AKHANDU Vs. DEPUTY DIRECTOR OF CONSOLIDATION MIRZAPUR

JUDGEMENT

(1.) B. K. Sharma, J. This writ petition was filed by Akhandu and Ram Dhari against the Deputy Director of Consolida tion (opposite party 1st set), Raghubir (op posite party Ilnd set), Basantoo and Molai (opposite parties Illrd set) and Khaderu (opposite party I Vth set ).

(2.) THE following pedigrees are not disputed: Diagram on page no. 145 of book no. 75 of JCLR.

(3.) THE Consolidation Officer rejected the claim of co-tenancy of Khaderu, Shitla Prasad and Mata Prasad and declared the share of the present petitioners as l/3rd, share of Basan too and Molai as l/3rd. This order of the Con solidation Officer was dated 14-1- 1974. Against this order of the Consolidation Officer two sets of appeal were filed before the Settlement Officer Consolidation. One appeal was filed by Khaderu (present opposite party No. 5) and another appeal was filed by Mahadeo (deceased) and Raghubir (present opposite party No. 2 ). Both these appeals were dismissed by the Settlement Officer Consolidation by his judgment and order dated 29-9-1974, He dismissed the claim of co-tenancy of Khaderu (present opposite party No. 5) and upheld the order of the Consolidation Officer aforesaid regarding the shares of others. As against this order of the Settle ment Officer Consolidation dated 29-9- 1974, tevision No. 4873 was filed by Mahadeo (deceased) and Raghubir (present opjposite party No. 2) and revision No. 7877 was filed by Mata Prasad (deceased) and Khaderu (present op posite party No. 5 ). THE Deputy Director of Consolidation disposed of both the said revisions by a common judgment and order dated 21-3-1975 (Annexure-3 to the writ petition ). He upheld the order of the Settlement Officer Consolidation in so far as Mata Prasad was concerned and held that the Consolidation Officer and the Settlement Officer, Consolidation com mitted no mistake in rejecting their claim. In regard to revision No. 4873 the Deputy Director of Consolidation observed that the said officers based their judgments (in regard to the parties concerned) mainly on the oral evidence of Mata Prasad, who admitted the three shares in the disputed land. He further observed that it is true that revisionist Mahadeo (deceased) had accepted the existence of three shares in his statement but further stated that the in revisionist did not say that all the three shares were equal and that in the court of Consolidation Officer it was not asked from the revisionist (Mahadeo) as to what was his pedigree on the basis of which he claimed 1/2 share (". . . . . . CHAKBANDI ADHIKARI KE NYAYALAY MEN IS SAMBANDH MEN NIGRANI KARTA SE YAH NAHIN POONCHHA GAYA KI USKA ANSH KUL KYA HAIJISKE AADHAR PAR WAH VIVADGRAST BHU-KSHETRA MEN AADHA HISSA MANGATA HAI. . . . . . . . . . " ). It was further observed that the share was determined by the Consolidation Officer without full en quiry and the revision of Mahadeo and others was allowed and the case was remanded to the Consolidation Officer to dispose it of after affording opportunity to the parties to adduce evidence. After remand the parties adduced fresh evidence before the Consolidation Officer but Mahadeo did not enter into the witness box. THE Consolidation Officer vide his order dated 15-9-1975 allowed the objec tion of Mahadeo and others and declared the share of Mahadeo and Raghubir as l/4th each, share of present petitioner No. 1 Akhandu and petitioner No. 2 Ramdhari as l/8th each and the share of Basantoo and Molai (present opposite parties No. 3 and 4) taken together to be l/4th. A copy of the aforesaid order of the Consolidation Officer dated 15-9-1975 has been filed as Annexure-10 to the writ petition. THE present petitioners filed an appeal against the said order dated 15-9-75 of the Con solidation Officer before the Settlement Officer Consolidation. A copy of the memo of appeal aforesaid was Annexure- II to the writ petition. Basantoo and Molai (present opposite parties No. 3 and 4) preferred aseparate appeal on 10-11-75 against the same judgment and order of the Consolidation Officer. A copy of their memo of appeal aforesaid has been filed as Annexure-12 to the writ petition. During the pendency of the said appeals before the Settlement Officer Consolidation Mahadeo died leaving behind him Raghubir (present opposite party No. 2) as his heir and legal representative. THE Set tlement Officer Consolidation by his order dated 12-ll-1976allowed the appeal of the present petitioners and declared their share to be l/6th each i. e. l/3rd taken together, the share of Raghubir was declared to be l/3rd and the share of Basantoo and Molai taken together was held to be l/3rd. A copy of the said judg ment of the Settlement Officer Consolida tion dated 12-11-76 has been filed as An-nexure-13 to the writ petition.