Krishna Murari, J. - (1.) -By means of this writ petition the petitioners have challenged the judgment and order passed by respondent Nos. 8 and 9 Additional Consolidation Officer and Deputy Director of Consolidation, Sultanpur. The writ petition ought to have been heard by Lucknow Bench of this Court since district Sultanpur falls within the territorial jurisdiction of Lucknow Bench. However, vide order dated 17.7.1980 passed under clause 14 of the U. P. High Court (Amalgamation) Act, 1948 by the then Hon'ble Chief Justice, the case was transferred to Allahabad for hearing and disposal.
(2.) THE dispute relates to khata No. 144 situate in village Alapur Tahsil Kadipur, District Sultanpur. In the basic year name of the petitioner No. 1 was recorded over the said khata. Two objections were filed under Section 9A (2) of the U. P. Consolidation of Holdings Act (for short 'the Act'). One objection was filed by opposite party Nos. 1 to 3 and the other was filed jointly by opposite party Nos. 1 to 7. Co-tenancy rights were claimed by the respondents in the khata in dispute on the ground that land in dispute was acquired by one Moti son of Jiguri who was common ancestor of the parties. After death of Moti, the name of Budhi Ram was recorded in representative capacity as he was the eldest surviving member of the family. After the death of Budhi Ram, the name of Jahuri was again recorded in representative capacity. THE case was contested by petitioner No. 1 denying the co-tenancy rights claimed by the contesting respondents. It was alleged that 3-10-0 area of land was acquired by Budhi Ram, his father and the rest was acquired by him. Two different pedigrees were set up by the contesting respondents in two sets of objections. The Deputy Director of Consolidation after considering the averments made in two sets of objections came to the conclusion that on a consideration of the entire objection the contradiction in the two pedigrees cited in two objections disappeared and he accepted the following pedigree : Moti -------------------- Pudi Budhi Ram ----------------- ------------------ Dukhi Jorai Jahuri Behari Dasoo (petitioner-1) (petitioner-2) (petitioner-3) --------------- ----------------- Sukaee Lalloo Teemal Budoni Jhapsu Chaitoo Kodaie The Consolidation Officer vide order dated 12.4.1972 allowed the claim of the opposite parties in respect of plot Nos. 16, 275, 274, 276, 321, 772/1, 772/2 and 772/3. With regard to rest of the plots of the khata, the objection was rejected. With regard to the aforesaid eight plots the Consolidation Officer recorded a finding that they were acquired by common ancestor Moti and after his death, the name of Jahuri was recorded in representative capacity and as such the respondents have co-tenancy rights in the said plots. The petitioners preferred two appeals. The Settlement Officer Consolidation vide order dated 4.4.1973 allowed both the appeals. It was held by the Settlement Officer Consolidation that rights of the parties was governed by Oudh Rent Act under which tenancy was not heritable as such there was no question of inheritance from Moti. He further held that the property in dispute was not ancestral and the identity had changed. Aggrieved the respondents filed revisions which have been allowed by the Deputy Director of Consolidation vide order dated 21.12.1974 against which the present writ petition has been preferred.
(3.) I have heard Sri V. K. S. Chaudhary, senior advocate assisted by Sri Jitendra Ojha appearing for the petitioners and Sri Dinesh Pathak appearing for the respondents. Learned counsel for the petitioner has vehemently urged that the Consolidation Officer and the Deputy Director of Consolidation have erred in law in holding the opposite party Nos. 1 to 8 as co-tenure holder in respect of the eight plots of the disputed khata. It has further been contended that neither the khata in dispute nor the eight plots of the said khata in which co-tenancy rights have been given to the contesting opposite parties can be treated to be ancestral holding coming down from the time of common ancestor Moti. It was pointed out that perusal of record of second settlement shows that old plots corresponding to plot Nos. 16, 274, 275, 26, 321 and 272 of third settlement were recorded in the name of Moti as statutory tenant. In third settlement plot Nos. 16, 275 and 276 came to be recorded in the name of Jahuri with 11 years period as statutory tenant. Plot Nos. 274, 321, 322 and 772 were recorded in the name of Jahuri along with five new plots with a period of cultivation of three years. He thus urged that the land which initially belonged to Moti did not come down in identical form and the identity broke in between the second and third settlement and it was a fresh settlement in favour of Jahuri. Learned counsel for the petitioner further urged that the Consolidation Officer and the Deputy Director of Consolidation erred in picking up certain plots from the holding in dispute which were initially recorded in the name of Moti and wrongly gave co-tenancy right to respondent Nos. 1 to 7 treating it to be ancestral property. It was contended that in order to uphold the claim of co-tenancy right it had to be established that disputed holding had come down in identical form from the time of common ancestor and there was no break in tenancy.;