- (1.) ASHOK Bhushan, J. Heard Sri Nipun Singh, learned Counsel for the petitioners and learned Counsel appearing for the contesting respondents No. 2 and 3.
(2.) BY this writ petition, the petitioners have prayed for quashing the judgment and order dated 11. 3. 2002, passed by the Deputy Director of Consolidation allowing the revision filed by the respondents No. 2 and 3. Brief facts necessary for deciding the issues raised in the writ petition are; the dispute arose between the parties in the proceedings under Section 9-A (2) of the U. P. Consolidation of Holdings Act, 1953. In the basic year, the name of Smt. Gyano was recorded over the disputed Khata, who having died, a dispute regarding her succession was referred by Assistant Consolidation Officer to the Consolidation Officer. The case of the respondents No. 2 and 3 was that Smt. Gyano was the tenure holder and after her death, the respondents No. 2 and 3 being her sons will succeed to her and the petitioners being not sons of Smt. Gyano rather sons of Fattu and Smt. Bashiri had no right. The case of the petitioners before the Consolidation Officer was that Smt. Gyano, who was the wife of Karmu, remarried with Fattu after death of Karmu hence, all five sons of Fattu i. e. petitioners and the respondents No. 2 and 3 were entitled to be recorded over the land in dispute. Parties filed documentary as well as led oral evidence. The respondent No. 2 filed before the Consolidation Officer, the orders dated 30. 4. 1948 passed in case No. 59 and the order dated 16. 10. 1951 passed in case No. 173 under Section 49 of the U. P. Tenancy Act, 1939 and the orders passed by the Consolidation Officer, Settlement Officer, Consolidation and the Deputy Director of Consolidation in earlier proceedings. The Consolidation Officer held that Smt. Gyano had succeeded the property from her first husband Karmu, after death of Karmu and after remarriage with Fattu, the property will revert back to Fattu being brother of Karmu, all sons of Fattu will inherit. It was further held that succession shall be governed by the provisions of Sections 171 and 172oftheu. P. Zamindari Abolition and Land Reforms Act. In place of Smt. Gyano deceased, names of petitioners and the respondents No. 2 and 3 were recorded by order dated 14. 5. 1998 of Consolidation Officer. An appeal was filed before the Settlement Officer, Consolidation which appeal was also dismissed taking the same view which was taken by the Consolidation Officer. A revision was filed by the respondents No. 2 and 3, which has been allowed. The Deputy Director of Consolidation held that in view of the litigation between the parties under the U. P. Tenancy Act, 1939, Smt, Gyano was held to be tenant in her own rights and after death of Smt. Gyano, the land in dispute should be inherited by the respondents No. 2 and 3 her sons. It was also held that earlier Consolidation objection was raised by brothers of Karmu, claiming themselves to be co-tenure holders in the land in-dispute, which objection was rejected and Smt. Gyano was held to be sole tenant, which order cannot be challenged by the petitioners now. The Deputy Director of Consolidation by the impugned order has allowed the revision and directed that the name of respondents No. 2 and 3 be recorded over half and half share, against which the present writ petition has been filed. Learned Counsel for the petitioners challenging the orders passed by the Deputy Director of Consolidation contended that Smt. Gyano having inherited the properties as widow of Karmu after death of Smt. Gyano, the property would devolve as per Sections 171 and 172 of the U. P. Zamindari Abolition and Land Reforms Act, 1950. Learned Counsel for the petitioners submitted that Smt. Gyano inherited only a life estate from her husband Karmu and the petitioners as well as the respondents No. 2 and 3 being sons of Fattu, the brother of Karmu, shall inherit the property and orders of the Consolidation Officer and Settlement Officer, Consolidation were in accordance with law. Reliance has been placed on the judgment of the Apex Court in the case of Ram Jivan v. Smt. Phoola, (1976) 1 SCC 852; Mool Chand v. Kedar (Deceased) By Lrs and others, (2000) 2 SCC 528; Lilawati and others v. Mangalsen, 1964 R. D. 319; Munna Singh v. Deputy Director of Consolidation and others, 1969 R. D. 341 and Smt. Tilari v. Deputy Director of Consolidation and others, 1971 R. D. 232.
(3.) LEARNED Counsel for the respondents refuting the submissions of learned Counsel for the petitioners, contended that although after the death of Karmu, which took place on 29. 4. 1941, Smt. Gyano remarried with Fattu but she continued to be in possession of the land in dispute and was recognized as tenant by the Zamindar as such she became tenant in her own rights. Thus, on her death, the land would devolve according to Section 174 of the U. P. Zamindari Abolition and Land Reforms Act. A suit for ejectment under Section 180 of the U. P. Tenancy Act, 1939 was filed against Smt. Gyano by Gajju, the brother of Karmu which was dismissed on 30. 9. 1948. Further a suit was filed under Section 49 of the U. P. Tenancy Act for division of holding by Gajju and another brother of Karmu against Smt. Gyano, claiming themselves to be cotenants, the suit was dismissed on 16. 10. 1951, holding that the plaintiffs had no right as Smt. Gyano was the tenant of the land in dispute. It is further submitted that in earlier Consolidation proceedings, the objection was filed by Azimuddin the brother of Karmu and others claiming rights in the land in dispute which objections were rejected and the said order was confirmed by Settlement Officer, Consolidation and Deputy Director of Consolidation vide order dated 15. 9. 1960 hence, no rights can be claimed by the petitioners in the land in dispute. LEARNED Counsel for the respondents has also relied on Division Bench judgment of this Court in Smt. Tilari, Lilawati and Munna Singh (supra) as well as judgment of the Apex Court in the case of Smt. Mainia v. Deputy Director of Consolidation and others, 1989 R. D. 353. I have considered the submissions of counsel for both the parties and perused the record.;