NOOR KHAN Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THE Petitioner filed two suits under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act claiming half share in the land in dispute. In Suit No. 309 of 1967 division of Khata No. 155, recorded in the names of the Petitioner and Ali Khan, Respondent No. 4, was claimed and in suit No. 310 of 1967 partition of Khata No. 156, recorded in the names of the Petitioner and Respondents Nos. 4 to 8, was claimed. It was alleged that the property was ancestral and came down to Phool Khan and Madar Bux Khan from their father Badlu. The Plaintiff, claiming to be the son of Phool Khan, sought partition of his half share, the other half being owned by Respondents Nos. 4 to 8, who were the sons of Madar Bux Khan. The Defendants pleaded that the Petitioner was also the son of Madar Bux Khan and not that of Phool Khan as alleged and being real brothers each one of them were entitled to 1/6th share in the land in dispute. It was also pleaded that the suit was not maintainable. The trial court passed a preliminary decree declaring the share of the Petitioner to be half in the disputed Khatas. It was followed by a final deciee. On appeal by the Defendants the learned Additional Commissioner held that the land in dispute was ancestral and that the Plaintiff was the son of Madar Bux Khan and not that of Phool Khan and consequently the Plaintiff and the Defendants each were entitled to 1/6th share. The Board of Revenue affirmed the decree of the learned Additional Commissioner.

(2.) THE finding that the Petitioner is the son of Madar Bux Khan and not that of Phcol Khan is a finding of fact. It was urged that since the Petitioner was recorded as son of Phool Khan in the revenue records and this was not challenged during consolidation proceedings no dispute regarding the parentage of the Petitioner could be validly raised and decided in the petition suits in view of Section 49 of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act). Reference in this connection was made to certain provisions of Chapter III of the Act which deals with proparation of consolidation scheme. A provisional scheme is first drawn up of which notices are sent to the tenure holders concerned and persons interested and the scheme is published in the consolidation unit. Persons to whom notices are issued and other persons affected by the provisional scheme are entitled to file objections which are decided and thereafter the scheme is confirmed and published in the unit and allotment orders for the tenure holders concerned are issued. After the final consolidation scheme has come into force a new map, field book and record of rights in respect of the consolidation area is prepared on the basis of entries in the map. By Sub -section (2) of Section 27 it is provided that all entries in the record of rights prepared in accordance with the provisions of Sub -section (1) shall be presumed to be true until the contrary is proved. Learned Counsel pointed out during the proceedings for preparation of the record of rights under Chapter III of the Act no objection was filed regarding the parentage of the Petitioner as shown in the revenue records and in the final record of rights the Petitioner was shown to be the son of Phool Khan, it was contended that since it was open to the Defendants to raise an objection regarding his parentage in those proceedings and as that was not done, no such objection could be taken in the suit in view of Section 49 of the Act.

(3.) NO other point has been pressed for consideration.