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2012 DIGILAW 93 (ALL)

SHIV JEE LAL v. DEPUTY DIRECTOR OF CONSOLIDATION, BAREILLY

2012-01-10

A.P.SAHI

body2012
A. P. Sahi, J.- A supplementary-affidavit has been filed today bringing on record the khatauni of 1395 fasli to 1400 fasli in relation to khata Nos. 263 and 307 which is taken on record. 2. The dispute in this petition relates to the shares of the parties as per the pedigree, which is admitted to them and reproduced hereinunder : Malhura Prasad (Dead) Baldev (1/2) Shobharam (Issueless) Kunjlal (Issueless) Mohan Lal (1/2) Ram Pratap Sri Ram Shivjee Ram Khilawan Ram Ladaite Sheshdhav 3. It is undisputed that Mohan lal executed a registered sale deed in favour of the petitioner-Shiv Ji lal to the extent of his share which he had inherited from his father Mathura Prasad. The petitioner claimed that three of the sons of Mathura Prasad, Shobharam, Kunjlal and Ayodhya Prasad had died issueless and, therefore, Baldev and Mohan lal had inherited half share each. Accordingly, Mohan lal had the authority to dispose of his half share which was done through the sale deed in favour of the petitioner. 4. The contesting respondents claim that Shobharam and Kunjlal had executed a Will on 11.9.1965 in favour of Ram Pratap and Sri Ram. It is not necessary to delve any further as concurrent findings have been returned to the effect that the Will could not be proved. Ram Pratap and Sri Ram ( arrayed as respondent No. 7) are reported to be dead. They or their heirs have not yet assailed the findings against them on the Will. 5. The matter, therefore, proceeds on the presumption that Mohan lal had half share in the holding of Mathura Prasad and half fell in the share of Baldev. Baldev had three sons Ram Pratap, Sri Ram and Shivjee. Shiyjee claimed that he has l/3rd share in the holding of his father Baldev, coupled with the entire share of Mohan lal in the holding of Mathura Prasad and. therefore, he is entitled to 2/3rd of the entire holding. The respondent contended that their names had been entered over khata No. 329 and the petitioner illegally sought his induction in the said khata which aspect was not even in dispute before the Consolidation Officer. 6. To this argument Sri S.P. Mishra, learned counsel for the petitioner contends that this dispute relating to khata No. 329 had been disputed by a separate objection and which was also pending consideration before the Consolidation Officer. 7. 6. To this argument Sri S.P. Mishra, learned counsel for the petitioner contends that this dispute relating to khata No. 329 had been disputed by a separate objection and which was also pending consideration before the Consolidation Officer. 7. The dispute relating to the division of shares over khata Nos. 327 a/id 330 was contested between the parties and the matter was remanded in appeal, vide judgment dated 21.3.2006. After remand, the Consolidation Officer has now proceeded to dispose of the dispute relating to khata Nos. 327 and 330 as per the remand order as also simultaneously proceeded to decide the dispute relating to khata No. 329 which was a separate objection. 8. The order dated 11th of July, 2011 was passed by the Consolidation Officer against which Ram Khilawan and others filed an appeal which was dismissed on 25.11.2011. Aggrieved, they preferred a revision which has been allowed on 15.12.2011 by the Deputy Director of Consolidation setting aside the order of the Consolidation Officer and the Settlement Officer, Consolidation that had been passed in favour of the petitioner. 9. Aggrieved, the petitioner has now approached this Court contending that the Deputy Director of Consolidation has committed a manifest error by proceeding to pass an order with regard to the division of the holdings in relation to all three khatas. 10. Sri Prabhakar Singh, learned counsel for the respondent Nos. 5 and 6, who were the appellants and the revisionists before the authorities below, contends that as a matter of fact, in view of the pedigree aforesaid, the petitioner could not have claimed sole tenancy rights in relation to the holdings of late Mathura Prasad. According to the aforesaid pedigree, the petitioner could have claimed only to the extent of half share that had been inherited by Mohan lal for which the petitioner claims to have succeeded through the registered sale deed dated 6.3.1969. 11. Having heard learned counsel for the parties and having perused the records, it is apparent that this aspect of the matter appears to have not been approached with correct perspective by the Deputy Director of Consolidation. 11. Having heard learned counsel for the parties and having perused the records, it is apparent that this aspect of the matter appears to have not been approached with correct perspective by the Deputy Director of Consolidation. The Deputy Director of Consolidation ought to have proceeded with the opening of succession after the death of Mathura Prasad and the consequential inheritance of the petitioner, to the extent of the share inherited by Mohan lal, under the registered sale deed apart from the share that he inherited from his father Baldev. In this view of the matter, once the aforesaid pedigree is accepted as reproduced hereinabove, the Deputy Director of Consolidation will have to examine the entire area including all the khatas of the holding of Mathura Prasad and thereafter proceed to divide the shares in the light of the observations made hereinabove. 12. Accordingly, the writ petition is allowed. The order of the Deputy Director of Consolidation dated 15.11.2011 is quashed. The Deputy Director of Consolidation shall proceed to pass an order accordingly within a period of three months from the date of presentation of a certified copy of this order before him.