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Allahabad High Court · body

1984 DIGILAW 989 (ALL)

Janka v. Buddhi Sagar

1984-11-26

J.N.DUBEY

body1984
JUDGMENT J.N. Dubey, J. - This writ petition is directed against the order dated 10th September 1973 of the Deputy Director of Consolidation Basti passed under Section 42 of the U.P. Consolidation of Holdings Act (Hereinafter referred to as the Act). 2. The following pedigree will be useful for understanding the case of the parties, 3. In the basic year Khata Nos. 32 and 329 of village Lakhanpur Mahua of District Basti were recorded in the names of contesting opposite parties. The petitioner filed suit in respect of two land in khata no. 32 was sir and khud kasht, the land of Khata No. 129 was sirdari. The petitioner realising that personal laws does not apply to sirdari right gave up her claim with respect to khata no. 129 before the Deputy Director of Consolidation. The dispute is thus confined to khata no. 32 alone. 4. Learned counsel for the petitioner has contended, that Khata no. 32 was sir and Khud-kasht and, as such its succession would be governed by the personal law and not by the U.P.Z.A. and Land Reforms Act. Since this land was ancestral property her husband Sheo Charan had 1/16th share in it according to the family pedigree. Sheo Chararj died on 14.5.1951 and the petitioner being his widow stepped into his shoes under the provisions of the Hindu Widows Right to Property Act, 1937 and is accordingly entitled to 1/16th share in the land. He has further contended that it was incombent upon the Deputy Director of Consolidation to have recorded a specific finding on the basis of evidence on record as to whether all the 70 plots of Khata no. 32 were ancestral property, but instead of doing so he has correctly observed that only 30 plots of the said khata were ancestral property without referring to the evidence on record, he has further contended that the view of the Deputy Director of Consolidation that as Sheo Charan, husband of the petitioner died as a member of the joint Hindu family, the petitioner was not entitled to any share, is incorrect. Similarly, according to him the finding of the Deputy Director of Consolidation that the identity of the land was changed, is wrong. 5. On the other hand, learned counsel for the contesting opposite parties has argued that the land in khata no. Similarly, according to him the finding of the Deputy Director of Consolidation that the identity of the land was changed, is wrong. 5. On the other hand, learned counsel for the contesting opposite parties has argued that the land in khata no. 32 was not ancestral property and the finding of the Deputy Director of Consolidation that 30 plots were ancestral property, is incorrect. He has further contended that the identity of the land has completely changed and therefore the claim of the petitioner based on the ancestral nature of the property is liable to be rejected. 6. Admittedly the land of khata no. 32 was sir and khud kasht and therefore according to the provisions of the Hindu Widows Right to Property Act the petitioner stepped into the shoes of her husband on his death on 14.5.1951 and was entitled to 1/16th share in the land in dispute on the death of Ram Narain. The consolidation authorities erred in taking a contrary view. Similarly, the view of the consolidation authorities that as Sheo Charan, husband of the petitioner was a member of the Joint Hindu family, the petitioner was not entitled for any share in the land in dispute, is incorrect. It was incumbent upon the Deputy Director of Consolidation to have ascertained from the evidence on record as to whether all the plots of khata no. 32 were ancestral property and he erred in making casual observation that only 30 plots out of 70 plots of this khata were ancestral property. The observation of the Deputy Director of Consolidation that the identity of the land has changed also appears to have been made in a casual manner. The Deputy Director of Consolidation has not adverted to the evidence on record and dismissed the revisions of the petitioner in a summary manner. The argument of the learned counsel of the contesting parties that the finding of the Deputy Director of Consolidation that 30 out of 70 plots of khata no. 32 were ancestral property has also been arrived at without considering the evidence on record, has considerable force. The finding of the Deputy Director of Consolidation even with respect to these plots is vitiated for non consideration of evidence on record. 7. 32 were ancestral property has also been arrived at without considering the evidence on record, has considerable force. The finding of the Deputy Director of Consolidation even with respect to these plots is vitiated for non consideration of evidence on record. 7. In the result, the writ petition succeeds and is allowed and the order dated 10th September, 1973, Basti is quashed, He is directed to decide the revisions of the petitioner afresh in accordance vide law in the light of the observations made above. In the circumstances of the case, I direct the parties to bear their own costs.