Satish Chandra, C.J. - (1.) A learned single Judge felt that the decision of this Court in Chhattrapat v. Ram Sukhi, 1965 AWR 389, requires reconsideration. He accordingly referred the writ petition to a Division Bench. That is how the case has been heard by this Bench.
(2.) NIZAM Uddin was co -sharer to the extent of 5 Gandas and 4 Dant in the proprietary Khata Khewat No. 5 in village Dariapur district Azamgarh. His wife Smt. Aisha Bibi also owned 1 Ganda and 1 kauri share in the said khata khewat. Smt. Aisha Bibi died on March 20, 1948. Nizam Uddin inherited her share. On May 8, 1948, Nizamuddin executed a waqf Alal -Aulad of his 5 Gandas and 4 Dant share in Khata Khewat No. 5, by a registered deed. Nizamuddin had sir appurtenant to his aforesaid share in khata khewat No. 5. He continued to be recorded as sir -holder and after abolition of zamindari, as a Bhumidhar of the Sir and khudkasht plots. On March 11, 1963, Nizamuddin executed a deed of sale of his bhumidhari holding in favour of Nizam Uddin, Respondent No. 4, in this petition. Nizamuddin died in 1964. Badruddin, the present Petitioner No. 2, claiming as an heir successor of Nizamuddin, applied for mutation of his name over the bhumidhari khata. But his application was dismissed. He then filed a regular suit for declaration against Nazar Uddin which was also dismissed in default. He applied for restoration but then on May 10, 1969 a notification under Section 4(2) of the U.P. Consolidation of Holdings Act was published bringing the land in dispute under consolidation operations.
(3.) THE Petitioners filed an objection. They claimed that the Bhumidhari khata Nos. 45 and 46 were waqf property. After the death of Nizamuddin, Badruddin was entitled to be recorded as Mutwalli of the waqf. Since sir and khudkasht were the subject matter of waqf, Nizamuddin had no title left in them. He could not transfer and the sale in favour of Nazar Uddin was void. The Consolidation Officer upheld this objection. He directed that the name of waqf Alal -Aulad under the Mutwalliship of Badruddin be recorded over khata Nos. 45 and 46. Nazar Uddin went up in appeal and succeeded. The Settlement Officer held that the waqf deed did not affect the sir and khudkasht land. It was confined to the proprietary interest of Nizam Uddin in the khewat. Nizam Uddin continued to be the sir and khudkasht holder and, on abolition of the zamindari, be became the Bhumidhar and, as such, he could validly transfer the land to Nazar Uddin. On these findings, the appeal was allowed and the name of Nazar Uddin was directed to be recorded over the Khata Nos. 45 and 46. The present Petitioners went up in revision, but the same was dismissed. They hence have filed the present writ petition.;