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Smt. Mahraji v. D.D.C. & Others - WRIT - B No. 8410 of 1978  RD-AH 6927 (5 December 2005)
Civil Misc. Writ Petition No. 8410 of 1978
Smt. Maharaji and another Versus D.D.C and others.
Hon'ble S.U.Khan J
According to Sheo Baran respondent No. 2 (since deceased and survived by legal representatives), he and original petitioners were related to each other through the following pedigree: -
/ / /
Bali Baliraj Sukhraj
/ / /
Ram Dular Tukuroo Shiv Baran
(Petitioner No.2) /
According to petitioners, Shiv Dutt had only two sons Bali and Baliraj. Sukhraj was not son of Shiv Dutt.
Land in dispute was recorded in the names of petitioners or their ancestors since 1330 fasli. In consolidation proceedings, respondent No.2 Shiv Baran filed objections claiming 1/3 share in agricultural land comprised in seven Khatas, three of village Lokapur and four of village Baspur. Respondent No.2 on the basis of the above pedigree claimed that even though his name was never recorded in the revenue records however he being grandson of Shiv Dutt was entitled to 1/3 share in the land which initially belonged to Shiv Dutt and thereafter devolved upon his descendants. Consolidation Officer, Badlapur, District Jaunpur before whom the case was registered as 150 and 151, rejected the claim of the respondent No. 2 holding that he was not the grandson of Shiv Dutt. Consolidation Officer also held that respondent No.2 was never in possession. Consolidation Officer also held that nature of the land had changed and it was not proved that land in dispute initially belonged to Shiv Dutt. Consolidation Officer rejected the objections through order-dated 16.7.1974. Against the said order, Appeal No. 115 was filed by respondent No.2. In the appeal respondent No.2 confined his claim to only one Khata out of the seven Khatas regarding which he had filed objections before C.O. Appeal was confined only to Khata No. 1 of village Lokapur. Settlement Officer Consolidation (S.O.C), Jaunpur held that the pedigree given by respondent No.2 was proved and he was grandson of Shiv Dutt. However SOC dismissed the appeal on the ground that nature of land had substantially changed. Appeal was dismissed on 30.8. 1975. Against the said judgment and order, revision was filed by respondent No.2 before DDC Jaunpur being revision No. 1070 Shiv Baran Versus Dular (Ram Dular). D.D.C allowed the revision through judgment and order dated 23.6.1978. This writ petition is directed against the said judgment and order of the revisional court dated 23.6.1978.
It is correct that possession of one co-sharer is possession of all other co-sharers unless ouster is pleaded and proved and mere absence of name in the revenue records does not disentitle a person from claiming his right. However absence of name from the revenue records for a very long time (about 70 years in the instant case) is a very strong circumstance against the claim of the non-recorded co-sharer. In order to prove that respondent No.2 was grandson of Shiv Dutt only respondent No.2 was examined. Copy of his statement is annexure 4 to the writ petition. He stated that his father Sukhraj had predeceased Shiv Dutt. According to his statement his father had told him about the pedigree. He further stated that at the time of death of his father he was only 2 or 3 years old and at the time of death of his grandfather he was only 5 or 6 years old. No person can remember the thing, which were told to him when he was 2 or 3 years old. In order to prove relationship a specific mode of evidence has been provided under section 50 of Evidence Act. The evidence in respect of relationship given by respondent No.2 did not go any where near that.
The claim of respondent No.2 is liable to be dismissed only on the ground that he could not proved that he was grandson of Shiv Dutt.
Apart from it both C.O as well as SOC held that the nature of the land held by Shiv Dutt was substantially different from the nature of the land held by his two sons Bali and Baliraj. After discussing several earlier authorities Hon'ble K.N.Misra J in the authority reported in Jagdamba Singh Versus DDC 1985 RD 281 has held in Para 14 onward that " it is fairly well settled that in order to entitle a party to claim co-tenancy rights in the holding on the ground of its being ancestral the unbroken identity of the holding has not to be established through out the period. If the identity has changed of the holding the claim can not succeed." In this regard revisional court held that no substantial change had taken place in the holding of Khata No.1. This observation is not correct. C.O and SOC both discussed in detail the changes which were not only in respect of areas but also plot numbers and nature of holding.
S.O.C has recorded finding that in the revenue record of 1309 Fasli some plots of Khata in dispute were entered in the name of Shiv Dutt in different capacity. Thereafter in 1333 Fasli, these plots were shown to be Dakhilkar Kashtkari. Thereafter his two sons i.e. Baliraj and Bali were shown Dakhilkar- Kashtkar of the said plots.
In respect of pedigree, revisional court and S.O.C held that no evidence to disprove pedigree was adduced on behalf of the petitioners. The pedigree had been claimed by respondent No.2 hence burden to prove the same also lay upon him. Revisional court also held that prior to 1333 Fasli only the name of one of the sons of Shiv Dutt i.e Baliraj was entered and thereafter the name of Bali and Baliraj were entered hence it is proved that the land was ancestral. From the above fact no such inference can be drawn.
It was not in dispute that respondent No.2 was not residing in the village Lokapur. Evidence of possession in the form of irrigation receipts etc. was also filed only by the petitioners.
Accordingly judgment and order passed by the revisional court is erroneous in law and liable to be set-aside.
Writ petition is allowed.
Judgment and order passed by the Consolidation Officer is approved. Judgment and order passed by the S.O.C is also approved with the modification that his finding that respondent No.2 was grandson of Shiv Dutt is reversed. Consequently judgment and order passed by the C.O and S.O.C are approved although on slightly different grounds.
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