OM PRAKASH Vs. D D C FAIZABAD

JUDGEMENT

(1.) A. P. Singh, J. This petition by sons of Ram Phal being petitioners 1 to 3 and Ram Nath petitioner No. 4 has been filed in pursuit of their challenge to the corrections of the basic year entries which were found recorded at the inception of consolidation proceedings under the provisions of U. P. Consolidation of Holdings Act, 1953, (hereafter the Act) in villages Hazipur, Mohammadpur Hamza in Tehsil Akbarpur district Faizabad. Property in contention be tween petitioners on the one side and respondents 4 and 5 on the other is agricul tural land of Khata No. 82 of village Mohammadpur Hamza and Khata No. 119 of village Hazipur, hereafter for the sake of convenience called land in dispute.

(2.) IN the basic year records names of petitioner No. 4 and father of petitioners 1 to 3 alongwith the name of respondents 3 and 4 appeared as co-tenant-holders. Ob jections under Section 9 of the Act in respect of both these Khatas was filed by petitioner No. 4 and father of petitioners 1 to 3. Contention raised by them was that name of respondents 4 and 5 was wrongly entered surreptitiously for the first time in 1356 Fasli without any order from any com petent court etc. which was therefore liable to be expunged. According to petitioners land in dispute was the (sic) acquisition of their predecessor-in- interest, namely Gudar and Pheru after the eviction of Basanta therefrom and that respondents 4 and 5 had no concern with it. It was further said that prior to the acquisition of the land by Gudar and Pheru, Kashi, Mangru, Gudar, Pheru had separated from each other and Kashi and Mangru had no con cern with the land in dispute nor they were in the possession. According to petitioners Gudar died isstieless on 16-11-39 whereas Basanta died on 10-5-1913, Mathura on 21-6-1911 and Kashi on 18-12-38 whereas Pheru (Ram Pher) died on 14-9-30. Petitioners and respondents both are from common ancestor. Sridhar who had three sons Basanta, Matirara and Parag. Gudar was Basanta's son but this branch extin guished with the death of Gudar who had no issue. Similarly branch of Parag also extin guished with the death of Parag as he too had no sons. Both petitioners and respon dents are from Mathura's branch. Mathura had three sons Kashi, Ram Pher (Pheru) and Mangru. Mangru had no sons whereas Ram Prajwalit, father of respondents 4 and 5 was the son of Kashi, Gokul and Bisai are the sons of Ram Pher (Pheru), Ram Nath petitioner No. 4 is the son of Gokul and Ram Phal, father of petitioners 1 to 3 is the son of Bisai. According to petitioners though Basanta had initially acquired the land in dispute from the erstwhile Zamindar but in spite of the fact that Mathura was his own brother who survived him the land was not recorded in the name of Mathura after the death of Basanta because the then Zamindar had evicted Basanta from the land during his life time and had settled it with Gudar, the son of Basanta and Ram Pher (Pheru) son of Mathura. According to petitioners respondents 4 and 5 who are Kashi's grand sons have no concern with the land which exclusively belongs to them. Whereas case of opposite parties 4 and 5 is that the land was acquired by Basanta whereafter it was recorded in the name of Gudar and Pheru in representative capacity. They denied that Basanta was ever evicted from the land in dispute and that it was acquired by Gudar and Pheru inde pendently from the then Zamindar after the eviction of Basanta from the said land. They claimed that as members of joint family they had share in the said land alongwith petitioners and the petitioners' claim that it was their exclusive tenancy was not at all correct. Both the parties in support of their respective contentions led evidence. It was found that from 1302 Fasli to 1314 Fasli name of Basanta was recorded whereafter with the duration of 1320 F. Ram Pher and Gudar were recorded over the land. Con solidation Officer held that petitioner as well as respondents were entitled to half share in the land in dispute and he therefore directed for maintaining of the basic year entry. On appeal filed before the Settlement Officer, Consolidation order of the Con solidation Officer was set aside in respect of Khata No. 199 and it was held that Opposite Parties 3 and 4 had no share whatsoever in the Khata, therefore, their name was directed to be expunged from that Khata. IN regard to Khata No. 82 Settlement Officer, Consolidation awarded 1/4 the share to Op posite Parties 4 and 5 whereas petitioner were found entitled to 3/4th share. Revision was filed before the Deputy Director of Consolidation by respondents 3 and 4 who admitted additional evidence at the behest of Opposite Parties which included rent receipts, revenue records and irrigation receipts being 57 in number. The Deputy Director of Consolidation without con sidering the matter on merits remanded the case back to the Settlement Officer of Con solidation for decision of the appeal in the light of fresh evidence tendered by opposite parties 4 and 5 before him. After remand Settlement Officer, Consolidation recon sidered the matter in the light of additional evidence filed by respondents 3 and 4 before the Deputy Director of Consolidation and by order dated 14. 12. 91 dismissed petitioners' appeal and held that both petitioners and opposite parties 4 and 5 were equally entitled to share the land in dispute as co-tenant with equal share. It was further held that the land was ancestral property which was never acquired by Gudar and Pheru and it continued in the same form from the time of Basanta. Revision was filed by petitioners before the Deputy Director of Consolidation. The Deputy Director of Consolidation however by him order dated 9-3-83 dismissed petitioners' revision and upheld the order of the Settlement Officer, Consolidation.