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Nathu And Others v. C.O. And Others - WRIT - B No. 4914 of 1973  RD-AH 4600 (27 February 2006)
Civil Misc. Writ Petition No. 4914 of 1973
Nathu and others Vs The Consolidation Officer and others
Hon'ble Krishna Murari, J.
Heard Sri Rajesh Kumar Yadav, learned counsel for the petitioners.
Though the case has been taken up in the revised list but no one has appeared on behalf of the contesting respondents.
During consolidation operation there was a dispute with regard to khata nos. 137, 139, 197 and 225 situate in village Devipur district Mainpuri. Following is the undisputed pedigree of the parties :
/ / / / /
Bithani Diya Munna Atta Sagga
/ / / / /
Lala Ram Raghubar Babu Singh Kamta Ganesh
/ / / /
--------------------- ---------------- Balbir Lajja Ram
/ / / / (R)
Nathu Anar Singh Naubat Ujeer Singh
(P) (P) @ (R)
Various objections under Section 9A(2) of the U.P. Consolidation Holdings Act were filed which were consolidated by the Consolidation Officer and decided by a common judgment dated 10.6.1969. Against the order of the Consolidation Officer seven appeals were filed which were decided by a common judgment dated 31.6.1969. The appellate order was challenged by respondent no.3 by filing four revisions. The Deputy Director of Consolidation vide common judgment dated 13.4.1973 allowed all the four revisions. The Consolidation Officer held that land in dispute was acquired by common ancestor Mandhata and according to the pedigree ½ share should go to Pratap and remaining ½ to the sons of five daughters of Lukan. He further held that on the basis of compromise between Pratap and sons of daughters' of Lukan he would be entitled to 1/3rd share and remaining 2/3rd was distributed amongst sons of five daughters of Lukan i.e. petitioners and respondent nos. 4 & 5.
Four appeals filed by Pratap against the order of the Consolidation Officer determining his share, was dismissed by the Settlement Officer Consolidation on the ground that he was rightly allotted share by the Consolidation Officer in accordance with the compromise between the parties. The said orders became final.
In so far as other three appeals are concerned, analyzing the documentary evidence brought on record the Settlement Officer Consolidation found that in khatauni of 1308 fasli the khatas in dispute were recorded in the name of Lukan son of Thakuri, Lakhan son of Kalu and Hazari. Whereas in 1347 fasli the said khatas are recorded as ''dhakhilkari' in the name of Ram Shree wife of Lakhan. In 1346 fasli the name of Lukan was expunged and in 1347 fasli the name of Ram Shree came to be recorded as widow of Lakhan. In 1354 fasli the holding was divided in two separate khata i.e. khata no. 97 and 53. Khata no. 97 was recorded in the name of Ram Shree wife of Lakhan, Nathu son of Lala Ram, Ram charan son of Lakhan, Shree Ram son of Ganesh. Whereas khata no. 53 was recorded solely in the name of Mst. Ram Shree. He also found that land revenue has also varied. On the basis of the above, he came to the conclusion that identity of the holding has changed and it has not come down in identical form with unbroken identity. The Settlement Officer Consolidation has further held that Lukan died in 1936 when Agra Tenancy Act was enforced and as such the daughters' son were not entitled to inherit unless they were co-sharing and on that basis respondent nos. 3 & 5 whose names were not recorded were not given any share. The petitioners were entitled for shares in khatas in dispute on the ground that they were recorded in the revenue record. The Deputy Director of Consolidation disbelieved the death certificate of Lukan which went to show that he died on 3.5.1936. Considering the oral evidence he held that Lukan died 25 or 26 years back when U.P. Tenancy Act was enforced and allowed the claim of respondent nos. 3 & 5 on the basis that they being daughters' son like the petitioners will also be entitled to the share in the khatas in dispute.
No good ground for disbelieving the death certificate of Lukan has been recorded by the Deputy Director of Consolidation. The original death register written in Urdu language was summoned by him and looking into the same he held that entry cannot be read as Lukan or Lukai. He has not even cared to mention the name recorded in the register. Disbelieving that name cannot be read as Lukan or Lukai, he discarded the entries in death register and placing reliance upon the oral evidence which was full of contradiction came to the conclusion that Lukan died when U.P. Tenancy Act was enforced. In my opinion in the absence of any good ground to disbelieve the entries in death register the Deputy Director of Consolidation was not justified in relying upon the oral evidence, which was full of contradiction, to come to the conclusion that Lukan died 25 or 26 years back. The Settlement Officer Consolidation was fully justified in placing reliance upon the upon the death register as against the oral evidence and rightly recorded the finding that Lukan died in 1936 when Agra Tenancy Act was enforced and co-laterals who were not co-sharing with the tenure-holder will not be entitled to inherit on his death.
The finding recorded by the Settlement Officer Consolidation that the holding has not come down from time of common ancestor in identical form and there has been fresh settlement has not been set aside by the Deputy Director of Consolidation. He has also failed to consider the documentary evidence which formed the basis of the aforesaid findings recorded by the Settlement Officer Consolidation. It is well settled that in order to establish a party to claim co-tenancy in the holding on the ground of it being ancestral, the unbroken identity of the holding through out the period has to be established. If the identity of the holding has changed, the claim cannot be succeed. The Deputy Director of Consolidation without considering this aspect of the matter has wrongly and illegally given share to the contesting respondents on the ground that the holding was ancestral.
In view of the aforesaid discussion, the impugned judgment of the Deputy Director of Consolidation dated 13.4.1973 cannot be sustained and is hereby quashed.
The writ petition stands allowed.
No order as costs.
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