RAMESHWAR Vs. DEPUTY DIRECTOR OF CONSOLIDATION, ETAH

JUDGEMENT

(1.) Roop Ram admittedly was tenant of land in dispute. He was entered in 1309 F. Dispute arose in consolidation proceedings between opposite parties 3 and 4, sons of Narain admittedly son of Roop Ram, and petitioner claiming to be son of Bhopal another son of Roop Ram. The consolidation officer found that Roop Ram's wife Smt. Lachho remarried with one Sukh Lal and petitioner being son of Bhopal born out of Lachho and Sukh Lal could not lay any claim to property of Roop Ram. Against this order not only petitioner filed appeal but opposite parties 5 to 8 who had not filed any objection u/s. 9 curiously appeared and filed another appeal claiming that Roop Ram had three sons, Narain, Bhopal and Yad Ram and as they were sons of Roop Ram they were also entitled to be recorded as co-tenants. Thus in appeal from dual fight it was converted into triangular contest. But the claim of Narain was not disputed by them even. Not only this Yad Ram had appeared as a witness to slate that petitioners' father was born of Sukh Lal. What made him to file appeal appears to be the desire to square up with opposite parties 3 and 4 in respect of property of Sukh lal situated in another village Bazirpura, district Agra given to petitioners, opposite parties 3 and 4 and opposite parties 5 to 8 in equal share. That is all three were found to have inherited the interest of Sukh Lal. It may be so but the appellate authority rightly held that due to that the parentage of Narain could not change nor opposite parties 5 to 8 could be held to be entitled to claim co-tenancy because the land in dispute was acquired by common ancestor Roop Ram. Thus the appeal of opposite parties 5 to 8 was dismissed and it is no more in controversy as they did not pursue the matter further. But the appeal of petitioner was allowed. It was found that Bhopal was another son of Roop Ram, therefore, petitioner was entitled to one half share. This finding was based on independent testimony of Dan Sahai examined on behalf of petitioner and statement of opposite party no. 6 made before him that Narain and Bhopal were real brothers. In revision the Deputy Director did not examine the question by Narain and Bhopal were real brothers but set aside the order as number and area of plot numbers in 1348 F entered in name of Roop Ram and in any case opposite parties being in exclusive possession since before the start of consolidation and before abolition of Zamindari for last twenty five years they acquired rights of adverse possession and right, title or interest, if any, of petitioner stood extinguished by ouster.

(2.) None of the findings recorded by Deputy Director is well founded. Identity of Holding does not appear to have been in dispute either before consolidation officer or Settlement Officer (Consolidation). No details have been given in the order nor the finding is supported even by any material filed with the counter-affidavit. It is primarily a question of fact. In absence of specific pica or evidence the Deputy Director committed manifest error of law in entertaining it under Sec. 48.

(3.) Similarly the finding on adverse possession is equally untenable. If the finding of appellate authority that Narain and Bhopal were brothers was not set aside by appellate authority the logical consequence of it was that both became co-tenants. And it is firmly established that possession even exclusive for howsoever long period of a co-tenant is not adverse unless ouster is established, which again is primarily a question of fact. The Deputy Director of consolidation instead of referring to any evidence or material which could furnish foundation for drawing inference of ouster assumed it as a matter of law because opposite parties were in possession for more than twenty five years.