MANOJ MISRA,J. - (1.) The dispute in the present petition relates to Plot No. 2301, area 36 decimal, pertaining to Khata No. 600. In the basic year record, the petitioners were recorded. To expunge the entry of the name of the petitioners, Ramadhare (the father of the respondent nos. 4 and 5) and Nandu (the father of the respondents 6 and 7), both sons of Guddan, filed objection under Section 9 of the U.P. Consolidation of Holdings Act (in short the C.H. Act). In their objection it was claimed that Durga Prasad, the father of the petitioners, was an employee at the Tehsil and by his influence, fictitious and fraudulent entry was made. They claimed that they are in cultivatory possession since the time of their ancestors, since much prior to abolition of Zamindari, and therefore their names be recorded after expunging the name of the petitioners.
(2.) The Consolidation Officer, by his order dated 18.02.1984, allowed the objection and directed for expunging the name of the petitioners. In his order, the Consolidation Officer found that in 1359 F Khasra, in the remark column no one was entered whereas in the Khatauni of 1353 F to 1359 F, the name of Guddan (father of the objectors) was recorded in class 8 (hereditary tenant). He also found that in the 1345 Khatauni, Guddan's name was reflected. (It may be observed that in the typed copy of the order at page 15 of the paperbook the reverse was typed but, during the course of arguments, the learned counsel for the parties accepted that it was a typograhical mistake). He further found that in the Khatauni extract of 1357 F to 1362 F name of Ramadhare and Nandu, both sons of Guddan, was recorded. On the other hand, the petitioners relied upon Part II entry of 1359 F Khatauni wherein the name of petitioners was recorded in class 20 (i.e. occupiers of land without the consent of the persons if any entered in column 5 of the Khasra). The Consolidation Officer found that class 20 entry in the Khatauni is to be made on the basis of Khasra entry but since 1359 F Khasra did not reflect any such remark entry which could support the entry in Part II of 1359 F Khatauni, not much weightage was attached to the Part II entry relied by the petitioners. The Consolidation Officer thereafter did a survey of other entries as well as evidences and found that the entry of petitioners' name was without any basis and, therefore, the claim of the objectors which was supported by revenue entries was accepted. Against the order passed by the Consolidation Officer, appeal was preferred by the petitioners before the Settlement Officer of Consolidation in which, apart from other grounds, one of the grounds taken was that the land in dispute was in the shape of Abadi and therefore the land was out of the purview of the C. H. and, as such, the Consolidation Authorities had no jurisdiction in respect of the subject matter.
(3.) The Settlement Officer of Consolidation examined not only the documentary evidence but also the oral evidence and after considering the plea that mere raising of a boundary wall would not change the nature of an agricultural land, particularly, in absence of declaration under Section 143 of the U.P.Z.A. and L.R. Act, affirmed the order of the Consolidation Officer. He also did a survey of the revenue entries filed by the respective parties and, after examining the oral testimony of the witnesses, came to the conclusion that the entry of petitioners' name was rightly expunged from the revenue record and, accordingly, the appeal was dismissed. While dismissing the appeal, the Settlement Officer of Consolidation also took notice of the fact that the petitioner's father Durga Prasad had instituted Suit No. 749 of 1974 against the successors in interest of the objectors and, in that suit, a mandatory injunction was sought for possession, which suggested that the petitioners were not in possession. The Settlement Officer of Consolidation found that though the name of petitioner's father got reflected in 1362F Khatauni as Adhivasi but there was no basis of such entry inasmuch as in 1356F record he was not recorded as occupant and in 1359 F Khasra he was not shown to be in cultivatory possession. After taking a conspectus of the evidence, documentary as well as oral, the Settlement Officer of Consolidation found that the entry of the name of petitioners was without authority; that the documentary as well as oral evidence suggested that the objectors were in cultivatory possession; and, therefore, the appeal was liable to be dismissed. Against the order passed by the Settlement Officer of Consolidation, revision was preferred before the Deputy Director of Consolidation. ;