C.S.P. Singh, J. - (1.) THE Petitioners in consolidation proceedings claimed Bhumidhari rights and in the alternative sirdari rights over some plots of land. The claim of the Petitioners was accepted by the Gaon Samaj. No evidence was adduced on behalf of the Gaon Samaj to controvert the Petitioners' case. Inspite of this circumstance, the consolidation authorities awarded the land to the Gaon Samaj. It appears that after the issue of the notification under Section 4 of the U.P. Consolidation of Holdings Act which took place sometime in 1965, a notification No. 4507/XI -A -762 -49 dated 9 -6 -1966 was published in the U.P. Gazette on 1 -4 -1967, whereby the area in which the disputed plot was situated was taken wider the Municipal limit of Moradabad with effect from 10 -4 -1967.
(2.) AN amendment application was filed in this Court which was allowed on 17 -9 -1971 seeking permission to raise the ground that after the notification, the consolidation authorities had no jurisdiction to decide the dispute. Counsel for the Petitioners apart from attacking the orders on merit, urged that after the promulgation of this notification, the consolidation authorities lost jurisdiction to decide the dispute. This contention does not appear to be sound. Section 1 Sub -section (2) of the U.P. Zamindari Abolition & Land Reforms Act extends the provisions of the U.P. Zamindari Abolition & Land Reforms Act to entire U.P. save such areas as are set out therein. The exception contained in Section 1(2) extends only to such areas as were included in a municipality on the 7th July 1949. In the present case, the disputed area came to be included in a Municipality in 1967. This being so, even though the area was included in a Municipality, the provisions of the U.P. Zamindari Abolition & Land Reforms Act were applicable to the disputed plots too. Once this position is reached the provision of the U.P. Consolidation to Holdings Act continue to apply for after the issue of the notification under Section 4 in view of Section 3(1) and (2 -A), all areas comprised therein formed part of the consolidation, save only such areas to which the provisions of the U.P. Zamindari Abolition & Land Reforms Act did not apply. This contention must, therefore, fail. Counsel then urged that the consolidation authorities had found that the father of the Petitioner was entered as Khudkasht holder over the disputed land in 1348 Fasli, and the Petitioners had led evidence which was uncontroverted to the effect that the Petitioners' father and, thereafter, the Petitioners had been cultivating the land continuously. This case of the Petitioners was supported by the Sabhapati of the Gaon Sabha, and inasmuch as no controverting evidence had been led on behalf of the Gaon Sabha, there was no evidence on record on the basis of which the consolidation authorities could have rejected the claim of the Petitioners, it is not denied that no evidence was led on behalf of the Gaon Sabha, and the Sabhapati of the Gaon Sabha had supported the Petitioners' case. Counsel for the Respondents, however, urged that inasmuch as in the basic year, the entries were in favour of the Gaon Sabha, a presumption arose regarding the correctness of these entries, and the onus lay on behalf of the Petitioners to dislodge that presumption, and even if no evidence was led on behalf of the Gaon Sabha, the consolidation authorities could reject the Petitioners' claim in case they found that the evidence adduced on their behalf was not sufficient to dislodge the presumption. This argument is attractive, but breaks down in the facts of the present case. It has been noticed that the Petitioners' claim that the land was originally khudkasht has been accepted by the Consolidation Officer, which finding has not been rsversed by the Settlement Officer (Consolidation) or Deputy Director of Consolidation. This being so, it must be held that at least in 1348 Fasli, the land was khudkasht of the Petitioners' father. Even if it be assumed, as the consolidation authorities have found that the Petitioners' father or the Petitioners had not been cultivating the land on the date of the abolition of the Zamindari, an inference in law can be drawn that the khudkasht rights of the Petitioners' father or the Petitioners came to an end on account of the mere non -cultivation of the land. Khudkasht rights are a creation of the U.P. Tenancy Act, and no provision has been brought to my notice which extinguishes right, by mere non -cultivation for a certain length of time. In fact the U.P. Zamindari Abolition & Land Reforms Act, when it sought to confer Bhumidhari rights on khudkasht holders took care of the matter in Section 18 thereof, by conferring Bhumidhari rights not only on persons who were actually in posses -lion or holding khudkasht land, but also on persons who were deemed to be in possession or holding the land as such. It is also noticeable that Section 18 of the U.P. Zamindari Abolition & Land Reforms Act while conferring Bhumidhari rights, does not insist on actual cultivatory possession on the khudkasht holder on the date of vesting. This being so, in the absence of any finding that the khudkasht rights of the petitioners' father or the Petitioners had come to an end on the date of vesting, the Petitioners' father or the Petitioners would become Bhmidhars of the land, and in such an eventuality the land would not vest in the Gaon Sabha, as it would then become comprised in the holding of the tenure -holder, and would thus be excluded from the land which under the statute vest in the Gaon Sabha. This is sufficient to dispose of the case as in this view, the Gaon Sabha would have no right to the disputed land.
(3.) IT is, however, also necessary to point certain other defects in the order passed by the consolidation authorities. The Petitioners had led oral evidence regarding their possession and cultivation of the land. There is not even an indirect reference to this evidence in the final order of the Deputy Director of Consolidation, who had confined his attention only to the documentary evidence led by the Petitioners. Oral evidence is also evidence, and cannot be unceremoniously left unnoticed when it is relevant to the matter in dispute. Possession and cultivation of the land could be proved by the Petitioners not only on the basis of documentary evidence, but also on the basis of oral evidence. This being so, it was a clear error on the part of the Deputy Director of Consolidation to have dismissed the revision of the Petitioners merely on finding flaws in the documentery evidence led by the Petitioners. Another lacuna in the approach of the consolidation authorities is that even though evidence led by the Petitioners was uncontroverted, they set about in a crusader's spirit to find flaws in that evidence, although no evidence had been led on behalf of the Gaon Sabha. It may be true that the basic year entry carries an initial presumption of correctness, but in a case where the party in whose favour the entries stand, does not lead other evidence at all, and as in the present case, supports the objector's claim, it is highly injudicious for the consolidation authorities to reject an objection, when the objector had led admissible evidence in support of his claim. Consolidation authorities while deciding objections perform judicial functions and when evidence is led by a party in support of his objection, it can be rejected only in case there is material on the record to hold that the evidence does not prove the claim; for example, the consolidation authorities may find that the evidence is short of establishing the claim put in by the objector or that the evidence led is unworthy of credence. Such a conclusion, however, is possible only in case the adversary supplied material by way of cross -examination or otherwise to disprove the claim. Where the opposite -party does not contest the claim at all, it would be only in rare cases where the objector does not lead any evidence worth the name, that the claim can be rejected. It must always be borne in mind that consolidation authorities exercise judicial functions while deciding an objection, and are not to act as watch dogs of the interest of any party, whether it be the Gaon Sabha or the State Government. Decision of objection is something entirely different from the correct maintenance of records. Once the duty of deciding objections is taken up by consolidation authorities, they have to disengage themselves from the duty of maintaining correct records, which is admittedly a ministerial function. Once such proceedings begin, all the limitation of objectivity and fairness, which bind a court of law are equally applicable to proceedings before them. In the present case, these authorities have, inspite of there being no factual contest by the Gaon Sabha by way of leading evidence etc, dismissed the Petitioners claim on reasons which appear to be arbitrary.;