R.M.Sahai, J. - (1.) IN an objection filed u/S. 9-A (2) of U. P. Consolidation of Holdings Act against basic year entry in favour of petitioner Gaon Sabha claimed that land being barren (Banjar) and tank (Pokhri) petitioner could not be recorded as sirdar of it. Consolidation Officer did not find any merit in it as in an earlier suit no. 268 of 1966 u/S. 229-B of UP ZA & LR Act I of 1951 between petitioner and State Government and Gaon Sabha, they were declared sirdar of it. Gaon Sabha's appeal was dismissed as incompetent for non-compliance of paragraphs 131 and 128 of Gaon Samaj Manual. IN revision the Deputy Director of Consolidation set aside these findings and held that the judgment in suit no. 268 being ex-parte against Gaon Sabha it was not binding on it. Consequently the objection of Gaon Sabha stood allowed.
(2.) WITHOUT going into the controversy whether Deputy Director Consolidation committed any error or not in setting aside the findings of appellate authority, there is no doubt that the finding on merits is manifestly erroneous and cannot be sustained. From copy of the order passed in suit no. 268 attached as annexure 4 to the writ petition it is apparent that the claim of petitioners that they were in Possession over land in dispute since before the date of vesting with permission of Zamindar and had made the land cultivable was contested by State Government. Gaon Sabha was also a party but it did not put any contest obviously because it was being contested by State Government on same grounds on which it could have contested. Not only this Lekhpal and Pradhan who appeared on behalf of State admitted petitioner's possession for last 25 years and that the land was cultivable. After considering their evidence the Assistant Collector found that petitioners being in possession since before the date of vesting acquired rights u/Sec. 210 of ZA & LR Act 1 of 1951. In order to get over the binding effect of this order the Deputy Director gave two reasons-one that the decree against Gaon Sabha was ex-parte other the then Pradhan did not appear to have been authorised to admit petitioner's claim. Both these reasons are fallacious. An ex-parte decree is as much binding as a decree on contest unless it suffers from legal defect of having been passed without service of notice etc. Moreover as a consequence of publication of notification u/Sec. 4 of UP ZA & LR Act the estate vested in the State. And the land vested in the Gaon Sabha only after publication of notification by State Government u/Sec. 117 of UP ZA & LR Act vesting any land vested in it in Gaon Sabha. Gaon Sabha, therefore, could be successor only. In order to determine whether any land vests in Gaon Sabha or not it has necessarily to be examined if the land vested in its predecessor or, namely, the State Government, on the date of vesting. The decision rendered by Assistant Collector, therefore, against State Government was binding on Gaon Sabha as well. If the land was cultivable and it did not vest in the State Government no notification u/Sec. 117 could have been issued in favour of Gaon Sabha. And if any notification was issued it automatically lost its efficacy once it was held that State Government itself had no right or title in the land. Similarly the reasoning that Pradhan was not empowered to admit petitioner's claim cannot stand for a moment. Pradhan had not appeared in his capacity as Pradhan or Chairman of Land Management Committee for Gaon Sabha but as a witness for the. State Government. He was not admitting any claim or entering into compromise. But stating as a responsible witness of the village the actual state of affairs as they existed.
(3.) IN the result the petition succeeds and is allowed. The order passed by Deputy Director of Consolidation is quashed and basic year entry in favour of petitioner shall continue. Parties shall bear their own costs. Petition allowed.;