- (1.) POONAM Srivastava, J. Heard Sri N. C. Rajvanshi, Senior Advocate, assisted by Sri M. K. Rajvanshi, learned Counsel appearing for the petitioner and Sri J. N. Rai, learned Counsel appearing for the contesting respondent.
(2.) THE dispute in the instant writ petition relates to land of Khata No. 8 consisting of 8 plots having an area of 5 bighas 9 biswas situated in village Katera Zafarabad, Pargana-Pooth, District Ghaziabad. Facts giving rise to the dispute is that name of Smt. Ganga Devi widow of Lal Singh was recorded in the basic year over the land in dispute when the consolidation proceedings commenced. An objection was filed by Kale son of Dauley claiming that he was a co-tenant. According to the objector, the disputed land belonged to common ancestor. The admitted facts between the parties is that both were recorded as co-tenant in 1336 Fasli and name of co-tenant was entered in Zeman 6 (1 ). Subsequently, in 1356 Fasli, name of Lal Singh was recorded in Zeman 10 showing five years continuous possession of Lal Singh. Thereafter, in 1351 Fasli, name of Lal Singh continued to be recorded as Kashtkar. When Zamindari was abolished, husband of Smt. Ganga Devi Lal Singh was shown to be in continuous possession for a period of nine years and consequently he became a Seerdar. Thereafter, he got the Bhumidhari rights on 14-7-51 under Section 7 of U. P. Agricultural Tenants (Acquisition of Privileges) Act, 1949. The consolidation proceedings commenced in the year 1970-71. When the objections were preferred by the contesting respondent under Section 9 of U. P. Consolidation and Holdings Act, 1953 (hereinafter referred to as the Act), the consolidation officer allowed objections of the contesting respondent vide order dated 6-12-1973 holding that the petitioner and the contesting respondent had co-tenancy rights over the disputed plot. The petitioner preferred an appeal before the Settlement Officer Consolidation, which was dismissed. A revision under Section 48 of the Act was preferred before the Deputy Director of Consolidation, which was finally allowed on 24-1-1977. The contesting respondent preferred a civil misc. writ petition 484 of 1977 before this Court, which was finally allowed vide judgment and order dated 21-3-1984. The order of the Deputy Director of Consolidation was quashed and the case was remanded to the D. D. C. to decide the question as to how rights of Dauli or his descendants became extinguished over the disputed land since both were recorded initially as co-tenant in 1336 Fasli. After the revision was remanded by this Court, the same was dismissed by the Deputy Director of Consolidation, Ghaziabad vide order dated 22-6-1988, which is impugned in the instant writ petition. Submission on behalf of the petitioner is two folds. Sri Rajvanshi has emphasized that the Courts below wrongly shifted burden on the petitioner to establish his exclusive title. Especially, when Bhumdhari sanad was issued in favour of Lal Singh as far back as on 14-7-1951, the contesting respondent did not raise any objection whatsoever till the year 1970-71 i. e. approximately 33 years. He chose to raise his objection for the first time during the consolidation proceedings.
(3.) NEXT argument is that mere entry in 1336 Fasli is not sufficient to establish the rights of co-tenancy. It is submitted that the documentary evidence available on record, conclusively suggests that the disputed land was settled by the Zamindar in favour of Lal Singh exclusively after ejecting Jai Singh and Dauley, and also that all along, land revenue was exclusively paid by the petitioner after grant of Bhumidhar sanad. There was no mistake regarding title of the petitioner. Besides, the petitioner was in exclusive possession of the land as it was evident from the various revenue entries and also her name having been recorded in the basic year. It is also submitted that the Deputy Director of Consolidation misinterpreted direction of this Court passed in the judgment and order dated 21-3-1984 and without applying his judicial mind, has mechanically passed the impugned order, which does not have any legs to stand. Sri Rajvanshi, has placed a number of decisions in support of his contention. In the case of Ram Prasad Singh & Anr. v. Deputy Director of Consolidation & Ors. , 1984 R. D. page 133, wherein it has been held that Section 33 of U. P. Tenancy Act deals with the question of co-tenancy. According to which, one can be a co-tenant by three modes namely, (i) where he is co- tenant from the commencement of the tenancy, (ii) he has become such by succession and (iii) he has been specifically recognized as such in writing by the land holder.;