B. Dikshit, J. - (1.) These two writ petitions are directed against proceeding arising out of an application moved under Section 12 of the U.P. Consolidation of Holdings Act (in short Act), whereby mutation was sought by opposite party No. 4 Smt. Deopari (dead) in place of her husband Sarju Singh.
(2.) The facts essential for the purpose of determining present controversy are that Sarju Singh died during pendency of the consolidation operation and Smt. Deopari moved application seeking mutation over five khatas on which Sariu Singh was recorded. Although she claimed that she was only heir left by Sarju Singh, in mutation application, she prayed for the inclusion of the name of petitioner Vijai Bahadur Singh son of Keshav Singh. The Assistant Consolidation Officer by order dated 15-6-1966 ordered mutation in favour of Smt Deopari only. The petitioner preferred five appeals against mutation order passed by Assistant Consolidation Officer in respect of all the five disputed khatas. The Assistant Settlement Officer Consolidation, Kanpur Camp at Ballia by order dated 18-11-1966, held that the petitioner had no case to succeed in presence of widow of Sarju Singh and dismissed all the five appeals. The petitioner preferred two revisions. The revisions were dismissed by Deputy Director of Consolidation on the ground that there was mistake in describing the petitioner in memo of revisions. The petitioner went in writ petition. This Court in exercise of writ jurisdiction quashed the order and directed Deputy Director of Consolidation to decide the revisions on merits. When the two revisions were taken up by Deputy Director of Consolidation for hearing the Deputy Director of Consolidation dismissed the two revisions by his order dated 7-11-1975 on the ground that the petitioner neither filed any objection seeking mutation nor there was any evidence to substantiate the allegation of petitioner that he was adopted son of Sarju Singh. The Deputy Director of Consolidation also held that the petitioner has been claiming himself to be son of Keshav Singh up to the stage of appeal but in revision he has started saying himself that he was adopted son of Sarju Singh without any basis.
(3.) The learned Counsel for the petitioner argued that the petitioner is entitled to be recorded as co-tenure holder with Smt. Deopari as Smt. Deopan moved an application before Assistant Consolidation Officer to include the name of petitioner with her in place of Sarju Singh. He submitted that Smt. Deopari did not dispute the right of petitioner for inclusion of his name as co-tenure holder over disputed khatas with her and, therefore, the Assistant Consolidation Officer could not have refused to record the petitioner with Smt. Deopari in place of Sarju Singh. There is 110 force in the argument advanced. Under Section 171 of the U.P. Zamindari Abolition and Land Reforms Act the interest of a tenure holder in case of intestate succession devolves in accordance with order of succession given therein. Under that provision the succession opened in favour of Smt. Deopari alone, she being widow of deceased Sarju Singh. According to the application moved under Section 12 of the Act, the petitioner was shown as son of Keshav Singh and, therefore, he could not succeed in preference to or together with widow of Sarju Singh, and therefore, the Assistant Consolidation Officer rightly recorded Smt. Deopari alone in place of Sarju Singh. The petitioner being not a preferential heir did not succeed to any part of interest of Sarju Singh and his name could not be mutated merely because Smt. Deopari prayed for inclusion of his name in the application, such inclusion of name could not be done even on the basis of application of Smt. Deopari, which has been relied as an admission also under law.;