Birendra Dikshit, J. - (1.) THIS writ petition is directed against an objection under Section 9(2) of U.P. Consolidation of Holdings Act in respect of land situated in village Mahuwari Kalan, Pargana Khairagarh, Tehsil Meja, district Allahabad. Although the dispute between the parties initially was in respect of Khata Nos. 45, 65, 104 and 106 of the village but the learned counsel for petitioners has pressed this writ petition only in respect of Khata No. 65. As the writ petition is being pressed in respect of Khata No. 65 only, the adjudication by consolidation authorities in respect of Khata Nos. 45, 104 and 106 has become final between the parties and the controversy is being decided only in respect of Khata No. 65. The Khata in dispute is recorded in basic year in the names of petitioner Uma Shanker and opposite party Smt. Basantia. An objection was filed by opposite parties Shobha, Ram Kishun, Jai Saran and Amrit Lal who claimed that they are co -tenure holders together with petitioners. The petitioners also claimed that Smt. Basantia widow of Budhu had remarried and she is not having any share. The pedigree which is relevant for the purpose of present petition is as follows: - - Except that petitioners did not accept Smt. Basantia widow of Budhu and claimed that she remarried Bhagwan Das, who is her husband's father's brother's son, rest of the pedigree is admitted to the parties. Consolidation Officer by his order dated 31.1.1974 rejected objection of petitioners against Smt. Basantia and held that Ram Prasad, Shiv Prasad and Smt. Basantia are co -tenure holders, after disbelieving the case of petitioner that Smt. Basantia remarried Bhagwan Das. The finding that Smt. Basantia did not remarry has been confirmed in appeal by Assistant Settlement Officer, Consolidation and in revision by Deputy Director of Consolidation. The learned counsel for petitioners disputed the finding of fact that Smt. Basantia did not remarry but has failed to assail this finding of fact. The finding of fact that Smt. Basantia did not remarry and she is widow of Budhu is reaffirmed.
(2.) IN respect of objection filed by opposite parties Shobha, Ram Kishun, Jai Karan and Amrit Lal the Consolidation Officer relying upon the entry of 1334F, wherein Jokhai is recorded in occupancy tenancy while Hitkari is recorded as mortgagee, held that as Hitkari failed to prove separation in the family, therefore, his name came down as Agua Khandan, and therefore, Ram Gopal and Jag Mohan, who are brothers of Hitkari were also to be recorded and, therefore, Jai Karan, Vishwanath, Ram Kishun and Amrit Lal opposite parties are co -tenure holders with petitioners and Basantia. Aggrieved in respect of disputed Khata, petitioners preferred an appeal. The Assistant Settlement Officer, Consolidation dismissed the appeal. The petitioners went in revision in respect of disputed Khata which has also been dismissed by Deputy Director of Consolidation, Allahabad. The learned counsel for petitioners argued that the disputed land was recorded in the name of petitioners and as Jai Karan, Shobha, Ram Kishun and Amrit Lal were objectors, it was for them to establish that the land was acquired by a common ancestor. He further submitted that the finding that the family was joint when land was acquired and Hitkari obtained land as Agua Khandan has been recorded without considering evidence and assigning reasons, and therefore, the finding is bad in law. He further argued that the petitioners pressed the case that disputed Khata was settled with Hitkari after death of Jokhai, which aspect has not been considered by consolidation authorities. On the other hand, the earned counsel for contesting opposite parties contended that the finding has been recorded by consolidation authorities that the family was joint at the time when Hitkari's name was recorded and, as such the entry being in representative capacity the opposite parties have rightly been held to be co -tenure holders with petitioners. He further contended that this Court cannot interfere in writ jurisdiction in finding of fact that the family was joint at the time when property came in the name of Hitkari, this being a finding based on evidence on record. He also submitted that there was a settlement at Panchayat on the basis of which the contesting opposite parties got share in the land in dispute and, therefore the branch of Hitkari will have 1/3 share while the share of branch of Ram Gopal and Jag Mohan will be 1/3 each. While considering this case the consolidation authorities have mainly relied upon the Khataunis of 1309 -F, 1334 -F, 1356 -F and 1359F. The land in 1309F is recorded in the name of Shivram, Gatti and Jokhai under Jiman six. In 1334F Jokhai son of Jairam is recorded under Jiman 6(1) and Hitkari is recorded as 'Rahin', which means mortgagee. In Khataunis of 1356F and 1359F it is recorded in the names of Ramanand son of Hitkari and Smt. Basantia. The consolidation authorities proceeded on the basis that as Hitkari was recorded in 1334F as 'Rahin' while Shivram Gatti and Jokhai were recorded in 1309F therefore the name of Hitkari was recorded as Agua Khandan in representative capacity. On this basis the consolidation authorities held that the name of Hitkari was recorded in representative capacity and petitioners failed to prove partition in family with Ram Gopal and Jag Mohan. This has become the basis of upholding the order of Consolidation Officer in appeal and revision. The consolidation authorities in this respect committed patent error when they read the entry of Hitkari of mortgagee as if Hitkari had succeeded to the land. Tulsi could not succeed to Sukhai under tenancy law nor Hitkari could succeed to Jokhai as he was not an heir. This vitiates the very approach of all the authorities that the disputed land came down to Hitkari as Agua Khandan. The consolidation authorities were expected to see that Tulsi's son could not be heir to Jokhai and, therefore, it was essential for them to record the finding in respect of acquisition of land. Unless they recorded finding that the land was settled with Hitkari by the Zamindar, the question of contesting opposite parties becoming co -tenant with him could not arise. It is relevant to mention here that it was specifically argued on behalf of petitioners before Deputy Director of Consolidation that the land was again settled after death of Jokhai and therefore the nature of tenancy stood changed, which had been completely ignored by the consolidation authorities, yet the Deputy Director of Consolidation did not express any opinion in this respect which was essential, particularly when point was raised. Thus, consolidation authorities misdirected themselves in holding that the contesting opposite parties are co -tenant. The judgments of consolidation authorities are liable to be quashed on this account.
(3.) THE other contention raised by learned counsel for petitioners also has equal force. Finding has been recorded that the name of Hitkari was recorded and the family was joint as separation has not been proved. This conclusion has been recorded by consolidation authorities without considering the evidence led before them. They have not assigned reasons as to how they have come to the said conclusions. Reasons are the link on the basis of which such a conclusion could be arrived. As the reasons have not been assigned for recording such a conclusion, the orders passed by consolidation authorities are unsustainable.;