OM PRAKASH Vs. DEPUTY DIRECTOR CONSOLIDATION

JUDGEMENT

(1.) PRESENT petition is filed assailing the judgment and order dated 08.03.1995, passed by the Consolidation Officer, Roorkee; order dated 28.02.2003, passed by the Settlement Officer Consolidation and order dated 30.07.2003, passed by the Deputy Director of Consolidation.

(2.) UNDISPUTEDLY , land of khasra no. 836/3, measuring 17 Biswas, 887/1 measuring 3 Biswas, 887/3 measuring 4 Biswas, 892/1 measuring 1 Bigha 10 Biswas was part of khewat no. 1/1, recorded in the name of Tara Chand Mussadi Lal before the abolition of Zamindari; in the khasra khatauni of the 1359 fasli i.e. 1952 name and possession of Rodhu, father of the present petitioners was recorded as class 3 (Asami );. After the issuance of notification under Section 4 of the U.P. Consolidation of Holdings Act, spot inspection was carried out by the Consolidation Authorities; petitioners were found cultivating the land and in possession thereof; possession of the petitioners was recorded in Form C.H. 5; vide order dated 27.02.1989, petitioners' name was directed to be mutated over the land of khasra no. 836/3, 887/1, 887/3 and 892/1, being the sole legal heirs and sons of Rodhu; Bulla, father of the respondent nos. 4, 5 and 6 filed application before the Assistant Consolidation Officer under Section 9 of the U.P. Consolidation of Holdings Act, saying that land of khasra no. 892/1 measuring 1 Bigha 10 Biswas, Village Imalikheda Dharampur, Pargana and Tehsil - Roorkee, District Haridwar was laying vacant and unoccupied on the spot, therefore, he has occupied the land and started cultivating the same and he is in actual possession of the land for last more than 12 years hence, he has matured his title by way of adverse possession, therefore, his name and possession be recorded in the Consolidation record; on the application of the Bulla, father of the respondent nos. 4, 5 and 6, petitioners herein preferred their objections on 03.07.1992 saying that over the land of khasra no. 892/1, their father Rodhu remained in possession throughout his life and after his death, petitioners are in possession and Bulla, father of the respondent nos. 4, 5 and 6 was never remained in possession, therefore, his application may be rejected.; thereafter, Bulla, father of the respondent nos. 4, 5 and 6 filed supplementary application/replication on 07.01.1993 taking all together contrary stand therein that Rodhu, Bulla and Nakali were three real brothers and land of khasra no. 892/1, 836/3, 887/3 was jointly held by all the three brothers before the abolition of Zamindara and after abolition of Zamindara mutual partition took place among the three brothers and land of khasra no. 892/1 measuring 1 Bigha 10 Biswa was given in the share and in possession of Bulla, father of the respondent nos. 4, 5 and 6 and he is in exclusive possession for the last more than 12 years on the basis of mutual partition arrived at among the three brothers; all the three Courts below having observed that Bulla was in possession right from 1379 fasli, therefore, he has acquired rights and rights of Rodhu and his sons (petitioners) stood extinguished, therefore, name and possession of Bulla be recorded over the land of khasra no. 892/1; thereafter, since, Bulla has also died hence name and possession of the respondent nos. 4, 5 and 6 be recorded as legal heirs of Sri Bulla. Feeling aggrieved, petitioners have preferred present petition under Article 227 of the Constitution of India.

(3.) I have heard Mr. M.S. Tyagi, learned counsel for the petitioners, Mr. R.C. Arya, learned Standing Counsel for the State/respondent nos. 1, 2 and 3 and Mr. Sharad Sharma, learned Senior Counsel assisted by Mr. Pradeep Chamyal, learned counsel for the respondent nos. 4, 5 and 6 and have perused the record.