KHUDAI Vs. RAM PHAL AND OTHERS

JUDGEMENT

(1.) These two writ petitions have been filed by Khudai under Art. 226 of the Constitution of India. They involve common questions of fact and law and, therefore, may be disposed of by one judgment.

(2.) The dispute relates to the same property, being plot No. 99 situate in village Kamp Fatehullahpur, pargana Ram Nagar, Tahsil Fatehpur, District Barabanki. The petitioner's case is that he had obtained this plot from the zamindar for cultivation before abolition of the Zamindari system in 1343 Fasli as a hereditary tenant and eve since then he was in cultivatory possession of the same; but the zamindar fictitiously got the name of his brother-in-law Gur Din, who resided about 24 miles away, recorded as a hereditary tenant against this plot and in 1353 Fasli the name of the petitioner was recorded as Bila Tasfia tenant. In 1356 F., however, both in the Khasra and in the Khatauni the petitioner was recorded as occupant of this land. After the death of Gur Din, the name of his widow Smt. Ruksana was entered in the column meant for tenant although she never remained in possession. She died long before the abolition of zamindari system although her name continued to be wrongly recorded in 1352 Fasli and from 1353 Fasli the names of sister's sons of Gurdin, namely, Radhey Shyam, Uma Shanker and Radhey Krishna were recorded as sirdar-tenants of this land. These persons also, according to the petitioners, never remained in possession over the disputed plot. They, however, obtained bhumidhari sanad and transferred the land in favour of Ramphal opposite party No. 1 and Mansha Ram, opposite party No. 2, by sale deed dated 11-8-1960. The said opposite parties started disputing the petitioner's title to the land whereupon the petitioner filed a suit for declaration of his right and in the alternative for possession against them in the year 1960 impleading the vendors of the opposite parties. This suit was dismissed by the Judicial Officer on 29-9-1961. The petitioner filed a first appeal before the Additional Commissioner who, however, decreed the petitioner's suit holding him to be sirdar of the disputed land by judgment dated 29-9-1962 (Annexure 3 of writ petition No. 31 of 1968. Opposite parties 1 and 2 then filed a second appeal before the Board of Revenue which was dismissed in default of the opposite parties on 4-12-1962 (vide copy of the order Annexure 6 of writ petition No. 31 of 1968). The opposite parties then applied for setting aside the ex parte decree on 7-12-1962 which was dismissed by the Board order dated 31-5-1963 (Annexure 10 on Writ Petition No. 31 of 1968). The opposite parties then filed a second application for setting aside the ex parte decree and for restoration of the appeal on 29-9-1965 i.e. several years after dismissal of the appeal by the Board of Revenue. Meanwhile the village in which the disputed property lies was brought under consolidation operations on 6-3-1965 by a notification under Sec. 4 of the U. P. Consolidation of Holdings Act (hereinafter called the Act).

(3.) The Consolidation Officer allowed the objection of the petitioner order Sec. 9 of the Act holding him to be sirdar of the disputed plot. An appeal filed against that order by the opposite parties was dismissed by the Settlement Officer (Consolidation). The opposite parties then filed a revision before the Deputy Director of Consolidation who allowed the revision holding opposite parties 1 and 2 to be bhumidhars of plot No. 99 as purchasers from the heirs and successors of Gur Din. The plea of Khudai petitioner that he was hereditary tenant of plot No. 99 since before the abolition of zamindari system and that after abolition of Zamindari system he become its sirdar was rejected by the Deputy Director of Consolidation on the ground of that decision to this effect in his favour by the Additional Commissioner dated 29-9-1962 in the suit under Sec. 229/209 of the U.P. Zamindari Abolition and Land Reforms Act did not operate as res judicata on account of the pendency of a restoration application in the Board of Revenue.