PRAKASH KRISHNA, J. The pres ent writ petition arises out of proceedings under U. P. Consolidation of Holdings Act. The dispute relates to khata No. 484. The said khata, in the basic year, was recorded in the names of the petitioner and respon dent Nos. 2 to 4 i. e. Kalloo, Mohd. Islam, Mohd. Husain and Bhola. The respondent Nos. 2 and 3 Mohd. Islam and Mohd. Husain sons of Sattar filed objections on the pleas inter alia that the name of the peti tioner is wrongly recorded over the said khata. They along with respondent No. 4 Bhola son of Usman Gani are co-tenure holders of the same. The case set up by them was that the plots comprised in the said khata were acquired by Lala common ancestor of respondent Nos. 2, 3 and 4 and after death of Lala it was inherited by his sons namely Usman Gani father of respon dent No. 4 and Sattar father of respondent Nos. 2 and 3. Usman Gani and Sattar came in occupation of the same after the death of their father Lala. They claimed that they have 1/2 share while Bhola respondent No. 4 has got another 1/2 share. A reply to the objections was filed by the petitioner on the pleas inter alia that the plots were acquired by common ancestor of the parties i. e. Maula and after his death his sons Lala and Hausildar succeeded. Thus, the branch of Lala has 1/2 share and the petitioner who is son of Hausildar has got another 1/2 share. It was stated that in the revenue rec ord, due to mistake of Patwari, for a certain duration, name of Usman Gani was re corded exclusively. There was in case, be ing revenue case No. 48 between the par ties which was decided on 7. 9. 1966 in terms of -the compromise wherein Bhola son of Usman Gani admitted that Kalloo has got 1/2 share and the contesting respondent Nos. 2 and 3 have jointly got 1/2 share. In pursuance of the said admission made by Bhola, the names of contesting respondent Nos. 2 and 3 and that of the petitioner were recorded. It was also pleaded that the claim as set up by the respondent Nos. 2 and 3 in their objections that the petitioner has got no share in the said property is barred by time.
In pursuance of the said admission made by Bhola, the names of contesting respondent Nos. 2 and 3 and that of the petitioner were recorded. It was also pleaded that the claim as set up by the respondent Nos. 2 and 3 in their objections that the petitioner has got no share in the said property is barred by time. A prayer was made that the name of the petitioner be recorded to the extent of 1/2 share and the objections of the respondent Nos. 2 and 3 may be dismissed. 2. The Consolidation Officer and the Settlement Officer Consolidation as well by their orders dated 15. 11. 1972 and 19. 12. 1972 respectively dismissed the ob jections of the respondent Nos. 2 and 3. The said orders have been modified in revision by the impugned order passed by the Deputy Director of Consolidation, who has held that the petitioner has got 1/3 share instead of 1/2 share. 3. Heard the learned Counsel for the petitioner. None appeared on behalf of the contesting respondents. 4. The only point urged by the learned Counsel for the petitioner is that the name of the petitioner was recorded in pursuance of the statement given by Bhola. Bhola has admitted that the petitioner has got 1/2 share and, therefore, the Deputy Director of Consolidation has committed illegality in allotting 1/3 share only to the petitioner. It was also urged that the Dep uty Director of Consolidation was not right in interfering with the findings of fact re corded by the two authorities, below to it and had no jurisdiction to record a different finding of fact while exercising revisional jurisdiction. 5. Considered the aforesaid submis sions of the learned Counsel for the peti tioner. 6. The crux of the argument of the learned Counsel for the petitioner is that since Bhola has admitted that the petitioner has got 1/2 share, therefore, the Deputy Director of Consolidation was not justified in granting only 1/3 share in the khata in dispute. 7. A pedigree which is not in dispute between the parties, for the sake of conven ience, is reproduced as was produced by the Deputy Director of Consolidation in his impugned order: Maula Hausildar Lala Kalloo Basali Rajjak Sattar Amin Usmanganj Mohd. Hussain Mohd. Islam Sukurunisa Mst. Chhotkani Rawual Bhola 8.
7. A pedigree which is not in dispute between the parties, for the sake of conven ience, is reproduced as was produced by the Deputy Director of Consolidation in his impugned order: Maula Hausildar Lala Kalloo Basali Rajjak Sattar Amin Usmanganj Mohd. Hussain Mohd. Islam Sukurunisa Mst. Chhotkani Rawual Bhola 8. According to the petitioner, the khata in dispute was acquired by the com mon ancestor Maula while according to the contesting respondents, the said khata was acquired by Lala. In the objections, pre ferred by the contesting respondents, against the basic year entry, it has been stated that the khata in dispute was acquired exclusively by Lala and therein Hausildar or Kalloo had no share. It has been further stated that the petitioner i. e. Kalloo is of the same family (Khandan ). The question for determination was whether the khata in dispute was acquired by Maula or by Lala. In support of his case, the petitioner filed copy of khatauni of 1324 fasli which shows that Maula was given 25 plots in an area of 57 bigha 4 biswa 6 dhoor from 1321 fasli to 1327 fasli for cultivation on theka. The said fact is admitted by the contesting respondents in para-6 of the counter affidavit with reservation that the said theka was given by Zamindar Sri P. P. William. He thereafter gave this land to Sri Bhairavdin Misra, a Zamindar of the area and Abdul Sattar was in employment of said Bhairavdin Misra, who executed a lease deed in favour Lala, the father of Sattar for 10 plots in an area of 12 bigha 14 biswa 6 dhoor from 1329 Fasli to 1336 Fasli. According to the contesting respondents, name of Lala was thus recorded. This as pect of the matter has been considered in depth by the Consolidation Officer and the Settlement Officer Consolidation. The Con solidation Officer has rejected the said case of the contesting respondents herein. 9. A perusal of patta of 1329 Fasli would show that the names of all the per sons were recorded. The period of said patta came to an end in 1335 Fasli. In the khatauni of 1332 Fasli, for the first time, name of Bhola was recorded solely. It has been further found that name of the eldest member of the family was recorded as per the custom prevalent at the relevant time in the representative capacity.
The period of said patta came to an end in 1335 Fasli. In the khatauni of 1332 Fasli, for the first time, name of Bhola was recorded solely. It has been further found that name of the eldest member of the family was recorded as per the custom prevalent at the relevant time in the representative capacity. It took into consideration the fact that the name of the petitioner and the contesting respondents as well came to be recorded in 1356 Fasli. Since then, the name of the petitioner is being recorded haying 1/2 share in the said khata and the said entry continued without there being any objection from any side. In the meantime, the petitioner also applied for grant of "bhumidhari Sanad" of his share by converting sirdari right and made necessary deposits. The contesting respon dents preferred objections to grant of bhumidhari Sanad to the petitioner but they remained unsuccessful. Although the case of the contesting respondents is that the said order has not attained finality as they challenged it by way of appeal, but in the absence of any material on record in cluding of the present writ petition, I am of the considered view that the Consolidation Officer has rightly held that the said order attained finality. The Consolidation Officer, after taking into consideration the entire aspect of the case and dealing the matter in depth, rightly reached tc the conclusion that the objections preferred by the contest ing respondents for deleting the name of the petitioner from the revenue record has no substance. The order of the Consolida tion Officer is well considered order. He has dealt with the matter in great depth and has pointed out that the objectors (contesting respondents herein) have failed to produce any evidence in support of their, case. Noticeably, in the present writ peti tion, the contesting respondents have also not filed any document in support of their case except making a bald denial of the averments made in the writ petition.
Noticeably, in the present writ peti tion, the contesting respondents have also not filed any document in support of their case except making a bald denial of the averments made in the writ petition. What is disturbing is that the Deputy Director of Consolidation without making any analysis of the material on record in a slip sod method after accepting the case of the re spondents that the name of the petitioner is wrongly recorded in the revenue record, -proceeded to determine the share of the parties on the ground that there is no evidence on record to show that Bhola (respondent No. 4) or Hausildar (rather of the petitioner) had 1/2 share. Then he took into consideration that 57 bigha of land, recorded in the name of Maula (common ancestor of the parties) which was reduced considerably with passage of time to 9 bigha 10 biswa 2 dhoor and was recorded in the name of Usman Gani (father of Bhola ). Even the Deputy Director of Con solidation has noticed in the impugned or der that the land was originally recorded in the name of Maula, which establishes the case of the petitioner that the land in ques tion is ancestral land and reduction in its area notwithstanding. The shares shall be allotted on per strip, not on per head basis. The impugned order is vitiated as the Deputy Director of Consolidation has completely lost this legal aspect of the matter which has resulted in substantial miscarriage of justice. 10. Besides the above, the impugned order is liable to be set aside as the Deputy Director of Consolidation has ignored the relevant material which were taken into consideration by the authorities below to it while passing the impugned order. One important aspect of the case is that indis putably, the petitioner applied for grant of bhumidhari Sanad" claiming 1/2 share of the khata in dispute. The said proceeding was contested unsuccessfully by the con testing respondents. The Naib Tehsildar (N) by order dated 17. 6. 1971 while ordering the grant of bhumidhari Sanad in fa vour of the petitioner also took into consid eration the khatauni for the period 1321 Fasli to 1327 Fasli. 1352 Fasli and 1365 Fasli and reached to the conclusion that the peritioner has 1/2 share in the disputed khata and the holding was ancestral holding.
6. 1971 while ordering the grant of bhumidhari Sanad in fa vour of the petitioner also took into consid eration the khatauni for the period 1321 Fasli to 1327 Fasli. 1352 Fasli and 1365 Fasli and reached to the conclusion that the peritioner has 1/2 share in the disputed khata and the holding was ancestral holding. It was incumbent upon the Deputy Director of Consolidation, before passing an order of reversal, to have taken into consideration this aspect of the matter of whatever worth it was, as the same was considered by the Consolidation Officer. 11. A bare perusal of the impugned order would show that the Deputy Director of Consolidation has not recorded any finding of its own nor he has given any rea son in support of the order. Upto pen ulti mate paragraph of the order he has noticed the facts of the case and respective conten tions of the parties and immediately there after in ultimate paragraph reached to the conclusion that so far as the allotment of share is concerned, the revision is allowed 4 and it is held that Kalloo and Bhola each has 1/3 share. In other words, the Deputy Director of Consolidation has decided the revision in a slip sod method. 12. The other aspect of the case is that indisputably in the basic year name of the petitioner was recorded as co-sharer to the extent of 1/2 share. The said entry is long standing entry in the revenue record and was never disputed or objected by the contesting respondents by filing any suit or taking out any legal proceeding. After commencement of the consolidation opera tion in the village, they applied for expung ing the name of the petitioner and disputed the correctness of the revenue record. Bur den laid upon them to prove that the basic year entry was in any manner incorrect. There being no evidence from their side to show- that the property in question is not ancestral property of the parties, presump tion of correctness of the revenue entry at tached to the basic year remains unrebutted. 13. Although it was pleaded by the contesting respondents that Bhola made the admission in favour of the petitioner being Sadhu (brother in law), but the said fact has been specifically denied by Bhola in his deposition.
13. Although it was pleaded by the contesting respondents that Bhola made the admission in favour of the petitioner being Sadhu (brother in law), but the said fact has been specifically denied by Bhola in his deposition. Bhola has stated in no uncertain terms in his deposition that the petitioner is in occupation of his 1/2 share of the prop erty in question and has been paying land revenue and over other 1/2 portion he along with Mohd. Husain and Islam (contesting respondents) are in occupation. There being no material on record to con tradict the said statement of Bhola, the same has been wrongly ignored and not considered in the impugned order. The im pugned order is, therefore, perverse and based on non-consideration of relevant material on record. 14. Viewed as above, the impugned order is arbitrary, illegal and based on non-consideration of relevant material on rec ord and is, therefore, liable to be quashed. The contention of the petitioner is, there fore, well founded. 15. Second aspect of the case is that the Deputy Director of Consolidation has exceeded in its jurisdiction in interfering with the findings of fact recorded by the two authorities below to it. 16. The impugned order was passed in the year 1974 and therefore, the relevant section as then stood, is to be considered, before amendment. Section 48 of the U. P. CH Act reads as follows:- "48. Revision and reference- (1) The Di rector of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order other than interlocutory order passed by such authority in the case of proceedings and may, after allowing the parties concerned an opportunity of being heard, make such order in the case of proceedings as he thinks fit. (2) Powers under sub-section (1) may be exercised by the Director of Consolidation also on a reference under sub-section (3 ). (3) Any authority subordinate to the Director of Consolidation may, af ter allowing the parties concerned an opportunity of being heard, re fer the record of any case or pro ceedings to the Director of Con solidation for action under sub-section (1 ).
(3) Any authority subordinate to the Director of Consolidation may, af ter allowing the parties concerned an opportunity of being heard, re fer the record of any case or pro ceedings to the Director of Con solidation for action under sub-section (1 ). Explanation.- (1) For the purposes of this section, Settlement Officers, Consolidation, Consolidation Offi cers, Assistant Consolidation Offi cers, Consolidation and Consolida tion Lekhpals shall be subordinate to the Director of Consolidation. Explanation.- (2) For the purposes of this section the expression interlocutory order in relation to a case or proceeding, means such or der deciding any matter arising in such case or proceeding or collat eral thereto as does not have the ef fect of finally disposing of such case or proceeding. " Explanation (3)-The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, re corded by any subordinate author ity, and also includes the power to reappreciate any oral or documen tary evidence. " [the Explanation (3) Ins. By U. P. Act No. 3 of 2002 (w. e. f. 21. 6. 2002) Published in U. P. Gazette Extra Part I section (Ka) dated 4th September, 2002] 17. The said section was amended from time to time and the Explanation III thereto was added subsequent to the pe riod under consideration. Therefore, the said Explanation was not on the Statute Book on the relevant point of time. 18. Scope of section 48 of U. P. CH Act after its amendment in 1968 came up for consideration before the Apex Court in Ram Duiar v. D. D. C. , Jaunpur and others, 1994 RD 290 (SC) Then, it was examined in Shea Nand and others v. DDC, Allahabad, 2000 RD 213 (SC ). The relevant para 20 and 21 thereof are reproduced below:- "20. The section gives very wide pow ers to the Deputy Director. It en ables him either suo motu on his own motion or on the application of any person to consider the pro priety, legality, regularity and cor rectness of all the proceedings held under the Act and to pass appropriate orders.
The section gives very wide pow ers to the Deputy Director. It en ables him either suo motu on his own motion or on the application of any person to consider the pro priety, legality, regularity and cor rectness of all the proceedings held under the Act and to pass appropriate orders. These powers have been conferred on the Deputy Di rector in the widest terms so that the claims of the forties under the Act may be effectively adjudicated upon and determined so as to con fer finality to the rights of the par ties and the Revenue Records may be prepared accordingly. 21. Normally, the Deputy Director, in exercise of his powers, is not ex pected to disturb the findings of fact recorded concurrently by the-Consolidation Officer and the Set tlement Officer (Consolidation), but where the findings are per verse, in the sense that they are not supported by the evidence brought on record by the parties or that they are against the weight of evidence. It would he the duty of the Deputy Director to scrutinize the whole case again so as to deter mine the correctness, legality or propriety of the orders passed by the authorities subordinate to him. . . . . . . . . . . . . . . . . . . . . . . . . " 19. Taking note of the aforestated pronouncements, the Apex Court in Gaya Din (D) through Lrs. and others v. Hanuman Prasad (D) through Lrs. and others, 2001 (92) RD 79 (SC) has held in para 14 as follows:- "thus, it is clear that notwithstanding the fact that section 48 has been couched in wide terms, it only permits interference where the findings of the subordinate, authority are perverse in the sense that they are not supported by the evidence brought on record or they are against the law or where they suffer from the vice of procedural irregularity. " 20. The authoritative judicial pro nouncements as noticed above, support the contention of the learned Counsel for the petitioner that the Deputy Director of Con solidation can interfere with the findings of the Subordinate Authority only when they are perverse or against the material on record. The Deputy Director of Consolidation has not found that the findings recorded by the Consolidation Officer and Settlement Officer Consolidation were perverse.
The Deputy Director of Consolidation has not found that the findings recorded by the Consolidation Officer and Settlement Officer Consolidation were perverse. As already noticed above, he proceeded to decide the lis as if he was exercising the original jurisdiction. 21. In view of the above discussions, the writ petition succeeds and is allowed. The impugned order dated 29. 6. 1974 is hereby quashed. 22. Since none has appeared to op pose the writ petition, no order as to costs. Petition Allowed. .