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1987 DIGILAW 1015 (ALL)

Ram Prasad v. Sita Ram

1987-10-29

K.K.BIRLA

body1987
JUDGMENT K.K. Birla, J. - This writ petition has been preferred by Sri Ram Prasad for quashing the order dated 4-11-1971 passed by the Deputy Director of Consolidation, Basti, respondent no. 8, whereby he had allowed the revisions preferred by Sita Ram and Uma. 2. Briefly stated, Ram Baran had 5/7 share in Khata no. 166 of the land situate in village Bajahi, Tahsil Bansi, District Basti, Ram Baran died in 1957. Smt. Sunara and Smt. Parma claimed to be the daughters of Ram Baran. Their Claim was rejected in mutation proceedings. The village came under consolidation. Before the consolidation authorities objection was filed on behalf of Sunara and Parma claiming to be the daughters of deceased Ram Baran and having succeeded to his share of 5/7 in this Khata. The Consolidation Officer by his order dated 25-10-1970 (vide copy Annexure 1 to the writ petition) found Smt. Sunara and Perma to be the daughters of Ram Baran. He accordingly decided the share of Smt. Sunara to be 5/7, Sita Ram and Uma of the branch of Nepal to be 1/7 and Ranjit and three others to be 1/7. Being aggrieved, Sita Ram preferred appeals against Smt. Parma, Sunara and others. By order dated 26-4-1971 the Settlement Officer (consolidation) dismissed those appeals and upheld the order of the Consolidation Officer. Being aggrieved by this order Sita Ram and another preferred revision nos. 29 and 30 under Section 48 of the U.P Consolidation of Holdings Act before the Deputy Director of Consolidation, Basti. The Deputy Director of Consolidation allowed these revisions by his order dated 4-11-1971 (vide copy Annexure 3) by which he held that the claim of Smt. Parma and Sunara were wrongly allowed by the courts below. He accordingly allowed the revisions and dismissed the objection of Smt. Parma and Sunara preferred before the Consolidation Officer. Smt. Sunara died during the pendency of those proceedings, Sri Ram Prasad petitioner son of Smt. Sunara being aggrieved has preferred this writ petition for issuing a writ of certiorari and for quashing the order dated 4-11-3971. 3. In the impugned order the main ground for allowing the revisions taken is that in the mutation proceedings Smt. Perma and Smt. Sunara were not held to be the daughters of Ram Baran and did not fife any Suit. 3. In the impugned order the main ground for allowing the revisions taken is that in the mutation proceedings Smt. Perma and Smt. Sunara were not held to be the daughters of Ram Baran and did not fife any Suit. The Deputy Director of Consolidation discussed the evidence and was of the opinion that the evidence led on behalf of Smt. Sunara and Parma about their possession was unreliable. He found them not to be in possession. According to him, as their claim was denied as far back as 1957, the possession of the revisionsts (Sita Ram and another) was openly adverse to them and their rights, if any, in the land had extinguished. 4. I have heard learned counsel for the petitioner. None appeared on behalf of the opposite parties. It is contended by the learned counsel for the petitioner that the Deputy Director of Consolidation had not set aside the finding that Smt. Sunara and Parma were daughters of Ram Baran, that the possession of a co-sharer is in any case possession of all the co-sharers, that no plea of ouster or adverse and hostile possession has been taken by the opposite parties at any stage and as such the Deputy Director of Consolidation has acted illegally in culling out a new case for the opposite parties. In my opinion the contention of the learned counsel for the petitioner has force. 5. In the impugned order the Deputy Director of Consolidation has not found that Smt. Sunara and Parma were not the daughters Sri Ram Baran or the finding of the authorities below was erroneous on this point. Annexures 8 and 9 are, the copies of the revision petitions preferred before Deputy Director of Consolidation by Sita Ram and Uma. In these revision applications no case had been taken out that the other co-sharers were openly in adverse possession due to the ouster and exclusion of Smt. Sunara and Parma. In the order of the Consolidation Officer (Annexure 1) and the order of Settlement Officer (Consolidation) (Annexure 3) the question whether Smt. Sunara and Parma were daughters of Sri Ram Baran or not was considered. They too are silent on this point. It appears that at the time of arguments the plea of limitation was raised before the Deputy Director of Consolidation. It was a mixed question of fact and law. They too are silent on this point. It appears that at the time of arguments the plea of limitation was raised before the Deputy Director of Consolidation. It was a mixed question of fact and law. It is quite established that possession of one co-sharer is on behalf of the other co-sharers as well unless ouster is specifically pleaded or shown. Smt. Parma and Sunara had claimed their possession. In absence of any specific plea the Deputy Director of Consolidation was not justified in deciding the revision on this point and without entering into the propriety or correctness of the finding that Smt. Sunara and Parma were the daughters of Ram Baran. I am, therefore, of the opinion that the impugned order deserves to be quashed and the Deputy Director of Consolidation is directed to decide the revision in accordance with law. 6. In the result, the Writ petition is allowed. The impugned order dated 4-11-1971 passed by the Deputy Director of Consolidation, Basti, is quashed, and it is directed that the revisions nos. 29 and 30 of 1971 under Section 48 of the U.P. Consolidation of Holdings Act be decided in accordance with law and with due advertance to the observation made above after giving opportunity to the parties of being heard.