- (1.) Heard Sri N.C. Rajvanshi, Senior Advocate assisted by Sri V.C. Shukla, learned Counsel for the petitioner, Sri Manoj Kumar Yadav, learned Counsel for the Gaon Sabha and Sri Ajay Shankar, learned Counsel for the respondent No. 5 and Sri Sanjay Goswami, learned Additional Chief Standing Counsel for respondent Nos. 1, 2 and 3. The dispute involved in the present writ petition relates to Plot Nos. 101/1 area 1.69 acres and plot No. 102, area 1.23 acres situated in village-Barsara, pargana-Katehar, district-Varanasi (hereinafter referred to as 'the disputed plots').
(2.) In the basic year khatauni the disputed plot No. 101/1 was recorded in the names of the petitioners in Zaman 4 (occupant without title) and plot No. 102 was recorded as Talab in Zaman 6. Upon commencement of consolidation operations in the village where the disputed plots are situate, the petitioners filed two objections before the Consolidation Officer under Section 9(A)(2) of the U.P. Consolidation of Holdings Act (hereinafter referred to as the 'C.H. Act') in respect of the disputed plots. With regard to the disputed plot No. 101/1 the petitioners' claim before the Consolidation Officer was that out of the total area of 1.69 acres of the aforesaid plot, 10 decimal area was being used by them as Abadi. They prayed that after demarcating 10 decimal area from plot No. 101/1, petitioners be declared as bhumidhars of the remaining area of the aforesaid plot. Vis-a-vis plot No. 102, which was admittedly recorded as talab, they alleged that they were owners thereof on the strength of a sale-deed dated 18.1.1960 executed in their favour by its erstwhile zamindars Vishwanath, Nand Lal and Purushottam. Respondent Nos. 5 and 6 also filed objections before the Consolidation Officer with the prayer that the names of the petitioners recorded in the basic year khatauni in Zaman 4 be expunged and disputed plots which were in the nature of bhita and talab, be recorded as property of Gaon Sabha. All the objections were considered and decided by the Consolidation Officer by his common judgement and order dated 21.8.1978 (Annexure 5 to the writ petition). The Consolidation Officer after taking into consideration the entire evidence adduced by the parties before him held that no bhumidhari rights could accrue in favour of the petitioners in the disputed plot No. 101/1 which was in the nature of bhita and talab and directed for expunging the entry of occupier of the disputed plot existing in favour of the petitioners in the basic year khatauni for recording the same as property of Gaon Sabha. The consolidation Officer maintained the basic year entry in respect to plot No. 102. The Consolidation Officer however, found that the petitioner were the owners of the old trees existing on the disputed plots.
(3.) Against the order dated 21.8.1978 the petitioners filed an appeal under section 11(1) of the C.H. Act which was numbered as Appeal No. 3084 before the Assistant Settlement Officer of Consolidation-respondent No. 2 and allowed by him by his order dated 28.8.1981 (Annexure 7 to the writ petition). The Assistant Settlement Officer of Consolidation held that once the Consolidation Officer had come to the conclusion that the disputed plots were in the nature of bhita and talab, he should have refrained from passing any order for correction of record of rights pertaining thereto as the area comprised in the disputed plots did not come within the circumscribed limit over which the Consolidation Courts had jurisdiction to adjudicate. The respondent No. 2 by his order, after setting aside the order of the Assistant Settlement Officer of Consolidation, restored the basic year entries, with liberty to the parties to get their rights in respect of the disputed plots declared by a competent Court. The order dated 28.8.1981 was assailed by the respondent Nos. 5 and 6 by filing a revision under section 48(1) of the C. H. Act before the respondent No. 1 which was numbered as Revision No. 3110 and allowed by him by his order dated 6.4.1983 (Annexure 9 to the writ petition). The respondent No. 1 while allowing the revision No. 3110 set aside the order of the Assistant Settlement Officer of Consolidation and restored that of the Consolidation Officer.;