IFTEKHAR HUSAIN Vs. JOINT DIRECTOR OF CONSOLIDATION ALLAHABAD

JUDGEMENT

(1.) POONAM Srivastava, J. Heard Sri Ramendra Ashthana, learned Counsel for the petitioner and Sri P. K. Ashthana Advocate for the contesting respondents.

(2.) THE dispute relates to Khata No. 72 of village Mahwa, Pargana Bara, District Allahabad which was entered in the name of Nazim Husain as Sirdari holding. Admittedly, Ilahi was common ancestor of the petitioner and respondents. In CH Form 5-A Sadiq Husain, Nawab Husain, Mohammad Husain, Zakir Husain, Nawab Husain and Iftikhar Husain were shown as co-tenants. During commencement of the consolidation proceedings, Nazim Husain-respondent filed objection on the ground that his brother Saddiq Husain and Sadiq Husain were co-tenants but entries in respect of the petitioner No. 1, Nawab Husain, Mohd. Husain and Zakir Husain were disputed. Mohd. Husain and Zakir Husain did not file any objection. Thus the controversy remained between the petitioners and contesting respondents. THE petitioners claimed co-tenancy right in the entire Khata and alternatively also claimed their right on the basis of adverse possession. THE petitioners examined themselves on oath and specifically admitted that they were in cultivatory possession since last 15-20 years and in support of their contention, extract of Khasra and Khatauni pertaining 1371 Fasli were filed where the name of Nazir Husain, father of the petitioner No. 2 was entered in column No. 9 alongwith remark that they were in possession since 1367 Fasli and continued to be in possession. Extracts of Khatauni of 1377 Fasli to 1379 Fasli was also placed on record in support of the case that the petitioner No. 1, and husband of the petitioner No. 2 were entered alongwith Nazir Husain. THE Consolidation Officer allowed the objection of the petitioners vide order dated 20-12-1976 and came to conclusion that the petitioners had Sirdari rights over the plot No. 295/2, 296/7/2, 355/2 and 360/2 on the basis of adverse possession. Two appeals were preferred before the Assistant Settlement Officer Consolidation which were decided by the appellate authority on 30-11-1978. THE appeal filed by the petitioners was allowed and that of respondent No. 4 was dismissed. THE Assistant Settlement Officer Consolidation came to the conclusion that the petitioners' possession established their co-tenancy and that the land belong to the common ancestor Ilahi Bux. Besides, revenue receipts were sufficient to establish that the petitioners paid 1/2 of the total land revenue. It was also concluded by the Assistant Settlement Officer Consolidation that the contesting respondents were unable to give exact area of the plots etc. A revision was preferred under Section 48 of the Act which was allowed vide order dated 10-4-1980 which is impugned in the instant writ petition.

(3.) IN the circumstances, the order dated 10-4-1980 passed by the Deputy Director of Consolidation, Allahabad is quashed. The writ petition is allowed. The matter is remanded to the Deputy Director of Consolidation for a fresh decision. He shall pass appropriate orders after hearing the respective parties afresh. Petition allowed. .