D.S.Bajpai - (1.) SMT. Hardei has preferred Writ Petition no. 701 of 1980 praying for quashing the judgment and order dated 25-5-1974 passed by the Assistant Settlement Officer, Consolidation, Akbarpur, District Faizabad (Annexure 2) and the judgment and order dated 11-3-1980 passed by the Deputy Director of Consolidation, Faizabad (Annexure-3 to the writ petition).
(2.) PETITIONER of Writ Petition no. 2234 of 1980 Ram Asrey, on the other hand has prayed for quashing of judgment and order dated 18-3-1974 passed by the Consolidation Officer (Annexure-1 to the writ petition) and the judgment and order dated 11-3-1980 passed by the Deputy Director of Consolidation (Annexure 2 to the writ petition). Dispute relates to the same khata in both the writ petitions and the order of the Deputy Director of Consolidation dated 11-3-1980 is the same in both the cases. Briefly stating the dispute pertained to khata no 1 situate in village Keonda, Pargana and Tasil Akbarpur, District Faizabad which was recorded in the basic year in the name of Udai Raj Singh opposite party no. 3 in both the writ petitions as Bhumidhar. Ram Asrey petitioner in writ petition no. 2234 of 1980 who claimed to be the son of Smt. Hardei petitioner in Writ Petition no. 701 of 1980 filed a joint objection claiming co-tenancy rights in the khata in dispute on the ground that the land in dispute was joint acquisition with Dhangoo and Adhin, father of Smt. Hardei's husband Sarju and that they were co-tenants to the extent of 1/2 share. The petitioners also claimed possession. Dhangoo was the elder brother of Adhin. Dhangoo and Adhin being two sons of Badli, Sarju was the only son of Adhin and Gambhir was the only son of Dhangoo. The case set up was that Dhangoo held the land in a representative capacity for the joint family and after him the name of Gambhir, his son was recorded on the khata in dispute. Dhangoo, it is stated, taking undue advantage of the entry in his name transferred the khata in favour of opposite party no. 3 Udai Raj by a registered sale-deed dated 23rd July, 1958. Smt. Hardei filed a civil suit being Regular Suit no. 444 of 1958 in the Court of Munsif which was withdrawn by her on 7-12-1960. Thereafter Regular Suit no. 8/123/138/14 was again filed by her before the Sub-Divisional-Officer under section 229-B of the U. P. Zamindari Abolition and Land Reforms Act, which stood abated on account of start of consolidation operations. A second objection was filed on behalf of Gambhir challenging the validity of the sale-deed on the ground of fraud. His assertion was that he had agreed to transfer only plot nos. 61 and 414 and not all the plots mentioned in the sale-deed. Various other objections were raised, some of which, it is averred, support Smt. Hardei's contention. These objections were contested on the ground that firstly Ram Asrey was not the son of Sarju and secondly that the land in dispute was not ancestral and as such Smt. Hardei and Ram Asrey the two petitioners in the writ petitions filed by them held no share therein After appraising oral as well as documentary evidence the Consolidation Officer allowed the co-tenancy claim of Smt. Hardei to the extent of 1/2 share. He, however, held that Ram Asrey petitioner in the subsequent writ petition was not the son of Smt. Hardei from Sarju Feeling aggrieved Ram Asrey as also Gambhir and Udai Raj preferred these separate appeals before the Settlement Officer Consolidation and the Assistant Settlement Officer Consolidation who by his judgment and order (Annexure-2) upheld the finding of the Consolidation Officer in regard to the joint acquisition of land in dispute and allowed the claim of Ram Asrey holding him to be the son of Sarju, upheld this co-tenancy claim but rejected the claim of Smt. Hardei. Smt. Hardei, Udai Raj and Gambhir thereupon preferred three separate revisions before the Deputy Director of Consolidation who by his judgment and order dated 11-3-1980 (Annexure-3) allowed the revision of Udai Raj and dismissed the revision of Smt. Hardei and Gambhir holding that the land in dispute was not ancestral property and the petitioner or her son Ram Ashrey had no share in the same. It is against this order of the Deputy Director of Consolidation that Smt. Hardei and Ram Asrey have preferred the two writ petitions which are being heard and decided by a common judgment.
(3.) I have heard the learned counsel for the petitioners as also the learned counsel for the opposite party no. 3 in both the writ petitions and gone through the affidavits exchanged between the parties. Learned counsel for the petitioners contended that since there was ample evidence to indicate that Dhangoo held the khata in dispute in a representative capacity, the Deputy Director of Consolidation erred in holding that the disputed khata was the joint Hindu family property. This submission of the learned counsel was based on the fact as stressed by him that there is a presumption of jointness of the Hindu family and that the burden as such was on Gambhir or for that matter on Udai Raj to whom they had transferred the land by a registered sale-deed to prove otherwise, that is to prove that the family had separated and the land in dispute was not the joint family property. Coupled with this the further submission was that the khata had been coming down in identical form and that the two petitioners in the writ petition had actually held in their possession about half the share to which they were entitled and had been paying land revenue to that extent. All these questions have been considered in detail by the learned Deputy Director of Consolidation in his detailed judgment dated 11-3-1980 (Annexure-3 to the writ petition). On an examination of the entries in the revenue records of 1329 Fasli he has held that khata no 12 was entered at that time in the name of Adhin son of Badli; khata no. 19 was entered in the name of Badli. Khata no. 29 was also entered in the name of Badli while khata no. 20A was entered in the name of Dhangoo son of Badli. On this basis the learned Deputy Director of Consolidation came to the conclusion that since the two khatas 19 and 29 stood in the name of Badli who was father of Dhangoo and Adhin while khata no. 28 stood in the name of his elder son Dhangoo, there had been a separation in the family otherwise there was absolutely no question of two khatas standing in the name of father and the remaining two khatas standing in the name of Adhin and Dhangoo (one each). On this evidence the burden shifted on the petitioners in the two writ petitions to establish that the disputed khata continued to stand in the name of Dhangoo in a representative capacity. It is also not disputed that the khata in dispute comprised to eighteen plots in 1301 Fasli which was entered in the name of Badli with an area of 7 bighas, 17 biswas and 10 biswansis; its rent being Rs. 32/-. In 1314 Fasli name of Dhangoo was entered on the khata comprising 14 plots with an area of eight bighas, three biswas with the addition of four new plots. It thus cannot be disputed that the khata did not come down in identical form from Badli to Dhangoo. Even otherwise the tenancy was not heritable under the provisions of section 48 of the Oudh Rent Act. Section 48 read with section 18 of the said Act leave no doubt that on the death of a tenure holder the heir would continue to be a tenant for the period of five years whereafter he would have no right unless a fresh patta is executed in his favour or it continued to be in possession for a period of three years on the expiration of statutory period of five years. For this there is no evidence adduced by the petitioners in the two writ petitions. In 1329 Fasli also the disputed khata has not come down in identical form. The Deputy Director of Consolidation as such, in my opinion, did not commit any error of law in holding that the khata in dispute was not joint family property and did not come down in indentical form.;