- (1.) BINOD Kumar Roy. J The petitioner prays to quash the Appellate order dated 23. 9. 1978 passed by the Assistant Settlement Officer (Consolidation), Faizabad Camp Varanasi in Appeal No. 5703 and the revisional order dated 4. 9. 1980 passed by the Deputy Director of Consolidation, Varanasi in Revision No. 10249. The Facts:
(2.) THE relevant facts are in a narrow compass : THE dispute centres around right, title and interest of the petitioner and the Gaon Sabha, Madaiya in regard to 1 acre of land bearing plot No. 217/2 in village Madaiya, district Varanasi, which in the basic year of Consolidation entry made under the U. P. Consolidation of Holdings Act (hereinafter referred to as the Act) stand recorded in the name of Rama and others under Class I but during enquiry, it was found to be pokhari (i. e. tank ). One Hingoo filed an objection under Section 9 (A) (2) of the Act that his name be entered as co-tenant of the land in question on the ground that he is a co-tenant of the disputed khata and is having its possession due to a family settlement; that on some part of the land of his share there are trees and on some part there is water; that due to mistake of the Lekhpal his name was not entered in the Khatami. Another objection was filed by respondent No. 4 Kishori Lal as Up-Pradhan of Gaon Sabha, Madaiya asserting that 1. 03 acres of land in plot No. 271 is Baawali, abutting the tank; that on the side of it there is abadi of the village; that from the tank water is taken out; that the same is also outlet of the village; and that the name of the Gaon Sabha be entered as it could be utilised publicly by the villagers. THE defence of the petitioner and respondents Nos. 6 to 10 was that the lands in question was acquired by their ancestors, who were also in possession and after their death they have been coming in possession continuously since before the abolition of the Zamindari; that the land in question is not the property of the Gaon Sabha not is/was in the use of any publicly that no resolution was passed by the Gaon Sabha for preferring the objection, which has been filed by Kishori Lai, to harass them with bad motive; and that the land in question does not come within the definition of the word 'land' defined under the Act hence the Consolidation Officer has got no jurisdiction to decide the issues. THE Consolidation Officer framed three issues: (i) whether the disputed land is the property of Gaon Sabha and the name of Rama and others have been wrongly entered? (ii) Whether he is competent to decide the dispute ? (iii) Whether Hingoo and others are co-tenant of the disputed land? A prayer was made by. respondent No. 6 and others including the petitioner that the question of jurisdiction be decided as a preliminary issue-which was allowed. THE parties were heard. THE Consolidation Officer by his impugned rrder held that the land in question does not come within" the meaning of the word 'land' defined under the Act and hence has no jurisdiction to adjudicate the right, title and interest of the parties and. thus the parties, if they so like, may move the competent court. While recording his finding the Consolidation Officer also made a note in his order that the parties accept the fact that the land in question is pokhari (tank ). He also referred to a Division Bench decision of this Hon'ble Court reported in 1974 Un-Reported Revenue Decision 330. Gaon Sabha, Madaiya through Kishori Lal Up-Pradhan, went up in Aappeal No. 5703. THE Appellate Authority by order dated 23. 9. 1978 allowed the appeal set aside the order of the Consolidation Officer and directed him to decide the case after taking evidence of the parties observing as follows: "i agree with the conclusion of the Consolidation Officer that the Consolidation Court has no jurisdiction to record the name of Gaon Sabha in regard to such old lands which stand entered in some one elses name in the Khata. the petitioner and others went up in Revision No. 10249 which was dismissed by the Director of Consolidation agreeing with the findings of the Appellate Authority. THE submissions: Mr. D. S. P. Singh, the learned counsel appearing on behalf of the petitioner, contended as follows: (i) The revisional Authority and the Appellate Authority both had not set aside the findings of the Consolidation Officer that both parties had agreed that the land in question is pokhari and in this view of the matter the impugned order was wholly unjustified and uncalled for. (ii) From the order of the Appellate Authority is clear that in 1319 Fasli the disputed plot was recorded as ditch in the name of Dalgaanjan and others in Khewat No. 1 and as pokhari having some trees in the extracts of 1383 Fasli and a tank in the extracts of khasra of 1376 Fasli. On the basis of the aforementioned entries the Appellate Authority ought to have decided the jurisdictional question. Shri S. K. Singh, the learned counsel appearing on behalf of respondent No. 4, on the other hand contended as follows: In view of the admitted stand taken by the parties before the Consolidation Officer that the land in question is tank and held as such by the Consolidation Officer the parties should have been directed to settle their dispute before the competent court and in this view of the matter there was/is no necessity of remand. I My Findings:
(3.) I do not appreciate the conduct of the Appellate and Revisional Authorities as to how the had proceed to pass the impugned orders without getting aside the findings of the Consolidation Officer that both sides admit that the disputed land is pokhari and whether it conies within the definition of the word 'land' defined under the Act. The impugned revisional order is thus, set aside and Revision No. 10249 is remitted back to Deputy Director of Consolidation, Varanasi (Respondent No. 1) for fresh disposal in accordance with law. In the peculiar facts and circumstances, I make no order as to cost.;