- (1.) RAM Chandra Dubey and Shanker Dubey, the petitioners and Bharadwaj Dubey, the respondent No. 4, were the members of a joint Hindu family. Their inter se relationship would be reflected from the pedigree given below :- NIRANJAN Ganga Raja Sarju Rajpati Bharadwaj RAM Chandar Shankar
(2.) THE dispute in this writ petition is in respect of the land situated in three Khatas, being Khata Nos. 50, 95-A and 95-B. Khata No. 50 comprises of Bhumidhari plots whereas Khata Nos. 95-A and 95-B consist of sirdari plots. In the basic year, these Khatas were entered in the names of the petitioners. Respondent No. 4 filed an objection claiming rights of co-bhumidhar and co-sirdar over the land of the aforesaid three Khatas. In brief, the case of respondent No. 4 was that Khata Nos. 95-A and 95-B were the joint tenancy of the ancestors of the petitioners and the respondent No. 4 and that the name of Sarju, the father of the petitioners, was recorded in the representative capacity. He claimed that at the time of the acquisition of the aforesaid plots both the parties were living jointly and, therefore, the same had to be treated as the joint property. With regard to Khata No. 50, the respondent No. 4 asserted that it was purchased from the joint family funds and as the petitioners and the respondents were living jointly at the time of the acquisition of this property, the respondent No. 4 was entitled to half share in the land of this Khata as well. The objection filed by the respondent No. 4 was contested by the petitioners. The petitioners deny that there was a joint family of the petitioners and the respondent No. 4 at the time when the properties of the aforesaid three Khatas were acquired. They claimed that a partition had taken place in the family about 40 years back and since then the parties were living separately. The Consolidation Officer allowed the objection of the respondent No. 4 partly with regard to the Bhumidhari Khata No. 50 but dismissed the same with respect to the sirdari Khatas. Aggrieved, the petitioners and respondent No. 4 preferred appeals before the Settlement Officer Consolidation. The appeal of the petitioners was dismissed but that of the respondent No. 4 was allowed. The revision filed by the petitioners before the Deputy Director of Consolidation under Section 48 of the U. P. Consolidation of Holdings Act was also dismissed. Aggrieved, the petitioners filed the present writ petition.
(3.) BEFORE proceeding to deal with the points urged on behalf of the petitioners, the findings recorded by the Settlement Officer Consolidation and the Deputy Director of Consolidation may be noticed. As noted above, the dispute was in respect of the Bhumidhari and Sirdari Khatas. The land of the Bhumidhari Khata was purchased from one Ram Bilash in 1961 in the names of the petitioners on a consideration of Rs. 2,000/-. The respondent No. 4 had stated that the said Khata was purchased partly out of the money which he had been sending to the petitioners. The respondent No. 4 was admittedly employed in the defence services of the Union of India. The Settlement Officer Consolidation found that the said respondent had been sending money to the petitioners, as the petitioners and the respondent No. 4 were the members of the joint family. The bhumidhari land was partly purchased by the petitioners out of the fund sent by the respondent No. 4. In this view of the matter the Settlement Officer (Cons.) held that as the Bhumidhari land was purchased out of the joint family fund of the petitioners and the respondent No. 4, the same must be treated as the joint family property. The finding of the Settlement Officer Consolidation was affirmed in revision. As regards the sirdari Khata the finding given by the Settlement Officer Consolidation and the Deputy Director of Consolidation was that as Sarju, the petitioners' father was the Karta of the Joint Hindu family of which the respondent No. 4 was also a member, therefore, the acquisition of the tenancy plots made by him, which were comprised in Khata Nos. 95-A and 95-B would be deemed to be for the benefit of the joint family and respondent No. 4 being the member of the joint family representing another branch would have equal share with the petitioners in these Khatas as well. The learned counsel appearing for the petitioners attacking the findings of the Settlement Officer Consolidation and the Deputy Director of Consolidation, contended that the aforesaid authorities committed an error in applying the principles of Hindu law to the rights created by the U. P. Zamindari Abolition and Land Reforms Act, 1951 (hereinafter referred to as the " U. P. Act No. 1 of 1951)" , and in holding that the respondent No. 4 was entitled to half share in the land in dispute due to the fact that he was a member of the joint family. Counsel further contended in the alternative that even if the principles of Hindu law apply, since the respondent No. 4 failed to establish that the joint Hindu family was in possession of sufficient nucleus from which the plots pertaining to Khata No. 50 could be purchased, the findings recorded against the petitioners were liable to be quashed. With regard to the sirdari Khata the contention raised on behalf of the petitioners was that as Sarju was the sole tenant of the plots comprised in the aforesaid Khatas and as there was no proof that the Zamindar had given tenancy rights jointly to Sarju and Rajpati, the petitioners' father and the father of respondent No. 4 respectively, the Settlement Officer Consolidation as well as the Deputy Director of Consolidation erred in holding that these Khatas belonged jointly to the petitioners and respondent No. 4 simply on the basis of the existence of the joint Hindu family of which these persons were the members.;