- (1.) BINOD Kumar Roy, J. The petitioner prays to modify the appellate order, dated. 22-5-1979 passed by the Settlement Officer, Consolidation, Kanpur in Appeal No. 38 in regard to percentage of Respondent No. 4 Mahabir and the Revisional orders, dated 24-9-1980 passed by the Joint Director of Consolidation, Kanpur in Revision Nos. 184 and 188 and to restore the order, dated 25-10-1977 passed by the Consolidation Officer No. 2, Azad Nagar, Kanpur. The Facts :
(2.) THE portrayal of the relevant facts are in a narrow compass. There appears to be a dispute in regard to right title and interest of the petitioner and Respondent No. 4 Mahabir in regard to lands of Khata No. 18, village Chhatepur, district Kanpur which in the basic year Khatauni prepared by the Consolidation Officer stand recorded as Sirdari of the petitioner describing the petitioner son of Mangali and Indrana Respondent No. 5 widow of Kali Charan. Respondent No. 4 filed an objection describing him as son of Kali Charan asserting that he happens to be co-tenant and Sirdar of the lands in question and has been coming in possession which was acquired by his father Kali Charan who was in possession in his life-time that at the time of the death of his father the objection was minor that after the death of his father, the lands in question were recorded in the name of his mother Respondent No. 5 who was his guardian that Kali Charan was son of Jethu resident of Churwa Khera whose mother re-married Magan that at the time of the re-marriage Kali Charan was in her lap and was taken by her mother and kept by her that she delivered Mangali through Magan that accordingly in the lands in question which was acquired by Kali Charan, Mangali had no share or interest that Kali Charan had two wives through his first wife he has two daughters that Respondent No. 5 is not-claiming any title against his interest who is also simpleton and illiterate lady not aware of the legal position that Mangali father of Respondent No. 4 got his name entered wrongly in the Government records which is not binding on him that Mangali had no interest or share in the disputed lands nor could be in law ; that the petitioner Kushal had also no interest in the lands in question and his name was wrongly entered in regard to the disputed lands and hence his name be expunged and the name of Respondent No. 4 and his mother Indrana along with him be entered as co-tenant. The petitioner resisted the claim of Respondent No. 4 asserting inter alia that the lands in question were acquired jointly by Mangali and Kali Charan who were his own brothers having shares to the extent of half and half and in possession accordingly, Kali Charan was elder brother and Karta of the family that Respondent No. 5 had come to Kali Charan along with her son Respondent No. 4 aged about 23 years age ; that after the death of his father, Mangali. He is coming in possession of the lands in question to the extent of 1/2 share, that Kali Charan had died about 21 years ago and Mangali had also died about 15 years ago but in the mutation case no one raised any objection in regard to his 1/2 share that for the last 18 years his name is coming in the Govt. record along with Respondent No. 5 but no one raised any objection and hence this proceeding is not maintainable on account of estoppel and acquisition that the petitioner has got no concern with the remaining half share of Indrana who is in possession accordingly and that according to the Assistant Settlement Officer the disputed Khata has already been partitioned half and half that plot No. 278 area 1 Bigha 1 Biswa appertaining to khata No. 18 which stood recorded in the name of Babu Lai, son of Mangali till 1366 Fasli who was the sole tenant of this plot was entered in the name of Respondent No. 5 and Mangali, son of Magan Karee, vide order, dated 31-1-1959 of the Tehsildar in Mutation case no. 33. THE Consolidation Officer framed three issues to the following effect :- (i) Whether Mahabir is the sole tenant of the disputed lands ? (ii) Whether the parties are co-tenants of the disputed land ? (iii) What would be the shares of the parties, if any, in the disputed lands ? To Support his claim Respondent No. 4 apart from examining himself as P. W. 1 Respondent No. 5 as P. W. 2 Babu Lal Chaukidar as P. W. 3 Ayodhi co-villager as P. W. 4 produced certificate of Junior High School and Intermediate certificate. The petitioner to support his defence. examined himself as D. W. 3, Indrani daughter of Kali Charan as D. W. 2 Gokul a co-villager as D. W. 3 and Babu Lal another co-villager as D. W. 4 and produced the certified copy of the order, dated 20-10-1954 of the Tahsildar the rent receipts extract of village records and the papers in the earlier consolidation proceedings between him and Respondent No. 5. By his order, dated 25-10-1977 the Consolidation Officer held as follows : (i) No evidence has been adduced to show that after the death of Jethu whose son was Kali Charan his widow that is to say the mother of Kali Charan re-married Magan and Mangali was born of Magan and mother of Kali Charan. (ii) There is no dispute about the fact that Mangali is son of Magan, (iii) Babu Lal a witness of Respondent No. 4 Mahabir had clearly stated that Kali Charan are his own brother and sons of Magan. (iv) It is undisputed that Kali Charan had two daughters Indrani and Phulmati between whom Phulmati is younger daughter whose marriage was performed after the performance of second marriage and that the marriage of Indrani the eldest daughter was performed in the life time of her mother (v) Mahabir was not born through Kali Charan and is neither an heir nor a co-tenant of the lands in question, (vi) The present entries in regard to the lands in question are correct and Mangali is not co- tenant, (vii) The lands have already been partitioned between the writ petitioner and co-tenant Respondent No. 5 against which no objection has been made and thus the Issue No. 3 has already been decided by the Assistant Settlement Officer. Respondent No. 4 went up in appeal. His Appeal No. 38 was allowed in part by order, dated 22-5-1979 holding as follows : (a) Respondent No. 4 was son of Kali Charan. (ii) Since Mahabir is son of Kali Charan the name of Respondent No. 5 was wrongly recorded in regard to the lands in question and her name is expunged and in her place the name of Mahabir son of Kali Charan is directed to be entered. (From the evidence it appears that Kali Charan and Mangali were own brothers between whom Kali Charan was elder in whose names the lands in question was entered but in which Mangali was also his co-tenant and hence the name of the petitioner son of Mangali has been correctly entered in regard to the lands in question. The petitioner against the appellate order holding Respondent No. 5 to be son of Kali Charan went up in Revision No. 184. Respondent No. 4 also went up in Revision against the finding of the appellate authority holding the petitioner as co-tenant in Revision No. 188. Revision No. 184 of the petitioner was dismissed by the impugned order dated 24-9- 1980 and Revision No. 188 preferred by Respondent No. 4 was allowed by the impugned order, dated 24-9-1980. 3. Mr. H. O. K. . Srivastava the learned counsel appearing on behalf of the petitioner in support of Rule contended as follows: (i) The Consolidation Officer had recorded his findings after considering the oral evidence of Indrani the daughter of Kali Charan, Babu Lal, a co-villager besides that of the petitioner but without considering the evidence of the aforementioned three witnesses the appellate authority erroneously reversed the finding of the consolidation officer. The Revisional Authority also without discussing the evidence of the aforementioned three witnesses had illegally dismissed the revision of the petitioner and allowed that of Respondent No. 4. (ii) In discarding the evidence of Gokul another witness of the petitioner the appellate as well as the Revisional Authority both have committed an error of record in reading his evidence. Even though Gokul had nowhere stated in his evidence that Mahabir is son of Kali Charan the Revisional Authority had erroneously stated that he had said so. The appellate authority has erroneously observed that Gokul has not denied that Mahabir is son of Kali Charan. (iii) While recording his finding the Consolidation Officer has also considered the effect of mutation and earlier consolidation proceedings but while reversing his finding the appellate authority has not considered them and accordingly the finding of the appellate authority was erroneous but this legal aspect of the matter was erroneously not considered by the Revisional Authority. Mr. G. N. Verma the learned counsel appearing on behalf of the Respondent No. 4 on the other hand submitted that there is no merit in this writ petition. The appellate and the revisional authorities had considered the relevant evidence which was required to be considered by them. Even assuming that the evidence of the petitioner and his witnesses have not been considered in that event the case be remitted back to the original court who had not considered the evidence adduced by Respondent No. 4. My Findings :
(3.) IN m-y view there is merit in the contentions of Mr. Srivastava who took me to the deposition of INdrani daughter of Kali Charan (whose evidence has been appended as annexure C. A. 9 to the counter affidavit ). She had categorically stated to the effect that the first marriage of INdrani (Respondent No. 5 herein) was performed in Meharban Singh Ke Purwa and that she came along with a son whose name is Mahabir who is present in Court. IN her cross-examination she further stated that Mahabir is her step brother. Apparently the ' aforementioned evidence was not considered by the appellate authority. Learned counsel also took me to the evidence of Gokul (copy appended as C. A. 12 ). No suggestion was made to Gokul that Mahabir is son of Kali Charan. In this view of the matter the appellate authority has committed an error in observing that they Have not denied the fact that Mahabir is son of Kali Charan. The appellate authority has also not considered the evidence of the petitioner besides his yet another witness name Babulal. He has considered the evidence of Babu Lai Chaukidar who was produced by Respondent No. 4. It is a settled law that before reversing the findings of the trial court the appellate court must meet the reasons given by the original authority, I am conscious that it is not the business of this court to appreciate the evidence of the parties but perusing the judgment of the appellate and the revisional authorities -it is clear to me that the appellate authority has not considered the reasoning's given by the trial court while reversing its finding but this legal aspect of the matter was not considered by the revisional authority. Taking into account the entire facts and circumstances. I am of the view that justice requires re-disposal of the appeal preferred by Respondent No. 4. For the reasons aforementioned this writ petition is allowed in part. The impugned appellate order, dated 22-5-1979 as also both revisional order all are set aside and Appeal No. 38 preferred by Respondent No. 4 is remitted back to the Settlement Officer (Consolidation), Kanpur (Respondent No. 2) for fresh disposal in accordance with law.;