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2016 DIGILAW 2478 (ALL)

Sharda v. Dy. Director of Consolidation Varanasi

2016-07-18

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya),J. Heard Sri Ram Prakash Ram for the petitioners and Sri A.K. Singh for the respondents. 2. This petition has been filed against the orders of CO dated 21.7.2008, SOC dated 11.7.2011 and DDC dated 30.3.2016, passed in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the 'Act'). 3. The dispute between the parties is in respect of area of 0.150 hectare of plot no. 5/4/1. Total area of plot no. 5/4 was 0.525 hectare. It was recorded in khata no. 165 in the names of Deon, Lallan and Vishwanath (sons of Jangali) and Dasrath and Sangram sons of Beni. 4. The dispute on behalf of Deon was in respect of area of 0.150 hectare of plot no. 5/4/1, which was recorded as parti land on which various trees were found at the time of partal. According to Deon, these trees were planted by him, as such, this plot be recorded in his name, exclusively and his name was also recorded in column 9 of the khatauni. There were other objections also. All the objections were consolidated and decided by CO, who by order dated 21.7.2008 found that after death of Deon, his sons Sharda, Lal Chand, Moti and Munni Lal were substituted, but they could not adduce any evidence to show their adverse possession over an area of 0.150 hectare of plot no. 5/4. On this finding, he allowed the objection of Daya Ram and directed for recording his name as co sharer and in place of Deon, names of his sons, namely, Sharda, Lal Chand, Moti and Munni Lal were directed to be recorded as his heirs. Share of heirs of Deon were jointly found to be 1/5 in the khata in dispute and was directed to be recorded as such. 5. The petitioners filed a time barred appeal from the aforesaid order, which was heard by SOC, who by order dated 11.7.2011 dismissed the appeal as time barred. 6. The petitioner challenged the aforesaid orders in revision before the DDC. Before the revisional court, they took the plea that Lal Chand (one of the sons of Deon) died in an accident and the heirs of Lal Chand were not substituted. Therefore, they could not adduce any evidence before the CO. The appeal was also delayed due to death of Lal Chand. Before the revisional court, they took the plea that Lal Chand (one of the sons of Deon) died in an accident and the heirs of Lal Chand were not substituted. Therefore, they could not adduce any evidence before the CO. The appeal was also delayed due to death of Lal Chand. DDC entertained the revision and decided it on merit. He by order dated 30.3.2016 found that although Lal Chand had died, leaving behind his sons Surendra, Chottu Lal and his widow Savitri Devi, but the CO has not directed for recording their names, as such, he allowed the revision, set aside the order of SOC dated 11.7.2011 and modified the order of CO dated 21.7.2008 and in place of Lal Chand, names of Surendra, Chottu Lal and his widow Savitri Devi, were directed to be recorded as his heirs. Hence, this petition has been filed. 7. I have considered the arguments of counsel for the petitioners and examined the record.Deon was recorded as co sharer in khata no. 160, therefore, Deon cannot claim adverse possession over plot no. 5/4, which was recorded in khata no. 160 as Deon was co sharer and his possession cannot be adverse against other co sharers. The entry in column no. 9 of the khatauni showing adverse possession of Deon over an area of 0.150 hectare of plot no. 5/4/1 was illegal and has been rightly not accepted by the CO. 8. So far as the argument that the petitioners were deprived from adducing their evidence due to death of Deon is concerned, the petitioners were substituted at the stage of trial before the CO. Thus, there could be no reason for not adducing their evidence before the CO. 9. So far as death of Lal Chand is concerned, it is alleged that Lal Chand died on 27.1.1999, but the other petitioners who were co sharers and have common interest, could have adduced evidence. In any case, the entry of Deon in column 9 has no evidentiary value, nor adverse possession can be claim against the other co-sharers. The petition has no merit and is dismissed.