Janardan Sahai, J. - (1.) The name of the Gaon Sabha was entered upon the disputed land as pokhari when an application under Section 33/39 of the U.P. Land Revenue Act was filed by respondent No. 4 for recording his name. Before these proceedings under the Land Revenue Act which have given rise to this petition, consolidation proceeding had intervened in the village. The case of the respondent Nos. 3 and 4 is that entry in favour of Gaon Sabha in the consolidation proceeding is a forged one. According to the petitioner Gaon Sabha which contested the application, the name of the Gaon Sabha was recorded in the basic year and that no objections were filed by respondent Nos. 3 and 4 and consequently the basic year entry was maintained upto CH Form 45 and the name of the Gaon Sabha was thereafter rightly recorded. The Sub Divisional Officer.by his order dated 6.3.1998 dismissed the application under Section 33/39 of the U.P. Land Revenue Act. Aggrieved the respondent No. 4 filed a revision, which was allowed by the Additional Commissioner, Gorakhpur by his order dated 5.4.2002. The Additional Commissioner relied upon the entry of 1359 Fasli in the name of the ancestors of the revisionist in Zaman 10. It was also found that a case under Section 212 of the U. P. Zamindari Abolition & Land Reforms Act for ejectment was filed against the ancestors of revisionists, which was dismissed on 9.3.1959 and the ancestors of the revisionists were found to be the tenure holders. The Additional Commissioner recorded the finding that revisionists became Adhivasi and subsequently sirdar and bhumidhar. Against this order a revision was filed by Gaon Sabha before the Board of Revenue which was dismissed by order dated 12.10.2004 by the Board. The Board has observed that although the Gaon Sabha was called upon to produce material on the basis of which its name was recorded in the consolidation proceeding but it failed to do so. It was also found that the name of respondent 4 was recorded since before the consolidation proceedings and in the absence of any order of the Consolidation Officer, if on account of any clerical error phokhari was recorded, the entries cannot be continued. On this finding the Board of Revenue dismissed the revision.
(2.) Shri R.C. Singh counsel for the petitioner submitted that the finding recorded by the Additional Commissioner and the Board of Revenue are erroneous in law and that the Additional Commissioner had no jurisdiction to decide the title of the parties in proceedings under Section 33/39 of the U.P. Land Revenue Act. He also submitted that the name of the Gaon Sabha was entered in the basic year and it was that very entry which was continued in CH Form 45 and thereafter in the revised new records.
(3.) The averment that in the basic year the name of Gaon Sabha was recorded is contained in para 5 of the writ petition. In the counter affidavit of the respondent No. 3 the stand is a little confusing. While in paragraph Nos. 3 (b) and (e) it is stated that in the basic year the land in dispute was recorded in the name of respondent's family and that Gata No. 278 (old number) comprising area 26 decimal is recorded in the name of the grand mother of the respondent there is a somewhat different stand in paragraph No. 7 of the counter affidavit in which it is stated that objections were filed by respondents under Section 9-A (2) of the U.P. Consolidation Holdings Act and the same were allowed by the Consolidation Officer. However neither the copy of the objections nor the order of the Consolidation Officer allowing the said objections has been filed by respondent No. 3 along with the counter affidavit. If the name of the Gaon Sabha was recorded in the basic year it becomes difficult to understand why and what objections were filed. The Board of Revenue has held that in the absence of any order of the Consolidation Officer it appeared that the name of Gaon Sabha continued on account of some clerical error. In view of the stand taken in paragraph 7 of the counter affidavit that the Consolidation Officer had allowed the objection of respondent No. 3 the observation made by the Board of Revenue against the petitioner Gaon Sabha are not justified. If the stand of the respondent in the Board was also the-same as in this petition that objections were filed by him which were allowed it was for the respondent to have filed those papers. Neither the Additional Commissioner nor the Board of Revenue has considered the case from this aspect. Accordingly the order of the Additional Commissioner dated 5.4.2002 and the order of Board of Revenue dated 12.10.2004 are set aside and the case is remanded to the Additional Commissioner to be decided afresh. The Additional Commissioner shall also consider in whose favour the basic year entry was existing and as to whether there was any order of the Consolidation Officer disposing of the objections and the effect of these facts.;