- (1.) S. K. Singh, J. Heard Sri Manoj Mishra, learned Advocate in Support of this writ petition and Sri. T. S. Dabas, learned Advocate who appeared for the respondent.
(2.) BOTH learned Advocates submit that Gaon Sabha is formal party as it is a suit for partition in which share of the contesting sides is to be decided. Gaon Sabha has also not filed written statement and therefore, as submitted writ petition is being heard and is being finally decided. For deciding the writ petition, facts in brief can be summarised. Suit was filed by the plaintiff-respondent under section 176 of U. P. Z. A. & L. R. Act claiming 1/2 share in the land in dispute. Defence initially by way of written statement by inadvertence was of 1/2 but by amendment it was corrected and it was stated by the defence side that plaintiff is entitled to only 1/4 and defendant is to 3/4 share. After evidence Trial Court decided share of the parties and plaintiff's share was accepted to be 1/4 and that was confirmed by the first appellate Court. In the second appeal plaintiff's side was allowed 1/2 share and thus this writ petition.
(3.) SUBMISSION of the learned Counsel for the petitioner is that the Board of Revenue has not pointed out any evidence and no finding has been recorded that land in dispute had ever been ancestral and it is thus on account of the order passed in the consolidation proceeding permitting both Kahats to be amalgamated acceptance once of half share cannot be said to be proper approach. When the parties had not chosen to get their shares decided during consolidation and now if that is to be decided then share is to be decided in the light of the evidence after trace of history of the nature of the acquisition and entry as stand in the name of both sides. Shri Misra, learned Advocate submits that before consolidation land comprised in Khata No. 48 was exclusively recorded in the name of Kanhai who happened to be the ancestor of the petitioner and land comprised in Khata Nc. 62 was recorded in the name of ancestors of both sides and thus taking into account that consideration two courts have accepted 3/4 right of the petitioner and 1/4 of the respondent and therefore, Board of Revenue is to point out that on what basis plaintiff respondent can be entitled to 1/2 share. As this is lacking, matter needs fresh consideration. In response to the aforesaid Sri Dabas, learned Advocate very fairly accepted lack of finding in the judgment of Board of Revenue. The board has not referred to any evidence by which land in dispute can be accepted to be ancestral and thus submission is that irrespective of amalgamation of both Khatas, noticed above, during course of consolidation, share of parties will have to be decided keeping in mind the nature of entries and other evidence whichever is available on the record.;