D.N.JHA, J. - (1.) PETITIONERS have come up before this Court under Article 226 of the Constitution challenging the order passed by the Deputy Director of Consolidation dated August 27, 1969 contained in Annexure-3. The pedigree, as admitted between the parties, is as follows: - Laxmi Prasad Ram Niwas Ram Samujh (O.P. No. 3) Ram Sahai Ram Bhawan (Petitioner No. 1) Ram Achal (Petitioner No. 2) Bare Lal ' (Petitioner No. 3)
(2.) OPPOSITE party No. 3 Ram Samujh is the uncle of petitioners Ram Bhawan and Ram Achal and Barey Lal petitioner No. 3 is the nephew of Ram Bhawan and Ram Achal. In the basic year Khata No. 299|1 consisting of two plots Nos. 1009 and 1062 were found to be entered in the name of Ram Samujh and petitioner No. 3 Bare Lal as co-tenants. Objections under Section 9 of the U.P. Consoli­dation of Holdings Act (hereinafter referred to as the Act) were preferred on one hand by petitioners 1 and 2 who raised the dispute also at the time of field to field partal claiming co-tenancy rights along with the recorded tenure-holders. Ram Samujh also contest­ed the claim by a written objection that the name of Bare Lal peti­tioner No. 3 be expunged from the same. The dispute came up be­fore the Consolidation Officer where petitioner No. 3 admitted the claims of petitioners 1 and 2 to be recorded tenure-holders by means of a compromise. In the circumstances the dispute remained only between the petitioners and Ram Samujh. The Consolidation Officer after admitting the oral and documentary evidence allowed the ob­jections and determined the share of Ram Samujh as one-half on one hand and shares of Ram Bhawan, Ram Achal and Bare Lal were de­termined as l|6th each. Copy of this order is Annexure-1. Ram Samujh opposite party No. 3 feeling aggrieved by the order preferred an appeal before the Settlement Officer, Consolidation but in this appeal grievance only was set up with respect to plot No. 1009 and in all probabilities no appeal was filed with respect to plot No. 1062. The Settlement Officer Consolidation after hearing the parties vide his order dated January 31, 1967 dismissed the appeal. Copy of this order is Annexure-2. Opposite party No. 3 thereafter preferred re­vision before the Deputy Director of Consolidation who, vide his or­der dated August 27, 1969, allowed the revision in favour of Ram Samujh. This order is Annexure-3. The petitioners feeing ag­grieved from the order have come up before this Court. The petition has been contested on behalf of opposite party No. 3 Ram Samujh. It is asserted that in appeal before the Settlement Officer Consolidation he had challenged the entire order passed by the Consolidation Officer and as such the appeal should have been deemed with respect to both the plots. It is further asserted that before the Deputy Director of Consolidation in the revision. Deputy Director of Consolidation was competent to adjudicate the dispute "with respect to both the plots. It is further asserted that plot No. 1009, which came under one Sattan Kori who had acquired Sirdari rights, had sublet to the deponent and ever since he continued to be in continuous possession of the same and the petitioners had no con­cern whatsoever. With respect to plot No. 1062 it is stated that it belong to the common ancestor but Ram Bhawan petitioner had mort­gaged his half share in the said plot for a sum of Rs.130/- in favour of one Triloki Kalwar and it was he who had paid back the money to Triloki Kalwar and redeemed the receipt which was produced before the Consolidation Authorities. Thereafter he continued to remain in possession and petitioners had nothing to do with it. In short, an effort has been made to justify the order passed by the Deputy Dir­ector of Consolidation being legal, just and proper.
(3.) HAVING heard the learned counsel for the parties I am of opi­nion that the order passed by the Deputy Director of Consolidation suffers from manifest error and deserves to be quashed. In this view of the matter I am deliberately refraining from recording any find­ing one way or the other in order to avoid prejudice being caused to the parties and it will be open to the Deputy Director of Consolida­tion to adjudicate the dispute between the parties on the basis of evidence and hearing the parties in support of the same. With res­pect to plot No. 1009 it is evident that till 1362 Fasli the name of the common ancestor Laxmi Prasad finds place. Thereafter in 1363 Fasli name of one Sattan Kori finds place. However, in 1370 Fasli it ap­pears that somehow the name of Laxmi Prasad was entered. This Laxmi Prasad was the common ancestor through whom the peti­tioners are claiming their right in the property. It is not clear from the orders passed in appeal as well as in revision as to how the name of Sattan Kori disappeared and how Laxmi Prasad's name was en­tered subsequently in 1370 Fasli. It appears that somehow Laxmi Prasad had probably regained possession and if that is so then there appears substance in the contention of the learned counsel for the petitioner that petitioners were entitled for co-tenancy rights. The order of the Sadar Kanungo that Ram Samujh and Bare Lal were to be held to be heirs is also in keeping with the entries of 1370 Fasli. The Deputy Director of Consolidation will consider the evidence oral as well as documentary in order to come to a proper conclusion with respect to the tenancy rights put forth by the parties with respect to plot No. 1009.;