- (1.) HEARD Mr.Dilip Pandey, learned counsel for the petitioners as well as learned Standing Counsel. Through the instant writ petition the petitioners have challenged the order dated 15.5.1973, passed by the Consolidation Officer in case No.1344/1150 of 1973, the order dated 4.9.1973, passed by the Settlement Officer Consolidation, Pratapgarh in appeal No.286 as also the order dated 17.12. 1980, passed by the Deputy Director of Consolidation, Pratapgarh in revision No.5337/2653/3724/1355/695/320. The dispute relates to land No.523, measuring 0.14.5 bigha. The indisputed facts are that in the first and second settlement the land in dispute was recorded in the name of Permeshwar Dayal, who had been the petitioners' grant father. However, in the third settlement it was recorded as Parti.
(2.) THE petitioners' claim that even after recording the land as Parti their ancestors were in possession over the land in dispute. They planted the trees including the fruit trees. When the dispute arose before the Consolidation Officer, he made stop inspection and reported the age of the trees about 25 to 30 years on 2nd of April, 1973. However, through his order, the Consolidation Officer recorded the finding that keeping in view the age of trees, it is evident that on the date of plantation of trees, the land was recorded as Parti, therefore, it cannot be said that these trees had been planted by the petitioner's ancestors. It has also been observed that there is no evidence to prove that there was any permission for plantation of trees by Zamindar. The order passed by the Consolidation Officer has been upheld by the Settlement Officer Consolidation in appeal as well as Deputy Director of Consolidation in revision on the same very grounds. It is not in dispute that the land in dispute was recorded in the name of petitioners' ancestor Parmeshwar Dayal in the first and second settlement. In the third settlement it was recorded as Parti as has been reported by the revenue authorities. The petitioners' claim that even after recording the land in dispute as Parti, they had been in continuous possession over there. There is also no evidence otherwise to establish that before the abolition of Zamindari any other Zamindar or intermediary intervened over the land in dispute. After recording the land as Parti it was settled with the State Government as it was the land of the petitioners' ancestor, who was tenure holder of this land. Thus, even after settlement of the land with the State before the abolition of Zamindari, the petitioners remained in possession over the land in dispute.
(3.) AFTER enactment of U.P.Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act), the rights of the erstwhile tenure holder who remained in possession or the intermediaries and tenants vested with them and they were made entitled to take or retain possession as a Bhumidhar thereof under the provisions of Section 18 of the Act. Section 18 of the Act is extracted below:- "18.Settlement of certain lands with intermediaries or cultivators as bhumidhar.-(1) Subject to the provisions of sections 10, 15, 16 and 17, all lands- (a) in possession of or held or deemed to be held by an intermediary as sir, khudkasht or an intermediary's grove; (b) held as a grove by, or in the personal cultivation of a permanent lessee in Avadh, (c ) held by a fixed-rate tenant or a rent-free grantee as such, or (d) held as such by- (i) an occupancy tenant | (ii) a hereditary tenant, | possessing the right to (iii) a tenant on Patta Dawami | transfer the holding by or Istamrari referred to in | sale. Section 17, | [(e) held by a grove-holder,] on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such intermediary, [lessee, tenant, grantee or grove-holder,] as the case may be, who shall, subject to the provisions of this Act, be entitled to take or retain possession as a bhumidhar thereof. (2) Every person belonging to the class mentioned in [section 3 or sub-section (2) of section 3-A] of the United Provinces Agricultural Tenants (Acquisition of Privileges) Act, 1949, who has been granted the declaration referred to in section 6 of the said Act in respect of any holding or share thereof shall, unless the declaration is subsequently set aside, be deemed to be the bhumidhar of the holding or the share in respect of which the declaration has been made and continues in force. (3) Notwithstanding anything contained in the United Provinces Agricultural Tenants (Acquisition of Privileges) Act, 1949, any declaration granted under section 6 of the said Act, in favour of a tenant to whom sub-section (2) of section 10 applies shall be and is hereby cancelled and the amount deposited by him under section 3 or 6 of the said Act shall, after deducting the amount which might have been paid or be payable by the State Government to his landholder under sections 7 and 8 of the said Act, be refunded to the person entitled in such manner as may be prescribed." ;