JUDGMENT Hon’ble Prakash Krishna, J.—Undaunted by the failure from all the three revenue Courts below, the petitioner who is a recorded tenure holder has approached this Court by means of the present writ petition questioning the legality and validity of the orders. 2. This is second round of litigation in this Court. Earlier, the matter had come before this Court against the revisional order passed by the Deputy Director of Consolidation in favour of the petitioner being writ petition No. 805 of 1972 which was allowed on 8th of May, 1978 and the matter was restored back to the Deputy Director of Consolidation to rehear and redecide the revision after giving an opportunity to the parties to lead the evidence on the question of ex-proprietorship. After remand before the Deputy Director of Consolidation, evidence was led, but the Deputy Director of Consolidation has not considered the said issue but dismissed the revision on other points. 3. The background facts may be noticed in brief. 4. The dispute relates to various Khatas situate in two villages namely village Nath Nagar and village Tinahari. The Khata No. 350 of village Nath Nagar was recorded in the basic year in the name of the petitioner while the other Khata Nos. 204, 253 and 35 were jointly recorded in the names of petitioner and Shivpoojan through whom the respondents are claiming the property in dispute. Khata No. 148 of village Tinahari was recorded solely in the names of the petitioner, while Khata No. 48 was recorded jointly in the name of Bansh Gopal and Shivpoojan. On the commencement of the consolidation in the village three sets of objections were filed by the parties. The petitioner claims that the name of Shivpoojan be deleted and all the Khatas be recorded in his exclusive name. 5. The other set of objections was filed on behalf of the respondent Nos. 4 and 5 namely Satya Narain and Surya Narain claiming that their names may be jointly recorded in place of Shivpoojan with the name of the petitioner. Their case was that Kharchu and Ram Bahadur sons of Madhav were two brothers. After death of Madhav, his two sons Kharchu and Ram Bahadur inherited it in equal shares. The petitioner is son of Ram Bahadur and Shiv Poojan was son of Kharchu. Therefore, the petitioner and Shiv Poojan became co-tenants of the entire disputed property. The respondent Nos. Their case was that Kharchu and Ram Bahadur sons of Madhav were two brothers. After death of Madhav, his two sons Kharchu and Ram Bahadur inherited it in equal shares. The petitioner is son of Ram Bahadur and Shiv Poojan was son of Kharchu. Therefore, the petitioner and Shiv Poojan became co-tenants of the entire disputed property. The respondent Nos. 4 and 5 claimed that the whereabouts of Shiv Poojan are not known for the last seven years, therefore, it may be presumed that he has suffered a civil death and they being sister’s son of Shiv Poojan, are entitled to succeed the share of Shiv Poojan. 6. The parties led evidence in support of their respective cases. It has come on record that with respect to Gatas situate in village Tinahari, admittedly, Shiv Poojan on 24th of November, 1936 had executed a sale-deed in favour of Shiv Murat, the father of contesting respondent Nos. 4 and 5. Shiv Murat is the husband of sister of Shiv Poojan. A suit No. 733 of 1937 was instituted by the father of the petitioner i.e. Ram Bahadur for cancellation of the said sale-deed which was dismissed on 8th of August, 1938. Another suit No. 720 of 1937 was filed by Ram Bahadur for pre-emption which was decreed subject to the payment of consideration but the consideration was never paid. 7. It appears that Shiv Murat thereafter filed Case No. 108/124 under Section 36 of the U.P. Tenancy Act for mutation of his name on the basis of the aforesaid sale-deed in respect of the land of village Tinahari. The said mutation application was dismissed by the Sub Divisional Officer, Khalilabad on the ground that Shiv Poojan is not in possession of the land of village Tinahari and no ex-proprietorship right, thus, accrued in his favour. 8. Shiv Poojan was wanted in Session Trial No. 132 of 1939 under Section 307 IPC. He absconded. The trial was concluded against the other co-accuseds by convicting them. During the proceedings before the Consolidation Officer a person appeared, according to the petitioner, he was Shiv Poojan. His statement was recorded on 15th of November, 1969 under Order 10 Rule 2 C.P.C before the Consolidation Officer. The said person was arrested by the police and was produced in Court to face the Session Trial No. 132 of 1939 wherein Shiv Poojan was one the of the accused. His statement was recorded on 15th of November, 1969 under Order 10 Rule 2 C.P.C before the Consolidation Officer. The said person was arrested by the police and was produced in Court to face the Session Trial No. 132 of 1939 wherein Shiv Poojan was one the of the accused. The public prosecutor summoned the witnesses and after examining the witnesses the Session Court by its judgment dated 18th of May, 1970 discharged Shiv Poojan under Section 307 IPC. 9. The Consolidation Officer framed as many as four issues. Issue No. 3 was to the effect as to whether the same Shiv Poojan whose statement was recorded under Order X Rule 2, had appeared before him was Sheo Pujan in question. He, by order dated 6th of June, 1970 held that Shiv Poojan is absconding for the last more than seven years and the person who was examined as Shiv Poojan is not that very Shiv Poojan whose property is in dispute, therefore, the contesting respondents who are his sister’s son would inherit the property of Shiv Poojan. It consequently allowed the objection of the contesting respondent Nos. 4 and 5. The matter was carried in six appeals before the Settlement Officer of Consolidation and all the appeals were dismissed. The matter was carried further in six revisions before the Deputy Director of Consolidation who by his earlier order dated 22nd of November, 1971 allowed all the revisions and the said order was set aside by this Court in the earlier writ petition and the matter was restored back to the Deputy Director of Consolidation with certain directions. After remand, the Deputy Director of Consolidation by the impugned order has dismissed all the revisions, hence the present writ petition. 10. Heard Sri S.N. Tripathi, learned counsel for the petitioner and Sri Murlidhar Misra, learned counsel for the contesting respondents. 11. Sri Tripathi contended that there are various factual mistakes in the impugned order. He further submits that there is no evidence worth the name on record to show the actual date of death of Shiv Poojan. Civil death of Shiv Poojan could not be presumed in the facts and circumstances of the case. Admittedly, Shiv Poojan was involved in a criminal case under Section 307 IPC and was absconding. In the case of absconder, presumption of civil death unless date of actual death is proved, cannot be drawn. Civil death of Shiv Poojan could not be presumed in the facts and circumstances of the case. Admittedly, Shiv Poojan was involved in a criminal case under Section 307 IPC and was absconding. In the case of absconder, presumption of civil death unless date of actual death is proved, cannot be drawn. Elaborating the argument, it was submitted that Shiv Poojan himself appeared before the Consolidation Officer and was thereafter arrested by police in connection with pending Session Trial against him and the trial was completed by Session Judge. In the criminal case it was neither put as defence nor was found that the person who was arrested is not the same Shiv Poojan whose property is involved in the present litigation. The sum and substance of the argument is that the burden to prove that Shiv Poojan whose property is involved is dead is on the contesting respondents who are claiming his property by succession or inheritance. It was also contended that in any case, the land of village Tinahari was sold by Shiv Poojan. That property could not be inherited by the contesting respondents. It was also pleaded that the directions as contained in the remand order passed by this Court having not been complied with the impugned order cannot be allowed to stand and Deputy Director of Consolidation be directed to redecide the revisions afresh. 12. In contra, Sri Murlidhar Misra, the learned counsel for the contesting respondents submits that on the own showing of the petitioner, Shiv Poojan is absconding, therefore, the revenue Courts below have committed no error in drawing a presumption of civil death of Shiv Poojan. Even otherwise also, the writ petition is concluded by findings of fact. Elaborating the argument, it was submitted that the revenue Courts disbelieved that the person who appeared before the Consolidation Officer was the same Shiv Poojan whose property is involved in litigation, no interference in the present writ petition is called for. In the earlier litigation namely suit No. 733 of 1937 it has been found that Shiv Murat, father of the contesting respondents is husband of Sheo Poojan’s sister. Mst. Hansa, sister of Sheo Poojan who was married to Shiv Murat and from this wedlock, Satyanarain, respondent Nos. 4 and Suryanarain, respondent No. 5, were born. They are, thus, entitled to succeed the property left by Sheo Poojan being sister’s son (Bhanja). 13. Mst. Hansa, sister of Sheo Poojan who was married to Shiv Murat and from this wedlock, Satyanarain, respondent Nos. 4 and Suryanarain, respondent No. 5, were born. They are, thus, entitled to succeed the property left by Sheo Poojan being sister’s son (Bhanja). 13. Considered the respective submissions of the learned counsel for the parties and perused the record referred by them. 14. The following three questions arise out of the respective arguments of the learned counsel for the parties for determination : 1. Whether the revenue Courts have rightly presumed the civil death of Shiv Poojan in the facts and circumstances of the case? 2. Whether the remand order passed by this Court in the writ petition No. 805 of 1972, Satyanarain and others v. Deputy Director of Consolidation has been complied with by the Deputy Director of Consolidation? 3. Whether the Courts below were justified in granting a share to the contesting respondents in respect of those Khatas which were sold by Sheo Poojan? POINT No. 1 15. To begin with, a look to the objection filed by the contesting respondents in this regard is necessary. Copy of the objection has been filed during the course of hearing alongwith the supplementary affidavit. It is a short document having four paragraphs. The paragraphs-3 and 4 thereof are on the point. In para 3 it has been stated that Kharchu was their Nana (mother’s father) and after his death the property was inherited by his sons namely Sheo Poojan and Ram Bahadur. In para 4 it has been stated that Shiv Poojan was unmarried and for the last twelve years he has been absconding (Farar) and therefore, under law he is dead. The objectors (the contesting respondent Nos. 4 and 5) being the heirs have succeeded the share of Sheo Poojan and are in occupation of the property in dispute, therefore, their names be recorded in place of Shiv Poojan in the revenue record and their shares be separated. A bare perusal of the objections filed by the contesting respondents would show that it is as vague as it could be. This is the state of pleadings. A bare perusal of the objections filed by the contesting respondents would show that it is as vague as it could be. This is the state of pleadings. As regards the evidence is concerned, the statement of their father Shiv Murat was recorded who in his examination in chief has stated that Shiv Poojan is untraceable (Lapta) for the last 12-13 years and as such he is presumed to be dead and his sons are his heirs. The above issue has been considered under issue No. 3 by the Consolidation Officer before whom a person claiming himself as Shiv Poojan had appeared whose statement was recorded under Order 10 Rule 2 C.P.C. He had stated that he is residing at Mathura and Brindaban and is regular visitor of Nath Nagar and had gone to his home town in the last November. The statement was discarded on the ground that in the earlier civil litigation in the year, 1934 in the plaint of the suit No. 733 of 1937 it was stated that Shiv Poojan is a very simple man of weak intellect, hunchbacked, his eye lids are also defective due to flue-via and he cannot understand his well-being. While the person who was produced was different in appearance as there was no deformation in his body nor his eyes appeared to be defective. The person who was produced was aged about 65 years, he appeared to be a saint by the dress he had put on. 16. The Consolidation Officer himself had noticed that Khatedar Shiv Poojan was admittedly involved in criminal case and this fact was admitted by the person who appeared before the Consolidation Officer that he was absconding for the last twenty years being involved in a criminal case. 17. The Consolidation Officer has failed to take note of the fact that Shiv Poojan was wanted in the S.T. No. 132 of 1939, he was absconding and then arrested by police. After arrest he was tried under Section 307 IPC and was subsequently discharged by the Session Judge vide order dated 18.5.1970. The relevant portion from the judgment of the Session Judge dated 18th of May, 1970 is reproduced below : “The present accused was absconding and has been recently arrested. The case started after his arrest. The original file of the previous session trial was summoned. The relevant portion from the judgment of the Session Judge dated 18th of May, 1970 is reproduced below : “The present accused was absconding and has been recently arrested. The case started after his arrest. The original file of the previous session trial was summoned. The P.P. also summoned the case diaries of the case but nothing could be available. The file of S.T. No. 53 of 1940, which was received by me contains only the copy of the judgment and a few papers, which do not had the prosecutor to prosecute the present case. The P.P. Summoned the witnesses by perusing the judgment of the S.T. No. 53 of 1940 and produced them before me. The three witnesses have been produced by the prosecution namely, Maheshwari, Darbari and Algoo. All these three witnesses have been declared hostile of the prosecution. All of them have stated that the present accused was not present at the time of occurrence and did not take part in it. Even Mahashwari Prasad is said to have received injuries in the case has stated that he did not see Sheo Pujan accused on the spot. As regards the rest of the witnesses whose list was found in the judgment of the Session Court the police reports that Ram Singh and Basdeo are dead. Chandrika Prasad P.W. is traceless. Gudun, Naipal are also said to be dead. Thus there is not evidence against the accused to make out any crime against him. The accused is in jail since 19.12.1969. He could not come to Court today as he is said to be ill. Inspite of the facts that he has not come, I think that the case can be disposed of in his absence. Since there is no evidence against him it is not necessary to take his statement. The accused Sheo Pujan is discharged from the case under Section 307 I.P.C.” 18. A reading of the judgment of the Session Judge unmistakeably leads to the conclusion that Sheo Pujan who was involved in trial was absconding earlier and was produced in trial after arrest. There is no cogent evidence to show that this Sheo Pujan was some different person. A reading of the judgment of the Session Judge unmistakeably leads to the conclusion that Sheo Pujan who was involved in trial was absconding earlier and was produced in trial after arrest. There is no cogent evidence to show that this Sheo Pujan was some different person. The judgment of the Session Court is earlier in point of time i.e. 18th of May, 1970 than the judgment of the Consolidation Officer which is dated 8th of June, 1970 However, there is no mention of the said judgment in the judgment of the Consolidation Officer. 19. The revenue Courts below have not at all adverted to this aspect of the case that Sheo Pujan was wanted in the criminal case, was absconding earlier and later arrested by the police and tried by the Sessions Court and proceeded on a wrong footing based upon superficial examination of the physic or the person, who appeared before Consolidation Officer. The order of Consolidation Officer is thus based on assumptions and presumptions. They have failed to take into consideration the overall material and have based their finding on this vital issue on irrelevant considerations. 20. At this juncture, the learned counsel for the parties referred Sections 107 and 108 of the Evidence Act. The submission of learned counsel for the petitioner is that when a person claims a property of another person on the ground that another person has died a civil death, he has to prove the actual date of his death by evidence. The evidence in the present case in this regard is totally lacking. No presumption of civil death of Sheo Pujan could be drawn. 21. It is apt to consider the cases relied upon by the learned counsel for the petitioner. 22. Lal Chand Marwari v. Mahant Ramrup Gir and another, AIR 1926 PC 9 was relied upon in support of the above contention. In this case the Privy Council has noticed an English decision and has held that there is no difference between law of India as declared in the Evidence Act and the law of England. It has quoted the following from an English decision. In this case the Privy Council has noticed an English decision and has held that there is no difference between law of India as declared in the Evidence Act and the law of England. It has quoted the following from an English decision. The said portion is reproduced below : “If a person has not been heard of for seven years, there is a presumption of law that he is dead; but at what time within that period he died is not a matter of presumption but of evidence, and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential.” 23. Ultimately, it concluded that the law is that there is no presumption unless the actual date of death which depends on evidence is proved. There is no presumption at all as to when such a person has died. The following observations are apposite : “Following these words, it is constantly assumed—not perhaps unnaturally—that where the period of disappearance exceeds seven years, death, which may not be presumed at any time during the period of seven years, may be presumed to have taken place at its close. This, of course, is not so. The presumption is the same if the period exceeds seven years. The period is one and continuous, though it may be divisible into three or even four periods of seven years. Probably the true Rule would be less liable to be missed, and would itself be stated more accurately, if, instead of speaking of a person who had not been heard of for seven years it described the period of disappearance as one “of not less than seven years.” 24. In N. Jayalkshmi Ammal v. R. Gopala Pathar, AIR 1995 SC 995 , the Apex Court considered the provisions of Sections 107 and 108 of the Evidence Act and after noticing the Privy Council decision in the case of Lal Chand Marwari (supra) held that there is no presumption of exact time of death under Section 108 of the Evidence Act and the date of death has to be established on evidence by the person who claims a right for establishment of which that fact is essential. 25. 25. The decisions referred to above were up for consideration again in Darshan Singh and others v. Gujjar Singh, (2002) 2 SCC 62 . Reiterating the above principle of law it has been held in that case that as the plaintiff therein was claiming succession to the estate of Jagjit therefore burden was on him to prove his date of death. There being neither any pleading nor an averment regarding the date of death of Jagjit Singh the Apex Court held that the High Court was not right in holding Jagjit Singh was dead on the date of filing of the suit as he was not heard of for more than seven years. 26. More or less, similar controversy arose in Oriental Insurance Company Limited v. Sorumai Gogoi and others, (2008) 4 SCC 572 wherein it has been laid down that presumption of civil death with regard to the person who absconds from justice or evades a trial or is otherwise charged for commission of a grave offence, would not be available. Paragraph 18 is the relevant paragraph which is reproduced below : “Sections 108 and 109 of the Evidence Act are founded on the presumption that things once proved to have existed in a particular state are to be understood as continuing in that state until contrary is established by evidence either direct or circumstantial. The said provision can be invoked in a legal proceeding where the death of a person may be an issue. The Section does not say that presumption would be applicable in all situations. It shall not apply in respect of a person who absconds from justice or evades a trial or is otherwise charged for commission of a grave offence as he in that situation may not communicate with his relations. Furthermore in a case of this nature, it is also difficult to rely upon a self-serving statement made by the claimants that they had not heard of their son for a period of seven years. The Commissioner of Workmen’s Compensation or the High Court did not assign any reason as to why the fact disclosed in the charge-sheet which was filed upon investigation that Bipul Gogoi himself had run away with the vehicle would not be a relevant fact, particularly, when cognizance had been taken by a competent Court of law on the basis thereof.” 27. In L.I.C. of India v. Anuradha, AIR 2004 SC 2070 it has been laid down that the law as to presumption of death remains the same whether in common Law of England or in the statutory provisions contained in Sections 107 and 108 of the Indian Evidence Act, 1872. In the scheme of Evidence Act, though Sections 107 and 108 are drafted as two Sections, in effect, Section 108 is an exception to the Rule enacted in Section 107. The human life shown to be in existence, at a given point of time which according to Section 107 ought to be a point within 30 years calculated backwards from the date when the question arises, is presumed to continue to be living. The Rule is subject to a proviso or exception as contained in Section 108. If the persons, who would have naturally and in the ordinary course of human affairs heard of the person in question, have not so heard of him for seven years, the presumption raised under Section 107 ceases to operate. Section 107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. Section 108, subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person whose life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died. The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years 364 days or at any time short of it. An occasion for raising the presumption would arise only when the question is raised in a Court, Tribunal or before an authority who is called upon to decide as to whether a person is alive or dead. An occasion for raising the presumption would arise only when the question is raised in a Court, Tribunal or before an authority who is called upon to decide as to whether a person is alive or dead. So long as the dispute is not raised before any Forum and in any legal proceedings the occasion for raising the presumption does not arise. If an issue may arise as to the date or time of death the same shall have to be determined on evidence—direct or circumstantial and not by assumption or presumption. The burden of proof would lay on the person who makes assertion of death having taken place at a given date or time in order to succeed in his claim. Rarely it may be permissible to proceed on premise that the death had occurred on any given date before which the period of seven years’ absence was shown to have elapsed. 28. In view of the judicial pronouncements referred to above, the presumption extends merely to the fact of death at the expiration of seven years; but not to the time of death at no particular period. In other words, there is no presumption of death took place after the end of period of seven year or at any other particular time within that period. A person asserting that the death occurred at any particular time must prove it like any other fact. More importantly, the mere fact that a person has not been heard of for seven years does not raise presumption of death. In any case, no such presumption is available in a case where a person is absconding from the clutches of law, as is the case herein. Section 108 of the Evidence Act provides that when the case is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would have naturally heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. In East Punjab v. Bachcha, AIR 1957 PEPSU 316 it has been laid down that when a person absconds from justice in order to avoid trial of a charge of murder, the presumption in Section 108 does not apply, as he would not communicate with his relations. 29. In East Punjab v. Bachcha, AIR 1957 PEPSU 316 it has been laid down that when a person absconds from justice in order to avoid trial of a charge of murder, the presumption in Section 108 does not apply, as he would not communicate with his relations. 29. The fact that a person claiming himself as Sheo Pujan appeared before the Consolidation Officer who was earlier absconding and was arrested by the police and put to session trial is a relevant fact to be taken into consideration for not drawing presumption about the civil death of Sheo Pujan, as the presumption under Section 108 of the Evidence Act would not be available in such situations. 30. As against the above, the learned counsel for the respondents could not place any material to persuade this Court to take a different view of the matter. 31. The upshot of the above discussion is That : ? The contesting respondents have not given any date of the alleged death of Sheo Poojan either in the objections filed by them or in the evidence; ? The succession/inheritance would not be opened with regard to the estate of Sheo Poojan in view of the authoritative pronouncements referred to hereinabove; ? The finding of Revenue Courts that Sheo Poojan whose property is in dispute is not same Sheo Poojan who was involved in the Session Trial is based upon irrelevant considerations and the said finding is vitiated. POINT No. 2 32. Admittedly, Sheo Poojan had executed a sale-deed in respect of his holding in village Tinhari. The case of the petitioner was that Sheo Poojan in view of the sale-deed dated 24.11.1936 lost his proprietary rights therein. He was not found in cultivatory possession by the Sub-Divisional Officer, Khalilabad in Case No. 108/124, under Section 36. His name was ordered to be expunged from the revenue record with the observation that “No ex-proprietorship accrued”, under the order 15th of June, 1940. This was the basis of earlier order of the Deputy Director of Consolidation which was questioned before this Court by the contesting respondents Satyanarain and Suryanarain herein by filing writ petition No. 805 of 1972. The said writ petition was allowed by the judgment dated 8th of May, 1978. This was the basis of earlier order of the Deputy Director of Consolidation which was questioned before this Court by the contesting respondents Satyanarain and Suryanarain herein by filing writ petition No. 805 of 1972. The said writ petition was allowed by the judgment dated 8th of May, 1978. It is useful to reproduce the relevant extract from the said judgment : “................................The question whether Sheo Pujan transferred his share and that he lost ex-propriety right were questions of fact which could be decided only after a proper pleas was raised on behalf of the opposite party and the petitioner was permitted to meet it by leading evidence. As admittedly no such pleas was raised in the objection nor any issue was framed, the Deputy Director of Consolidation committed an error in permitting the opposite party to raise this point for the first time in revision and in deciding the case without affording the petitioner an opportunity to meet the same. In the circumstances, the order of the Deputy Director of Consolidation cannot be maintained....................” “.........................The result is that this writ petition succeeds and is allowed. The order passed by the Deputy Director of Consolidation is quashed. He is directed to decide the revision afresh. He shall further permit the parties to lead such documentary or oral evidence as they consider necessary for the proper adjudication of the point that the land in dispute was transferred by Sheo Pujan and as a result of transfer he lost his rights.” 33. After remand, the parties led evidence as is noticed in the impugned order of the Deputy Director of Consolidation. Grievance of the petitioner is that the said issue was not considered by the Deputy Director of Consolidation in the impugned order. I find some substance therein. 34. The Deputy Director of Consolidation has noticed the various evidence filed by the parties with regard to the aforesaid plea as also the argument in this regard. But there is no adjudication in this regard. It may be noted that as many as five documents were filed by the petitioners and three documents were filed by the contesting respondents herein but none of them has been considered. The Deputy Director of Consolidation has proceeded with the matter with a wrong angle. He wrongly assumed that the order dated 15th of June, 1940 was obtained either by the petitioner or by his father. The Deputy Director of Consolidation has proceeded with the matter with a wrong angle. He wrongly assumed that the order dated 15th of June, 1940 was obtained either by the petitioner or by his father. As a matter of fact, the Case No. 108/124, under Section 36, as the array of the parties shows, was instituted by Sheo Murat and others against Sheo Pujan and others wherein an objection was raised by the petitioners that the sale took place in the year 1920 and Sheo Pujan is not in possession, no ex-propriety rights accrued in favour of the applicant therein namely Sheo Murat and others (father of contesting respondent Nos. 4 and 5). The above fact is supported by Annexure-1 to the writ petition. There is nothing to the contrary either in the counter-affidavit, nor the learned counsel for the contesting respondents could place any material to contradict the above. Therefore, the impugned order is faulty as it is based upon misreading of Annexure-1 of the writ petition. The Deputy Director of Consolidation, it appears, has not cared to look into the relevant document and was swayed away by the oral arguments. The fact remains that there is no specific allegation with regard to the plea as to whether after execution of the sale-deed in respect of the holding of village Tinahari, Sheo Pujan was left with proprietary right or ex-propriety right or tenancy right therein. If nothing was left with Sheo Pujan, the contesting respondents even if civil death of Sheo Pujan is presumed would not inherit anything. It is apt to note that the order dated 15th of June, 1940 was passed in a proceeding which was initiated by Sheo Murat and others(fathers of respondent Nos. 4 and 5). It is not their case that they did not initiate any such proceeding or have no knowledge about the order passed thereon. Thus, at this distance of time, it cannot be said by the contesting respondent Nos. 4 and 5 that name of Sheo Pujan was wrongly expunged from the revenue record, after more than thirty years. Thus, the order of remand passed by the Court has not been complied with but it is not necessary to restore the matter back to the Deputy Director of Consolidation in view of the finding recorded under the point No. 1. POINT No. 3. 35. Thus, the order of remand passed by the Court has not been complied with but it is not necessary to restore the matter back to the Deputy Director of Consolidation in view of the finding recorded under the point No. 1. POINT No. 3. 35. The learned counsel for the petitioner submits that the sale-deed executed by Sheo Pujan in respect of his holding at village Tinahari is no longer in dispute and validity of the said sale-deed has been upheld in the Civil Suit No. 733 of 1937. The property which was sold by Sheo Pujan in his lifetime cannot be subject-matter of inheritance or succession. The argument of the petitioner’s counsel in this regard is well founded and deserves acceptance. 36. Before parting with the case, it was demonstrated by the learned counsel for the petitioner that there are many factual errors in the impugned order as also the Deputy Director of Consolidation has recorded contradictory findings : ? It was pointed out that on page No. 50 of the paper book it has been stated that Sheo Pujan alienated his rights in favour of revisionist (petitioner herein), which is wrong; ? The alienation was made by Sheo Pujan in favour of father of the contesting respondent Nos. 4 and 5; ? The proceeding under Section 36 was put to motion by Sheo Murat and not by the father of the petitioners; ? The said proceeding was neither initiated by the petitioner nor by his father nor it was under Section 36 of the Land Revenue Act. It was under Section 36 of the U.P. Tenancy Act; and ? The mutation was applied for by father of the contesting respondent Nos. 4 and 5 but it has been wrongly assumed in the impugned order that the mutation was applied by the father of the petitioner and the mutation order was obtained when Sheo Pujan was absconding. 37. Viewed as above, the judgment and orders of all the three Courts below cannot be allowed to stand. It has been wrongly assumed that the contesting respondent Nos. 4 and 5 are entitled to succeed the share of Sheo Pujan without proving his death which is a matter of evidence. There is no iota of evidence about the date of death of Sheo Pujan. 38. In the result, the objections filed by the respondent Nos. It has been wrongly assumed that the contesting respondent Nos. 4 and 5 are entitled to succeed the share of Sheo Pujan without proving his death which is a matter of evidence. There is no iota of evidence about the date of death of Sheo Pujan. 38. In the result, the objections filed by the respondent Nos. 4 and 5 claiming succession to the holding of Sheo Pujan, cannot succeed. Resultantly, the objections filed by the respondent Nos. 4 and 5 before the Consolidation Officer giving rise to the present writ petition stands dismissed. 39. In pursuance of the order passed by this Court the petitioner has deposited a sum of Rs. 1,35,000/- as a condition of stay. 40. The petitioner shall be entitled to get back the aforesaid amount alongwith accrued interest, if any. 41. In the result, the writ petition succeeds and is allowed. All the three orders dated 20.2.1981 passed by the Joint Director of Consolidation, Basti, 3.12.1970 passed by the Assistant Settlement Officer of Consolidation and 6.6.1970 passed by the Consolidation Officer are hereby set aside with cost of Rs. 10,000/- payable by the contesting respondent Nos. 4 and 5 to the petitioner within one month. ——————