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Sheo Bachan & Others v. D.D.C. & Others - WRIT - B No. 1983 of 1974  RD-AH 8708 (8 May 2007)
Civil Misc. Writ Petition No. 1983 of 1974
Sheo Bachan (deceased) through L. Rs. and another
Deputy Director of Consolidation, camp at Deoria and others
Hon'ble Krishna Murari, J.
Heard Sri Ashok Tripathi, learned counsel for the petitioners and Sri A. K. Singh, holding brief of Sri U. S. M. Tripathi appearing for contesting respondents no. 2 to 5.
Admitted pedigree of the parties to the writ petition is as under :
Smt. Sonkeshari (wife)
/ / / / /
Rama Kant Ramjas Ram Dutt Ram Autar Sheo Bachan
/ Moti Lal
/ / / /
Vishudeo Rajdeo Surajdeo Birbal
During consolidation operation, an objection was filed by petitioners claiming 1/2 share in Khatas no. 117 and 188.
In the basic year, Khata no. 117 was recorded in the name of both the parties and Khata no. 118 was recorded in the name of contesting respondents. Case set up by petitioners was that disputed plots were mortgaged by one Pauhari Saran and others in favour of Mst. Sonkeshari vide two mortgage deeds dated 19.9.1930 and 19.12.1930 and the parties being common descendants of co-tenure holders entitled to one half share each. The claim of the petitioners was denied by contesting respondents no. 2 to 5 on the ground that plots of Khata no. 118 was not ancestral property but it was acquired by their father Rama Kant and hence they are sole tenure holders and the petitioners have no share therein.
Consolidation Officer vide order dated 14.9.1970 allowed the claim of petitioners in respect of Khata No. 117 whereas their claim in respect of Khata no. 118 was rejected on the ground that it was the sole acquisition of Rama Kant, father of contesting respondents. Petitioners challenged the judgment of the Consolidation Officer by filing two appeals. Assistant Settlement Officer Consolidation vide order dated 22.4.1971 allowed the same and held the petitioners to be co-tenure holders to the extent of 1/2 share of Khata no. 118. Subsequently, contesting respondents no. 3 to 5 filed restoration application on the ground that they were not given notice or opportunity of hearing and the order was passed exparte behind their back. Assistant Settlement Officer Consolidation vide order dated 3.3.1972 rejected the restoration application on the ground that the order dated 22.4.1971 was not exparte order but was passed after hearing contesting respondent no. 2, who was the real brother of the contesting parties. The respondents went up in revision before the Deputy Director of Consolidation challenging the order dated 22.4.1971 as well as 3.3.1972 by filing four revisions. Deputy Director of Consolidation vide order dated 20.12.1973 dismissed the two revisions challenging the appellate order dismissing the restoration application and vide separate order of same date allowed other two revisions challenging the order dated 22.4.1971 allowing the appeal filed by petitioners on merits. Aggrieved, petitioners have approached this Court.
The dispute in this petition is only confined with respect to the share of petitioners in Khata no. 118.
It has been urged by the learned counsel for the petitioners that Deputy Director of Consolidation once dismissed the revisions no. 58/233 and 59/235 challenging the order dated 3.3.1972 rejecting the restoration application of the petitioners, the same would be binding in revisions no. 56/234 and 57/232 and the Deputy Director of Consolidation wrongly and illegally allowed the other two revisions. It has further been urged that the Deputy Director of Consolidation without upsetting the finding recorded by the Assistant Settlement Officer Consolidation has wrongly and illegally allowed the revision without considering the oral and documentary evidence.
In reply, it has been submitted that Revisions No. 58/233 and 59/235 filed by petitioners challenging the orders passed by the Assistant Settlement Officer Consolidation dismissing the restoration application will have no binding effect on the other two revisions which were filed challenging the orders of the Assistant Settlement Officer Consolidation passed on merits. It has next been contended that the Deputy Director of Consolidation after analysing the evidence has rightly set aside the judgment of the Assistant Settlement Officer Consolidation which was based on surmises and conjectures and the same does not call for any interference by this Court.
I have considered the arguments advanced by the learned counsel for the parties and perused the record.
In so far as first argument advanced on behalf of learned counsel for the petitioners is concerned merely because revisions filed by contesting respondents challenging the orders of Assistant Settlement Officer Consolidation dismissing the restoration application was dismissed will certainly have no effect either on the rights of contesting respondents to challenge the earlier order of Assistant Settlement Officer Consolidation passed on merits nor dismissal of the said two revisions will have any binding effect on the other revisions. Argument advanced by the learned counsel for the petitioners in this regard is totally misconceived and liable to be rejected.
In so far as merits of the claim is concerned, the order of the Consolidation Officer has not been brought on record of the writ petition, however, a perusal of the judgment of the Settlement Officer Consolidation goes to show that the petitioners were held to be as co-tenure holders to the extent of 1/2 share only on the ground that plot no. 1234/1 and 124/3 were recorded and mortgaged by Pauhari Saran in favour of Mst. Somkeshari who was grand-mother of the parties and there was no evidence of separation in the family.
Deputy Director of Consolidation found that in Khatauni 1346 F. plot no. 1334/1, area 00.83 and 1334/2 area 00.65 was exclusively recorded in the name of Rama Kant, Ram Dutt and Shiv Bachan sons of Udit and Moti Lal son of Ram Autar whereas plot no. 1234/3 area 00.35 and 1283/4 area 00.83 was exclusively recorded in the name of Ram Dutt, father of contesting respondents. Again in Khatauni 1357 F. plot no. 1234 area 1.48 decimal was recorded jointly in the name of Rama Kant, Ram Dutt, Shiv Bachan sons of Udit and Moti son of Ram Autar in Ziman ''8' with a period of 18 years and the remaining 1.48 acres of the said plot was recorded exclusively in the name of Rama Kant, father of contesting respondents in ziman ''8'. He has further recorded a finding that a perusal of the mortgage deed goes to show that only 1.48 acres was mortgage with Mst. Somkeshari, common ancestor of the parties. He has further recorded a finding that the petitioners have failed to produce any evidence to demonstrate that entire area 2.96 of plot no. 1234 was mortgaged with Mst. Somkeshari. On the aforesaid findings, he came to the conclusion that remaining 1.48 acres of the said plot was acquired by Rama Kant, father of contesting respondents exclusively and the said land has been recorded exclusively in his name continuously from 1346 F. without there being any challenge from the petitioners.
A perusal of the judgment passed by the Deputy Director of Consolidation goes to show that the findings have been recorded after analysing the evidence whereas judgment of the Assistant Settlement Officer Consolidation is based only on surmises and conjectures without analysing all the evidence brought on record and thus, the same was rightly set aside by the Deputy Director of Consolidation. Learned counsel for the petitioners has failed to point out any illegality in the findings recorded by the Deputy Director of Consolidation.
In view of the aforesaid discussions, there is no scope for interference by this Court in the impugned order. Writ petition accordingly fails and is dismissed. However, In the facts and circumstances, there shall be no order as to costs.
Date : May 8, 2007.
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