S.K.Singh, J. - (1.) By means of this writ petition, petitioner has challenged the judgment of the Deputy Director of Consolidation dated 18.1.2002 by which revision filed by Savitri Devi-vendor has been allowed.
(2.) As pleadings are complete, with the consent of learned Counsel for the parties, matter is being heard (sic) with suffice.
(3.) Proceedings are under section 9-A (2) of UPCH Act, which is in respect to adjudication of title between the parties. Dispute relates to plot No. 202 (.02 acres) and plot No. 224 (.88 acres) situated in village Meerapur Dabka, Tehsil Hasanpur District Jyotiba Phaule Nagar. In the basis year record, name of opposite party side was recorded upon which, petitioner filed objection claiming right over the land in dispute on the ground that his grand father was recorded in clause 4 in 1363 Fasli and petitioner's side has been continued in possession and thus, he being of schedule caste and landless agricultural labour has acquired rights and thus prayer for entry in this name was made. It was claimed that proceedings under section 122-B of U.P.Z.A. & L.R. Act initiated against the petitioner's grand father was dropped on the finding that he is in possession and there is bona fide question of title and he appears to have acquired rights of Sirdari but he was advised to get his rights declared by the competent Court. Claim is that in view of aforesaid, entry in the name of opposite party is to be expunged and petitioner is to be recorded. Claim of petitioner was resisted by respondents on the ground that his name came to be recorded in 1303 Fasli on the basis of allotment by Gaon Sabha in 1976 and as the allottee came into possession, petitioner cannot get any right over the land in dispute. After the evidence came, the Consolidation. Officer rejected petitioner's objection upon which, appeal was filed by petitioner which came to be allowed, but on filing revision by opposite party side, judgment of acquiring Sirdari rights although a direction was given to seek declaration. Perusal of judgment of appellate authority makes it clear that he has relied upon two witnesses examined from the side of petitioner to establish possession of petition's side throughout over the land in dispute. The statement of Sheesh Ram which has been brought on record also indirectly support the possession of petitioner. Although finding of possession given in the judgment of the Sub-Divisional Officer dated 8.2.1971 referred above, may not be having a binding effect but at the same time, that has evidentiary value to support petitioner's possession unless it is successfully dislodged. If one accepts the possession of petitioner's grand father and thereafter, the petitioner as recorded in the judgment of Sub-DiviSional Officer referred above and in view of oral evidence, then its consequence will be as provided under section 122-B (4)(F) of U.P.Z.A. and L.R. Act which clearly states that it shall not be necessary for that party to institute suit for declaration of his rights as Bhumidhar with non-transferable right of that land under section 195 of U.P.Z.A. and L.R. Act. The Deputy Director of Consolidation , appears to have taken view that pursuant to the judgment of the Sub-Divisional Officer dated 8.2.1971 referred above, the petitioners grand father has not taken steps to get his rights declared and therefore, claim of petitioner cannot be accepted which appears to be totally misconceived and in ignorance to the effect of entitlement on the ' rights of claimant as provided by section 122-B (4)(F) of U.P.Z.A. and L.R. Act. So far claim of opposite party based on allotment of the year 1976 is concerned, although allotment was not filed but as the case appears to be that file of allotment proceedings was summoned, suffice it to say that besides validity of allotment which may not be within the scope of consolidation proceedings, concern of the Consolidation Court was to examine that whether on the facts, allotment if any in favour of opposite party can be said to be permissible in the situation when if the land was not vacant inasmuch as, if the land was in possession of petitioner's side, in terms of the provisions of section 122-B (4)(F) of U.P.P.Z.A. and L.R. Act can be said to have acquired right in the land. Thus the Deputy Director of Consolidation appears to have not noticed relevant and crucial aspects which were relevant to grant/refuse the rights/claim of petitioner and no finding has been recorded on these score, this Court is of the considered view' that the matter needs fresh attention by Revisional Court. On the matter being re-considered, Revisional Court will thoroughly examine the oral evidence besides the worth of finding so recorded by the Sub-Divisional Officer in its order dated 8.2.1971 taking into account the provisions of section 122-B (4)(F) of U.P.Z.A. and L.R. Act.;