HANUMAN Vs. DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) THIS writ petition arises out of proceedings under Section 9-A (2) of the U.P. Consolidation of Holdings Act, 1953. By means of this writ petition, the petitioner has assailed the order dated 31.10.1967 passed in Case No. 6769 (Hanuman Vs. Baijnath) by the Consolidation Officer, Chunar, District Mirzapur as also the order dated 29.06.1968 passed by the Settlement Officer, Consolidation in Appeal No. 1977 (Panna and others Vs. Hanuman and others) and Appeal No. 2022 (Panna and others Vs. Smt. Majni) as also the orders dated 27.04.1970 and 12.05.1977 passed by the Deputy Director, Consolidation in Revision No. 2612 of 1976 and Revision No. 2716 of 1976 (Hanuman Vs. Smt. Majni). Heard Sri A.K.Singh and Dr. Vinod Kumar Rai, learned counsels for the petitioner, learned Standing Counsel for the State respondents and Sri M.Sharwar Khan, learned counsel for the respondents no. 3 to 7. The petitioner no. 1 as also the respondents no. 3, 4 and 5 had died during the pendency of this writ petition and have been substituted by the heirs and legal representatives.

(2.) ACCORDING to learned counsel for the petitioner, the dispute in this writ petition relates to Khata No. 45 comprising of 16 plots having total area of 7 bigha, 7 biswa and 14 dhoor situate in village Balipurwa, Pargana Kantit, District Mirzapur, U.P. In the basic year respondents no. 3, 4 and 5 namely Baijnath, Akshayavar and Harihar all the sons of Beni were recorded over the land in dispute. The petitioner no.1, Hanuman filed objection under Section 9 of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as 'the Act') claiming that the land in dispute is ancestral from the time of common ancestor, Panchayan and hence he is co-tenure holder with the respondents no. 3, 4 and 5 as also respondents no. 6 and 7 namely Panna and Mohan both sons of Musau and as such he has half share in the holdings. According to the petitioner, the ancestor of Musau and Beni namely Rajman had admitted the claim of the petitioner in an earlier litigation hence the respondents no. 3, 4 and 5 could not lay claim over the land in question and to such effect the respondents no. 3, 4 and 5 compromised the matter on 14.10.1965 before the Assistant Consolidation Officer, whereby they admitted the claim of the petitioner no.1, Hanuman. Learned counsel for the petitioner states that the petitioner no.2, Majni who claimed to be daughter of Moti and Nanki claimed that she was also a co-tenure holder alongwith Baijnath, Akshaywar and Harihar since after the death of her father Moti her mother Nanki was recorded and after the death of her mother Nanki in 1959, the petitioner no.2 was entitled to 1/4th share in the holdings.

(3.) ACCORDING to learned counsel for the petitioner, the impugned orders passed by the Deputy Director, Consolidation and the Settlement Officer, Consolidation are illegal when they have rejected the claim of the petitioner no.1 for the reason that the record of Khatauni from 1289 F and 1329 F it was clearly established that the land in dispute was recorded in the name of common ancestor Panchayan and since there was no evidence of any resettlement by Panchayan in favour of his sons it was a holding whose identity would be continuing from the time of common ancestor and would devolve on the parties in accordance with their shares. It is submitted that there was no proof of self acquisition of the land in question by the respondents no. 3 to 7 and hence their name was recorded in representative capacity and the Deputy Director, Consolidation has erroneously shifted the burden of proof on the petitioner. It is further submitted that any argument made by counsel for the parties before the Consolidation Authorities admitting a question of fact would not be binding on the parties, if such admission is against the established facts and documents in the case and hence the Settlement Officer, Consolidation and Deputy Director, Consolidation could not record a finding on such admission of counsel to the effect that there was no continuity in identity of the land from the time of common ancestor. It has also been argued that the suit for division of tenancies filed under Section 37 of the Agra Tenancy Act (U.P. Act No. 3 of 1926) by one Jhuru who claimed to be grand-son of Panchayan was contested by the petitioner and the respondents no. 3 to 7 jointly wherein they have filed written statement dated 30.08.1937 jointly and hence the admission of the respondents no. 3 to 7 relating to the petitioner's share was apparent there from and the Deputy Director, Consolidation could not have ignored such joint pleading made by the petitioner and the respondents no. 3 to 7 relating to Khatas including the Khata in question against Jhuru. As such in the absence of disproof of the said admission by the respondents, the petitioner was clearly a co-tenure holder with the respondents no. 3 to 7 and the Deputy Director, Consolidation could not reject the claim of the petitioner.