- (1.) HEARD Sri V.B. Khare, learned counsel for petitioners, learned Standing Counsel for State-respondents and Sri B.N. Asthana learned counsel for the respondent nos.3, 4 and 5.
(2.) LEARNED counsel for petitioners has submitted that in the objection filed by petitioners under Section 9 of the U.P. Consolidation of Holdings Act the Consolidation Officer had allowed the objection on 09.07.1976 but on an appeal filed by the respondents the Settlement Officer, Consolidation has set aside the order of Consolidation Officer and allowed the appeal. The Deputy Director, Consolidation in the revision filed by the petitioners has affirmed the order of the Settlement Officer, Consolidation. According to Sri Khare, Bhaggu who was ancestor of the respondent nos. 3 to 6 had filed a suit under Section 49 of the U.P. Tenancy Act for division of the holding being Case No.482 (Bhaggu Vs. Bira) in the Court of A.S.D.O., Maharajganj, District Gorakhpur. That suit under Section 49 of the U.P. Tenancy Act was dismissed on 20.11.1952 for the reason that the petitioner therein who was ancestor of the respondents had not filed any evidence with respect to his share in the property in question although he had filed the suit for declaration as contemplated under Section 59 of the U.P. Tenancy Act. According to learned counsel, the respondents had not been granted relief of division of holding under Section 49 of the Act or declaration of title under Section 59 of the Act. He submits that the respondents thereafter filed an appeal against the said judgment but the appeal abated with the enforcement of U.P. Z.A. & L.R. Act. According to learned counsel the respondents thereafter filed application under Section 176 of the U.P. Z.A. & L.R. Act which proceedings also abated with the enforcement of U.P. Consolidation of Holdings Act. He submits that the Consolidation Officer had rightly allowed the objection of the petitioners claiming the land in question on the ground that the respondents had not succeeded in the proceedings under Section 49/59 of the U.P. Tenancy Act. He states that resjudicata would apply and the impugned orders require to be set asie. Hence, the respondents were not co-sharers with the petitioners in the land in question which was coming from the ancestors Bhuri alis Bira. He states that the Settlement Officer, Consolidation has illegally allowed the appeal of the respondents and the Deputy Director, Consolidation has erred in dismissing the revision filed by the petitioners.
(3.) SRI Asthana, learned counsel for the respondent nos.3 to 5 has submitted that the proceedings under Section 49/59 of the U.P. Tenancy Act had abated due to enforcement of U.P. Consolidation of Holdings Act and, therefore, the order dated 20.11.1952 could not be resjudicata between the parties for the reason that the suit was dismissed due to non-filing of evidence by the respondents regarding their shares in the property in question. He states that the ancestor of the respondents, namely, Bhuri alias Bira were recorded in 1334 F over the land in question and the pedigree submitted before the Consolidation Officer has not been disputed by the petitioners. The said pedigree has reproduced in the order of the Consolidation Officer where Bhuri alias Bira is the common ancestor of the petitioners and the respondents and, therefore, in view of the entry in 1334 F in the name of the common ancestor the respondents were co-sharers with the petitioners. He has also submitted that the proceedings under Section 176 of the U.P. Z.A. & L.R. Act initiated by the respondents had abated due to enforcement of the U.P. Consolidation of Holdings Act and, therefore, they cannot be held to be a bar for the respondents to claim their rights over the land in question in the title proceedings under Section 9 upon enforcement of the U.P. Consolidation of Holdings Act.;