KUSHAL Vs. JOINT DIRECTOR OF CONSOLIDATION KANPUR

JUDGEMENT

(1.) BINOD Kumar Roy, J. The petitioner prays to modify the appellate order, dated. 22-5-1979 passed by the Settlement Officer, Consolidation, Kanpur in Appeal No. 38 in regard to percentage of Respondent No. 4 Mahabir and the Revisional orders, dated 24-9-1980 passed by the Joint Director of Consolidation, Kanpur in Revision Nos. 184 and 188 and to restore the order, dated 25-10-1977 passed by the Consolidation Officer No. 2, Azad Nagar, Kanpur. The Facts :

(2.) THE portrayal of the relevant facts are in a narrow compass. There appears to be a dispute in regard to right title and interest of the petitioner and Respondent No. 4 Mahabir in regard to lands of Khata No. 18, village Chhatepur, district Kanpur which in the basic year Khatauni prepared by the Consolidation Officer stand recorded as Sirdari of the petitioner describing the petitioner son of Mangali and Indrana Respondent No. 5 widow of Kali Charan. Respondent No. 4 filed an objection describing him as son of Kali Charan asserting that he happens to be co-tenant and Sirdar of the lands in question and has been coming in possession which was acquired by his father Kali Charan who was in possession in his life-time that at the time of the death of his father the objection was minor that after the death of his father, the lands in question were recorded in the name of his mother Respondent No. 5 who was his guardian that Kali Charan was son of Jethu resident of Churwa Khera whose mother re-married Magan that at the time of the re-marriage Kali Charan was in her lap and was taken by her mother and kept by her that she delivered Mangali through Magan that accordingly in the lands in question which was acquired by Kali Charan, Mangali had no share or interest that Kali Charan had two wives through his first wife he has two daughters that Respondent No. 5 is not-claiming any title against his interest who is also simpleton and illiterate lady not aware of the legal position that Mangali father of Respondent No. 4 got his name entered wrongly in the Government records which is not binding on him that Mangali had no interest or share in the disputed lands nor could be in law ; that the petitioner Kushal had also no interest in the lands in question and his name was wrongly entered in regard to the disputed lands and hence his name be expunged and the name of Respondent No. 4 and his mother Indrana along with him be entered as co-tenant. The petitioner resisted the claim of Respondent No. 4 asserting inter alia that the lands in question were acquired jointly by Mangali and Kali Charan who were his own brothers having shares to the extent of half and half and in possession accordingly, Kali Charan was elder brother and Karta of the family that Respondent No. 5 had come to Kali Charan along with her son Respondent No. 4 aged about 23 years age ; that after the death of his father, Mangali. He is coming in possession of the lands in question to the extent of 1/2 share, that Kali Charan had died about 21 years ago and Mangali had also died about 15 years ago but in the mutation case no one raised any objection in regard to his 1/2 share that for the last 18 years his name is coming in the Govt. record along with Respondent No. 5 but no one raised any objection and hence this proceeding is not maintainable on account of estoppel and acquisition that the petitioner has got no concern with the remaining half share of Indrana who is in possession accordingly and that according to the Assistant Settlement Officer the disputed Khata has already been partitioned half and half that plot No. 278 area 1 Bigha 1 Biswa appertaining to khata No. 18 which stood recorded in the name of Babu Lai, son of Mangali till 1366 Fasli who was the sole tenant of this plot was entered in the name of Respondent No. 5 and Mangali, son of Magan Karee, vide order, dated 31-1-1959 of the Tehsildar in Mutation case no. 33. THE Consolidation Officer framed three issues to the following effect :- (i) Whether Mahabir is the sole tenant of the disputed lands ? (ii) Whether the parties are co-tenants of the disputed land ? (iii) What would be the shares of the parties, if any, in the disputed lands ?

(3.) IN m-y view there is merit in the contentions of Mr. Srivastava who took me to the deposition of INdrani daughter of Kali Charan (whose evidence has been appended as annexure C. A. 9 to the counter affidavit ). She had categorically stated to the effect that the first marriage of INdrani (Respondent No. 5 herein) was performed in Meharban Singh Ke Purwa and that she came along with a son whose name is Mahabir who is present in Court. IN her cross-examination she further stated that Mahabir is her step brother. Apparently the ' aforementioned evidence was not considered by the appellate authority. Learned counsel also took me to the evidence of Gokul (copy appended as C. A. 12 ). No suggestion was made to Gokul that Mahabir is son of Kali Charan. In this view of the matter the appellate authority has committed an error in observing that they Have not denied the fact that Mahabir is son of Kali Charan. The appellate authority has also not considered the evidence of the petitioner besides his yet another witness name Babulal. He has considered the evidence of Babu Lai Chaukidar who was produced by Respondent No. 4. It is a settled law that before reversing the findings of the trial court the appellate court must meet the reasons given by the original authority, I am conscious that it is not the business of this court to appreciate the evidence of the parties but perusing the judgment of the appellate and the revisional authorities -it is clear to me that the appellate authority has not considered the reasoning's given by the trial court while reversing its finding but this legal aspect of the matter was not considered by the revisional authority. Taking into account the entire facts and circumstances. I am of the view that justice requires re-disposal of the appeal preferred by Respondent No. 4.