Mirza Hamidullah Beg, J. - (1.) THIS writ petition is directed against the decisions of the Dy. Director of Consolidation dated 14th April, 1963, and the Settlement Officer dated 21st December, 1963, interfering with the Consolidation Officer's decision. The Consolidation Officer had maintained the entries in the basic year showing the petitioner, who died during the pendency of the writ petition and is now represented by his sons, as a cotenant with Tota Ram and Ram Chander and Ram Singh, opposite parties Nos. 1, 2 and 3 sons of Hargyan, in circumstances detailed below. Plots Nos. 93, 99, 100, 127 and 400 were the subject matter of a lease taken in 1913 from the zamindar by two brothers, Hargyan and Bhagwana, for seven years. Before this lease expired, another lease was granted by the zamindar, in 1917, ostensibly only in favour of Hargyan and Sheo Charan, petitioner, which was in respect of the five plots mentioned above and of plots Nos. 118, 131 and 132. In the new lease, the share of the petitioner was shown as 2/3rd and that of Hargyan was shown as 1/3rd in the whole of the expanded holding. Entries were made in the revenue records in accordance with the second lease evidenced by a Patta dated 17th January, 1917, and also by a Qabuliat of the same date which was registered. These entries had come down consistently since 1917, through a settlement of 1325 Fasli, until after the abolition of zamindari when the plots in dispute were entered as the joint sirdari plots of the petitioner and the contesting opposite parties. An application was made u/S. 134 of the UP ZA and LR Act (hereinafter referred to as 'the Act'), after that Act had come into force, by one or more of the recorded joint sirdars. It is not clear whether the petitioner or the contesting opposite parties made that application. The petitioner alleged that he contributed 2/3rd of ten times the land revenue which was to be deposited for the bhumidhari sanad or certificate u/S. 137 of the Act and that 1/3rd was contributed by the contesting opposite parties. On the other hand, the contesting opposite parties had set up the case that they had paid the whole amount although they did not deny that the name of the petitioner was also shown in the bhumidhari sanad. On the opposite parties' stand, they must have themselves applied admitting the petitioner's rights as a joint sirdar. Thus, even if they had applied and could have paid the whole amount, they had admitted the right of the petitioner as co -sirdar in all the plots in dispute.
(2.) THE contesting opposite parties denied that the petitioner had any share in any of the plots in dispute. Their case was that the petitioner was a 'Patraul', employed in the Irrigation Department, who had considerable influence with the zamindar and that he managed to get his name surreptitiously recorded in the fresh lease which was granted in 1917. The contesting opposite parties had, therefore, objected to the entry of the name of the petitioner over the plots in dispute in consolidation proceedings on the ground that it was fictitious and incorrect. They set up the case, in para. 2 of their objections before the Consolidation Officer, that in plots Nos. 93, 99, 100, 127 and 400, which were the subject matter of the lease of 1913, the rights of Bhagwana had not been extinguished when the lease of 1917 was executed. But, inconsistently with this plea, they had also taken up the case that, for the lease of the new plots Nos. 118, 131 and 132, in 1917, Hargyan was acting as 'Kartakhandan' on behalf of Bhagwana also. If Hargyan and Bhagwana were both acting through Hargyan singly for taking a fresh lease, it necessarily implied surrender of rights under the first lease of 1913 by both. The only question that had, in these circumstances, to be decided was whether the petitioner's name was fraudulently inserted not only in the Patta but also in the Qabuliat, which was registered and in subsequent revenue records. The Consolidation Officer held that the contesting opposite parties' claim that they came to know from C.H. Form 9 that the name of the petitioner was also entered in revenue records, although he had no share, was not believable. He relied upon the long standing entries in revenue records, and, after examining the evidence of the witnesses produced by the contesting opposite parties, held that they had said nothing which could possibly show fraud in the execution of the Patta as well as of the registered Qabuliat of 1917. He also held that no question of superimposition arose if the landlord entered into a new contract with both tenants of 1913 so that new plots and a new tenant were added. The Consolidation Officer accepted the case of the contesting opposite parties that Hargyan represented Bhagwana also. In other words, he dealt with the case on the footing that the previous tenancy was extinguished, as laid down in S. 83 sub -S. (3) of the North Western Provinces Tenancy Act, 1901. It may be mentioned here that the contesting opposite parties had taken up the alternative case of an ouster of the petitioner as well. This also amounted to an admission of an initial co -tenancy. The Consolidation Officer, while observing that the land revenue receipts and the irrigation slips were only in the names of the contesting opposite parties, held that the petitioner's rights were not extinguished by ouster although he did not uphold the claim of the petitioner that he was also actually in receipt of income from the plots. Neither the Settlement Officer nor the Deputy Director had dealt with or found any ouster of the petitioner. A co -sharer or cotenant is not ousted if he is merely kept out of benefits unless such exclusion is in assertion of a denial of his rights brought to his knowledge.
(3.) THE Settlement Officer held that the lease of 1917 was not legal as Bhagwana had not surrendered his rights so that there was, in his opinion, a superimposition of a tenancy over a pre -existing tenancy. He also went on to hold that the petitioner was a Patraul who was disabled from entering into a contract of tenancy. So far as the latter finding is concerned, it has been rightly contended by learned counsel for the petitioner that the mere fact that the petitioner was a Patraul, employed in the Irrigation Department, could not invalidate the lease of 1917 although it may have exposed the petitioner some departmental action if the land in dispute was within the petitioner's circle.;