Ram Surat Ram J. - (1.) HEARD Sri P.K. Khare and Sri C.B. Pandey, for the petitioners and Sri Mohd. Arif Khan, Senior Advocate, assisted by Sri Mohd. Ali and Sri Piyush Mishra, for contesting respondents. The writ petition has been filed against the orders of Consolidation Officer dated 3.11.1979, Settlement Officer Consolidation dated 15.2.1996 and Deputy Director of Consolidation dated 16.7.2001, passed in title proceedings under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).
(2.) THE dispute between the parties is in respect of the land recorded in basic consolidation year khata 22 of village Bibipur, pargana Surhur, district Ambedkar Nagar, which was recorded in the name of Smt. Pyari wife of Achhai -bar. Nand Kishor (now represented by respondents -4 to 6) (hereinafter referred to as the respondents) filed an objection for deleting the name of Smt. Pyari and recording his name over the khata in dispute. It was stated by Nand Kishor that the land in dispute was the property of Ram Hit son of Hardeen and was inherited by his son Bhodar. Bhodar died issueless in December 1955. At that time amongst the brothers of Ram Hit, Nand Kishor alone was alive as such he inherited the land in dispute. Smt. Pyari was not the daughter of Ram Hit. One objection was filed on behalf of Smt. Pyari by Krishna Kumar Mishra, alleged Power of Attorney holder stating that Smt. Pyari was sister of Bhodar and after his death in December, 1955 as issueless, she inherited the land in dispute. She never executed any sale deed in favour of the petitioners (or their predecessors). Bhodar was deaf, dumb and suffering from lunatic -asylum as such the petitioners were cultivating the land from his life time, on his behalf. After death of Bhodar, there had been litigation in respect of the land in dispute, in which on her behalf the petitioners used to do pairavee. On the asking of the petitioners, she used to sign papers as and when required. The petitioners fabricated sale deeds and obtained her thumb impressions on it without paying any sale consideration. The petitioners filed objections, claiming their right on the basis of two sale deeds executed by Smt. Pyari dated 22.11.1963 and one sale deed dated 6.12.1963. It has been stated by the petitioners that prior to execution of the sale deed Smt. Pyari deposited 10 times of land revenue of her sirdari land on 22.11.1963 and obtained bhumidhari certificate. On the basis of sale deeds they were in possession of the respective land transferred according to their sale deeds. There were several other objections but those are not relevant for the purposes of this writ petition. It may be mentioned that although Consolidation Officer dismissed the objection filed on behalf of Smt. Pyari by Krishna Kumar Mishra, but he had not challenged it. Khata 22 consisted an area of 5 -1 -3 bigha land, inherited by Bhodar from ancestral sir land and was recorded as bhumidhari land while remaining area of 15 -6 -12 bigha, which was previously sirdari land (prior to 22.11.1963) was acquired by Ram Hit through patta dated 10.7.1916 from Hanswar State and after death of Ram Hit it was inherited by Bhodar. Nand Kishor and Bhodar filed a suit (registered as Regular Suit No. 540 of 1953) for partition of their share in ancestral land (sir land of the time of Hardeen, after date of vesting recorded as bhumidhari). In this suit, Nand Kishor was plaintiff -1 and claimed 1/3 share (i.e. 1/6 of himself and 1/6 of his brother Naubat) and Bhodar through his next friend Smt. Rajji, was plaintiff -2 and claimed 1/6 share. It was alleged that Hardeen left behind him six sons namely Shyam Bihari, Kunj Bihari, Naubat, Brij Mohan, Ram Hit and Nand Kishor. Naubat died issueless and after death of his widow Smt. Sampatta inherited his share. Smt. Sampatta also died and at the time of her death, amongst the brothers, Nand Kishor alone was alive as such he inherited share of Naubat and his share has become 1/3 while remaining four branch had 1/6 each. Additional Munsif Faizabad, by his judgment dated 4.4.1955 passed preliminary decree holding share of Nand Kishor as 1/3 and Bhodar as 1/6. The sons of Shyam Bihari, Kunj Bihari and Brij Mohan filed an appeal (registered as Civil Appeal No. 88 of 1955) from the preliminary decree as they were claiming that Smt. Sampatta widow of Naubat was alive and Naubat had adopted one Udit Narain. During pendency of the appeal, Bhodar died in December 1955. After death of Bhodar, Smt. Rajji filed an application for substituting her as the only heir of Bhodar and Smt. Pyari filed another application for substituting her as only heir of Bhodar before Appellate Court, claiming themselves as the daughter of Ram Hit and denying each other. As the suit was for partition and in order to pass preliminary decree, issue relating to inheritance of Bhodar was necessary to be decided, Appellate Court framed an issue in this respect and remitted to Trial Court for recording evidence and its findings. Before the Trial Court both the parties adduced their oral and documentary evidence and Trial Court after hearing the parties found that Smt. Rajji was not the daughter of Ram Hit and sister of Bhodar while Smt. Pyari was sister of Bhodar and inherited him. After receiving the evidence and finding of Trial Court, the appeal was heard by Appellate Court, who by judgment dated 29.11.1958 held that Smt. Pyari was heir of Bhodar and inherited his share in the estate. It has been further held that Smt. Sampatta widow of Naubat was not alive nor there was any adoption by her or her husband and her share was inherited by Nand Kishor. Preliminary decree of Trial Court was confirmed. Final decree dated 23.3.1960 was prepared accordingly and Smt. Pyari obtained possession of 1/6 share of Bhodar in ancestral property.
(3.) AFTER death of Bhodar, Smt. Rajji filed a mutation application for recording her name as only heir of Bhodar and Smt. Pyari filed another mutation application for recording her name as only heir of Bhodar over sirdari property (acquired by Ram Hit through patta dated 10.7.1916). Both the cases were consolidated and tried together by Tahsildar, who by order dated 29.4.1957 held Smt. Pyari was heir of Bhodar, being his sister and not Smt. Rajji. Smt. Rajji filed an appeal against the aforesaid order, which was dismissed by Additional Commissioner, by order dated 17.11.1957. Thus name of Smt. Pyari came to be recorded over bhumidhari as well as sirdari land of Bhodar, since then.;