KHEM CHAND Vs. DEPUTY DIRECTOR OF CONSOLIDATION MATHURA

JUDGEMENT

(1.) By means of the present writ petition, the petitioners have sought a writ, order or direction in the nature of Certiorari for quashing of the order dated 17. 1. 1997 passed by the Deputy Director of Consolidation, Mathuram, the order dated 7. 1. 1993 of Settlement Officer Consolidation and the order dated 23rd of February, 1991 passed by the Consolidation Officer, Mathura. The controversy in the present case lies in a narrow compass. The above petition arises out of consolidation proceedings under the U. P. CH Act, 1953. The petitioners herein filed objection claiming co-tenancy rights in Khata No. 13 which consists of plot No. 1133 area 6. 27 acres. Co-tenancy rights were claimed on the ground that Khata in question is ancestral Khata and it originally belonged to common ancestor of the parties namely Genda. A short pedigree to understand the controversy as drawn in paragraph 1 of the writ petition is reproduced below:- Genda was the tenure holder who died in the year 1948. He had three sons namely Har Prasad, Sukhram and Purna. Purna died during the lifetime of Genda leaving behind him Prem Chand, petitioner no. 3 herein. Inderjeet, the only contesting respondent No. 4 is the son of Har Prasad. The case set out by the petitioners was that after death of Genda the property devolved upon his three sons namely Har Prasad, Sukhram and Purna, in equal shares. The Consolidation Officer by one sentence order dated 23. 2. 1991 without discussing any thing rejected the objection on the ground that there is no evidence on the record to show that the property in dispute was the ancestral property of the objectors namely Prem Chand and others and Inderjeet and others. The order was challenged by filing appeals before the Settlement Officer Consolidation. It appears that evidence was also led before him. The Settlement Officer Consolidation rejected the plea raised by the contesting respondents that the present objections are barred by section 49 of the U. P. CH Act. He was also of the view that even if the consolidation operation had taken place earlier and no objection was raised therein, the present objection filed by the petitioners is not barred under section 49 of the CH Act. However, on merits he took into consideration the Khatauni of 1347 Fasli wherein name of Genda is recorded. The said Khata is recorded in favour of Har Prasad and Sukhram sons of Genda in 1356 Fasli. Up to 1361 Fasli their names continued to be recorded. However, the area of land was reduced to 28. 28 acres as per Khatauni entry. While in the earlier Khatauni the area of land is recorded as 33. 15 acres. In the subsequent year i. e. 1362 Fasli name of Har Prasad alone is recorded. However, the claim of the petitioner was rejected on the ground that there is no evidence to show that the identity of the old plots could not have been established by evidence nor the variation in the area of plots has been explained properly. There being no evidence of possession, the claim of the petitioners on the basis of the possession, therefore, cannot be entertained and the long standing Revenue entries cannot be disturbed in absence of strong and cogent evidence as held by the Settlement Officer Consolidation. The said order is dated 7. 1. 1993 and has been confirmed in revision by the Deputy Director of Consolidation by the impugned order dated 17. 1. 1997. The learned counsel for the petitioners submits that there is voluminous evidence on record to show that the holding is ancestral and it was recorded in the name of Genda, the common ancestor of parties. There being no dispute between the parties that Genda had three sons and the father of the petitioners died during the lifetime of Genda, the petitioners succeeded to 1/3rd share in the property left by Genda. He submits that the consolidation authorities were not justified to negative the claim of the petitioners simply on the ground that the petitioners have not been able to prove the identity of plots left by Genda. Reliance was placed on a decision of Apex Court in Karbalai Begum Vs. Mohd. Sayeed and another AIR 1981 SC 77. None appeared on behalf of the respondents even in the revised list. Nor any counter affidavit is on the record of the case. The hearing of the writ petition, therefore, proceeded ex-parte so far as the contesting respondent is concerned. As noticed above, it is not in dispute that Genda, the common ancestor, had three sons - Har Prasad, Sukhram and Purna. The contesting respondent is son of Har Prasad, while the petitioners no. 1 and 2 are sons of Sukhram and petitioner No. 3 is son of Purna. Genda died in the year 1948 i. e. before the commencement of U. P. Z. A. and L. R. Act. In other words, when Genda died, the provisions of U. P. Tenancy Act, 1939 were applicable. Succession to male tenants under the said Act has been provided for under section 24. It provides that on the death of a male ex-proprietary tenant, occupancy tenant, statutory tenant or non occupancy tenant, his interest in holding shall devolve in accordance with the order of succession given therein. In the order of succession male lineal descendants in the male line of the descendants are the heirs of class -I. This being so, after the death of Genda, the property of Genda devolved on Har Prasad and Sukhram, the two surviving sons and the petitioner No. 3. So far as the question as to whether the said Khata is ancestral or not is concerned, the name of Genda is recorded indisputable in 1347 Fasli which corresponds to the years 1940 and 1359 Faslis. There being no contrary evidence on the record and there being no pleading to the effect that the name of Genda was wrongly recorded in the aforestated Khatauni, there is every reason to hold that after the death of Genda 1/3rd of his property has been devolved on the petitioners. At this stage, the case of the petitioners is that he was minor at that time and Har Prasad being eldest member of the family, the entire holding was recorded in the name of Har Prasad and Sukhram initially and subsequently, in the name of Har Prasad alone. There is no plea of ouster of the petitioners from the land in question nor there being any plea of adverse possession, the petitioners are co-sharers of the land in question. It has not been found by any of the authorities below that the property in question was acquired by the contesting respondent out of his own fund or otherwise. It is interesting to note that the Deputy Director of Consolidation without discussing any thing on the merits of the case, has dismissed the revisions on the short ground that no objection was filed by them during the first consolidation operation nor any suit was instituted in a Revenue Court and therefore, it was concluded that the property in question is not ancestral property. It appears that the finding recorded by the Settlement Officer Consolidation that the present proceedings are not barred for non raising of any such dispute in the first consolidation proceeding, escaped the notice of Deputy Director of Consolidation. Without addressing to the said finding, the Deputy Director of Consolidation by making a sweeping remark held that the applicants before him have failed to establish that the property in question is not ancestral property. It has not taken care to look into the various Khataunis, such as of the years 1347 Fasli, 1356 Fasli, 1361 Fasli which are on the record before reaching to a conclusion. The fact that the land in question was recorded in the name of Genda, the grand father of the petitioners, unless proved otherwise, the petitioners are entitled to succeed to the said property to the extent of his 1/3rd share. Viewed as above, the finding that the petitioners have failed to prove that the property in question is ancestral property or they have no shares in the disputed Khata is, thus, vitiated as relevant evidences on the point were ignored by the Deputy Director of Consolidation while passing the impugned order. So far as the identity of the property left by Genda is concerned, the order of the Deputy Director of Consolidation is totally silent on this point. He has not recorded any finding either approving or disapproving the finding recorded by the Settlement Officer Consolidation on it. The Settlement Officer Consolidation has noticed that in the Akar Patra prepared during the first consolidation operation , old plot Nos. 3432 M, 3433, 3434 M, 3435m, 3448m, 3439, 3450m, 3469, 3473, 3474, 3475, 3476, 3478m and 3481m were included in the new plot No. 1131 area 6. 27 acres. The contention of the petitioner is that name of Genda was recorded as co-tenant along with the other family members. The other family members were separated and the family of Genda remained unite. Genda got 6. 27 acres. If old plots were included in the carving out of new plots, it cannot be said that the identity of the property has been changed, specially when area has been reduced and there is no case of any fresh acquisition on behalf of the contesting respondents. At least to the extent of reduced area the petitioners continues to remain co-sharers unless it is demonstrated by any positive evidence that the petitioners have lost their share in any manner. The above position is further clear as none of the authorities has found that any plot was acquired by the contesting respondent out of his own resources or in the disputed Khata any plot is included which did not originally belong to Genda. Whatever property was left by Genda, all the three branches of his three sons have inherited 1/3rd share each and as such the authorities below were not justified to reject the claim of the petitioners. In view of the above discussion, I find sufficient force in the writ petition. The writ petition, therefore, succeeds. The impugned order dated 17. 1. 1997 passed by Deputy Director of Consolidation, order dated 7. 1. 1993 passed by Settlement Officer Consolidation and order dated 23. 2. 1991 passed by Consolidation Officer are hereby set aside and it is held that in the property left by Genda, the respondent No. 4 son of Har Prasad, the petitioners no. 1 and 2 sons of Sukhram jointly and petitioner no. 3, Prem Chand son of Purna will get equal share in the disputed Khata. The writ petition, therefore, succeeds and is allowed. But no order as to costs. .