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2016 DIGILAW 2951 (ALL)

Hari Kishan v. Dy. Director of Consolidation/Adm

2016-08-26

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya),J. Supplementary affidavit filed today is taken on record. Heard Sri R.K. Pandey for the petitioners. The writ petition has been filed against the order of Deputy Director of Consolidation dated 12.5.2016 passed in title proceeding under U.P.Consolidation of Holdings Act, 1953. At present the dispute is in respect of plot nos. 1965/2, area 1.58 acre, plot no.1967, area 1.07 acre and plot no. 1969, area 0.68 acre of village Kunehata, pargana Maudaha, district Hamirpur. In basic consolidation record the land in dispute was recorded in the name of respondents. The petitioners filed an objection claiming co-tenancy of 1/2 share in the land in dispute. The case of the petitioners was that the land in dispute was joint family property of Tejava and Chaturiya and both provided for equal share in it. The case was contested by the respondents and they had stated that branches of Tejava and Chaturiya were acquiring land in their separate names since before 1333 fasli. The land in dispute was self acquired property of Sukhaiya son of Chaturiya and the branch of the petitioners had no share in it. The claim of the petitioners have been accepted by Consolidation Officer by order dated 20.12.1999. The order of Consolidation Officer was challenged by Tejava and others in appeal. The appeal was heard by Assistant Settlement Officer, Consolidation, who by order dated 6.7.2007 dismissed the appeal. Tejava and others filed a revision against the aforesaid order. The revision was heard by Deputy Director of Consolidation, who by order dated 12.5.2016 found that from the evidence on record, it appears that since before 1333 fasli Tejava and Chaturiya used to acquire property for themselves, which was also separately recorded in their names. Although it is admitted that there was joint family but there is no evidence to prove that land in dispute was acquired from the nucleus of the joint family fund. So far as compromise is concerned, the compromise was challenged and later on it was set aside, as such no reliance can be made on it. On this finding Deputy Director of Consolidation allowed the revision and set aside the orders of Consolidation Officer and Assistant Settlement Officer, Consolidation and dismissed the objection of the petitioners in respect of their claim for co-tenancy in the aforesaid three plots. Hence, this writ petition has been filed. On this finding Deputy Director of Consolidation allowed the revision and set aside the orders of Consolidation Officer and Assistant Settlement Officer, Consolidation and dismissed the objection of the petitioners in respect of their claim for co-tenancy in the aforesaid three plots. Hence, this writ petition has been filed. Along with the supplementary affidavit the petitioners have filed khatauni 1356 fasli in which land in dispute was recorded in the name of Lukhurua son of Sukhaiya, from a period of 12 years as hereditary tenant. The entry is continued till 1359 fasli with the variation of period of cultivation. Thus, these two documents prove that land in dispute was acquired by Lukhurua as hereditary tenant in 1344 fasli. Deputy Director of Consolidation found that both branches used to acquire property separately since 1333 fasli. This finding of fact could not be challenged by the petitioners. Thus, from documentary evidence it is not proved that the land in dispute was acquired from the nucleus of jointly family fund. The counsel for the petitioners, however, submits that oral evidence of the petitioners has not been considered. So far as the oral evidence is concerned, the petitioners examined Hari Kishan (PW-1), whose age was 35 years and two other witnesses Shivratan son of Durajan and Gokul son Bhaiyadeen. All these witnesses had no knowledge about acquisition of the land in dispute. Their evidence was to the extent that the family remained joint till abolition of Zamindari. On the other hand Bhawanideen (DW-2) was examined whose age was 75 years. He had stated that the land in dispute was obtained from Zamindar, Chhiddi by Lukhurua alone on patta. Thus, oral evidence of other side is more convincing than the oral evidence of the petitioners. The finding of fact recorded by Deputy Director of Consolidation cannot be said to be erroneous and the oral evidence of the petitioners is immaterial in respect of acquisition of the property in dispute. The writ petition has no merit and it is dismissed.