LALLU PRASAD Vs. DEPUTY DIRECTOR OF CONSOLIDATION HAMIRPUR

JUDGEMENT

(1.) THIS writ petition has been filed against the judgment and orders passed by the consolidation authorities. The petitioners were recorded as tenure-holders in the basic year and opposite party no. 4 was found in possession at the time of Portal. The objection was filed by opposite party no. 4 and as is clear from the judgment of the Consolidation Officer (Annexure 1), his objection was that the disputed land was acquisition of the common ancestor of the petitioners and respondent no. 4. Subsequently by partition this land came to the share of respondent no. 4. It was also pleaded that Shiv Narain, father of petitioners, executed a gift deed in favour of the objector and due to that gift, the petitioners did not have any right in the land. It was pleaded that due to long possession the opposite party has become sirdar of the land in dispute. The defence of the petitioners was that opposite party no. 4 had illegally occupied the land without their consent and a suit under Section 209/229-B of the U. P. Z. A. & L. R. Act was filed against him. That suit was abated under Section 5 of the Consolidation of Holdings Act and the matter was not decided in those proceedings.

(2.) THE consolidation authorities completely ignored the pleadings of the parties and held that the opposite party no. 4 had been in possession over the land in dispute. THEy held that the opposite party no. 4 was recorded in Khasra from time to time and, therefore, it should be presumed that he was recorded throughout. THEy also ignored that respondent no. 4 had claimed ouster of petitioners on the ground of partition and the gift deed by the petitioners' father. THE consolidation authorities found that there was no partition in respect of this land nor this land could be covered by the gift deed which might have been obtained prior to the acquisition of this land. Under these circumstances, the respondent no. 4 could not be given any right higher than the right of co-tenureholder. THEreafter the consolidation authorities should have considered firstly when the rights of the petitioners as co-tenure-holders were denied and secondly when were they ousted so as to extinguish their rights. But no such finding has been given.