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2014 DIGILAW 3799 (ALL)

Badri v. D. D. C.

2014-12-19

ANJANI KUMAR MISHRA

body2014
JUDGMENT Anjani Kumar Mishra, J. 1. Heard the learned Counsel for the parties. This writ petition arises out of an objection under section 9-A(2) filed by the respondent No. 3. The dispute pertains to plots of khata No. 6 of Village Jaddu Pipra, Post Officer, Juddu Pipra, Pargana Haveli, Tappa Katahara, Tehsil Maharajganj, District Gorakhpur. The plots in question were recorded in the name of Badri in the basic year. In the objection, the contesting respondent claimed co-tenancy to the extent of one half in the disputed khata. The following pedigree is extracted herein below 2. It was alleged that the objector, Kailashi is the daughter of Rajman, who died when she was only two and a half years old. Her uncle and aunt got their name recorded over the entire khata and subsequently Mst. Tuara, the widow of Lakhan, executed its sale-deed in favour of the petitioner Badri on 9.7.1963. It was alleged that the sale-deed was beyond the share of Mst. Tuara in the khata in question. 3. The Consolidation Officer by his order dated 23.5.1976 rejected the objection on the finding that the respondent No. 3, Smt. Kailashi was daughter of Rajman of another village. This finding was returned on the basis of Pariwar Register extracts brought on record. 4. The Settlement Officer, Consolidation by his order dated 9.1.1978 allowed the appeal filed by the respondent No. 3 relying upon the statement of Ram Bilas son of Badri-petitioner, it was further recorded that Badri deposed before the Court but at the time of cross-examination, he absented himself and thereafter the statement of his son Ram Bilas was recorded wherein he admitted that Kailashi was the daughter of Rajman. 5. The consequential revision was dismissed by the Deputy Director of Consolidation by his judgment and order dated 9.10.1978. Hence this writ petition. 6. Learned Counsel for the petitioner has submitted that the contesting respondent No. 3, Kailashi was claiming half share in the disputed khata on the ground that it was ancestral property. None of the Courts below have recorded a finding that in fact the property in question of ancestral and, therefore, the claim for co-tenancy could not have been granted. The appellate and revisional order are, therefore, vitiated and liable to be set aside. 7. None of the Courts below have recorded a finding that in fact the property in question of ancestral and, therefore, the claim for co-tenancy could not have been granted. The appellate and revisional order are, therefore, vitiated and liable to be set aside. 7. Upon hearing the learned Counsel for the parties and upon a perusal of the record, it would be relevant to note that both the Settlement Officer, Consolidation as also the Deputy Director of Consolidation, upon an appraisal of the evidence on record, have recorded that Ram Bilas son of the petitioner, in his statement admitted that there is one Kailashi in the family of his in-laws and that Rajman and Ram Lakhan had half share in the property in question and that the objector present in Court, namely, Kailashi is the daughter of Rajman. This finding is fully supported by the statement of Ram Bilas recorded on 9.3.1976, copy whereof is on record of this petition. Relying upon this categorical admission, the Courts below have rightly held in favour of the contesting respondent. 8. It is not the case of the petitioner that the finding returned is perverse. Since the finding has been returned upon appreciation of the material evidence on record and also in view of the categorical admission made by the son of the petitioner, the same cannot be faulted with. 9. Ram Bilas, son of the petitioner having admitted that Rajman had 1/2 share in the khata in question and that Kailashi, respondent No. 3 is his daughter, there was no necessity for the Courts below to record a finding that the property in question was ancestral as this fact stood admitted on record. 10. I, therefore, find no merit in the submissions made by the learned Counsel for the petitioner. The writ petition is wholly devoid of merits and is accordingly dismissed.