K. M. Dayal, J. - (1.) THIS writ petition has been filed against the judgment and orders passed by the consolidation authorities. The petitioners were recorded as tenure-holders in the basic year and opposite party no. 4 was found in possession at the time of Portal. The objection was filed by opposite party no. 4 and as is clear from the judgment of the Consolidation Officer (Annexure 1), his objection was that the disputed land was acquisition of the common ancestor of the petitioners and respondent no. 4. Subsequently by partition this land came to the share of respondent no. 4. It was also pleaded that Shiv Narain, father of petitioners, executed a gift deed in favour of the objector and due to that gift, the petitioners did not have any right in the land. It was pleaded that due to long possession the opposite party has become sirdar of the land in dispute. The defence of the petitioners was that opposite party no. 4 had illegally occupied the land without their consent and a suit under Section 209/229-B of the U. P. Z. A. & L. R. Act was filed against him. That suit was abated under Section 5 of the Consolidation of Holdings Act and the matter was not decided in those proceedings.
(2.) THE consolidation authorities completely ignored the pleadings of the parties and held that the opposite party no. 4 had been in possession over the land in dispute. THEy held that the opposite party no. 4 was recorded in Khasra from time to time and, therefore, it should be presumed that he was recorded throughout. THEy also ignored that respondent no. 4 had claimed ouster of petitioners on the ground of partition and the gift deed by the petitioners' father. THE consolidation authorities found that there was no partition in respect of this land nor this land could be covered by the gift deed which might have been obtained prior to the acquisition of this land. Under these circumstances, the respondent no. 4 could not be given any right higher than the right of co-tenureholder. THEreafter the consolidation authorities should have considered firstly when the rights of the petitioners as co-tenure-holders were denied and secondly when were they ousted so as to extinguish their rights. But no such finding has been given. Learned counsel for the petitioners argued that possession of respondent no. 4 has not been continuous over the plot in dispute. He referred to the judgment of the Settlement Officer (Consolidation) wherein the possession in various years in respect of plots in dispute was mentioned He further argued that any absence of entry of possession in Khasra could not be deemed to be occasional and in view of the provisions of the Land Records Manual the possession in that year would be held to be that of the recorded tenure-holder. Learned counsel for the petitioners relied upon Para A-55 of the Land Records Manual wherein it is provided that inspection from field to field is to be made thrice in a year on 15th February, (5th April and 15th August respectively. Remarks column entries are to be made in accordance with the result of the inspection made under Para A-55 the Land Records Manual. He further relied on Para A-72 and onwards of the Land Records Manual. The entry in the remarks column could have some weight only if one is there. The absence of entry will enure to the benefit of the recorded tenureholder. If there is no entry, the presumption will be that the tenant in column 5 has been in possession. His argument is correct. The consolidation authorities have completely ignored the provisions of the Land Records Manual and also the pleadings of the parties. A person who was initially pleading co-tenancy and subsequently pleaded extinction of the right on the basis of the gift deed and partition, could not be held to be sole tenure-holder if the gift deed and partition were disbelieved. Under the circumstances the highest right that could be available to respondent no. 4 would be that of the co-tenureholder. However, as it has been pointed out by the learned counsel for the petitioners that the consolidation authorities have completely misread the effect of the Khasra entries in respect of different plots and have not considered the same in the light of the provisions as provided in the Land Record Manual, the finding of Deputy Director of Consolidation is not sustainable. In the circumstances, I have no option left but to set aside the orders passed by the Deputy Director of Consolidation. Sri N. C. Pandey appearing for respondent no. 4 argued that the suit under Section 209/229-B of the U. P. Z. A. & L. R. Act was dismissed on merits and was not abated. According to him the suit was finally decided. This aspect of the case should also be considered by the Deputy Director of Consolidation while deciding the revision afresh. In the result, the present petition is allowed. Order of the Deputy Director of Consolidation dated 10-1-74 is quashed. He is directed to decide the revision afresh in accordance with law and observations made above. Parties are directed to bear their own costs. Petition allowed.;