K.N.Singh, J. - (1.) This petition is directed against the order of the Deputy Director of Consolidation dated 24-11-1971 setting aside the order of the Assistant Settlement Officer (Consolidation) and dismissing the petitioner's objection.
(2.) During the Consolidation operations, the names of respondents Nos. 4 to 10 were recorded over the plots included in Khata Nos. 8 and 115. The petitioners filed objections claiming continue holders rights over the plots to extent of one-third share on the basis of a pedigree set up by them with the allegation that the plots in dispute originally belonged to Mangoo, a common ancestor. According to the petitioners. Mangoo and three sons, Dulha, Shiv Narain and Jhabbu. The petitioners claimed to derive their title through Jhabbu while the respondents are descendants of Dulha and Shiv Narain. The respondents contested the objection on the pleading that Jhabbu was not the son of Man-goa and that he had no concern with the plots in dispute. The Consolidation Officer by his order dated 29-3-1971 dismissed the petitioner's objection on the finding that the pedigree set up by the petitioners was not proved and there was no evidence on record to show that the petitioners had one third share in the plots in dispute. The petitioners took the matter in appeal before the Settlement Officer (Consolidation). The Assistant Officer (Consolidation) by his order dated 26-7-1971 partly allowed the petitioners appeal on the finding that the petitioners were entitled to one-third share in the sixteen plots as mentioned in the order. Their claim for other plots was, however, rejected. The respondents filed a revision-application under Section 48 of the U.P. Consolidation of Holdings Act against the order of the Assistant Settlement Officer (Consolidation). The Deputy Director of Consolidation by his order dated 24-11-1971 allowed the revision, set aside the order of the appellate authority and restored the order of the Consolidation Officer. Aggrieved, the petitioners have approached this Court under Article 226 of the Constitution.
(3.) Learned counsel for the petitioners, urged that Settlement Officer (Consolidation) had recorded a finding of fact on the appreciation of the oral and documentary evidence on record and the Deputy Director committed error in setting aside those findings and carrying out a new case which was not set up by the respondents. Having heard learned counsel for the parties. I find merit in the contention. The Settlement Officer (Consolidation) referred to the Khatauni extracts of 1292 Fasli and 1324 Fasli where the name of Jhabbu, the petitioner's ancestor, was recorded showing him to be son of Mangoo. The Settlement Officer (Consolidation) on perusal of the Khatauni extracts of 1292 and 1324 Fasli and fard mutaqibat held that the petitioners had proved that Jhabbu was son of Mangoo. He further recorded a finding that the pedigree set up by the petitioners was proved, The Settlement Officer further recorded a finding that the name of Mangoo was recorded as non-occupancy tenant and as Mangoo had tenancy rights, Jhabbu was recorded as his descendant, the petitioners were entitled to share in the plots in dispute. Their name had wrongly been omitted from being recorded in the record of rights. The petitioner's claim for other plots was not accepted by the Settlement Officer (Consolidation) on the ground that the name of the common ancestor was never recorded over those plots. The Settlement Officer (Consolidation), however, accepted the petitioner's claim in respect of 16 plots as the name of Mangoo, the common ancestor, had been recorded. The Deputy Director interfered with the finding of the Settlement Officer (Consolidation) on the ground that the identity of plots was changed as the petitioners had failed to prove that the holding of 1292 Fasli continued in identical form. The Deputy Director in my opinion carved out a new case for interfering with the order of the Settlement Officer (Consolidation) as the respondents had not setup any plea relating to change of the plots. In the absence of any such plea being raised before the appellate authority the revisional court had no jurisdiction to set up a new case and to set aside the order of the appellate authority. The Deputy Director recorded & finding that the pedigree set up by the petitioner had been proved. Thus it was conceded that the petitioners were the descendants of Mangoo, the common ancestor. Since Jhabbu, one of the son of Mangoo was recorded in the Khatauni of 1292 Fasli, the burden lay on the respondents to explain the circumstances as to how the name of the petitioners who were descendants of Jhabbu, were not recorded and in what circumstances the respondents or their ancestors acquired exclusive rights over the plots in which the petitioners had been found to have one-third share. In the absence of any such explanation the respondents claim could not be accepted. The Assistant Settlement Officer (Consolidation), in my opinion, rightly held that in view of the entries contained in 1292 Fasli and 1324 Fasli the petitioners were entitled to share in the 16 plots.. The Deputy Director committed error in setting aside the order of Consolidation Officer.;