BRAHMADEO Vs. D D C , GORAKHPUR AND OTHERS

JUDGEMENT

(1.) Heard counsel for the parties.

(2.) The dispute in the present writ petition as well as in the consolidation proceedings from which the present writ petition arises relates to plot No.604 (area 1.54 hectares) which is part of Khata No. 140. It transpires from the record that one Mst. Keshara was recorded as bhumidhar of the said plot. Mst. Keshara was the widow of Sri Mahesh. The aforesaid Sri Mahesh was the brother of the grandfather of respondent nos. 2 and 3. It also transpires from the record that during the previous consolidation operations held in the village in the year 1962, petitioner along with Mst. Keshara was recorded as co-tenure holder of the disputed plot in CH Form-11 prepared under the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as 'Act 1953') and the rules made thereunder. The petitioner claims that he is the grandson (Nati) of Mst. Keshara i.e. the son of the daughter of Mst. Keshara and was co-opted as bhumidhar of the disputed plot by Mst. Keshara during the consolidation operations held in the village in 1962. The claim of the petitioner in the present writ petition and before the consolidation authorities was that one Smt. Kalpa was the daughter of Mst. Keshara. It has been stated by the petitioner that the aforesaid Kalpa was married to Ram Kishore and petitioner is the son of Ram Kishore and Smt. Kalpa. During the second consolidation proceedings held in the village, a dispute arose between the petitioner and respondent nos. 2 and 3 regarding the disputed plot and case No. 4029 under Section 9(A)-2 of the Act 1953 was registered in the court of Consolidation Officer, District Gorakhpur. The said case appears to have been registered on the objections filed by respondent nos. 2 and 3. It was contended by respondents nos. 2 and 3 before the consolidation officer that Sri Ram Swaroop was the original bhumidhar of the disputed plot and after the death of Ram Swaroop, his sons Baldev, Sukhdev, Ganesh and Mahesh became co-tenure holders of the disputed plot. Smt. Kesara became the co-tenure holder of the disputed plot after the death of Sri Mahesh and succeeded to the same as the widow of Mahesh. It was further contended by respondent nos. 2 and 3 that Smt. Kesara died issueless and the petitioner is not entitled to succeed to the property of Smt. Kesara as by virtue of Section 171 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, 'U.P.Z.A. & L.R. Act'), the respondent nos. 2 and 3 are entitled to succeed to the property of Smt. Kesara as they are the grandsons of Ganesh and the only surviving heirs of Ram Swarooop and consequently Mahesh. It was also contended by respondent nos. 2 and 3 that the entry in favour of the petitioner in CH Form-11 against the disputed plot was a forged and fictitious entry and has no bearing on the rights of respondent nos. 2 and 3. The aforesaid case was contested by the petitioner. The petitioner contended before the consolidation officer that Kalpa was the daughter of Mahesh and Mst. Keshara. Kalpa was married to Ram Kishore and petitioner was the son of Ram Kishore and thus the petitioner was the grandson (Nati) of Mst. Keshara and therefore under Section 171 of the U.P.Z.A. & L.R. Act, the petitioner had a preferential right over respondent nos. 2 and 3 to succeed to the property of Mst. Keshara. It was further contended by the petitioner that the disputed plot was the self acquired property of Mahesh and the petitioner was co-opted by Mst. Keshara as a co-tenure holder of the disputed plot only because he was the grandson of Mst. Keshara.?

(3.) Case No. 4029 was decided by the consolidation officer by his order dated 12.1.1993. In his order dated 12.1.1993, the consolidation officer recoded a finding that the entries in CH Form-11 so far as the name of the petitioner was concerned showing that the petitioner was co-opted as tenure holder of the disputed plot appeared to be forged and fictitious entry as the said entry were made without any case having been registered before the consolidation authorities. The consolidation officer further held that respondent nos. 2 and 3 had been able to establish their case while the petitioner had failed to prove his case. Further, the consolidation officer vide his order dated 12.1.1993 held that the petitioner as well as respondent nos. 2 and 3 were entitled to half share over the disputed plot and the name of petitioner shall continue in the revenue records so far as other plots in khata No. 140 were concerned. Aggrieved by the aforesaid order dated 12.1.1993 passed by the consolidation officer, petitioner and respondent nos. 2 and 3 filed appeals before the Settlement Officer of Consolidation, District Gorakhpur which were numbered as Appeal Nos. 433 and 434. The Settlement Officer of Consolidation, District Gorakhpur (hereinafter referred to as 'S.O.C.') vide order dated 10.1.1994 allowed appeal No. 433 filed by respondent nos. 2 and 3 and dismissed Appeal No. 434 filed by the petitioner and directed that the name of respondent nos. 2 and 3 be recorded as the bhumidhar of the disputed plot and the name of petitioner be deleted from the same. The aforesaid order dated 10.1.1994 passed by S.O.C. was challenged by the petitioner before the Deputy Director of Consolidation, District Gorakhpur (hereinafter referred to as 'D.D.C.') under Section 48 of the Act 1953 by filing Revision No. 315. The D.D.C. vide order dated 11.5.2001 dismissed Revision No.315 filed by the petitioner. In their impugned orders dated 10.1.1994 and 11.5.2001, the S.O.C. and D.D.C. held that the petitioner had failed to prove that Kalpa was the daughter of Kesara and petitioner was the son of Kalpa. The aforesaid authorities also held that the entry in CH Form-11 regarding the name of the petitioner had no relevance inasmuch as there was no reference of the same in the revenue records of the basic year. The orders dated 10.1.1994 and 11.5.2001 passed by S.O.C. and D.D.C. have been challenged in the present writ petition.