- (1.) ASHOK Bhushan, J. Heard Sri V. K. S. Chaudhary, Senior Advocate, assisted by Sri P. C. Pandey for the petitioners and Sri Namwar Singh appearing for the contesting respondents.
(2.) COUNTER and rejoinder affidavits have been exchanged between the parties and with the consent of the parties. the writ petition is being finally decided. By this writ petition, the petitioners have prayed for quashing the judgment and order dated 9th December, 1998 passed by Deputy Director of Consolidation deciding the revisions filed under Section 48 of U. P. Consolidation of Holdings Act, 1953 as well as the order of Settlement Officer of Consolidation dated 20th February, 1990 allowing the appeal filed by the respondents partly. Brief facts necessary to be noted for deciding the writ petition are; the. dispute between the parties arose in proceedings under Section 9a (2) of U. P. Consolidation of Holdings Act, 1953. The dispute relate to different Khatas of six villages, namely, Dalipur, Ahrak. Pooran Patti, Nihalpur, Banaitaand Pashchimpur. In Khata No. 171 of village Pashchimpur, the names of Srineta widow of Srinarain along with Ram Murat, Ram Ji and Ram Pyarey were recorded. Over all other villages the name of Srineta alone was recorded in the basic year record. A objection was filed by the petitioners ciaiming that a gift deed dated 29th March, 1972 has been executed by Srineta in their favour, hence their names be recorded. The objections were also filed by Amraji wife of late Arjun Singh, Hubraji, Mangal Prasad, Lalji, Banshraj, Hanshraj, Doodhnath, Virendra, Surendra, Mahendra, Narendra, Rajendra sons of Ram Bali, Adya Prasad and other respondents claiming co tenancy right in the land in dispute with Srineta. Certain other disputes with regard to correction of the area of various plots was raised. Both the parties filed documentary evidence and led oral evidence also before the Consolidation Officer. The Consolidation Officer vide his order dated 29th June, 1976 allowed the objection of the petitioners on the basis of gift deed dated 29th March, 1972 except Khata No. 340 on the ground that Khata No. 340 being Sirdar, the basic year records be main tamed. The claim of the contesting respondents for co-tenancy right was rejected. An appeal was filed by Adya Prasad and others against the order of Consolidation Officer dated 29th June, 1976. The appellate authority allowed the appeal partly holding that Amraji and Hubraji daughters of Shiv Gulam be recorded as cotenant. The appeal of Adya Prasad and rest of the appellants was dismissed. The 3/4th share was given to Srineta and Wand 1/8th was given to Amraji and Hubraji each. Against the order of Settlement Officer of Consolidation revisions were filed both by Srineta and by Adya Prasad and others. Ali the revisions have been decided by order dated 9th December, 1998. The share of Srineta was held to be 1/4th on which names of the petitioners were directed to be recorded. The 1/4m share was given to Jeet Bahadur, Dharmsen, Tej Bahadur sonsof Laiji, Banshraj and Hanshraj sons of Devi Dutt. The 1/4th share was given to Virendra, Surendra, Mahendra, Rajendar, Nagendra sons of Rambali, Adya Prasad son of vibhuti, Lal bahadur, Dinesh son of Sita Ram, Kamta, Harish chandra sons of Roopnaram and 1/4th share was given to Mangal son of Doodh Nath In Khata No 340 of Pashchimpur name of Srineta was directed to be expunged and in accordance with Section 175 of U. P. Zamindari Abolition and Land Reforms Act, 1950 the respondents as mentioned at Item No. 2 to 4 in the impugned order (except the petitioner) were given share. This writ petition has been filed by the petitioners challenging the orders of Deputy Director of Consolidation and Settlement Officer of Consolidation.
(3.) BEFORE considering the submissions of learned Counsel for the parties, it is useful to notice the respective case of the parties before the Courts below. The petitioners' case before the Courts below was that Srineta, whose name was alone recorded, was bhumidhar of entire land and the contesting respondents had no right to the land in dispute. The petitioners further stated that the land in dispute was acquisition of Budhiram one of the five sons of Ganesh and the family throughout remain joint and there was no partition between the family. Petitioners' case was that Srineta was the wife of Srinarain, who was son of Raghurai, one of the sons of Ganesh. According to the petitioners out of five brothers, Dilip died unmarried, Shiv Gulam died in the year 1921, Budhiram died on 9. 10. 1922 and Achhaiwar died on 16. 10. 1934. Petitioners' case further was that on the death of Budhiram his brother Achchaiwar succeeded to him and after the death of Achchaiwar his nephews Srinarain and Shiv Nath succeeded. Srinarain, the husband of Srineta died on 26th August, 1943. Shiv Nath executed a Will in favour of Srineta on 21. 10. 1961. Shiv Nath died on 29. 10. 1961 and thereafter Srineta became the sole tenure holder of the entire land in dispute. The case of the respondents before the Courts below, in brief, was that the respondent Kamla son of Doodh Nath was daughter's son of Achchaiwar. The case of Amraji, Hubraji and Sumitra was that they being daughters of Shiv Gulam inherited from their mother Naurangi, who died in the year 1960. Adya Prasad, Sitaram, Kamta, Harish chandra, Virendra, Surendra, Mahendra, Narendra and Rajendra claimed themselves to be daughter's son of Budhiram. It is claimed that after the death of Anurupa widow of Budhiram her daughter's son Adya Prasad and others succeeded. The respondents claimed that Dilip died unmarried, the remaining four brothers had 1/4th share each, the property was ancestral property coming from the time of Ganesh and all the brothers had 1/4th share, hence Srineta would have only 1/4'h share and other three branches should have 1/4th share each. It was claimed that the land in dispute was recorded in different settlement entries in the names of several members of different branches, hence it cannot be said to be sole acquisition of any one branch.;