- (1.) ASHOK Bhushan, J. Heard learned Counsel for the petitioners and Sri S. N. Tripathi, learned Counsel appearing for the respondent No. 4.
(2.) BY this writ petition, the petitioners have prayed for quashing the judgment and order dated 18. 9. 2007, passed by the Deputy Director of Consolidation dismissing the revision of the petitioners filed against the order of Assistant Settle ment Officer, Consolidation dated 18. 4. 1977, by which the appeal of the petition ers was dismissed against the order of the Consolidation Officer dated 15. 4. 1975. This writ petition arises out of proceedings under the U. P. Consolidation of Holdings Act, 1953. The brief facts necessary to be noted for deciding the writ petition are; that the disputes relates to two plots i. e. plot No. 291 area 22 deci mal of Khata No. 231, plot No. 291/1, area 11 decimal of Khata No. 177, which in the basic year were recorded in the names of Mahadeo, Ram Lalla sons of Thakur Prasad and the possession of Ram Pratap was noted. In plot No. 291/1 area 11 decimal, the name of Thakur Prasad was recorded and the possession of Badri, son of Rameshar was recorded. Objection under Section 9 of U. P. Consolidation of Holdings Act, 1953 was filed by Ram Kinkar and others, the predecessor-in-interest of the petitioners with regard to plot No. 291 area 22 decimal claiming that their names be recorded expunging the name of recorded tenure holder. Similar objection was filed with regard to plot No. 291/1 area 11 decimal. Mahadeo filed objection claiming that his name be recorded over plot No. 291/11 area 11 decimal as recorded tenure holder. The recorded tenure holder also prayed for partition of shares. The Consolidation Officer vide order dated 15. 4. 1975 dismissed the objection filed by Ram Kinkar, the predecessor-in-interest of the petitioners. The entry of possession of Ram Narain and Badri was expunged. The objection of Badri and others were also dismissed and in place of Thakur Prasad deceased, the name of Mahadeo and Ram Lalla was directed to be recorded in Khata No. 177. Two appeals were filed by Ramakant and Ram Kumar against the order of the Consolidation Officer. Both the appeals were dismissed. Revision was filed by the petitioners challenging the order of the Settlement Officer, Consolidation and Consolidation Officer. The revision was dismissed by the Deputy Director of Con solidation vide order dated 18. 9. 2007 against which the present writ petition has been filed. The petitioners' case before the consolidation authorities was that plot No. 1 291 area 33 decimal, which was recorded as Sir of Ram Acharaj Nath and others an exchange was permitted vide order dated 22. 7. 1948 of Sub Divisional Officer with petitioners' plot No. 198, 199, 158/2 which was Sir and Khudkasht of the petitioners. It is claimed that on the basis of the said exchange, the names of the petitioners were recorded in possession in 1356 Fasli but said entry was omitted thereafter. The petitioners claim that their names were again recorded in Khatauni of 1369 Fasli to 1371 Fasli as Sirdar by directing the expunction of the name of Thakur Prasad. The petitioners' claim that in plot No. 291, the petitioners have their Abadi. The claim of the objector was resisted by the recorded tenure holder claiming that recorded tenure holder's name was recorded from 1357 to 1362 Fasli and they have become Adhivasi and Sirdar. It is claimed that in proceedings under Chapter IX-A of U. P. Zamindari Abolition and Land Reforms Act, a case was decided by the Sub Divisional Officer on 26. 7. 1958 accepting the claim of Thakur Prasad and others, as Adhivasi and claim of Rambali son of Acharaj Nath and others the erstwhile Zamindar was rejected. The recorded tenure holders claimed that their names had been continuing in the revenue record as Sirdar till the basic year. Challenging the exchange claimed by the petitioner, it was stated that Zamindar Acharaj Nath had no authority to exchange without ejecting Thakur Prasad, the Sikimi tenant and no right could accrue to the petitioners on the basis of said exchange, if any.
(3.) LEARNED Counsel for the petitioners challenging the orders passed by the consolidation authorities contended that the petitioners' name were recorded on the basis of exchange vide order dated 22. 7. 1948 of Sub Divisional Officer under Section 53 of the U. P. Tenancy Act, 1939, The petitioners' case is that by virtue of exchange, the petitioners became Sirdar and after abolition of Zamindari, they became Bhumidhar, alternatively it was contended that they being in possession since 1356 Fasli, the petitioner became Adhivasi under Section 20 (b) of U. P. Zamindari Abolition and Land Reforms Act. It is contended that name of Thakur Prasad and others being recorded in 1357 to 1362 Fasli only in column 20, they cannot acquire Adhivasi right. Their entry was of an unauthorized occupants hence they could not acquire Adhivasi and Sirdari rights. The report of Assistant Con solidation Officer was there on the record which mention that the land is in nature of Abadi. Learned Counsel for the petitioners placed reliance on the judgment of the Apex Court in the case of Smt. Sonawati and others v. Sri Ram and another, AIR 1968sc466.;