THAKUR PRASAD Vs. ASSISTANT DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) Heard Shri M.A. Khan, learned Senior Counsel along with Shri Vijay Bahadur Verma, learned counsel for the petitioner, Shri Jagdish Prasad Maurya, learned Additional Chief Standing Counsel and Shri Nirankar Nath Jaiswal along with Shri Prashant Jaiswal, learned counsel for the private opposite parties. Certified copy of the appeal filed before the Settlement Officer Consolidation is taken on record.

(2.) This a writ petition under Article 226 of the Constitution of India challenging the orders of the Consolidation Officer, S.O.C. and the Deputy Director of Consolidation by which the objections of the private opposite parties claiming co-tenancy rights in respect of lands forming part of Khata No. 57 to the extent of half share, were allowed and the same, as affirmed at the Appellate and Revisional stage, have been challenged.

(3.) The dispute pertains to Khata no. 57(57-A, B, C, D, E). Khata No. 57 was formed from various Khatas as is mentioned in the order of the D.D.C. The Khata comprises of a total number of 59 Gatas. It is not in dispute that in respect of 8 of the 59 Gatas bearing No. 408, 409, 410, 411, 412, 413, 414 and 415 a suit was filed by Ram Chandar and Bhagwant Prasad recorded tenure holders of the Khatas in question for ejectment of Aditya Prasad and Harihar Prasad sons of Raghubar Das and for possession of the said Gata under Section 180 of U.P. Tenancy Act, 1939 (hereinafter referred to as the ''Act, 1939'). The Suit bearing No. 74 of 1945 was allowed by the Munsif vide judgment dated 18.11.1940, against which Aditya Prasad and Harihar Prasad filed an Appeal bearing No. 144 of 1946 which was allowed on 19.02.1946 and the Suit of Bhgwant Prasad and Thakur Prasad was dismissed. While allowing the Appeal the District Judge took into consideration the fact that during pendency of the dispute, without intervention of the Court, the parties entered into a registered agreement for referring the matter to Arbitration by ''Panchas'. The said ''Panchas' rendered their decision holding that the disputed property was joint family property and the said decision as has been mentioned in the orders of the Courts below, was got registered. The decision of the ''Panchas' was rendered in 1944 and it had been filed in the proceedings under Section 180 of the U.P. Tenancy Act, 1939 and was available before the Appellate Court as referred hereinabove. The District Judge was also persuaded by the fact that Ram Khulwant the father of the petitioner- Thakur Prasad did not enter the witness box to belie the oral testimony of Aditya Prasad. Accordingly, he held that the land in dispute was joint family property.