- (1.) S. K. Singh, J. By means of this writ petition, petitioner has prayed for quashing of the judgment of the Deputy Director of Consolidation, Settlement Officer Consolidation and that of the Consolidation Officer dated 21-8-1975, 7-11-1974 and 24-9-1974 (Annexures 10, 9 and 8 respectively ).
(2.) PROCEEDINGS are under Section 9-A (2) of U. P. C. H. Act. There appears to be no dispute about certain facts and therefore for the purpose of disposal, the facts in brief will be useful to be summarised. The dispute was initially in respect to the land comprised in Khata Nos. 133,132, 94 and 111 situated in village Begahani, District Allahabad. Now it appears that the land of Khata No. 111 is not in dispute and as submitted by the learned counsel the dispute is confined only in respect to the land comprised in Khata Nos. 133 which was recorded in the basic year record in the name of Jag Narain and Buddhu and the land comprised in Khata Nos. 132 and 11 which was recorded in the basic year record in the name of Jag Narain, Buddu and Sat Narain. For better understanding the pedigree which is admitted between the parties will also be useful to be reproduced here - There appears to be no dispute that petitioner initially had 1/3rd share in the land in dispute but it was claimed that Buddhu the predecessor of the contesting respondents executed registered Sale Deed on 27-4-1946 in favour of the petitioner on the basis of which he became entitled to 2/3rd share in the land. It was claimed that when on the basis of the sale deed in favour of the petitioner his name was not mutated he filed suit under Section 229-B of the U. P. Z. A. and L. R. Act. The claim is that suit filed by the petitioner against Buddhu was decreed on 22-4-1958. It is thereafter when again name of the petitioner could not be recorded he filed application under Section 39 of the Land Revenue Act in the year 1967 which was rejected by the First Court in the year 1968 and thereafter revision filed by him was also dismissed by the Additional Commissioner in the year 1971 and thereafter the suit under Section 176 of U. P. Z. A. and L. R. Act was filed which was abated on the start of the consolidation proceedings. At the start of the consolidation proceedings objection by the petitioner was filed claiming 2/3rd share in the land in dispute. The basis was the same as was in the suit under Section 229-B of U. P. Z. A. and L. R. Act. Petitioner filed original sale deed and also examined witnesses including the scribe and marginal witnesses to prove the sale deed. Other evidence was also filed by the parties. The Consolidation Officer after hearing arguments from both sides rejected petitioner's claim and allowed only 1/3rd share to the petitioner which he originally had. Judgment of the Consolidation Officer was maintained upto the revisional Court as appeal and revision filed by him failed. It is thus against all the three concurrent judgments petitioner has come up to this Court.
(3.) LEARNED counsel for the petitioner submits that in view of the admitted factual position which is born out from the record, judgments of the Courts below are erroneous and therefore it is the case where even no remand is required and the writ petition is liable to be allowed by this Court. Submission is that on the basis of the registered sale deed in petitioner's favour the suit under Section 229-B of U. P. Z. A. and L. R. Act was filed against Buddhu, the father of the respondents which was decreed on 22-4-1958 and thereafter, neither Buddhu nor his heirs has ever challenged the correctness of that decree in the competent forum and therefore, that will operate against them and thus it is sufficient ground for accepting petitioner's claim about his rights as claimed in the consolidation proceedings. It is further submitted that going into the validity of the sale deed by the Consolidation Courts and giving of the findings that petitioner has not been able to prove the sale deed is beyond the scope of scrutiny as on the findings given by the Consolidation Officer the sale deed has not been held to be void and therefore, respondents having not challenged the validity of the sale deed before the competent Civil Court it was not open for the consolidation authorities to ignore its worth. Submission is that merely on account of non mutation of the name of the petitioner for long time on the basis of the registered sale deed or on the basis of the decree in his favour the worth of either the sale deed or of the decree cannot be ignored and on that ground it cannot be held that the rights of the petitioner has extinguished. Lastly, it is submitted that in view of the judgment and decree in favour of the petitioner under Section 229-B of U. P. Z. A. and L. R. Act it was obligatory on the part of the revenue authority/official to have recorded the name of the petitioner as has been held by this Court in its decision given in the case of Ambika Prasad and others v. Kamla Prasad and others reported in 1972 R. D. page 77. On the aforesaid premises submission is that the judgment of the consolidation authorities are liable to be quashed. In response to the aforesaid, learned counsel for the respondents submits that in fact the sale deed on the basis of which petitioner claims right was not a genuine document rather it was void document on the basis of which no right can be conferred on the petitioner. It is further submitted that non taking of any steps to get the name recorded either on the basis of the sale deed or on the basis of the decree for quite long time is itself sufficient to draw adverse inference against the petitioner about genuineness and validity of the sale- deed. It is further submitted that in fact the suit filed by the petitioner under Section 229-B of U. P. Z. A. and L. R. Act was initially dismissed in default and thereafter it appears to have been restored without any notice/opportunity to the respondent and decree has been passed thereafter and thus, petitioner cannot take any advantage of that decree which is admittedly ex- parte. It is submitted that on the findings given by the Courts below and otherwise also respondents have been able to prove that they have continued in possession and they have paid land revenue and thus they continue with their rights and it is for that reason petitioner while applying for grant of Bhumidhari Sanad has not deposited requisite amount for getting any right over the land in dispute and he has applied for grant of Sanad only in respect to 1/3rd share which he initially had and therefore, on this premises submission is that argument of the learned counsel for the petitioner to interfere in the finding of fact recorded by the Courts below is not at all justified.;