A.P.Misra - (1.) THE petitioner by means of the present writ petition has challenged the order dated 20th February, 1980 (Annexure 8) passed by the Deputy Director of Consolidation, the order dated 29th June, 1977 (Annexure 7) passed by the Settlement Officer (Consolidation), and the order dated 22nd May, 1961 (Annexure 2) passed by the Consolidation Officer.
(2.) THIS writ petition is directed against the aforesaid orders of the consolidation authorities in respect of agricultural holding in village Chandpur, Pargana Baran, district Bulandshahr. In order to appreciate facts the pedigree of the parties is given as under :- The case of the petitioner is that the khata in -dispute formed Joint Hindu Family holding of Jhamman Singh and his three sons and after his death the Joint Hindu Family held the said property consisting of three sons by survivorship. At the time of his death Gajadhar Singh was the only major son and was the Karta of the said family. Thereafter, Kanchhedpal also died issueless on 2 st March, 1926. In 1954 Govindpal Singh filed a suit (Suit No. 56 of 1954) for partition of the Joint Hindu Family including the tenancy holding and impleading Gajadhar Singh, Hulas Kunwar and Reoti Kunwar as defandants. The learned Civil Judge decreed the suit for partition holding Gajadhar Singh, Govindpal Singh and Hulasi Kunwar entided to l/3rd shara each and that Smt. Reoti Kunwar was not entitled to her share. A first appeal was preferred by Smt. Reoti Kunwar against the said judgment. Subsequently, proceedings under the U. P. Consolidation of Holdings Act commenced in the said village. A number of objections under section 9 (1) were filed. Hulas Kunwar filed an objection claiming that she is entitled to l/3rd share on partition and praying for a declaration of her right accordingly and for allotment of l/3rd share. On partition of the holding Govindpal Singh (petitioner) filed an objection praying for the deletion of the name of Reoti Kunwar from the revenue records. The Consolidation Officer held that at the time when Kanchhedpal Singh died the tenancy holding was the property of Joint Hindu Family and that on his death the entire interest in the holding belonged by survivorship to his brothers Gajadhar Singh and Govind Pal Singh and no interest to his widow Smt. Reoti Kunwar. However it was further observed that since Smt. Reoti Kunwar has been admitted as a tenant and her name was added in the revenue records and as she has been tenant of the holding in dispute she could not be denied her right on the ground of adverse possession. In the said proceedings the consolidation authorities held that the tenancy holding could not be held by Joint Hindu Family and as such upon the death of a member his interest divolved in accordance with the provisions of section 22 and did not pass by survivorship. As against that the present petitioner preferred a writ petition (Civil Misc. Writ No. 1638 of 1963) before this Court challenging the aforesaid orders. In the said writ petition this Court held that the revising authority adopting the view taken by the Board of Revenue that an occupancy tenancy cannot by held by a Joint Hindu Family was not correct since this Court held in the case of Mahabir Singh v. Bhagwati, 14 ALJ (1916) 278, and in Mendya v. Jhuria, 18 ALJ (1920) 769, that in the case of occupancy holding the interest of a deceased member of the family passed by survivorship and not in accordance with section 22 of the N.W.P. Tenancy Act, 1901. Finally, in the said writ petition this Court held :- " Inasmuch as upon the consideration set out above section 22 of the N.W.P. Tenancy Act, 1901, was not attracted upon the death of Kanchhidpal Singh, I hold that Reoti Kunwar did not inherit any interest in the tenancy holding upon his death. " It was further held that on the death of Hulas Kunwar as admitted between the parties in the event of Reoti Kunwar being held not to enjoy any interest in the property the interest of Hulas Kunwar would divolve upon Gajadhar Singh and Govindpal Singh. The Court further held that since Smt. Reoti Kunwar did not enjoy any interest in the tenancy holding the right of Hulas Kunwar to share in the property would pass to her two sons and even if she had no right to a share the interest of Gajadhar Singh and Govindpal Singh would be a half share each. As against the said judgment special appeal was preferred by Smt. Reoti Kunwar, which was numbered as Special Appeal Nos. 162 and 163 of 1987. In that, the finding regarding the right of Smt. Reoti Kunwar by way of inheritence as reported by this Court earlier in the writ petition was upheld. However, the writ petition was allowed only with a direction to the Deputy Director to decide whether Smt Reoti Kunwar had become co-tenant by co-option by her brother-in-laws. It is on this account the case came back to the Deputy Director, who thereafter sent the case before the Settlement Officer (Consolidation) for deciding the matter after the remand. After remand, the Settlement Officer (Consolidation) by means of order dated 29th June, 1977 and the Deputy Director of Consolidation by means of order 20th February 1980 held that there was co-option of Smt. Reoti Kunwar by her two brother-in- laws, and the present petitioner by means of the present writ petition has challenged these two judgments and order. The remand was made in the special appeal as aforesaid since a finding has been recorded by the Consolidation Officer " I find that Smt. Reoti Kunwar was admitted as tenant by remaining co-tenants and it was never objected prior to partition suit, " and this finding was confirmed by the Settlement Officer and since the Deputy Director did not give any finding on this plea of Smt. Reoti Kunwar the case was remanded.
(3.) THE present writ petition is confined to the point whether there was co-option of Smt. Reoti Kunwar or not by the other two branches as aforesaid and whether the finding recorded by the consolidation authorities in the impugned orders dated 29th June, 1977 and 20th February, 1980, as aforesaid is sustainable on the facts and circumstances of this case. Challenge to the aforesaid orders has been made on behalf of the petitioner on a number of grounds. Firstly, it was urged at the time when the name of Smt. Reoti Kunwar was recorded at the time of the death of her husband the petitioner was a minor and there was no question of giving any consent and thus finding of co-option cannot be sustained. It was further contended that the consolidation authorities did not apply their mind for recording the finding whether there was any act of other co-tenure-holders to co-opt Smt. Reoti Kunwar and in the absence of any finding the finding that there was actually co-option cannot be sustained. It is also urged that there cannot be any co-option apart from the consent of the other co-tenure-holders without the written consent of the zamindar and in the absence of any such consent the finding of co-option cannot be sustained, and, finally, merely recording of entry cannot create any right in favour of a party and unless it was proved by Smt. Reoti Kunwar that there was positive act by other co- tenure-holders of co-opting her the finding of co-option is not sustainable.;