- (1.) S. K. Singh, J. By means of this writ petition, petitioner has challenged judgment of the Deputy Director of Consolidation, Allahabad dated 17-5-1975 and 16-5-1975 (Annexures 5 and 4 respectively ).
(2.) SRI Ram Niwas Singh, learned Advocate appeared in support of this writ petition and SRI R. N. Singh, learned Senior Advocate assisted by SRI Rai appeared for respondents No. 2 and 3 and SRI Sheo Nath Singh, learned Advocate appeared on behalf of heirs of respondent No. 5. Facts in brief which can be said to be not in dispute can be summarised for convenient disposal of the matter. Two small pedigrees, if mentioned at this place then they will be of assistance to appreciate rival claim and therefore, they are being given at this place; First Pedigree: Maiku Kamta Thakurdm Basanti Munnu Ram Newaj Ghurpatia Paragia Second Pedigree: Sukru Hub Lal Surajdin Chotey Lal In the basic year record, name of Ram Niwaj and Munnu sons of Kamta and Basanti wife of Thakurdin was recorded. Three sets of objections were filed before the Consolidation Officer. First objection was on behalf of respondent No. 4 for expunction of the name of Bansanti and thus the right of petitioner and respondent No. 4 would be to the extent of half and half share. The second objection was on behalf of respondent No. 2 and 3 claiming themselves to be co-tenant to the extent of half share as they claimed rights through Surajpal who was recorded in the earliest record. The third objection was on behalf of respondents No. 5 and 6 on the ground that they are daughters of Thakurdin. All the parties led their respective evidence, upon which the Consolidation Officer passed order on 16-7-1974 by which objection of respondents No. 2 and 3 and that of respondent No. 5 and 6 was rejected and basic year entry was maintained with the share of Basanti as half and petitioner and the respondent No. 4 as 1/4th each. Against the order of Consolidation Officer, appeal was filed by respondents No. 2 and 3 only. No appeal was filed by respondents No. 5 and 6. Appeal filed by respondents No. 2 and 3 was dismissed on 20-11-1974. Against the judgment of appellate authority, revision was filed by respondents No. 2 and 3. During pendency of revision, Basanti wife of Thakurdin died, upon which, substitution application was filed by respondents No. 5 and 6 for bringing them on record as heirs of Mst. Basanti being daughter of Thakurdin. The Deputy Director of Consolidation by order dated 16-5-1975 (Annexure 5) gave a finding that question of heir-ship is a disputed one and an appeal in this respect against the order of Consolidation Officer is pending and thus without affecting claim/right of parties in respect to heir ship/succession of Basanti, the name of respondents No. 5 and 6 was permitted to bring on record as heirs and legal representatives of Smt. Basanti. It was further observed by the Deputy Director of Consolidation that this controversy will be finally decided under Section 12 of UPCH Act. Arguments were heard on merits of revision and on 17-5-1975, the revision filed by respondents No. 2 and 3 was allowed and their claim to the extent of half share was accepted and the share of Smt. Basanti was declared as 1/6th and the share of petitioner and respondent No. 4 was held to be 1/6th each. Thus, the petitioner's challenge, in this petition is two fold i. e. (I) against respondents No. 2 and 3 and (II) against respondents No. 5 and 6 who were held to be heirs and legal representative of Smt. Basanti. In the event, respondents No. 5 and 6 are not held to be heirs of Smt. Basanti, then so far share/right of Smt. Basanti is concerned petitioner may get by way of survivorship. It is in this back ground, submission of learned Counsel for petitioner and learned Counsel for respondents is to be noticed.
(3.) LEARNED Counsel for petitioner to challenge/oppose the claim of first set of claimants i. e. respondents No. 2 and 3 submits that the Deputy Director of Consolidation in accepting claim/rights of respondents No. 2 and 3 has committed a manifest error for simple reason that findings of fact recorded by two Courts i. e. Consolidation Officer and Settlement Officer Consolidation has been illegally set aside in the revisional exercise. It is pointed out that the Deputy Director of Consolidation has given judgment on wrong assumption of facts in respect to the judgment dated 9-4-1940 by saying that it was passed in the proceeding under Section 33/39 of U. P. Land Revenue Act, although the fact has been proved to be otherwise. It is further submitted that by operation of law, petitioner having being recorded before date of vesting became Sirdar and continued in possession, paid land revenue exclusively and as such there being presumption of correctness of basic year entry, the Deputy Director of Consolidation has wrongly negatived petitioner's contention and gave fights to respondents No. 2 and 3 on the basis of old revenue entry which was explained to have been validly expunged. Submission is that long standing entry could not have been brushed aside by the Deputy Director of Consolidation. In support of submission that ignoring the worth of long standing entry is not justified, reliance has been placed on the judgment of this Court given in the case of Ramesh Ramanarayan Dangare v. Vithabai and Anr. , reported in (2004) 8 SCC 298. In respect to the submission that findings of fact cannot be set aside by the Deputy Director of Consolidation, reliance has been placed on the judgment of Apex Court given in the case of Gaya Din v. Hanuman Prasad, reported in 2001 RD 79; 2004 (8) SCC 298. To challenge/oppose the claim of second set of claimant namely respondents No. 5 and 6, submission of learned Counsel for petitioner is that Consolidation Officer by its judgment dated 16-7-1974 gave a finding that they are not daughters of Thakurdin and, therefore, their objection was rejected but no appeal or revision was filed by respondents No. 5 and 6 and therefore, their claim can be safely said to be barred and now by accepting/allowing substitution application on 16-5-1975 by accepting their claim that they are daughters of Basanti who was admittedly wife of Thakurdin, respondents No. 5 and 6 cannot be accepted to be daughters of Thakurdin. It is on this basis, submission is that the order of Deputy Director of Consolidation dated 16-5-1975 bringing respondents No. 5 and 6 on record as heirs and legal representatives of Smt. Basanti is clearly illegal and thus, if they are not accepted to be heirs, then the petitioner may get rights/land of the share of Smt. Basanti. On the aforesaid premises, submission is that the order of Deputy Director of Consolidation dated 16-5-1975 and order dated 17-5- 1975 are liable to be quashed/modified.;