S.K. Singh, J. - (1.) By means of this writ petition petitioners have prayed for quashing the order of the Deputy Director of Consolidation dated 8.12.1983 (annexure No. 3 to the writ petition). There appears to be no dispute about the factual aspects and thus a brief narration will suffice for the purpose of disposal of this writ petition. Mention of a pedigree showing the relationship between the parties and their respective claim will be useful at this place.
(2.) Petitioners happen to be son of Shobha, one of the daughter of Kalicharan-Kulwanta. Respondents No. 2 and 3 are the two married daughters of Kalicharan-Kulwanta. In the basic year records the name of petitioners was recorded. Objection was filed by respondent Nos. 2 and 3 claiming expunction of the name of the petitioners and for entering of their names being the preferential heir under section 172 of the U.P.Z.A. and L.R. Act. Land in dispute is claimed to be owned by Kalicharan and on his death to have passed on to Kulwanta, his widow and on the death of Kulwanta which took place on 21.2.1948 name of Shobha as shown in the pedigree came to be recorded. Shobha was unmarried daughter at the time of death of Kulwanta. After the death of Shobha which took place in the year 1963 the name of the petitioners came to be recorder. The objection filed by the respondents under section 9-A (2) of die U.P.C.H. Act referred above was rejected by the Consolidation Officer and thereafter the appeal by the Assistant Settlement Officer Consolidation by their judgments dated 7.5.1979 and 12.2.1981 respectively. On the revision filed by the respondents they have succeeded in their claim in respect to land comprised in khata No. 15 but in respect to the land comprised in khata No. 70 the judgment of the Courts below was maintained. It is thus the petitioners being aggrieved by the judgment of the Assistant Settlement Officer, Consolidation dated 8.12.1983 (Annexure No. 3) have filed this petition which is apparently confined to the land comprised in khata No. 15.
(3.) Learned Counsel for the petitioners submits that the land in dispute was the sir Khudkasht from the time Kalicharan who died in 1948 and thus his widow inherited the property under Hindu Law. On the death of Smt. Kulwanta which took place in the year 1948, Shobha Devi being unmarried daughter at that time inherited the Khudkasht right and continued to remain Khudkasht holder prior to tire date of vesting. On the death of Shobha Devi in the year 1963 under Hindu Succession Act, 1956 Shobha Devi became absolute owner. Thus section 174 of the U.P.Z.A. and L.R. Act will be applicable and inheritance is to be governed accordingly. In view of the application of the Hindu Succession Act under section 14(1) of the Act Shobha Devi shall be treated to be absolute owner and not a limited owner and thus Deputy Director of Consolidation in taking the view that rights are to be governed under section 172(2)(i) of the Act have committed an error. The submission is that Shobha having succeeded the limited state, by operation of section 14(1) of the Hindu Succession Act her limited state/rights enlarged in absolute right. It is argued that the Deputy Director of Consolidation has not considered the claim of the petitioners by keeping in mind the overriding effect of the provisions as are contained in the Hindu Succession Act. Lastly it is submitted that the Deputy Director of Consolidation has admitted Khatauni extract of the 1354 fasli without affording adequate opportunity to tine petitioners and in any view, the revision has been allowed without examining the facts, evidence and the submission in detail and without recording any elaborate finding on the questions in issue. In support of the submission referred above learned Counsel for the petitioners have placed reliance on the decision given by the Apex Court in the case of Bishwanath Pandey v. Badami Kaur and others, AIR 1980 SC 1329 Vijay Pal Singh and another v. Deputy Director Consolidation and others, AIR 1996 SC 146 Mool Chand v. Kedar (deceased) by LRs. and others, 2000 RD 157 and the provisions as contained in sections 4 and 14 (1) of the Hindu Succession Act.;