- (1.) BINOD Kumar Roy, J. The petitioners pray to quash- the order, dated 15-11-1973 passed by the Consolidation Officer, Ambari (Respondent No. 3) in Case No. 3161, the appellate order, dated 18-12-1974 of the Assistant Settlement Officer (Consolidation) who by his order dismissed then Appeal No. 612 (as contained in Annexure 2) and the revisional order, dated 22-8-1975 dismissing their Revision No. 575 passed by the Deputy Director of Consolidation, Phulpur, district Azamgarh (as contained in Annexure 3 ).
(2.) JAGAT Pal Singh had three sons, Raja Ram, Hubdar and Mahabal Raja Ram had two sons Durga. Prasad and Jhilmil, Hubdar the second son of JAGAT Pal'singh died leaving behind his widow Girija Kunwar and daughter Sona. Mahabal died issueless. Respondent No. 4 filed an objection under section 9-A (2) of the U. P. Consolidation of Holdings Act for recording his name as a co-sharer of the land of Khata Nos. 15 and 178 of village Basahi, claiming to be son of Sona, daughter of Girija Kunwar and prayed to record his. name as a co-sharer, further asserting that his maternal grandfather Hubdar got 1/3 interest apart from 1/3 further interest of his brother: Mahabal, who had executed a will in favour of his wife Girija Kunwar. The petitioner took up a. defence that the objection had no. interest. in the land in. dispute; that Mahabal before his. death, had transferred his 1/3 interest to them. ; that Hubdar had no daughter or son and had died issueless, that Prem Narain is the son of father's sister of a co-villager Surya Narain, a resident of district Basti. The parties adduced evidence-oral and. documentary to support their respective cases referred to in the order of the Consolidation Officer. The Consolidation Officer upheld the claim of Respondent No. 4 holding as follows : (i) Raja Ram had died earlier and thereafter Mahabal had died, who before his death transferred his interest to Durga Prasad ; (ii) One year after the death of Hubdar, Girija Kunwar had died ; (iii) From the evidence adduced it has been amply proved that Prem Narain is daughter's son of Hubdar and became successor and interest holder to the extent of l/3rd in the land in question after the death of Mst. Girija Kunwar. He is declared as an heir of Girija Kunwar, (iv) Raghunandan Singh and others have failed to prove that Prem Narain is not the daughter's son of Hubdar ; (v) There is no merit in the argument that Girija Kunwar had acquired only life interest in the properties of Hubdar inasmuch as no such interest was bequeathed through the will which is not illegal as alleged (vi) Whatever orders have been passed in the consolidation proceedings after the death of Hubdar they would not have any effect in the case as res judicata; (vii) Hubdar had correctly executed the deed of will, dated 30th May, 1946. The appellate authority dismissed the appeal holding that the Consolidation Officer had correctly decided the case. The revisional authority dismissed the revision of the petitioner agreeing with the findings recorded by the first court. The Submissions : 3. Mr- Faujdar Rai, learned counsel appearing on behalf of the petitioners submitted as follows : (i) The claim of the petitioner that they had acquired title by virtue of their adverse possession since 1955 has also not at all been considered. by the revisional authority ; (ii) As the basic year entry was in favour of the. petitioners the onus to prove his case was on the objector which he had filed, yet the authorities on the basis of surmises and conjectures and not on any legal evidence, erroneously upheld his claim, whereas on the other hand, the petitioners had adduced cogent and reliable evidence to support their case to which no evidence in rebuttal was adduced by the respondent no. 4 but this aspect of the matter was not considered by the authorities ; (iii) A dispute had arisen before the execution of the will before the Munsiff, Haveli in Suit No. 485 of 1944 Hubdar v. Durga Prasad and others in regard to the devolution of share of Mahabal which Hubdar lost and accordingly that issue came to an end but this aspect of the matter was not considered by the revisional authority ; (iv) In order to create trouble Hubdar introduced Prem Narain, a stranger, but this aspect of the matter was also not correctly understood by the authorities. The learned counsel appearing on behalf of respondent No. 4 on the other hand, contended that there is no merit in any of the submissions of Mr, Rai and the writ petition is liable to be dis'missed with cost. Findings of fact were correctly recorded against the petitioners and no exception has been brought to the notice of this court to exercise its discretion. He further highlighted that respondent No. 4 had notified his claim in terms of the judgment in Suit No. 485 of 1944 to the extent of l/3rd and not 2/3rd. My Findings
(3.) PARAGRAPH 11 of the writ petition runs, as follows : "11. That the plea of adverse possession and ouster was also taken and pressed before the courts below but they ignored to consider them, and that plea is apparent in their judgments and requires no evidence to be proved. A true copy of the order of the Consolidation Officer, that of the Settlement Officer (Consolidation) and that of the Deputy Director of Consolidation are filed as Annexure I, II and III to this writ petition along with the true copy of the grounds of the revision which is filed as Annexure IV to this writ petition. " In paragraph 12 of the counter affidavit respondent no. 4 has stated that the contents of paragraph 11 of the writ petition are matters of record and need no averment.;