- (1.) BINOD Kumar Roy, J. The Petitioner prays to quash the order, dated 12-10-1970 of the Consolidation Officer, Samaria, district Jaunpur (Respondent No. 3) passed in case Nos. 8356 to 8361, -the ' Appellate Order, dated 23-12-1971 of the Assistant Settlement Officer (Consolidation), Jaunpur Respondent No. 2. in Appeal Nos. 409, 318, 319 and 324 and the Revisional Order, dated 15-10-1972 of the Deputy Director of Consolidation, Jaunpur (Respondent No. 1) dismissing his Revision Nos. 439, 441, 440 and 442. The Facts :
(2.) THE relevant facts are as under. : THEre appears to be a dispute concerning right, title, and interest in regard to the lands bearing Khata Nos: ,26, 60, 61 and 66 of village Jaisingpur. THE basic year consolidation entry of Khata No. 26 is in the name of Respondent Nos. 5 to- 8 Deo Raj, Munni Lal, Sita Ram and Jai Ram, sons of Bharos, of Khata Nos. 60 and 66 in the name of the Petitioner and Smt. Moghani and of Khata No. 66 in the name of the petitioner, Smt. Moghani and Respondent Nos. 5 to 8. Suit No. 132 under Section 229-B of the U. P. Zamindari Abolition and Land Reforms Act was filed by the Petitioner along with Smt. Moghani for a declaration that they are the sale bhumidars of the 13 plots detailed at the foot of the plaint, which apart in to khata Nos. 26 and 66 aforementioned and that defendant Nos. 1 to 4 (Devraj, Munni Lal, Sita Ram and Jai Ram sons of Bharos) and defendant No. 5 had no interest in those lands. THEir case was that Hardayal was the common ancestor; that Jhulai was one of the four sons of Katwaru who was one of the, several grandson of Hardayal and that they are successor in interest of Jhulai. It appears that they claimed that Katwaru and Ghura are one and the same person. Defendant No. 1 Devraj contested the suit pleading that the plaintiffs do not belong to the family of Hardayal ; that Jhulai; through whom the plaintiffs claim relationship with Hardayal, was not his great grandson as alleged rather Hulai was son of Ghura and Katwaru are not the name of same person. THE suit was dismissed holding that the plaintiffs had failed to prove that Jhulai was son of Katwaru, who was grandson of Hardayal. THE plaintiffs went up in Appeal. By his judgment and decree, dated 29-8-1964, the Additional Collector (Judicial), Varanasi, dismissed their appeal No. 295/7/907 of 1963-64 of Jaunpur holding that the finding of the trial court is perfectly correct. THE plaintiffs went up in Second Appeal before the Board of Revenue. By his order, dated 6-11-1969 the Judicial Member, Board of Revenue, passed an order of abatement of the suit along with the Appeal under Section 5 (b) of the U. P. "consolidation of Holdings Act. In the meantime the basic year consolidation record was prepared in regard to lands of Khata No. 26 in the name of Respondent Nos. 5 to 8 sons of Bharos, of Khata Nos. 60 and 61 in the name of the Petitioner and Smt. Moghani ; of Khata No 66 in the name of the Petitioner, Smt. Moghani and Respondent Nos. 5 to 8. THE Petitioner filed an objection under Section 9 (A) (2) of the Act before the Assistant Consolidation Officer irapleadihg co-plaintiff Mst. Moghani as Opposite Party No. 1, Sheo Dhari, son of Ram Nandan (another heir of the common ancestor Hardayal) as Opposite Party No. 2, Respondent Nos. 5 to 8 as opposite party Nos. 3 by Respondent Nos. 1 to 4 herein. THEse to 6, apart from some other persons. Objection was also filed objections were registered as Case Nos. 8356 to 8361. An objection was also filed by 'respondent No. 4 Sheo Dhari for recording his name as co-tenant along with Petitioner and Respondent Nos. 5 to 8 which was registered as Case No. 8368. THE parties reiterated their case and lead evidence-Oral and documentary. By order,- dated 12-10-1970, the Consolidation Officer, Samaria (Respondent No. 3) to whom the objections were forwarded, was pleased to reject the objection of the Petitioner and allowed that of Respondent No. 4. THE Petitioner went up in appeals. His Appeal Nos. 409, 318, 319 and 324 were dismissed but Appeal No. 326 was allowed by a common order, dated 23-12-1971. Against the appellate order, Revision Nos. 439, 441, 440 and 442 were preferred by the Petitioner, Revision No. 601 was preferred by Baijnath and Rivision No. 571 was preferred by Dev Raj (Respondent no. 5 ). All revisions were dismissed by a common order, dated 15-10-1972. THE Submissions : The learned counsel appearing on behalf of the Petitioner submitted as follows : (i) The Revisional Authority has committed an apparent error qf law in rejecting the claim of the Petitioner by relying upon the findings recorded in the suit filed under Section 229-B of the DY P. Z. A. and' L. R, Act and the Appeal which abated under Section 5 (b) of the U. P. Consolidation of Holdings Act, vide order, dated 6-11-1967 passed in 2nd Appeal No. 208 (z) of 1964-65 which in view of the judgments of the Supreme Court in Satyanarain Prasad San and others v. State of Bihar and others, A. I. R. 1980 S. C. 2051 and Mst. Bibi Rdhmani Khatoon and others v. Harkoo Gope and others, AIR 1981 S. C. 1450 had, become naught and could not be relied upon for rejecting the claim of the Petitioner on merits. (ii) Even though Respondent no. 4 has No interest longer in the lands of Khata No. which will be apparent from the production of original sale deed dated 26-10-1920 executed by grand father of Respondent No. 4 in favour of Nepal but this deed has not been considered erroneously observing that no document has been filed to show that Respondent No. 4 has no interest in the lands of that Khata. Mr. Sankatha Rai, the learned counsel appearing on behalf of the Respondent Nos. 5 to 8, submitted as follows : (i) No error of law was committed by the Revisional authority in relying upon the findings recorded in the judgments of the Suit under Section 229-B of the U. P. Z. A and L. R. Act and the Appeal in view of the judgment of the Supreme Court in Ram Prasad (Dead) by LRs and Others. v. The Asstt. Director of Consolidation and others Judgment. Today 1994 (3) S. C. 519! (ii) The Consolidation authorities have also considered the oral and documentary evidence adduced by the parties and correctly recorded a positive finding that the Petitioner has not proved that he belonged to the family of Hardayal. The Revisional authority also expressly observed that the petitioner had not adduced any evidence to show that Katwaru and- Ghura are one person rather the documents filed by them show that Katwaru and Ghura were two. persons. Since the Petitioner has not adduced any satisfactory evidence In terms of Section 50 of the Indian Evidence Act to prove :the genealogical table set up by him, this court need not exercise its discretion in favour of the Petitioner, (iii) In regard to, the second submission of the learned counsel for the Petitioner, Mr. Rai submitted that, even though he is not holding brief for Respondent No. 4 and the said point has nothing to do with Respondent Nos. 5 to 8, the petitioner cannot be said to be prejudiced on account of mentioning of the name of Sheo Dhari (Respondent No. 4) as a co-tenant as, his right, title and interest have already been protected by the Consolidation authorities and thus there is no merit in the second submission of the learned counsel for the petitioner and the writ application is liable to be dismissed.
(3.) LEARNED counsel for the Petitioner, apart from reiterating his submissions, emphasised that the earlier decisions of the Supreme Court in preference to the latest decision in Ram Prasad relied upon by Mr. Rai are binding on this Court. When I put a specific question to the learned counsel for the Petitioner whether any evidence in terms of Section 50 of the Indian Evidence Act was adduced to prove the genealogical table set forth by the Petitioner he answered in negative though emphasised that the Petitioner had adduced his own evidence to support his case. To the question whether the Petitioner adduced any documentary evidence to show expressly that Katwaru and Ghura are one person as claimed by the Petitioner, the learned counsel for the Petitioner again answered in the negative but he tried to emphasise that a deed of martgage was filed to show that the properties of family which were mortgaged by Mst. Mughani, widow of great grandson of Hardayal, was redeemed by Jainarain the uncle of the Petitioner. My Findings :;