute on the basis of private partition amongst his co-sharers and when the Sir land is divided mutually amongst the co-sharers, the land which falls in the share of a co-sharer becomes his exclusive property and he gets a right to deal with it in any manner, he may like to do so. I do not find any infirmity in this finding,;