Janardan Sahai, J. - (1.) The dispute in the present writ petition relates to the shares to which the petitioners and the respondent Nos. 3 to 14 are entitled to. In the basic year, the names of the petitioners as well as of the respondent Sheodhari and others of first set were recorded. Tekdhar was the common ancestor of the parties. He, had two sons, namely, Balram and Ghanshyam. Balram had two sons Jaddu and Sobaran and Sobaran had two sons Ram Dayal and Hamdhar. Mohan was son of Jaddu. The petitioners are of the branch of Ram Dayal while Sheodhari and others the respondents first set are of the branch of Hamdhar. It is not disputed that Civil Suit No. 135 of 1895 was filed by Gulab of the branch of Ghanshyam and in that suit it was decided that Jaddu had 1/3 share the branch of Sobaran had 1/3 share and that of Turant son of Ghanshyam had also a 1/3 share. The dispute in the present case relates to the devolution of the share of Jaddu. According to the petitioners who are of the branch of Ram Dayal thp share of Jaddu devolved equally upon the two branches of Ram Dayal and Hamdhar, while according to Sheodhari and others respondent first set the share of Jaddu devolved solely upon the branch of Hamdhar. Therefore, according to the petitioners the share of the petitioners is equal to the share of Sheodhari and others of the branch of Hamdhar whereas according to the respondents the share of branch of Hamdhar is 1/6 which they inherited from Sobaran equally with the branch of Ramdayal, plus 1/3 being the share of Jaddu, totalling 1/2.
(2.) The Consolidation Officer by his order dated 31.10.1969 held against the petitioners and in favour of the respondent first set and entitlement to share was made accordingly. On appeal filed by the petitioners the Settlement Officer Consolidation held that the petitioners and the respondent first set are entitled to equal share of 1/3 each set on the basis of the pedigree. On basis of pedigree the share of Jaddu would devolve upon Ram Dayal and Hamdhar both in equal measure. This would undisputedly be so if they were both alive when Jaddu's son Mohan died. The Deputy Director of Consolidation has set aside the order of the Settlement Officer Consolidation and has restored the shares as determined by the Consolidation Officer.
(3.) In order to decide the question as to what would be the share of the parties it is necessary to determine the date of death of the ancestor of the petitioners on the one hand and that of the respondents first set on the other hand particularly that of Mohan, Ram Dayal and Hamdhar. If the respective dates of death can not be determined the shares would have to be determined on the basis of the pedigree alone as was done by the Settlement Officer Consolidation. But if the dates of death can be determined the share on the basis of the pedigree can be determined with precision. According to the case of the respondent first set Ram Dayal died first and thereafter Devi and then Jaddu's son Mohan and as such the share of Jaddu devolved upon Hamdhar. In order to prove the year of death of Ram Dayal and Devi the respondent first set produced two witnesses Shanker, the respondent No. 14 and Panch Dev. The documentary evidence filed by them included the Panchang containing the entries of the dates of death of these persons and Khatauni of 1345 and 1356 fasali. The Panchang was not relied upon by the Deputy Director of Consolidation. The Deputy Director of Consolidation found that the Panchang was not produced before the Consolidation Officer or Assistant Settlement Officer Consolidation and the entries were not corroborated. Good reasons have been given by the Deputy Director of Consolidation for not placing reliance on the Panchang. As regards oral evidence Shanker has stated that he acquired knowledge about the date of death of Devi from Ram Nath who said that it was entered in the Panchang. The position of Ram Nath is shown in the pedigree. He is great grand son of Hamdhar. Petitioner in his deposition stated that Ramnath informed him in a Panchayat about the respective dates of death of the aforesaid ancestors. Ram Nath is so down below in the pedigree that he could have had no knowledge about the dates of death of Mohan son of Jaddu and Ramdayal. These witnesses have stated that Ram Nath had told them on the basis of the Panchang about the year of death of some of the ancestors of the parties. The Deputy Director of Consolidation has disbelieved the Panchang and there is left no. other source of knowledge of Ram Nath or of these witnesses about the date of the-death of the ancestor of the parties, and their statement of sequence.of deaths in the family also can not be believed as it is based on nO evidence. Both Shanker and Panch Dev are in the pedigree in Hamdhar's branch and descendants for removed in generation and they could have little knowledge about the year of death of these parties. The age of Shanker at the time when his statement was recorded was only 45 years. Ram Dayal is alleged to have died in 1850 and Mohan is alleged to have died in 1865 and it does not appear that Shanker and Panch Dev could have knowledge about the dates of death of these persons. The Deputy Director of Consolidation has not given any finding believing or disbelieving the oral evidence. But from the above facts and circumstances it is dear that the oral evidence of the petitioners can not be relied upon regarding dates of death of the parties ancestors.;