HANS GOPAL Vs. SURESH CHANDRA SAHAI

JUDGEMENT

(1.) BANS Gopal and others have filed this petition under Article 226 of the Constitution praying for the quashing of the orders passed by the Deputy Director of Consolidation dismissing the second appeal filed by them and the order passed in revision against them dated August 22, 1970.

(2.) THE brief facts are that between the petitioners and father of opposite party No. 1, Shitla Sahai dispute related to plot No. 139. This plot was recorded in the names of the petitioners. The opposite party filed an objection claiming himself to be sole grove-holder of the land in dispute. On the other hand the petitioners claimed to be co-Bhumidhars. The basis of respective claims as emerges out from the order are that Badri Prasad and one Raj Kishore originally were the owners of the plots. Badri Prasad executed a mortgage deed with possession to one Raja Girdhari Singh some time in the year 1916. Girdhari Singh died and thereafter his widow Rani Inder Kunwar who was alive entered into possession. In 1924 Raj Kishore executed a sale deed of the half share of the land in favour of Sri Shitla Sahai, father of opposite party No. 1. It may be mentioned that Shitla Sahai was the general agent and real brother of Rani under Kunwar in whose husband's favour the earlier mortgage had been executed. This is how Shitla Sahai came in possession over the entire disputed plot. It is also not in controversy that before) the U.P. Zamindari Abolition and Land Reforms Act came into force Shitla Sahai was in possession over the entire land and had also planted grove over it. The controversy was raised during the con solidation operations and by way of objection preferred under Sec tion 9 of the said Act. The matter was referred to the Con solidation Officer who vide his order dated March 31, 1962 allowed the petitioners co-Bhumidhari rights with respect to the half share of Badri Prasad which was mortgaged while over the rest half portion Shitla Sahai was entered. Shitla Sahai preferred an appeal but that was dismissed vide order dated May 17, 1962. This is Annexure 2. Shitla Sahai then preferred second appeal before the Deputy Direc tor of Consolidation Sri Nandji Ram, Deputy Director of Consolida tion, Camp Barabanki who, vide his order dated January 25, 1963 al lowed the appeal and was pleased to set aside the order passed by the two authorities mentioned above. This order is Annexure 3. It was held by him that there was reliable oral evidence to prove that the grove in question was planted by Shitla Sahai and it was also recorded as Khudkasht of Shitla Sahai in 1359 Fasli which been recorded as grove in 1357 Fasli. He, therefore, came to the coricrusion that it was exclusively in possession of Shitla Sahai and he alone planted trees as claimed by him and the entry of Badri Prasad in 1363 Fasli was an authorised one. Hence he was of the view that Shitla Sahai had proved for his name being entered as sole Bhumi-dhar over the entire land. The petitioners then went up in revision and the Deputy Director of Consolidation vide his order dated Sep tember 28, 1970 dismissed the' same. This is Annexure 4. Now the petitioners have come up before this Court. In this case no counter affidavit has been filed on behalf of any of the opposite parties. On the date of hearing also none appeared on behalf of opposite parties to assist the Court.

(3.) THE learned counsel for the petitioners concedes with respect to the legal position and he assures that he will not raise the ques tion whether on remand the Deputy Director of Consolidation should hear as second appeal may be restored and after treating it as revision be disposed of by the Deputy Director of Consolidation. In, view of this statement made by the learned counsel Sri Harguru Charan Srivastava I quash both the orders passed by the Deputy Di rector of Consolidation and direct him to restore the revision and decide it in the light of the observations made above and keeping in view the Full Bench Decision of this Court.