DILDAR HUSAIN Vs. ALI HUSAIN

JUDGEMENT

(1.) THE petitioners have filed the petition under Article 226 of the Constitution praying for quashing of the order dated 14-7-1970 passed by the Settlement Officer (Consolidation) and the Deputy Director of Consolidation respectively.

(2.) THE brief facts of the case are that the dispute between the petitioners and opposite parties Nos. 1 to 3 was with respect to Khata No. 48. In the basic year opposite parties Ali Husain, Nizarnuddin and Mohd. Nazir were recorded as tenants of the disputed Khata which had 18 plots with an area of 17 Bigha, 5 Biswa and 12 Biswani. THE petitioner claimed co-tenancy over the land in dispute with 1/3rd share each. THE pedigree set out is as under:- THE dispute was referred to the Consolidation Officer who vide his order dated 30-12-1968 dismissed the objections preferred by the petitioners. THEy filed an appeal before the Settlement Officer (Consolidation) who vide his order dated 14-7-1969 partly allowed the appeal inasmuch as he declared the petitioners to be the Sirdars over the plots Nos. 652 and 759 on the basis of adverse possession. This is Annexure-2. THE petitioners as well as the opposite parties filed revisions against the order passed by the Settlement Officer (Consolidation) before the Deputy Director of Consolidation. THE Deputy Director of Consolidation vide his order dated 14-6-1970 allowed the revision filed by the opposite parties and dismissed the revision filed by the petitioners. It is in these circumstances that the petitioners have come up before this Court by means of this petition.

(3.) LEARNED counsel for the petitioners argued that in 1344 F. Mohd. Husain is entered as "Waris over plots Nos. 208 and 272. On this basis he maintained that the name of Mohd. Husain was recorded over these plots as an heir of Mohd. Raza and as such the petitioners were entitled to the share and the Deputy Director of Consolidation committed an error in rejecting the claim of the petitioners. In my opinion, there is no substance in the contention of the learned counsel for the petitioners. There is no right of inheritance under the Oudh Rent Act. Moreover, there is also clear indication that Mohd. Raza had been ejected. If this was so then the disputed khata was obviously resettled by the then Zamindar. In this view of the matter, in my opinion, no capital can be made out from this entry of "Waris". That being so, unless it was clearly established by the evidence on record that Mohd. Husain had inherited the property from his ancestors, it cannot be concluded that the petitioners had any share in the property on the ground of relationship. The Deputy Director of Consolidation has recorded a clear cut finding that the disputed Khata was settled afresh, in the name of Mohd. Husain sometime in 1333 F. He has further observed that there is nothing on the record to show that the land was taken in the representative capacity, viz., in the name of Gazaffar Khan, father of Dildar Husain and Ahmad Husain. There can be no bar to the acquisition of land by an individual even though he might be joint in estate with his other brothers but by virtue of this fact they cannot automatically become co-tenants with that individual who has obtained acquisition in individual name. In my opinion, the matter is concluded by rank (sic) finding of fact recorded by the Deputy Director of Consolidation in this connection.