RADHEY SHYAM Vs. DY DIRECTOR OF CONSOLIDATION GYANPUR

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution of India arising out of the proceedings under the U. P. Consolidation of Holdings Act, 1953, hereinafter referred to as the Act. There are 12 khatas in dispute- khata Nos. 3, 8, 34, 39, 50, 93, 102, 104, 129, 156, 157 and 242 situate in village Bavai, Taluka Mondh, Pergana Bhadohi, district Varanasi. In the basic year the names of Radhey Shyam, Raj Narain and Rajdeo, sons of Ram Dular were recorded as sirdars. Mst. Indrani, widow of Ram Kishore filed an objection under section 9-A (2) of the Act claiming co-tenancy rights to the extent of half share in the land in dispute on the ground that she was the legally wedded wife of Ram Kishore who was the son of Bachcha. Radhey Shyam, Raj Narain and Rajdeo contested the claim of Smt. Indrani mainly on the ground that Ram Kishore died in 1936 without leaving behind him any heir or legal representative. In effect it was denied that Smt. Indrani was the widow of Ram Kishore.

(2.) THE Consolidation Officer allowed the objection of Mst. Indrani in the first innings. Against that order an appeal was filed on behalf of Radhey Shyam, Rajnarain and Rajdeo. This appeal was allowed. THEreafter Smt. Indrani filed a revision before the Deputy Director of Consolidation. On 20th October, 1970 the revision was allowed and the case was remanded to the Consolidation Officer for deciding the objections afresh, after giving an opportunity to the parties of being heard. After remand the Consolidation Officer allowed the objection of Smt. Indrani in respect of khata Nos. 3, 8, 34, 39, 50, 93, 102 and 104 and held that Smt. Indrani was a co-tenant in respect of the half share in the said khata. THE objections were rejected in respect of khata Nos. 157, 242, 156 and 129. Ultimately after remand two issues were framed by the Consolidation Officer, whether Ram Kishore died as a member of the joint Hindu family and the second question was as to when Ram Kishore died. In respect of the date of death, the question to be decided was as to whether Ram Kishore died in 1936 or in 1956 as alleged by Smt. Indrani. It was held by the Consolidation Officer that Ram Kishore died as a member of the joint Hindu family. Mst. Indrani was the widow of Ram Kishore and that the death of Ram Kishore took place in 1956. In effect accepted the case of Mst. Indrani. Aggrieved by the decision of the Consolidation Officer, two appeals were filed, one by Smt. Indrani in respect of four khatas and the other by Raj Narain and Rajdeo in respect of other eight khatas. It may be stated here that Radhey Shyam was also made a party as a respondent in the appeal. THE appeal was allowed by the Settlement Officer Consolidation on 17th April, 1972. THE appeal of Smt. Indrani was dismissed, while the appeal of Raj Narain and Raj Deo was allowed. Radhey Shyam also consequently got the benefit of decision of the appeal passed in favour of Raj Narain and Rajdeo. THE order of the appellate court dated 17th April, 1972 was challenged by Smt. Indrani before the Deputy Director of Consolidation in revision. THE revision was allowed on 5-4-1973. THE case of Smt. Indrani was accepted in regard to eight khatas, as found by the Consolidation Officer and in respect of four khatas in which her claim was dismissed, the said case was remanded. It is against the decision dated 5th April, 1973 that the present petition has been filed by Radhey Shyam in this court on 17th October, 1974 almost after a period of one and a half years from the date of the decision of the revision on 5th April, 1973.

(3.) LEARNED counsel for the respondents challenged the arguments raised by the petitioner's counsel and has further urged that against the same order Raj Narain and Rajdeo had fi.ed a writ petition No. 115 of 1974. This petition was dismissed by this court on 15th February, 1974 in limine. A review application was also filed which was also dismissed by Hon'ble R. B. Misra, J. (as he then was) on 11-7-1974. He has further pointed out that in fact the case of the petitioner Radhey Shyam was being conducted before the consolidation authorities by Raj Narain and Rajdeo and the petitioner is not entitled to any relief from this court for having concealed this fact from this court that a petition filed by Raj Narain and Rajdeo had already been dismissed by this court in limine on 15th February, 1974.