- (1.) S. P. Srivastava, J. Feeling ag grieved by an order passed by the Deputy Director of Consolidation dismissing the revision filed by the petitioners under Sec tion 48 of the U. P. Consolidation of Hold ings Act affirming thereby the order passed by the Appellate Authority uphold ing the decision of the Consolidation Officer directing for the expunction of the names of Dularey and others the recorded tenure-holders and the recording of Janak Dhari, Girdhari and Bal Mukund as the Bhumidhars of the land in dispute, they have now approached this ( nun seeking redress praying for the quashing of the aforesaid orders.
(2.) I have heard learned counsel for the parties and have carefully perused the record. The facts in brief, shorn of details and necessary for the disposal of the case lie in a narrow compass. The dispute re lates to plot No. 670. This plot stood recorded in the name of Smt. Hansi and Sri Beni in the basic year. On 10-12-64, the Assistant Consolidation Officer passed an order purporting to be in proceedings con templated under Section 25-A of the U. P. Consolidation of Holdings Act whereby under the terms of conciliation the names of Janak Dhari, Bal Mukund and Girdhari were ordered to be recorded in place of Smt. Hansi and Beni. This conciliation purported to be oetween Dularey and Pyare on the one side and Januk Dhari, Bal Mukund and Girdhari on the other side. However, later on the order of the Assis tant Consolidation Officer dated 10-12-64 was set aside. Ultimately the matter was remanded for a decision afresh pursuant to the order of this Court dated 4-8-78. The Consolidation Officer after remand reconsidered the matter and vide the order dated 23-9-81 upheld the claim of Janak Dhari, Girdhari and Bal Mukund. The claim of Dularey the descendant of Beni was negatived. Smt. Hansi had been mur dered and on account of her death the is remain confined between the descendants of Beni and the objectors, the present respondents No. 4,5 and 6. The contesting respondents based their claim on the con ciliation recorded by the Assistant Con solidation Officer dated 10-12-64 and a document dated 23-11- 62. This document was claimed to have been cm u led by Beni as well as Smt. Hansi. It was an un registered document written on a general stamp paper of Rs. 4. 50 n. p. In the aforesaid document Beni as well as Mst. Hansi and indicated that though the plot No. 670 having an area of 15-biswa-7-dhur had been recorded in their names yet the same was not in their actual possession and was continuing to be in exclusive posses sion of Janak Dhari, Girdhari and Bal Mukund. It was further indicated that they were unnecessarily put to hardship being required to pay the land revenue merely on account of their names having been recorded in the revenue record pertaining to the plot in question. In the circumstan ces, it was indicated that they had taken Rs. 89 from the persons in actual possession of the plot in dispute as compensation and the amount of rent paid by them making it clear that they were surrendering posses sion and Janak Dhari, Girdhari, and Bal Mukund may get their names recorded as tenure- holders of the plot No. 670 in their place, the aforesaid document of relinquishment/agreement has described as 'dastbardari lkrarnama'. The Consolidation Officer recorded a finding that since Beni and Smt. Hansi were not parties to the proceedings relating to the conciliation recorded on 10-12-64, the order passed by the Assistant Consolidation Officer was liable to be ig nored. However, the Consolidation Of ficer found that the document dated 23-11-62 was liable to be accepted as its due execution stood proved. He recorded a clear cut finding that the petitioners had failed to establish their claim about non-execution of the document dated 23-11-62 by Smt. Hansi and Beni. It was further found that from the admissions of Dularey the claim of Janak Dhari and others about their having continued to remain in ex clusive possession of the land in dispute stood established.
(3.) THE appellate authority, however, came to the conclusion that Beni and Smt. Hansi both had died before conciliation had been recorded. According to the ap pellate authority there was no justification for discarding the Samjhauta arrived at during the proceedings contemplated under Section 25-A of the U. P. Consolida tion of Holdings Act. So far as the docu ment dated 23- 11-62 was concerned the appellate authority was of the view that the said document could not be treated to be a sale-deed as it has been specifically men tioned in the document itself that it was an Ikrarnama. THE said document the due execution whereof had been established was utilised by the appellate authority for upholding the claim of the contesting respondents about their having remained in actual cultivatory possession of the plot in dispute. Treating the descendants of Beni to be bound by the admissions of their predecessor-in- interest and his disclaimer about any interest in the land in dispute, the appellate authority dismissed the ap peal vide the order dated 5-1-87. The Deputy Director of Con solidation upheld the finding of the Settle ment Officer Consolidation Holding that both Beni and Smt. Hansi had died much before 10-12-64. The due execution of the document dated 23-11-62 was also upheld. The Deputy Director of Consolidation, however, treated the document dated 23-11-62 to be a sale as contemplated under Section 164 of the U. P. Zamindari Aboli tion and Land Reforms Act, which provides that any transfer of any holding or part thereof made by a bhumidhar by which possession is transferred to the transferee for the purpose of securing any payment of money advanced or to be ad vanced byway of loan, an existing or future debt or the performance of an engagement which may give rise to the pecuniary liability, shall notwithstanding anything contained in the document of transfer or any law for the time being in force, be deemed at all time and for all purposes as a sale to the transferee and to every such sale the provisions of Sections 154 and 163 shall apply.;