THAGAI Vs. JOINT DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) By means of this writ petition, the petitioners have challenged the judgment of the Joint Director of Consolidation, Gorakhpur dated 11.6.1987, the judgment of the Assistant Settlement Officer Consolidation dated 21.1.1981 and the judgment of the Consolidation Officer dated 15.15.1976 ( Annexures 8,7 and 5) respectively. By moving an amendment application, a prayer for quashing the earlier order of the Assistant Director of Consolidation dated 28.4. 980 has also been made.

(2.) Heard Sri R.C. Singh, learned advocate in support of writ petition and Sri M.D. Mishra, learned advocate in opposition thereof. For disposal of writ petition, facts in brief will be useful to be summarised.

(3.) Proceedings are under Section 9-A(2) of UPCH Act which relates to the adjudication of title of the parties. Dispute relates to land comprised in Khata No. 18 and 182 situated in village Gaura Tappa Nai Karahi Pargana Tilpur district Gorakhpur. In the basic year record, name of respondent No. 4 (hereinafter referred to as the contesting respondent) was recorded. During consolidation partal, Beerbali father of petitioners was found to be in exclusive possession over the land in dispute. Beerbali father of the petitioners filed objection under Section 9-A(2) of UPCH Act claiming cotenancy rights on the ground that the land in dispute was acquired by Molhu who was the father of Chandra Ball and himself and thus he got half share in the land. It was further claimed that the land was settled by Zaknindar with Beerbali and Chandra Ball jointly after giving adequate premium. It was claimed that he is coming down throughout in possession and therefore, his name be entered. After some time, Beerbali filed application for amending his objection in which, it was pleaded that he gave an amount of Rs. 6000/- to Chandra Bali for his half share upon Which, he left his possession and since then he is in exclusive possession and therefore, his name alone be recorded in the revenue record. The comendment application so moved by Beer Bali was allowed. A counter objection was filed by Chandra Bail, the contesting respondent. In pant lit was stated that the land in dispute belonged to his ancestor and he is in possession as heir. In para 3 of the objection, it was stated that after the death of his father Molhu, his mother remarried with one Badri resident of Gopala and from that wedlock Beer Bali was born and thus he had no right in the land in dispute as he has right in the land of his father Badri. Thereafter, Chandra Bali also filed an amendment application by which, he prayed for deletion of averments as made in para 3 and 4 of his Objection, which contained averments of remarriage of his mother and berth of Beer Bali out of the wedlock of his mother and Badri. With the aforesaid amended pleading from both sides, parties went into trial. Petitioners in support of their case examined Beer Bali, Vishwanath and one Patiraj. Some irrigation slips, khatauni extracts of 1377 to 1379 fasli besides cane society pass book and partal book was also filed by petitioners. Respondent No. 4 examined himself in support of his case. Consolidation Officer dismissed petitioners' objection by giving a finding that Beer Ball was not the brother of contesting respondent as he is not the son of Molhu Objection of one Chedi which was based on adverse possession was allowed. Two appeals were filed before the appellate authority i.e. one by Beer Bali and other by Chandra Bali. Appeals were allowed and Beer Bali was accepted to be brother of Chandra Bali and both were accepted to be co-tenant in the land. Respondent No. 4 went in revision in which he succeeded and the Assistant Director of Consolidation by judgment dated 28.4.1980 allowed the revision and remanded the matter back to the appellate authority to consider the claim of petitioners about their Sole tenancy rights on the basis of amended pleading. After remand, appellate authority dismissed the petitioners appeal and claim of his sole right Was negatived and thus appeal of respondent No. 4 was accepted. Against the judgment of appellate authority, revision was filed by petitioners which was dismissed by the judgment dated 11.6.1987 and thus the judgment of revisional court, appellate authority and that of Consolidation officer being against the petitioners, all are under challenge in this petition.