JUDGMENT Hon’ble Mrs. Poonam Srivastav, J.—Heard Sri Suresh Chandra Tripathi Advocate on behalf of petitioners and Sri P. K. Shukla Advocate holding brief of Sri N.C. Rajvanshi Senior Advocate appearing for contesting respondents. 2. Counter, rejoinder, supplementary counter and supplementary rejoinder affidavits have been exchanged. As agreed between the parties, writ petition is heard finally. Written submissions have also been preferred by respective counsel. 3. The dispute relates to Khata No. 72 which consists of 7 plots namely plot Nos. 516, 517, 518, 519, 536, 537 and 538. Admitted pedigree between parties is detailed herein below : Diwan son of Hira I I I I Banwari Rupa Phool Singh @ Phooloo Raja Ram I I I I Ilam Chand Janardan Ramesh Kumar Widow Champa Devi 4. Petitioners are aggrieved by orders passed by the Settlement Officer Consolidation and Deputy Director of Consolidation, Annexures 2 and 3 respectively to the writ petition. When the village was notified and consolidation proceedings commenced, petitioners filed their objections under Section 9 of U.P.C.H. Act (hereinafter referred to as the Act). Claim of the petitioners set up at the initial stage was that admittedly the land in question was ancestral property. There was no partition or family settlement and, therefore, evidently all the descendants had a share in the disputed plots. Oral evidence of Ilam Chand, Nagina Singh and Mohd. Mustafa were adduced as well as a number of documentary evidence which are detailed in paragraph 6 of the writ petition. The Consolidation Officer allowed objections of the petitioners to the extent of 1/4th share. Objections were filed by vendees on the basis of a deed of agreement to sell and the same were rejected. Contesting respondent Smt. Champa Devi as well as vendees filed two sets of appeal. The appeals were allowed. Eight revisions were preferred against the order of Settlement Officer Consolidation. Memorandum of revision is annexed as Annexure-5 to the writ petition. The Deputy Director of Consolidation dismissed the revisions vide order dated 30.8.1986 which is also impugned in the instant writ petition. 5. Submission of Sri S.C. Tripathi is that the Consolidation Officer decided the objections in favour of the petitioners after framing nine issues. There were 17 documentary evidence and oral testimony of three witnesses were recorded. Pedigree was not disputed by respondents as well. The contesting parties agreed that Diwan, common ancestor died in the year 1958. 5. Submission of Sri S.C. Tripathi is that the Consolidation Officer decided the objections in favour of the petitioners after framing nine issues. There were 17 documentary evidence and oral testimony of three witnesses were recorded. Pedigree was not disputed by respondents as well. The contesting parties agreed that Diwan, common ancestor died in the year 1958. Banwari, Rupa and Phool Singh predeceased Diwan and Rajaram being the only adult alive started looking after the property since the life time of Diwan and at the relevant time the petitioners were all minor. Since Rajaram was uncle of the petitioners, irrigation receipts were issued in the name of Rajaram. Submission of Sri Tripathi is that the Consolidation Officer rightly allowed claim of the petitioners to the extent of 1/4th share in each of the property left by Diwan. The next submission is that the Settlement Officer Consolidation and Deputy Director of Consolidation have failed to take into consideration that during the previous consolidation proceedings name of Diwan was in existence in the record. The Settlement Officer Consolidation has noticed and mentioned this fact in his order dated 29.8.1959 in case No. 40 of 1959 under Section 5(a) of the Act. It was only at a subsequent stage in CH Form 45 name of Rajaram was entered in place of Diwan. Sole consideration of the two authorities namely Settlement Officer Consolidation and Deputy Director of Consolidation is only on account of said entry and the irrigation receipts. This has resulted in miscarriage of justice. The next submission is that the Settlement Officer Consolidation and Deputy Director of Consolidation have failed to take into consideration the evidence adduced on behalf of the petitioners, complete reliance has been placed on the irrigation receipts and order during mutation proceedings after the death of Diwan. Evidently Rajaram was the only adult member of the family alive and looking after the family affairs and that is why his name was entered alone. 6. Argument of learned counsel on behalf of the respondents while denying the claim of the petitioners is that since name of Rajaram finds place in the order passed in the year 1959 and petitioners have failed to raise any objection, therefore, the said order cannot be set aside and cannot be reassessed as it stands barred by principles of res judicata and constructive res judicata. Learned counsel while criticizing the judgment of Consolidation Officer has emphasized that since the petitioners at no point of time have raised their claim of title therefore the same is barred by Section 49 of the Act as well. Besides, it is also submitted that common ancestor Diwan died on 1.3.1958 and law was changed on 27.11.1958 and, therefore, order of Assistant Consolidation Officer passed on 29.8.1959 is rendered without jurisdiction. The next submission while controverting the argument of Sri S.C. Tripathi is that findings of the Consolidation Officer have specifically been reversed by the Settlement Officer Consolidation and Deputy Director of Consolidation, therefore, this Court cannot enter into reappraisal of evidence at this stage. Emphasis has also been laid that some family settlement had taken place and certain Khatas were recorded in the name of Banwari father of petitioner No. 1 alone in 1359 Fasli i.e. on 1.7.1952, therefore, it does not lie with the petitioners to raise their objections at this stage and claim that property in the name of Rajaram was joint. 7. Taking into consideration all these aspects and going through record, it is evident that it is undisputed that the property is an ancestral property and all the descendants of Diwan had a share. It is also admitted fact that Diwan died during previous proceedings under the Consolidation of Holdings Act. It was only Rajaram, uncle of the petitioners who was alive and was looking after affairs of the family, obviously his name came to be recorded in the revenue records. The contesting respondents have relied on the entries in favour of Rajaram as well as the order passed during mutation proceedings but once it is admitted that the property was initially ancestral, heavy burden lies on the shoulders of the respondents to prove and substantiate that there was a family settlement or partition between the descendants of Diwan. On perusal of the judgment of the Settlement Officer Consolidation, it is evident that reliance has been placed on irrigation receipts whereas it is not denied that the petitioners were minors and their uncle Rajaram was taking care of the property. A close scrutiny of the judgment of the Settlement Officer Consolidation also makes it clear that evidence adduced at the initial stage by the petitioners which are already detailed in paragraph 6 of the writ petition, has not at all been taken into consideration. A close scrutiny of the judgment of the Settlement Officer Consolidation also makes it clear that evidence adduced at the initial stage by the petitioners which are already detailed in paragraph 6 of the writ petition, has not at all been taken into consideration. Only order which forms basis of the judgment of the Settlement Officer Consolidation is during mutation proceedings as well as entry in the name of Rajaram in the year 1959. Admittedly when Diwan died his name figures in C.H. Form 45 during the previous consolidation proceedings. The Settlement Officer Consolidation and Deputy Director of Consolidation have completely overlooked the order dated 29.8.1959 passed at the time of previous proceedings. At the relevant time the proceedings under the C. H. Act were summary proceedings having nothing to do with the title of the parties concerned. Therefore the authorities below were liable to examine and record a finding when the family settlement or partition was arrived between the parties. 8. The assertion of Sri S.C. Tripathi appears to be correct that previously jurisdiction of the consolidation Courts were limited and they could not decide title of the parties concerned. Reliance has been placed on a Division Bench decision of this Court in the case of Shrimati Natho and another v. Board of Revenue, U.P. Allahabad and others, 1966 ALJ 563. Division Bench decided the question on a reference by learned Single Judge and held that the consolidation authorities had no jurisdiction to entertain title disputes and there could be no declaration or adjudication upon rights of tenure-holders. Any orders made in the proceedings would not be a declaration and adjudication of rights and, therefore, will not attract the bar of Section 49 of the Consolidation of Holdings Act. The Division Bench further held that even mutation proceedings is a proceeding under the Land Revenue Act and have only limited value, therefore, any order passed cannot result in declaration or adjudication of rights or title of the tenure-holders. 9. Similar view was expressed in another case Smt. Amjadi v. Dy. Director of Consolidation, Lucknow Camp At Moradabad and others, 1963 RD 62. 10. 9. Similar view was expressed in another case Smt. Amjadi v. Dy. Director of Consolidation, Lucknow Camp At Moradabad and others, 1963 RD 62. 10. It is also evident from bare perusal of the order of the Settlement Officer Consolidation that copious evidence lead at behest of the petitioners have been overlooked and ignored by the Settlement Officer Consolidation and Deputy Director Consolidation has confirmed the order of the Settlement Officer Consolidation without looking into the record whatsoever. The assertion on the part of the respondent’s counsel that certain plots were held by petitioner Banwari solely in his name is not enough to draw an adverse inference against all the petitioners. The Settlement Officer Consolidation and Deputy Director of Consolidation have completely failed to discuss share of Janardan son of Rupa. Certain plots have been recorded in the exclusive name of Banwari which was sold by him but it is not the respondents case that it was also ancestral. Family settlement or partition has to be proved and substantiated. It is not the case of respondents that the plots in question is a self acquired property of Rajaram. In the instant case, there are a number of co-sharers and unless and until authorities were satisfied that there was some partition and allocation of shares by private settlement, sole entry in the name of Rajaram is not sufficient. There has to be proof of the shares having been allocated, specially on the face of documents showing that during previous proceedings name of Diwan was mentioned alone in the C.H. Form 45 and he died in the year 1958, subsequent thereon name of Rajaram was mutated in the year 1959. The authorities such as Settlement Officer Consolidation and Deputy Director Consolidation should have been cautious to examine matter thoroughly. It is correct that evidence adduced by the petitioners have completely been overlooked by the Settlement Officer Consolidation while deciding the appeal. 11. Learned counsel has also placed reliance on two decisions in the cases of Ali Sher v. Hasmat and others, 1996 Supp. RD 188 and Paras Nath and others v. Wajiul Hasan and others, URC 615. Another Division Bench held that it is well settled that a final Court of fact must consider the oral and documentary evidence before giving final verdict on a question of fact. 12. RD 188 and Paras Nath and others v. Wajiul Hasan and others, URC 615. Another Division Bench held that it is well settled that a final Court of fact must consider the oral and documentary evidence before giving final verdict on a question of fact. 12. Similar view was expressed in the case of Hari Singh v. Deputy Director of Consolidation, Etah Camp at Mathura and others, 2000 (91) RD 203. 13. In view of apparent shortcomings in the decision by the Settlement Officer Consolidation as well as Deputy Director of Consolidation, relevant material questions have not been decided and judgments have been passed cursorily only on the basis of mutation proceedings and certain irrigation receipts cannot be upheld by this Court. I am conscious of the fact that this is a writ petition which is an extra ordinary jurisdiction and I cannot reassess the evidence but since it is apparent on the face of the record that material evidence have been ignored, questions of fact have been decided without taking into consideration that there is nothing on record to substantiate any family partition after the death of Diwan. The petitioners were minor and Rajaram was the eldest family member therefore the Courts below were liable to decide all questions specially the evidence on record was liable to be looked into which goes a long way to establish right and title and claim of co-sharers after taking into consideration complete evidence on record. There is no reason given by two Courts below for accepting the respondents’ assertion that Rajaram was exclusive owner of the property of Diwan. Neither there is a partition deed nor there is any other document to support the exclusive claim of Rajaram. 14. In the circumstances of the case, submissions made by Sri S.C. Tripathi has substance. The judgment passed by the Settlement Officer Consolidation and Deputy Director of Consolidation are rendered manifestly erroneous, and error apparent on the face of record is evident. The impugned judgment passed by the Settlement Officer Consolidation and Deputy Director of Consolidation dated 30.8.1986 are hereby quashed. In the circumstances of the case, submissions made by Sri S.C. Tripathi has substance. The judgment passed by the Settlement Officer Consolidation and Deputy Director of Consolidation are rendered manifestly erroneous, and error apparent on the face of record is evident. The impugned judgment passed by the Settlement Officer Consolidation and Deputy Director of Consolidation dated 30.8.1986 are hereby quashed. The matter is remanded to the Settlement Officer Consolidation to decide claim of the petitioners and contesting respondents after taking entire evidence on record and fact that at the relevant time when the previous consolidation proceedings in the year 1958-59 were held, the consolidation authorities could not decide right and title and, therefore, claim of the respondents on the basis of previous proceedings cannot have a material bearing on the rights of the parties. The writ petition is accordingly allowed. —————