S.U.KHAN,J. - (1.) AT the time of arguments no one had appeared on behalf of contesting respondents, hence only the arguments of learned counsel for the petitioner were heard and he was directed to file written arguments also. Thereafter, written arguments in the form of a short note were filed.
(2.) THE dispute relates to different plots of Khata No. 37, situate in village Sarai Taki Pargana Jhunsi, District Allahabad. The case of the original petitioner Mohd. Ramzan Khan and respondent No. 35, Smt. Shafiunnissa before the consolidation courts was that initially Mohd. Zahoor, Noor Ashraf and several other co-sharers were zamindar of the land in dispute, which was their "sir" and 'khudkashta' ; that Noor Ashraf transferred his proprietary rights on 8.11.1951 to original petitioner and respondent No. 35 and put them in possession ; that they were recorded to be in cultivatory possession in 1358 /as!i and 1359 fasli and in the said records, the land in dispute was recorded as sir of Zameer Hasan, Shah Akmal and others ; that in 1364 fasli, respondent Nos. 4 to 31 forcibly occupied a large portion of the land in dispute and got their names entered in the remarks column. Original petitioner and respondent No. 35 filed a suit for possession under Section 209 of U.P.Z.A. and L.R. Act, which was abated after start of consolidation and three objections were filed before the Consolidation Officer. One was by original petitioner and respondent No. 35. The other was by respondent Nos. 4 to 31 and the third was by Zameer Hasan, Shah Akmal and Mazrul Hasan claiming bhumidhari rights, however, these persons afterwards gave up the pursuit. Initially C.O. allowed the objections of the petitioner except in respect of that part of disputed land which was in possession of respondent No. 11, Bansi and to that extent objections of Bansi were allowed and others' objections were dismissed. Zameer Hasan, Shah Akmal and Mazrul Hasan did not pursue the matter further. However, most of the contesting respondents filed appeals. Through order dated 15.1.1970 S.O.C. allowed all the appeal except the appeal of respondent No. 7, Lala. Thereafter revisions were filed and D.D.C., Allahabad through order dated 30.7.1970 allowed the revisions and remanded the matter to S.O.C. Thereafter, S.O.C. through order dated 18.9.1972 allowed the appeals of respondent Nos. 4 to 31. Said order was challenged by the petitioner and respondent No. 35 through several revisions the leading one being Revision No. 231/39/18 of 1973, Musammat Shafiunnissa v. Sant Lai. D.D.C. dismissed all the revisions through judgment and order dated 10.8.1973, hence this writ petition.
(3.) IN the judgment of the D.D.C., it is mentioned that all the parties admitted that Noor Ashraf, who was co-zamindar executed a sale deed of part of the property in favour of petitioner and respondent No. 35, hence they also became co-zamindars. It has also been observed that original petitioner and respondent No. 35 in the suit under Section 209 of U.P.Z.A. and L.R. Act stated that as they had occupied zamindari land, hence they acquired fchudfcashta rights. However, in the objections before the C.O., it was stated that the property in dispute was in their actual possession in 1358 and 1359/asti, hence they got adhiuasi and strdari rights. Thereafter, learned D.D.C. observed that first of all it was necessary to decide as to whether they (original petitioner and respondent No. 35) were in actual physical possession of the land in dispute in 1359 /as(i (U.P.Z.A. and L.R. Act was enforced w.e.f. the first date of 1360 fasli, i.e., 1.7.1952). Thereafter learned D.D.C. agreeing with C.O. held that the entry of petitioner and respondent No. 35 in 1358/asti and 1359 fasli was forged and fictitious as husband of respondent No. 35 was Naib Registrar, Kanoongo in the Tehsil in question and he had manipulated the records. Thereafter, the statement of Noor Ashraf was examined, who had supported the case of petitioner and respondent No. 35. He stated that at that time he was co-zamindar and in mutual partition, land in dispute had come to his share and he delivered possession of the same to original petitioner and respondent No. 35. In this regard, the learned D.D.C. held that even though Noor Ashraf was co-zamindar, however there was no evidence that land in dispute was either his sir or khudkashta or he had any share therein. Noor Ashraf also stated that Shah Akmal was managing the affairs of zamindari and he gave the land to him. In this regard, the D.D.C. held that even Shah Akmal had no share in the land in dispute. Shah Akmal also gave his statement before C.O. He stated that neither Musammat Shafiunnissa (respondent No. 35) nor Noor Ashraf was ever in possession. Thereafter, it has been observed in the impugned judgment by D.D.C. that some of the plots were not shown to be in possession of respondent No. 35 in the revenue records of 1359 Jasfi, however after Zamindari Abolition they were recorded in the names of respondent No. 35 and original petitioner. Noor Ashraf had also stated that in 1359 fasli, he himself asked the pattuari to enter the possession of respondent No. 35 in the revenue records. D.D.C. also held that even if it was assumed that original petitioner and respondent No. 35 were in possession in 1359 /as!i, it would confer no right upon them as they did not claim to be trespassers and they were basing their right on some sale deed.;