S.R.Misra - (1.) PLAINTIFF/Petitioners filed a suit under section 229-B/176 of the U. P. Zamindari Abolition and Land Reforms Act (from hereinafter referred as the 'Act') seeking declaration that they are co-bhumindhars along with the defendant/opposite party no. 6 to the extent of 1/2 share each in the land in dispute and the land in dispute be portioned accordingly.
(2.) PLAINTIFFS case was that Smt. Ram Kali, the daughter of Sheo Ratan, inheritted the seer property which belonged to Sheo Ratan, who admitedly was a sir-holder of the land in dispute. Smt. Ram Kali executed a registered Patta-Istam Marari on 9-11-1933 in favour of Jagdish Prasad alias Jagdish Narain, the father of the petitioners. After the death of Ram Kali, Jagdish and Krishna Dutt remained in possession over their respective half shares. The suit was contested by the opposite party no. 6 (Krishna Dutt) who denied the title and possession of the petitioners. However, he admitted that previously Smt. Ram Kali was the Khewardar, but further denied the execution of the Patta-Istam Marari by her in favour of Jagdish Prasad alias Jagdish Narain. Before the trial court the petitioners filed a registered Patta-Istam Marari dated 9-11-1933 and the extract of Khewat 1359 F which shows that Krishna Dutt, respondent no. 3 has been entered as Patta Dharinda and Jagdish has been entered as Patta-Dharinda. On behalf of the petitioners, oral statements of Shesh Narain, Jagdish Prasad and Ram Kumar were recorded and they supported the petitioners case, Trial court by its order dated 14-1-1972 dismissed the suit. The appeal filed by the petitioners was also dismissed by the Additional Commissioner, Faizabad Division, Faizabad by his order dated 23-10-1975. The second appeal filed before the Board of Revenue, U.P., Allahabad was also dismissed on 17-11-1981. The trial court did not accept the Patta as the same has not been proved, but observed that the Patta was a document of more than 23 years old, it required no proof. The Additional Commissioner rejected the claim of the petitioners on a different ground. Aggrieved by the orders of the respondent nos. 1 to 3 petitioners seek a writ in the nature of certiorari quashing the orders of Judicial Officer,. Pratapgarh dated 14-1-1972, Additional Commissioner dated 23-10-1975 and that of Board of Revenue, U. P. Allahabad dated 17-11-1981. I have heard learned counsel for the petitioners Sri Sankhata Rai and Sri R. N. Singh, appearing for the respondents. Sri Sankhata Rai has urged that the courts below have erred in applying the provisions of U.P. Tenancy Act, 1939 although in the present case the provisions of Awadh Rent Act, 1886 was applicable and in accordance with the provisions of 7-A of the Awadh Rent Act the propriety right could voluntarily be alienated and the Patta having, been executed by Smt. Ram Kali was validly executed and after the enforcement of Zamindari Abolition and Land Reforms Act petitioners became bhumidhars of half share in accordance with the provisions of section 17 of the U.P. Zamindari Abolition and Land Reforms Act. In view of the finding of of the Additional Commissioner the execution of the Patta has been held to be proved. Regarding possession reliance was placed on oral statement. It is contended that the entry of 1359 F shows that the name of the father of the petitioners was recorded over half share of the land in dispute, but the Board of Revenue has failed to consider the argument of the counsel for the appellants and has also not decided the case in its proper perspective. It is also urged that even if, for the sake of argument, the transfer by Smt. Ram Kali is treated to be in respect of propriety right or khewat even then as the propriety right includes seer sights, the said patta would confer right on the petitioners.
(3.) IN the alternative it is also urged that assuming it for the sake of argument that the Patta Istam Marari did not pass seer rights or propriety rights, in that case, it creates sub-tenancy rights in favour of the petitioners and after the enforcement of U.P. Zamindari Abolition and Land Reforms Act, they are entitled to get their shares as sirdars. As regards the findings on the question of possession, it has been urged that there is no proper finding of possession and since the petitioners were claiming the co-sharers right they shall be deemed to be in possession as co-sharers in view of the fact that from the material on record the contesting respondent has failed to prove the custer of the petitioner or their hostile possession, ejectment or dispossession of the petitioners. Moreover, no such plea was taken, as such, the question of denying the right of the petitioners as co-sharers does not arise.;