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2010 DIGILAW 3157 (ALL)

Yagya Narain v. D. D. C.

2010-10-08

VIKRAM NATH

body2010
Vikram Nath, J.: - Heard the learned counsel for the petitioner. 2. In the basic year entries the petitioner and the respondent no.4 were jointly recorded as co-tenure holders. The petitioner filed an objection that as his father Pargas had purchased the entire land of the khata, he should be exclusively recorded and the name of the respondent no.4 be expunged. 3. The Consolidation Officer framed three issues. The first issue was whether the name of Barsati was wrongly recorded over the land in dispute. The second issue was whether the petitioner being the legal heir of Pargas was entitled to be exclusively recorded over the land in dispute. The third issue was whether the respondent no.4 was entitled to be exclusively recorded over the land in dispute. The Consolidation Officer by order dated 24.12.1973 held that the petitioner's father Pargas had purchased the entire land of the khata and therefore after his death he would be entitled to be exclusively recorded over the land in dispute and accordingly directed that the name of the respondent Barsati be expunged from the record. Respondent No.4, Barsati filed an appeal. The Settlement Officer Consolidation came to the conclusion that the sale deed was in respect of only 1/2 share and therefore the petitioner and the respondent no.4 were correctly recorded in the basic year records and accordingly directed for maintaining the basic year entries. The revision filed by the petitioner has been dismissed. The Deputy Director of Consolidation has concurred with the finding recorded by the Settlement Officer Consolidation. It is against the said orders that the present petition has been filed. 4. It is not in dispute that the khata in question originally belonged to one Ram Kishun. Ram Kishun had two sons, Tulsi and Ganga. Tulsi had executed a sale deed in 1938 in favour of Pargas, father of the petitioner Yagya Narain. Tulsi had only 1/2 share as such he could not have transferred more than his share under the sale deed, and therefore, the petitioner upon the death of his father Pargas would inherit only 1/2 share of the khata in question coming down from Ram Kishun. Barsati is the son of Ganga. Therefore he continued to be recorded as co-sharer with Pargas initially and thereafter with the petitioner Yagya Narain. 5. Barsati is the son of Ganga. Therefore he continued to be recorded as co-sharer with Pargas initially and thereafter with the petitioner Yagya Narain. 5. In the appeal and in the revision and also in this petition the argument raised on behalf of the petitioner is that Barsati was not the son of Ganga but was the son of one Raghu Nandan and therefore his name ought not to have continued as a co-sharer. I am afraid that such an issue could have been raised by the petitioner at the appellate stage and thereafter in the revision and then in this petition. Neither there was any pleading that Barsati was not the son of Ganga nor that issue had been framed. As such it could not have been a subject matter to be decided by the Consolidation Courts or in this petition. 6. It has also been argued on behalf of the petitioner that the Settlement Officer Consolidation and the Deputy Director of Consolidation did not take into consideration the oral statement of Barsati in which he had admitted that he was son of Raghu Nandan. According to the learned counsel for the petitioner the judgments of the Appellate and the Revisional Courts are vitiated in law as they have not taken into consideration the material oral evidence on record. In support of his contention the learned counsel for the petitioner has placed reliance on a judgment of this Court in the case of Mahendra and others vs. Deputy Director of Consolidation, Bulandshahar and others, [2007(103) RD 415]. The said submission of the learned counsel for the petitioner cannot be accepted as the evidence which is only relevant to the pleadings and issue can be taken into consideration. In the present case as already discussed above, it was not an issue as to whether Barsati was the son of Ganga or was the son of Raghu Nandan. In the circumstances this argument of the petitioner is rejected. 7. With regard to the sale deed petitioner has not been able to show that Tulsi could have executed the sale deed in excess of his share being inherited from Ram Kishun. Accordingly the Settlement Officer Consolidation and the Deputy Director of Consolidation have rightly directed that the basic year entires be maintained. 8. In view of above discussion the petition being devoid of merit is accordingly dismissed.