D.N. Jha, J. - (1.) Petitioner Bahori has filed this petition under Art. 226 of the Constitution praying for quashing of the order dated 5-2-1971 passed by the Deputy Director of Consolidation contained in Annexure-3.
(2.) In brief the facts are that Auseri, father of petitioner Bahori was recorded tenant of 18 plots of land situate at village Saraiya Pargana Kheri numbers of which have been disclosed in para. 1 of the petition. The dispute between the petitioner and Chhotey Lal and Ram Prasad, opposite parties 2 and 3, relates to 10 plots which have been disclosed in para. 3 of the petition. The admitted pedigree between the petitioner and opposite parties is as under: The duration of tenancy recorded in 1357 Fasli was of ten years. The case set up by the petitioner was that he was admitted as a sub-tenant by his father Auseri during his lifetime and the petitioner therefore made an application under S. 3-A of U.P. Agricultural Tenants (Acquisition of Privileges) Act, 1949 (hereinafter to be referred as the Act) and after payment of ten times rent was granted a declaration under S. 6 of the Act by the Assistant Collector in respect of the ten plots on annual rent of Rs. 12/2/6. The declaration was granted on 20-3-1950 and is Annexure 1. The petitioner, therefore, claimed that on coming into force of U.P. Zamindari Abolition and Land Reforms Act, 1950 he became Bhumidhar of the said ten plots. The petitioner ever since the grant of declaration continued to be in exclusive cultivatory possession of the same. It was also asserted that even though Auseri was alive till the year 1956, but no objection against the declaration was preferred by him. It was also disclosed that Gajodhar, brother of the petitioner, died about 1957 but he had also made no objection. The declaration undoubtedly given in favour of the petitioner under the Act had not been cancelled. In the petition it is disclosed that on the death of Auseri orders for mutation of the names of Gajodhar and the petitioner was made on 7-5-1956 with respect to the remaining eight plots only and likewise on the death of Gajodhar orders were passed on 6-4-1957 by the Tahsildar for mutation of the names of opposite parties Chhotey Lal and Ram Prasad on the share of Gajodhar along with the petitioner. On coming into force of the U.P. Consolidation of Holdings Act opposite parties Chhotey Lal and Ram Prasad filed objections relating to Bhumidhari plots and claimed co-tenancy rights to the extent of half share. The dispute was referred to the Consolidation officer who vide his order dated 9-12-1969 allowed the objection and ordered opposite parties to be recorded as co-tenants to the extent of half share. The petitioner feeling aggrieved by the order preferred an appeal before the Settlement Officer Consolidation and the same was allowed by him on 7-7-1970. This order is Annexure 2. The opposite parties went up in revision and the same was allowed by the Deputy Director of Consolidation vide his order dated 5-2-1971. This order is Annexure-3. The Deputy Director of Consolidation was pleased to set aside the order passed by the Settlement Officer Consolidation and restore the order passed by the Consolidation Officer. It is in these circumstances that the petitioner has now come up before this court by means of the present petition.
(3.) The petition has been contested on behalf of opposite parties Chhotey Lal and Ram Prasad and a counter-affidavit has also been filed. It is asserted that the petitioner by misrepresentation of facts deposited ten times of the land revenue and obtained the declaration although in the eye of law he was not entitled for the grant of the Sanad. It is also asserted that Auseri had not accepted the petitioner as a sub-tenant and the land being ancestral the petitioner was only entitled to half share and they were entitled to the remaining half share of Gajodhar. In short the submission is that there was no occasion for creation of sub-tenancy by Auseri in favour of the petitioner and he was not competent to acquire Bhumidhari rights in the land in dispute and it is asserted that after the death of Auseri the land in dispute devolved upon his heirs, viz. the petitioner and Gajodhar and the opposite parties by virtue of being sons of Gajodhar were entitled to co-tenancy rights. It is further mentioned that opposite parties had filed a suit for partition and declaration of rights in the court of Judicial Officer Kheri and the same was decreed on 5-6-1968. Copy of this order is Annexure-B. An effort has been made to support the orders passed by the Consolidation Officer and the Deputy Director of Consolidation and it is urged that it is not a fit case warranting interference by this court in exercise of discretionary jurisdiction vested under Art. 226 of the Constitution.;