ZALM Vs. DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) Heard.

(2.) This writ petition was been filed by the petitioner in the year 1984 challenging the order dtd. 24/9/1981 passed by the Deputy Director, Consolidation, District Hardoi and the order dtd. 15/9/1984 passed by the Settlement Officer, Consolidation District Hardoi. This Court by means of an order dtd. 23/10/1984 granted interim relief to the petitioner staying the operation of the impugned orders.

(3.) The facts of the case in brief are that in the basic year Khatauni Sohan son of Khuman was recorded as the sole tenure holder in respect of Gata in question. An objection was filed by the petitioner claiming co-tenancy rights on the ground that the land in dispute was ancestral property having been recorded in the name of common ancestor i.e. their father Khuman, in third Settlement. In response Sohan also filed objection claiming sole tenancy rights The Consolidation Officer accepted the claim of the petitioner on the ground that the land in dispute was recorded in the name of common ancestor Khuman in the last settlement and there was no evidence on record to show that Khuman was ever evicted from the said land and fresh settlement was made in favour of Sohan in, respect of the land in dispute. Being aggrieved Sohan filed an appeal under Sec. 11 of Consolidation of Holdings Act, 1953 (hereinafter referred to as 'the Act, 1953'). The Settlement Officer, Consolidation considered the rival pleas as available oft record and also the findings of the Consolidation Officer and came to the conclusion that the assertion of Zalim son of Khuman etc. that the land in dispute was joint family property could not be established by them on the basis of settled parameters of law applicable to Consolidation Courts in this regard whereby they were required to show that the tend in dispute was recorded in the name of common ancestor Khuman and had come down as it is, which could not be done. The Settlement Officer, Consolidation opined that no doubt the land was recorded in the name of Khuman in 1333 Fasli but Khatauni of the subsequent years had not been filed to show that the same continued to be recorded in his name till it was ultimately recorded in the name of Sohan and as the assertion of jointness of the property was on the part of Zalim etc., therefore, the burden was upon them to prove their claim but they could not show by producing Khatauni etc. that the aforesaid land which was recorded in the name of Khuman continued to be recorded in the name of heirs and legal representatives of Khuman in the subsequent years continuously with almost the same area and Lagan. He opined that identity of the land had also not come down intact which was a necessary pre-requisite for holding the property to be joint; As regards the assertion based on Lagan receipts, it was alleged that in some of the receipts Sohan was mentioned as 'Marfat' Zalim. The Settlement Officer, Consolidation found that there was only one receipt mentioning the same Lagan as earlier and in the said receipt there is no such endorsement of the name of Sohan 'Marfat' Zalim. It was also his contention that as Zalim and Sohan had other Khatas also, therefore, the receipt could relate to the said Khatas, accordingly he rejected the said contention. The appeal of Sohan was allowed and the order of the Consolidation Officer, which was a cryptic order was set aside.