Ram Surat Ram, J. - (1.) HEARD Sri K.N. Rai, for the petitioners and Sri J.P. Sharma, for the contesting respondent -4. The writ petition has been filed against orders of Consolidation Officer dated 3.3.2010, Settlement Officer Consolidation dated 11.8.2014 and Deputy Director of Consolidation dated 27.10.2014 passed in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).
(2.) THE dispute between the parties is in respect of share in plot 424 (area 0.73 acre) of village Kotawa, pargana Jalhupur, district Varanasi. In basic consolidation year, land in dispute was recorded in two khats 34 and 347. Khata 34 (consisting plot 424, area 0.385 acre) was recorded in the name of Khattoo son of Hazari (petitioner -1) and khata 347 (consisting plot 424, area 0.345 acre) was recorded in the name of Hazari son of Gullu (now represented by the petitioners). Dashrath alias Dashmi (respondent -4) filed two separate objections, in aforesaid khatas, claiming his 1/4 share in plot 424 (area 0.73 acre). It has been stated by respondent -4 that his father was having 1/4 share in the land in dispute and remaining 3/4 share belonged to Ram Sewak son of Santoo, Bechan, Gaya sons of Babua, residents of village Deenapur and Manni Lal, Hari Lal and Jawahir Lal sons of Raghunandan residents of village Khalispur, from whom Khattoo and Hazari have obtained the sale deeds. However, the name of respondent -4 has been illegally deleted from the land in dispute, in the mutation proceeding. Hazari and Khattoo contested the objections and filed their separate written statement/counter -objection. They have stated that area of plot 424 was 0.73 acre. In family settlement, Charandasi son of Deo Nandan (father of respondent -4) was given 0.065 acre, which was sold by him to Khatto (petitioner -1) through sale -deed dated 3.7.1971. On the basis of this sale -deed name of Khattoo was mutated and name of Charandasi was deleted from the land in dispute. Remaining area of this plot came in the shares of Munni Lal, son of Raghunandan, Ram Lal, Bhola sons of Jawahir, Shitla son of Hari Lal alias Bihari, Kunnar alias Kunnur son of Sewak, Bechan son of Babuwa, Tara, Vishwanath, Baijnath sons of Gaya, Ma -hadeo son of Jittu, Kallu, Dallu, Siri, Bachau, Ramji sons of Sunnar. Munni Lal, son of Raghunandan, Ram Lal, Bhola sons of Jawahir, Shitla son of Hari Lal alias Bihari executed a sale -deed dated 28.2.1968 in respect of an area of 0.1825 acre of plot 424 in favour of Khattoo, whose name was mutated in revenue record on its basis. Kunnar alias Kunnur son of Sewak, Bechan son of Babuwa, Tara, Vishwanath, Baijnath sons of Gaya, Mahadeo son of Jittu, Kallu, Dallu, Siri, Bachau, Ramji sons of Sunnar executed a sale -deed dated 24.7.1974, in respect of an area of 0.15 -5/6 acre of plot 424 in favour of Khattoo, whose name was mutated in revenue record on its basis. Land purchased by Khattoo came to be recorded in basic consolidation year khata 34. Kunnar alias Kunnur son of Sewak, Bechan son of Babuwa, Tara, Vishwanath, Baijnath sons of Gaya, Mahadeo son of Jittu, Kallu, Dallu, Siri, Bachau, Ramji sons of Sunnar executed a sale -deed dated 24.7.1974, in respect of an area of 0.345 acre of plot 424 in favour of Hazari, whose name was mutated in revenue record on its basis and this land was recorded in basic consolidation year khata 347. Respondent -4 has no share in it. Charandasi has filed a suit under section 229 -B of U.P. Act No. 1 of 1951, on false allegations, claiming his 1/4 share in the land in dispute, which was abated at the stage of second appeal. From the date of sale -deed, the petitioners have been in exclusive possession over the land in dispute, their possession was also found during partal, in consolidation over entire area of the land in dispute, claim if any of respondent -4 has barred by limitation, estoppel and acquiescence.
(3.) BOTH the cases were consolidated and tried by Consolidation Officer. Respondent -4, apart from documentary evidence, examined Chhannu son of Munni Lal as PW -1 and Dashrath alias Dashmi as PW -2, who proved family settlement and share of Deonandan to be 1/4. The petitioners filed sale deeds dated 28.2.1968, 3.7.1971, 24.7.1974 and 24.7.1974 as documentary evidence, and examined Daya Ram as DW -1, Rajendra as DW -2 and Bhola Nath as DW -3. Consolidation Officer, by his order dated 3.3.2010 held that from khatauni 1366 F, 1368 F, 1369 -71 F and 1372 F -1374 F, it was proved that name of Charandasi son of Deonandan was jointly recorded over plots 424/1 (area 0.37 acre) and 424/2 (area 0.36 acre). Charandasi filed a suit (registered as Suit No. 236 of 1981) under section 229 -B of U.P. Act No. 1 of 1951, in which the parties, entered into compromise and written compromise dated 23.3.1993 was filed, in which it was admitted by Hazari and Khattoo that Charandasi had 1/4 share in plot 424 (area 0.73 acre). Sub -Divisional Officer by order dated 11.4.1983 although accepted compromise but held that as total area of land in dispute was less than 3.125 acre as such its partition cannot be done in view of section 168 of U.P. Act No. 1 of 1951. He, therefore, joined the land of both the khatas in one khata and directed for recording the name of Charandasi as co -sharer in it. Decree of Sub -Divisional Officer was challenged by Hazari and Khattoo in appeal but compromise was not challenged, in it. The compromise contains admission of Hazari and Khattoo and was binding upon them. Charandasi (father of respondent -4) has sold an area of 0.065 acre to Khattoo through sale -deed dated 3.7.1971 as such an area of 0.115 acre of his share still remained in the land in dispute. Although after sale -deed dated 3.7.1971, share of Charandasi remained in the land in dispute but his name has been illegally deleted. On these findings objection of respondent -4 was partly allowed and it was held that he was still having 0.115 acre, in plot 424 of his total 1/4 share.;