Janardan Sahai, J. - (1.) One Ram Roop was the common ancestor of the parties. He had five sons. The petitioners are the sons of Munni Lal, one of the five sons of Ram Roop whereas contesting respondent No. 3 Bikau Lal is son of Thakur Lal another son of Ram Roop. In the basic year the petitioner as well as the respondent No. 3 Bikau Lal were recorded. Objections under section 9 of the U.P. Consolidation of Holdings Act were filed by the petitioners claiming sole tenancy right. The case of the petitioners was that the parties held land in two villages viz., Maghi Kothilwa and Village Pipara Daula Kadam and that in the family settlement the land situate in Village Magi Kothilwa was given to the petitioners and the land situate at Village Pipara Daula Kadam were given to respondent No. 3 Bikau Lal. The respondent No. 3 denied the family settlement and claimed co-tenancy right. Before the Consolidation Officer the parties adduced oral evidence. The petitioners also filed a copy of the plaint in an earlier suit for cancellation of sale deed and for injunction filed by respondent No. 3 Bikau Lai. The Consolidation Officer found that the family settlement set up by the petitioners was not proved. He therefore, dismissed the objections filed by the petitioners and awarded to respondent No. 3 one third share on the basis of pedigree. Aggrieved the petitioner preferred an appeal. The Settlement Officer, Consolidation, by order dated 7.2.1984 allowed the appeal. The Settlement Officer Consolidation found that the family settlement was proved. The respondent No. 3 preferred a revision. The Deputy Director of Consolidation has allowed the revision by the impugned order dated 21.2.1986. He found that the family settlement was not proved. The order of the Deputy Director of Consolidation has been challenged in this writ petition.
(2.) I have heard Shri Vinod Swaroop learned Senior Counsel assisted by Sri SX Mishra for the petitioners and Sri M.K. Mishra and Sri P.K. Srivastava for the respondent No. 3.
(3.) Two submissions were made by the Counsel for the petitioners. The first submission is that the finding of Deputy Director of Consolidation that the family settlement was not proved is erroneous in law inasmuch as oral evidence adduced by the petitioners has not been considered and the finding is also against the admission made by respondent No. 3 in the earlier suit. The second submission made by the Counsel for the petitioners is that even according to the pedigree the share of respondent No. 3 is 3/10 and not ⅓ as awarded by the Consolidation Officer whose judgement has been restored by the Deputy Director of Consolidation.;