THALOO Vs. DEPUTY DIRECTOR OF CONSOLIDATION AND ORS.

JUDGEMENT

(1.) Heard the counsel for the parties.

(2.) The facts of the case are that one Gola was the recorded tenure holder of Chak No.65. Gola died in 1995. Petitioner is the brother of Gola. Rama Devi i.e. respondent no. 2 and Gora Bai i.e respondent no.3 are the daughters of Gola. One Nanhi Bahu was the widow of Gola. The aforesaid relationship of the parties with Gola is admitted by the petitioner. After the death of Gola in 1995, Case Nos. 259, 260 and 261 were registered under Section 12 of the U.P Consolidation Act, 1953 (hereinafter referred to as Act, 1953) before the Consolidation Officer (hereinafter referred to as C.O) at the instance of the petitioner, Rama Devi and Nanhi Bahu. The claim of Nanhi Bahu was rejected by the C.O vide his judgment and order dated 14.12.2011 on the ground that after the death of Gola, she had remarried and therefore, under Section 172 of the U.P Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as Act, 1950), the holding shall devolve on the nearest surviving heir of Gola as prescribed under Section 171 of the Act, 1950. The order dated 14.12.2011 passed by the C.O was never challenged by Nanhi Bahu in appeal, therefore, the controversy regarding the rights of Nanhi Bahu are not under consideration before this Court in the present writ petition. The claim of the petitioner was rejected by the C.O vide his order dated 14.12.2011 on the ground that after the death of Gola, the holding had vested in Rama Devi i.e. respondent no. 2 who was unmarried at the time of death of Gola because under Section 171 of the Act 1950, as it stood at the time of death of Gola, the unmarried daughter excluded the brother of the tenure holder. The claim of respondent no.3 had been rejected on the ground that she was married when Gola died and was, therefore, excluded by respondent no. 2 i.e. Rama Devi. In his order dated 14.12.2011, the C.O. further held that by the amendment dated 23.8.2004 in Section 171 of the Act, 1950 even the married daughter excluded the brother of the original tenure holder and therefore, even if Rama Devi i.e. respondent no. 2 was married after 23.8.2004, the respondent no. 2 excluded the petitioner. The order dated 14.12.2011 passed by the C.O was set aside by the Settlement Officer of Consolidation (hereinafter referred to as S.O.C) vide his order dated 19.6.2015 passed in Appeal No.24 filed by the petitioner on the ground that respondent no.2 Rama Devi had married in 2002 and therefore, by virtue of Section 172 of the Act, 1950, the holding shall vest in the nearest surviving heir of Gola as prescribed in Section 171 of the Act, 1950 and thus, the holding shall vest in the brothers of Gola which included the petitioner. The order dated 19.6.2015 has been set aside by the Deputy Director of Consolidation (hereinafter referred to as D.D.C) vide his order dated 9.3.2017 passed in Revision No.34 filed by respondent no.2 and the order passed by the C.O has been restored. In his order dated 9.3.2017, the D.D.C has held that the respondent no.2 excluded the petitioner from succession to the estate of Gola and the holding vested in respondent no. 2 as she was the unmarried daughter of Gola. The order dated 9.3.2017 passed by the D.D.C has been challenged in the present writ petition.

(3.) A reading of the order dated 19.6.2015 passed by the S.O.C shows that in Appeal No.24, the family register of the year 2002 was filed by the petitioner to prove that respondent no. 2 had married in the year 2000. Relying on the said family register, the S.O.C held that because the respondent no. 2 had married in the year 2000, therefore, by virtue of Section 172 of the Act, 1950, read with Section 171 of the Act, 1950 the holding shall devolve on the petitioner, who was the nearest surviving heir of Gola after respondent no. 2.