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2017 DIGILAW 2315 (ALL)

SHITAL v. D. D. C.

2017-10-09

SUNITA AGARWAL

body2017
JUDGMENT Hon’ble Mrs. Sunita Agarwal, J.—Heard learned counsel for the parties. 2. The above three writ petitions have arisen out of the proceedings initiated by the predecessor of the petitioners (in writ petition No. 8391 of 1978) with regard to the lands in Khata Nos. 111, 135 and 141 of village-Bandhoo Chhapra Tappa Dandopur, Tehsil Badrauna, District Deoria before the Consolidation authorities wherein the petitioner’s predecessors claimed their rights as co-tenure holders in the said property alongwith respondent Nos. 2 to 15. The counsels for the parties have been heard at length and these petitions are being decided by a composite order. 3. The petitioners and respondents are heirs of three brothers namely Bishesher, Rikhai and Jhinak all sons of Bandhu. Admitted facts of the matter are that in 1292 Fasli (1885-Ishvi), names of Bisheshar, Jhinak and Rikhai all sons of Bandhu were recorded over the lands in dispute comprised in Khata Nos. 111, 135 and 141. In 1322 Fasli (1915-F), name of Jhinak only was recorded in the aforesaid Khata Nos. 111, 135 and 141. The names of the successors of Bisheshar and Rikhai were not recorded in the revenue records. In 1347-Fasli (1940-Ishvi), names of Kuber (elder son of Jhinak) only was recorded. The pedigree of the family is admitted to the parties which is as under : Bandhu Bishesher Rikhai Jhinak Paltu Jagan Dubari Phalai Kuber Mahabir Sheetal Ram Narayan Laxman Jhanga Moti Bal Dhadra Har Hangi Jhapsi Sita Ram Sunder Vindeshwari Tilak Ramanand Domai Hari Lal Shankar Ram Prit Lal Bachan Gopi Chand Hansi Madan Nagina Hari Kishan 4. Two separate suits under Section 59/61 of U.P. Tenancy Act were filed by the predecessor of the petitioner against Gopi Chand and others (successors of Jhinak). The aforesaid suits were dismissed by a composite order dated 13.9.1954. Appeal filed against the said order was allowed on 29.12.1955 and the matter was remitted back. On 28.6.1957, the said suits were allowed and co-tenancy right were conferred to the petitioner. The matter went up in appeal filed by the predecessors of the respondents (sons of Rikhai). 5. The aforesaid suits were dismissed by a composite order dated 13.9.1954. Appeal filed against the said order was allowed on 29.12.1955 and the matter was remitted back. On 28.6.1957, the said suits were allowed and co-tenancy right were conferred to the petitioner. The matter went up in appeal filed by the predecessors of the respondents (sons of Rikhai). 5. The said appeal was allowed on 25.8.1958 with the finding that the village records showed that the lands were not coming intact from 1292-F; the land in suit was coming down in the name of defendants or their ancestors as their sole tenancy for the last 60 yeas during which two settlements had taken place. Settlement entries carry the presumption of being correct, unless rebutted by very strong and cogent evidence. Such evidence was not forth-coming on behalf of the plaintiffs. Oral evidences filed by the plaintiffs were rejected with the finding that the long entries in the name of the defendants could not be rebutted. 6. On the other, hand, the oral evidences of the defendants were accepted to corroborate that the lands were exclusively in their possession and the statement of their witnesses corroborated the entries in the village records. There was no reason not to rely upon their evidence. 7. The Board of Revenue dismissed the Second appeal on 13.5.1959 and affirmed the order of the first appellate Court dated 25.8.1958. The said proceedings had became final between the parties. 8. It appears that a suit under Section 209 of U.P. Z.A. & L.R. Act being suit No. 212 of 1962 was filed by the respondents with the assertions that the predecessors of the petitioners had taken forcible possession over certain areas of the land in question in three Khatas mentioned above. The said suit was decreed on 20.9.1962 and the appeal filed against the same was dismissed on 21.3.1966. 9. Sundar son of Mahavir (another son of Jhinak) filed a suit under Section 229-B of U.P.Z.A. & L.R. Act against Gopi Chand, Jhanga and Moti,(others heirs of Jhinak) being suit No. 911 of 1968 seeking declaration of tenurial rights as Bhumidhars on the same grounds as was taken in the suit under Section 59/60 of U.P. Tenancy Act. The said suit was earlier decided in terms of the compromise dated 30.7.1968, which order was recalled on the allegations of the compromise being outcome of fraud. The said suit was earlier decided in terms of the compromise dated 30.7.1968, which order was recalled on the allegations of the compromise being outcome of fraud. The suit was ultimately abated on account of village being notified on 30.1.1976 under Section 4 of The Consolidation of Holdings Act’ 1953. (herein after referred as Act’ 1953) 10. Upon commencement of the consolidation operations, the petitioners (successors of Rikhai) as well as respondent No. 9 to 15 (successors of Bisheshar) filed objections under Section 9-(A) (2) of Act’ 1953 with the prayer that their names be recorded as co-tenure holders in Khata Nos. 111, 135 and 141, the lands being their ancestral properties. The respondent Nos. 4 to 8 (successors of Rikhai) contested the said proceedings. The respondent Nos. 2 and 3, however, did not contest the same. The Consolidation Officer vide order dated 5.11.1976, after hearing the parties, allowed the objection of the petitioners and the respondent Nos. 9 to 15, rejecting the plea of the respondent Nos. 4 to 8, decided the share of the parties treating them as co-tenure holders. 11. The appeal filed before the Settlement Officer of Consolidation (herein after referred as S.O.C) was dismissed on 21.1.1977. Respondent No. 2 & 3 namely Moti Chand & Sundar (sons of Mahavir) did not join in the said appeal. Against the order dated 21.1.1977, the respondent No. 4 to 8 went up in revision. The Deputy Director of Consolidation (herein after referred as D.D.C.) had allowed the revision on 26.7.1978 setting aside the orders of Consolidation Officer and the S.O.C. The writ petition No. 8391 of 1978 had been filed against the order dated 26.7.1978 passed by the D.D.C., Padrauna. 12. Writ petition No. 12017 of 1996 (Lakshman v. The D.D.C. and others) : The said writ petition had been filed with the prayer for quashing of the orders dated 26.12.1995 and 19.12.1991 passed by the D.D.C., Padrauna, by Lakshman, son of Phalai (branch of Rikhai). The order dated 19.12.1991 had been passed by the D.D.C., Padrauna in Revision No. 38 filed by Moti Chand and sons of Sundar (branch of Jhinak) on 18.10.1989, with the prayer to set aside the orders dated 21.1.1977 and 5.11.1976 passed by the S.O.C. and the Consolidation Officer; respectively. Further prayer was to declare them sole Bhumidhars of Khata Nos. 111 and 135. Further prayer was to declare them sole Bhumidhars of Khata Nos. 111 and 135. The said revision was treated being within time and while allowing the Section 5 Application, the matter was remitted back to the Consolidation Officer with the direction to decide afresh. A restoration application was filed by Lakshman son of Phalai (branch of Rikhai) before the D.D.C, Padrauna which came to be rejected on 26.12.1995. Hence the said writ petition. Writ Petition No. 15439 of 15 (Shriman and others v. D.D.C. and others): 13. It appears that pursuant to the remittal of the dispute relating to Khata Nos. 111 and 135 by the order dated 19.12.1991 passed by D.D.C, an order dated 25.1.2010 was passed by the Consolidation Officer whereby the proceeding with respect to the said Khatas were stayed in view of the interim orders dated 26.9.1978 and 11.12.1979 passed in writ petition No. 8391 of 1978. 14. In the meantime, another proceedings under Rule 109-A of the U.P. Consolidation of Holdings Rules’ 1954 (herein after referred to as the “Rules’ 1954") initiated on the application of Madan (successors of Bisheshar), were stayed by the Consolidation Officer vide order dated 3.5.2000, in compliance of the aforesaid interim orders passed in writ petition filed in the year 1978. 15. Lallan son of Moti Chand (branch of Jhinak) filed writ petition No. 59228 of 2012 which was disposed of vide judgement and order dated 9.11.2012 with the direction to the Consolidation Officer to decide the objection of the petitioner therein. Pursuant to the said directions, the Consolidation Officer passed another order dated 23.5.2013 which was challenged in appeal. Another appeal was filed against the order dated 3.5.2000 passed by the Consolidation Officer in the proceeding under Rule 109-A of the Rules’ 1954. 16. Both the appeals were consolidated and decided vide judgement and order dated 27.11.2014. The Consolidation Officer by a subsequent order dated 18.12.2014 directed for expunging the names of the recorded tenure holders and for making Amaldaramad under Rule 109 of Rules’ 1954. Two separate revisions were filed against the judgement and order dated 27.11.2014 passed by S.O.C and the order dated 23.5.2013 passed by the Consolidation Officer. Both the revisions were consolidated and dismissed together vide order dated 25.2.2015. Two separate revisions were filed against the judgement and order dated 27.11.2014 passed by S.O.C and the order dated 23.5.2013 passed by the Consolidation Officer. Both the revisions were consolidated and dismissed together vide order dated 25.2.2015. The writ petition No. 15439 of 2015 is directed against four orders namely the orders dated 23.5.2013 and 18.12.2014 passed by Consolidation Officer and the orders dated 27.11.2014 passed by the S.O.C as also the order dated 25.2.2015 passed by D.D.C, Kushi Nagar. 17. These orders, as is clear from the records, had been passed in consequential proceedings undertaken pursuant to the previous orders passed by the Consolidation authorities, which were challenged in the connected writ petition No. 12017 of 1996. 18. The Court now would deal with the arguments of the parties in three connected writ petitions. The Writ petition No. 8391 of 1978 being leading writ petition, would be dealt with first. 19. The petitioners therein are successors of Rikhai, whose name was admittedly, recorded in Khata of 1292 Fasli. Claiming co-tenancy rights, the petitioners would submit that in view of the admitted fact that the lands in question being ancestral property and the pedigree of the family being admitted, their claim for declaration as co-tenure holders could not have been rejected on the ground that their names were not recorded in 1322 and 1347 Fasli. In other words, though in 1322 Fasli and 1347 Fasli, the names of Jhinak and his successors were recorded only, however, the tenancy rights of the petitioners would not extinguish by this reason only. 20. Further the identity of the disputed land has not been broken till date and the possession of one of the co-shares, if any, would be possession of all other co-sharers being on their behalf. 21. The D.D.C had erred in allowing the revision on the ground that the order passed in suit under Section 59/61 of U.P. Tenancy Act filed on 13.6.1953 would operate as res judicata. After commencement of U.P. Z.A. & L.R. Act’ 1950, the said suit under U.P. Tenancy Act was not maintainable. The orders of the trial Court, first appellate Court and second appellate Court in the said proceeding being without jurisdiction would not operate res judicata in consolidation proceedings. 22. The jurisdiction could not be conferred upon the authority concerned, by any compromise or consent of the parties. The orders of the trial Court, first appellate Court and second appellate Court in the said proceeding being without jurisdiction would not operate res judicata in consolidation proceedings. 22. The jurisdiction could not be conferred upon the authority concerned, by any compromise or consent of the parties. Learned counsel for the petitioner would vehemently urge that the lands in three Khata Nos. 111, 135 and 141 were recorded in the name of three brothers namely Bisheshar, Rikhai and Jhinak in 1292 Falsi. There was no order for recording of the name of Jhinak exclusively or deleting the names of other co sharers. There is no evidence that Jhinak had acquired independent right with regard to the said Khatas. Recording of names of Jhinak or his successor only, in 1322 Fasli and 1347 Fasli, therefore, is of no consequence. The respondent No. 2 Moti Chand (successors of Jhinak) had accepted that the predecessor of the petitioners were co-tenure holder and the property consisting in Khata Nos. 111, 135 and 141 being ancestral properties, in a compromise arrived on 8.10.1976 in the case filed by Lakshman (son of Phalai branch of Rikhai) against Moti and others (branch of Jhinak). A family settlement had been arrived amongst the parties on 27.5.1967 and the shares of the predecessor of the petitioners and respondent Nos. 9 to 15 in the disputed property was accepted, therein. 23. Reliance is placed upon the judgement of Division Bench of this Court in Sheoji Singh and others v. Director of Consolidation passed in Special Appeal No. 1200 of 1969 to submit that after coming into operation of the Z.A. & L.R. Act, the suit for declaration of tenancy right being not maintainable, the decree passed by it, would suffer from inherent lack of jurisdiction and would be void and valueless. 24. With the strength of judgment of Board of Revenue dated 18.3.1942 in Balbhaddar v. Bhagwandin and others, 1942 RD 448 and of this Court in Raj Bahadur Singh v. Board of Revenue & Allahabad, 1979 RD 50, it was submitted that the possession of one co-tenant would be possession of all co-tenants and merely for the reason that names of some of the co-tenants or co-parceners were not recorded, their title in the joint holding as co-sharers would not be extinguished. The competent Court had to look to the records and declare their rights. The competent Court had to look to the records and declare their rights. The consolidation officers having found the petitioners being co-tenure holders of Khata No. 111, 135 and 141 had rightly declared them as co-sharers and determined the shares of the parties in the disputed lands. The S.O.C, for the same reasons, had affirmed the order of the Consolidation Officer. It is contended that the revision was filed only with respect to Khata No. 141 by respondent Nos. 4 to 8 and they prayed for setting aside of the order of Consolidation Officer and S.O.C with respect to the said Khata only. Respondent No. 2 and 3 did not file any revision in respect of Khata Nos. 111 and 135. The D.D.C., therefore, had erred in setting aside the orders of the S.O.C and Consolidation Officer as a whole. 25. Sri S.C. Varma learned counsel for respondent Nos. 7/1, 7/2, 8/1 and 8/2 and Sri R.C. Singh learned counsel appearing for the heirs of respondent Nos. 2 and 3 inter alia submit that the claim of co-tenancy of the petitioners/plaintiffs is totally farce. The present petition arises out of the proceeding under the U.P. Consolidation of Holdings Act’ 1953 which came into force on March 8, 1954. The object of the Act’ 1953 was to provide consolidation of the agricultural holdings in the State of U.P. for development of agricultural. Whereas the U.P. Tenancy Act’ 1939 was repealed with the abolition of Zamindari system by U.P. Z.A. & L.R. Act’ 1950 (U.P. Act No. 1 of 1951) which received assent of the President on 24.9.1951 and was published in the official gazette. With the coming into operation of U.P. Z.A. & L.R. Act, the tenancy rights of the predecessor of the petitioners, if any, in the agricultural land had been extinguished. 26. The petitioner/plaintiffs are claiming rights as co-tenant on the basis of succession with the plea that their ancestors were recorded tenants in 1292-Fasli. None of the heirs of two brothers namely Rikhai and Bisheshar were ever recorded in any Khatauni or any other record of rights. 26. The petitioner/plaintiffs are claiming rights as co-tenant on the basis of succession with the plea that their ancestors were recorded tenants in 1292-Fasli. None of the heirs of two brothers namely Rikhai and Bisheshar were ever recorded in any Khatauni or any other record of rights. The petitioner’s name have not been recorded nor they have made any attempt to prove as to how they succeeded the alleged tenancy of Rikhai and Bisheshar, more so, when it is admitted that they were not recorded anywhere since after the entry of 1292-Fasli their claim is not worthy of consideration. Even the dates of death of Rikhai and Bisheshar have not been brought on record so as to show when their succession opened. 27. Submission is that the tenancy rights were not heritable in general or commonly under the North West Provinces Rent Act’ 1873 which was in operation w.e.f 1.4.1981. Under Section 9 of the said Act, only tenancy of those tenants who had acquired rights under Section 7 & 8 of the said Act, became transferable and heritable under certain conditions provided therein. The North West Provinces Rent Act’ 1981 remained operative till 1886 when The Awadh Rent Act (Act No. 22 of 1986) was enacted. This Awadh Act, however, was applied to areas of Awadh only. District Gorakhpur was not included in the provinces of Awadh and hence 1886 Act was not applicable for governance of tenancy and rent in the said area. 28. The North West Provinces Rent Act’ 1981, thus, continued in operation till 1901 when it was repealed by the North Western Provinces Tenancy Act’ 1901 which came into force on 1.1.1902. Succession and transfer was provided for the first time under the said Act. The interest of permanent tenure holder or a fixed rent tenant became inheritable and transferable interest under Section 20(1) of the Act 1901. Relevant provisions of Section 20, 21 and 22 of the North Western Provinces Tenancy Act’ 1901 are quoted as under : “20. Rights of transfer and succession.—(1) The interest of a permanent tenure-holder or a fixed-rate tenant is a heritable and transferable interest. Relevant provisions of Section 20, 21 and 22 of the North Western Provinces Tenancy Act’ 1901 are quoted as under : “20. Rights of transfer and succession.—(1) The interest of a permanent tenure-holder or a fixed-rate tenant is a heritable and transferable interest. (2) The interest of an ex-prorietory tenants, an occupancy tenant, or a non-occupancy tenant other than a thekadar, is, subject to the provisions of this Act, heritable, but is not transferable, in execution of a decree of a Civil or Revenue Court or otherwise than by voluntary transfer between persons in favour of whom as co-shares in the tenancy such right originally arose, or who have become by succession co-shares therein. (3) The interest of a thekedar is subject to the terms of his lease, heritable but not transferable. 21. Rights is non-transferable tenancies.— Where the interest of a tenant is to transferable, he shall not be competent to transfer his holding or any portion thereof, otherwise than by sub-lease as hereinafter provided. 22. Succession to tenancies.—When ex-proprietary tenant, an occupancy tenant, or a non-occupancy tenant (otherthan a thekedar) dies, his interest in the holding shall devolve as follows: (a) on his male lineal descendants in the male line of descent; (b) failing such descendants, on his widow till her death or remarriage; (c) failing such descendants and widow, on his brother, being a son of the same father as the deceased; and failing any such heirs as above mentioned, (d) on his daughter’s son; and (e) failing such daughter’s son, the nearest collateral male relative in the male line of descent. Provided that no such daughter’s son or collateral relative shall be entitled to inherit who did not share in the cultivation of the holding at the time of tenant’s death.” 29. It is, thus, submitted that the petitioners have failed to establish as to how they had succeeded tenancy rights during the currency of the Acts of 1873, 1881 or 1901 or subsequent thereto. Admittedly, the name of Jhinak alone (ancestors of answering respondents) had been recorded through out that period as tenant. The entry had continued during two settlements of 1322-Fasli and 1334-Fasli, the names of Jhinak alone and his successors thereafter, were recorded after abolition of Zamindari i.e. after 1.7.1952. The heirs of Rikhai and Bisheshar were not recorded anywhere in any paper in any of the settlements intervened. 30. The entry had continued during two settlements of 1322-Fasli and 1334-Fasli, the names of Jhinak alone and his successors thereafter, were recorded after abolition of Zamindari i.e. after 1.7.1952. The heirs of Rikhai and Bisheshar were not recorded anywhere in any paper in any of the settlements intervened. 30. It is thus submitted that the petitioners had lost their title and there is no question of succession of branch of Rikhai and Bisheshar after 1.7.1952, when Zamnidari Abolition Act came in as the third settlement. Besides, the heirs of Rikhai and Bisheshar had failed to bring on record any evidence that they ever participated in cultivation or shared land revenue or paid rent to intermediaries or the State of U.P. There is, therefore, no question of succession of branch of Rikhai and Bisheshar. The order passed by the Deputy Director of Consolidation, therefore, cannot be faulted with. The persons who had not challenged the entries of two settlements are precluded from challenging them after lapse of more than a half century. 31. Reliance is placed upon the decision of Apex Court in Ram Awadh v. Ram Das, 2008 (8) SCC 58 , Jagdamba Singh and others v. Deputy Director of Consolidation and others, 1985 ALJ 671; Ram Bhajan and others v. Assistant Director of Consolidation and others, 1983 RD 202 and D.S. Lakshmaiah and another v. L. Balasubramanyam and another, AIR 2003 SC 3800 . 32. This apart, it is contended that the suit under Section 59/61 of U.P. Tenancy Act was filed after U.P. Z.A. & L.R. Act came into force. The petitioners and their predecessors claimed that they were Occupancy tenant and, therefore, they were entitled to tenurial rights after abolition of Zamindari. The said suit was dismissed after contest upto the stage of second appeal by the Board of Revenue. The findings recorded therein are based on the evidence of the parties. The petitioners are bound by the said judgement which would operate as res judicata being an adjudication between the parties. The objections regarding jurisdiction for trying the said suit raised by the respondents therein had been rejected by the appellate Court. The findings recorded therein are based on the evidence of the parties. The petitioners are bound by the said judgement which would operate as res judicata being an adjudication between the parties. The objections regarding jurisdiction for trying the said suit raised by the respondents therein had been rejected by the appellate Court. It, therefore, does not lie in the mouth of the petitioner to say that the decree passed therein would be bad being without jurisdiction or the petitioners would not be estopped from raising the issue of succession after adjudication in the suit under Section 59/61 of U.P. Tenancy Act filed by them. Applying the said principle, the D.D.C had rightly allowed the revision filed by the contesting respondents against the decision of the Consolidation Officer and S.O.C who had passed orders completely ignoring the oral testimony as well as documentary evidences filed by the parties. The order passed by the revisional Court, therefore, does warrant any interference by this Court in the writ jurisdiction. 33. Placing reliance upon Mohanlal Goenka v. Benoy Kishna Mukherjee and others, AIR 1953 SC 65 , Man Singh v. Bir Sahai and others, AIR 1973 ALL 362 , Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332 and Baijnath Prasad Sah v. Ramphal Sahni and another, AIR 1962 Patna 72; it is submitted that the question of jurisdiction once decided shall have effect of res judicata. 34. On the merits of the writ petition No. 12017 of 1996, it is submitted by the learned counsel for the petitioners that the revision filed by respondent Nos. 4 to 8 challenging the orders of the Consolidation Officer dated 5.11.1996 and S.O.C dated 21.1.1977 was decided on merits by the D.D.C vide judgement and order dated 26.7.1978. The case of respondent Nos. 2 & 3 (their ancestors in the connected petitions) was akin to respondent Nos. 4 to 8. Once an appeal or revision is decided on merits, another revision or appeal filed subsequently by the remaining parties against the same order (s) not be dismissed on the ground of limitation. The order passed by D.D.C dated 25.2.2015 and the orders dated 18.12.2014 and 23.5.2013 passed by the Consolidation Officer and S.O.C; respectively, therefore, cannot be sustained. Once an appeal or revision is decided on merits, another revision or appeal filed subsequently by the remaining parties against the same order (s) not be dismissed on the ground of limitation. The order passed by D.D.C dated 25.2.2015 and the orders dated 18.12.2014 and 23.5.2013 passed by the Consolidation Officer and S.O.C; respectively, therefore, cannot be sustained. With reference to the judgement of Apex Curt in Udai Shankar Triyar v. Ram Kalewar Prasad Singh, AIR 2006 SC 269 , it is submitted that whenever substantive law and procedural law are pitted against each other, the procedural law shall give its way to the substantial law and the merits of the claim of a party cannot be thrown on technical grounds. 35. The revision filed by respondent Nos. 2 and 3, therefore, had rightly been decided on merits on the same terms of the revision filed by respondent Nos. 4 to 8. 36. Having heard learned counsel for the parties and perused the records, the undisputed facts of the case discernible from the records are;- 1. the disputed lands in Khata No. 111, 135 and 141 were initially recorded in the name of three brothers namely Bisheshar, Rikhai and Jhinak in the year 1292-Fasli. The defendants had not set up any plea of ouster. The circumstance in which, the name of Jhinak came to be recorded exclusively, over three Khatas in 1322-Fasli (1914-1915) is not known. 2. Further in 1347-Fasli, three Khatas were recorded in the name of Kuber, one son of Jhinak leaving another son Mahavir. Moti son of Mahavir filed a suit under Section 229-B against Gopi and Jhanga (sons of Kuber) which was decided on 16.12.1976 and claim of Moti was accepted by Gopi. His name was recorded over Khata No. 111. 3. An objection dated 25.8.1958 was taken by Moti and others on the mutation application filed by Gopi on 28.6.1957 in place of Kuber. 4. The suit under Section 59/61 of U.P. Tenancy Act 1939 filed on 27.6.1953 by the predecessors of the petitioner was not maintainable. With the coming into the operation of U.P. Z.A. & L.R. Act, the proceeding for declaration of tenurial rights under the previous Act was without jurisdiction. 5. The lands in suit is coming down in the name of the defendants through their ancestors. The plaintiffs though are fighting for their right but had availed wrong remedy. With the coming into the operation of U.P. Z.A. & L.R. Act, the proceeding for declaration of tenurial rights under the previous Act was without jurisdiction. 5. The lands in suit is coming down in the name of the defendants through their ancestors. The plaintiffs though are fighting for their right but had availed wrong remedy. There is no indication in the U.P. Z.A. & L.R. Act or the Tenancy Act that bhumidhari rights or tenancy rights were not intended to be conferred on all the co-sharers. 6. The enquiry under U.P. Z.A. & L.R. Act in this regard would require appreciation on the facts of the nature of rights of the predecessors of the plaintiffs, which they agitated in wrong proceedings. 37. In the light of the above noted facts discernible from the records, it would further be relevant to note that the tenancy are not extinguished in the interregnum either with the coming into force of various Tenancy Act or U.P. Zamindari and Abolition Act or under the U.P. Tenancy Act. The tenancy was heritable even as per the description given by the defendants, with the enforcement of North Western Provinces Tenancy Act, 1901 enforced w.e.f. 1.1.1902. The tenants had heritable rights under the U.P. Tenancy Act, 1939 came into force on 16.12.1939 and were recognized as hereditary tenants possessing the right to transfer the holding under Section 18 of U.P. Z.A. & L.R. Act enforced on 26.1.1951. Relevant provision of U.P. Z.A. & L.R. Act for our purposes is quoted as below : “18. The tenants had heritable rights under the U.P. Tenancy Act, 1939 came into force on 16.12.1939 and were recognized as hereditary tenants possessing the right to transfer the holding under Section 18 of U.P. Z.A. & L.R. Act enforced on 26.1.1951. Relevant provision of U.P. Z.A. & L.R. Act for our purposes is quoted as below : “18. Settlement of certain lands with intermediaries or cultivators as Bhumidhar.—(1) Subject to the provisions of Sections 10, 15, 16 and 17, all lands- (a) in possession of or held or deemed to be held by an intermediary as sir, khudkasht or an intermediary’s grove; (b) held as a grove by or in the personal cultivation of a permanent lessee in Avadh; (c) held by a fixed-rate tenant or rent-free grantee as such; or (d) held as such by- (I) an occupancy tenant, possessing the right to transfer the holding by sale (ii) a herediatry tenant, (iii) a tenant on Patta Dawami or Istamrari referred to in Section 17 [(e) held a grove holder] on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such intermediary, [lessee, tenant, grantee or grove-holder,] as the case may be, who shall, subject to the provisions of this Act, be entitled to take or retain possession as bhumidhar thereof. (2) Every person belonging the class mentioned in [Section 3 or sub-section (2) of Section 3-A] of the United Provinces Agricultural Tenants (Acquisition of Privileges) Act. 1949 (U.P. Act X of 1949), who has been granted the declaration referred to in Section 6 of the said Act, in respect of any holding or share thereof shall, unless the declaration is subsequently set aside, be deemed to be the bhumidhar of the holding or the share in respect of which the declaration has been made and continues in force. (3) Notwithstanding anything contained in the United Provinces Agricultural Tenants (Acquisition of Privileges) Act, 1949 (U.P. Act X of 1949), any declaration granted under Section 6 of the said Act, in favour of a tenant whom sub-section (2) of Section 10 applies, shall be and is hereby cancelled and the amount deposited by him under Section 3 or 6 of the said Act, shall, after deducting the amount which might have been paid or be payable by the State Government to his land-holder under Section 7 and 8 of the said Act, be refunded to the person entitled in such manner as may be prescribed.” 38. As per the scheme of the Z.A. Act, under Section 18(1) (d) thereof, all lands in possession of, or held, or deemed to be held by an intermediary as Sir, Khudkasth or an intermediary grove on 30.6.1952 i.e. the date immediately preceding the date of vesting, shall be deemed to be settled with the State Government with such Intermediary as Hereditary tenant. It was provided therein that the said Hereditary tenant would be entitled to take or retain possession as bhumidhar, subject to the provisions of Zamindari Abolition Act. The question relating to interpretation of Section 18 (1) (a) of U.P. Z.A. & L.R. Act came up before the Apex Court in Kailash Rai v. Jai Jai Ram, 1973 (1) SCC 527. 39. The question of possession of the land as Sir, Khudkasth came up for consideration in view of the fact in the said case, that the plaintiffs therein were denied right in the land on the ground that the possession was with the defendants. Taking exception to the said view, it was held therein that in view of the words used in Section 18 (a), “held or deemed to be held by him”. The possession of one of the co-sharers was possession of both on his behalf as well as on behalf of all the co-sharers, unless ousters was pleaded and established. The expressions “possession” “was held” in clause-(a), to not only mean actual physical possession but constructive possession also to that a person is entitled under law. 40. The possession of one of the co-sharers was possession of both on his behalf as well as on behalf of all the co-sharers, unless ousters was pleaded and established. The expressions “possession” “was held” in clause-(a), to not only mean actual physical possession but constructive possession also to that a person is entitled under law. 40. The expression “held” in Section 9 of U.P. Z.A. & L.R. Act has been interpreted in Bhudan Singh and another v. Nabi Bux and another, 1969 SCC (2) 481, wherein, it has been held that the meaning of the word “held” can be only a lawful holding i.e. lawfully held. The words “held by an intermediary” refers to holding by legal title. Similarly, the words “held by tenant” also refer to holding by legal title. It was observed that the expression “held” included two fold ideas of the actual possession of the thing and also of being invested with a legal title though sometimes it may be used to mean actual possession. 41. In Kailash Rai (supra) it was observed that the expression “held” must have a meaning different from personal cultivation. The expression “held” can only be taken to connote the existence of a right or title in a person. The legislature has used expression “deemed to be held”, to treat other co sharers as Bhumidhars by creating a fiction of being in constructive possession. Relevant paragraph Nos. 8, 9, 10, 11 & 12 thereof are reproduced as under : “8. There is no controversy that the date of vesting is 1-7-1952 and the date immediately Preceding the date of vesting is 30-6-1952. Under Section 18 (1) (a), broadly speaking, it will be seen, all lands in possession of, or held, or deemed to be held by an intermediary as sir, khudkasht or an intermediary’s grove on 30-61952, shall be deemed to be settled by the State Government with such intermediary. The said intermediary is entitled to take or retain possession as bhumidar subject to the provisions of the Abolition Act. In order to claim rights under clause (a), it is necessary that the lands should be, (1) in possession of an inter-mediary as khudkanst or sir or (2) held by an intermediary as khudkasht or sir or (3) deemed to be held by an intermediary as khudkasht or sir. If any one of these alternatives is established, clause (a), will stand attracted. If any one of these alternatives is established, clause (a), will stand attracted. Khudkasht, as we have already pointed out, means land, other than sir cultivated a landlord ‘either by himself or by servants or by hired labour. 9. The question is whether the appellant can be considered to be in “possession’ of the lands as khudkasht or whether it can be considered that the lands are “held or deemed to be held by him” as khudkasht. The finding sent by the District Court is no doubt prima facie against the appellant. But we cannot ignore the decree that has been obtained by him in suit No. 918 of 1945 and the further fact that he is working out the said decree by asking for partition in the present proceedings. According to the High Court, as possession is with the defendants, the plaintiff-appellant cannot get any relief. 10. It should be remembered that the District Court has recorded a definite finding that the defendants have not set up any plea of ouster. This finding, so far as we would see, has not been disturbed by the High Court. The decree in suit No. 918 of 1945 clearly recognises the right of the appellant as a co-sharer alongwith the defendants. In law the possession of one co-sharer is possession both on his behalf as well as on behalf of all the other co-sharers, unless ouster is pleaded and established. In this case, as pointed out by us earlier, the finding is that the defendants have not raised the plea of ouster. There is no indication in the Abolition Act or the Tenancy Act that bhumidari rights are not intended to be conferred on all the co-sharers or co-proprietors, who are entitled to the properties, though only some of them may be in actual cultivation. One can very well visualise a family consisting of father and two sons, both of whom are minors. Normally, the cultivation will be done only by the father. Does it mean that when the father is found to be cultivating the land on 30-6-1952, he alone is entitled to the bhumidhari rights in the land and that his two minor sons are not entitled to any such rights ? In our opinion, the normal principal that possession by one co-sharer is possession for all has to be, applied. Does it mean that when the father is found to be cultivating the land on 30-6-1952, he alone is entitled to the bhumidhari rights in the land and that his two minor sons are not entitled to any such rights ? In our opinion, the normal principal that possession by one co-sharer is possession for all has to be, applied. Further, even when one co-sharer is in possession of the land, the other co-sharers must be considered to be in constructive possession of the land. The expression ‘possession’ in clause (a), in our opinion, takes in not only actual physical possession, but also constructive possession that a person has in law. If so, when the defendants were in possession of the lands and when no plea of ouster had been raised or established, such possession is also on behalf of the plaintiff-appellant. Under such circumstances, the lands can be considered to be the possession of the appellant or, at any rate, in his constructive possession. 11. Clause (a), as we have pointed out, takes in two other contingencies also, namely, lands held as khudkasht or lands deemed to be held as khudkasht. Even assuming that, in view of the finding of the District Court, the defendants are in possession and on that basis the plaintiff cannot be considered to be also in possession, nevertheless, the lands in question can be considered to be held or deemed to be held by the appellant also. The expression ‘held’ occurs in Section 9 of the Abolition Act. In interpreting the said expression, this Court in Budhan Singh and another v. Nab Bux and another (1) has held that it means ‘lawfully held’. This Court has further observed that- “According to Webster’s New Twentieth Century Dictionary the word ‘held’ is technically understood to mean to possess by legal title. Therefore by interpreting the word ‘held’ as ‘lawfully held’ there was no addition of any word to the section. According to the words of s. 9 and in the context of the scheme of the Act It is, proper to construe the ‘word ‘held’ in the section as ‘lawfully held’.” 12. Mr. Bagga, however, contended that the expression ‘held’ in clause (a) denotes actual possession. As the finding on that point is against the appellant, the lands cannot be considered to be ‘held’ by him. We are not inclined to accept this contention. Mr. Bagga, however, contended that the expression ‘held’ in clause (a) denotes actual possession. As the finding on that point is against the appellant, the lands cannot be considered to be ‘held’ by him. We are not inclined to accept this contention. In clause (b) occurs the words ‘held’ as a grow by’. If the expression ‘held’ occurring in clause (a) means actual possession, then the same meaning must be given to the same word occurring in clause (b) also. But it will be seen that in the latter part of clause (b), the legislature has used the expression ‘personal cultivation with reference to Avadh, whereas it has not used any such expression in the first part of clause (b). Therefore, the expression ‘held’ must have a meaning different from personal cultivation. In our opinion, the expression ‘held’ can only be taken to connote the existence of a right or title in a person. The appellant’s right and title as holder of the lands has been declared and settled in suit No. 918 of 1945. It can also be held that the lands can be considered to be ‘deemed to be held’ by the appellant. The expression ‘deemed to be held’ has been used by the legislature to treat persons like the appellant bhumidhars by creating a fiction.” 42. This Court in Raj Bahadur Singh (supra) placing reliance on the Full Bench decision in Upper Ganges Suggar Mills v. Civil Judge, AIR 1978 SC 138 and of the Apex Court judgement in Kailash Rai (supra) has held that the right of co-sharers in actual cultivatory possession are not extinguished by reason of them not taking steps for having their name recorded and heirs specified in the consolidation proceeding. The entry of the name of one co-sharer alone may not be necessarily inconsistence with the continuance of the remaining as co-sharers. Such entry recorded in consolidation proceeding should not operate as Res judicata. It cannot be said that if non-recorded co-parceners did not seek to get their names recorded or shares specified, their title would be extinguished. Rather it was held therein that the case of co-sharers who are in undisturbed cultivatory possession of different areas, according to their shares, cannot be equated with one of the trespassers or persons claiming adverse possession. 43. Rather it was held therein that the case of co-sharers who are in undisturbed cultivatory possession of different areas, according to their shares, cannot be equated with one of the trespassers or persons claiming adverse possession. 43. In Balbhaddar (supra) it had been held that the rights of a co-shares can be extinguished either by transfer, surrender or adverse possession. In absence of any evidence of transfer or surrender, the possession of one of the co-shares cannot be said to be adverse to others. The principle that possession of one co-tenant is possession of all co-tenants must prevail. Merely on the ground that the names of co-shares did not appear in revenue record for a long time, it cannot be said that the other co-sharers had lost their right. 44. The defendants/respondents have not been able to bring on record before this Court as to how the lands in three Khatas No. 111, 135 and 141 came to be recorded exclusively in the name of one of the co-sharer i.e. their predecessor only. There is no proof of any partition or surrender of rights by other two brothers namely Bisheshar and Rikhai. 45. Only submission of the defendants/respondents is that in three settlements intervened in 1322-Fasli, 1347-Fasli, and Zamindairi Abolition Act w.e.f 1.7.1952, names of the predecessors of the plaintiffs were not recorded. The consolidation proceedings commenced in the village in the year 1976. It is not clear as to how the plaintiffs had inherited their rights before coming into operation of U.P. Zamindari Abolition Act. Mere fact that the predecessors of the plaintiffs were members of the same family would not be sufficient to hold that they had a right in the suit property, moreso, in absence of any evidence to prove cultivation by them. Rights of only those who had been recorded in the relevant records prepared, under different Acts, till coming into operation of U.P. Zamindiari Abolition & Land Reforms Act had been recognized. Only those persons who were recorded and were in cultivatory possession got Proprietory, Occupancy and Hereditary rights as tenants under the Z.A. Act. Till the basic year i.e. 1356-Fasli, the names of the plaintiffs were not there in any of the revenue records. 46. Only those persons who were recorded and were in cultivatory possession got Proprietory, Occupancy and Hereditary rights as tenants under the Z.A. Act. Till the basic year i.e. 1356-Fasli, the names of the plaintiffs were not there in any of the revenue records. 46. Having considered the provisions for recognition of rights of intermediaries, Sir, Occupancy tenant, hereditary tenant, a tenant on Patta and grove holder under Section 18 (a) to (e) read with Section 19 of U.P. Z.A. & L.R. Act, and that the expression “held or deemed to be held” by a hereditary tenant not only speaks of actual physical possession but also includes constructive possession, it cannot be accepted that the petitioners or their predecessors had lost their rights of co-ownership in the lands in three Khatas though they were recorded in the name of their predecessors in 1292-Fasli. 47. As far as the effect of the proceedings under Section 59/61 of U.P. Tenancy Act filed by the predecessors of the plaintiff is concerned, admittedly, the said proceeding was initiated after enforcement of the Z.A. Act. The predecessors of the petitioners claim that they were Occupancy tenant and they were entitled to tenurial rights after abolition of Zaminidari. The said suit was dismissed finally upto the stage of Board of Revenue. 48. The tenurial rights having been converted into Bhumidhari rights under the U.P. Zamindari Abolition Act after the repeal of the U.P. Tenancy Act’ 1939, the proceedings for declaration of tenural rights under the previous Act was wholly without jurisdiction. The Courts giving decision in this regard were inherently lacking in their jurisdiction. Any adjudication made in the said suit being without jurisdiction would be a nullity and cannot operate as res judicata in any subsequent proceedings. The Division Bench of this Court in Sheo Ji (Supra) had categorically held that where a suit for declaration of tenancy rights was not maintainable in the revenue Court after the date of vesting, with the enforcement of U.P. Z.A. & L.R. Act, as no such suit could be filed under the said statute, it would obviously mean that the Court had no jurisdiction to entertain the suit and adjudicate the issue. Such a decree is not binding on the parties despite the fact that one of the parties assumed jurisdiction under wrong impression as the jurisdiction cannot be conferred upon the Court with the consent of the parties or having not taken the said issue or the said issue being wrongly decided against one of the parties. 49. The conclusion drawn by the DDC that the order passed in the proceedings under U.P. Tenancy Act’ 1939 would operate as res judicata against the plaintiffs is, therefore, faulty. 50. However, from the findings of the Consolidation Officer and S.O.C, in the proceeding under Section 9-A of the Act’ 1953, recorded in favour of the petitioner, it is apparent that there has been no adjudication regarding the continuity and identity of land i.e. whether the identity of the land had not broken and further as to who remained in possession throughout the interrgnum. Only in one line, it had been observed by the Consolidation Officer that the continuity/identity of the land had not been broken by mere deduction in some area of three Khatas. The S.O.C had also affirmed the said finding again with the assertion that identity of land had not been broken and, therefore, the shares of the plaintiff could be declared. In absence of any proper enquiry regarding the identity of the land and the possession of the co-sharers thereon, it was not justified for the Consolidation Authorities to declare the shares of the plaintiffs as co-tenure holders. 51. It is noteworthy that the suit filed in the year 1953 for declaration of tenurial rights under the U.P. Tenancy Act was incompetent but at the same time a remedy to file suit for declaration under Section 229-B of the Act was available to the plaintiffs. In case, the declaratory suit would have been filed by them under U.P Z.A. & L.R. Act, it would have required adjudication upon an enquiry on the issue of rights of the parties. 52. Having lost in the matter of declaration of tenurial rights, the plaintiffs had approached the consolidation authorities in the year 1976 as soon as the village under-went consolidation. 53. In view thereof, it cannot be said that the plaintiffs were sleeping over their rights or as a result of continuance of name of Jhinak only and his heirs, thereafter till the year 1976, the rights of other co-shares were extinguished. 53. In view thereof, it cannot be said that the plaintiffs were sleeping over their rights or as a result of continuance of name of Jhinak only and his heirs, thereafter till the year 1976, the rights of other co-shares were extinguished. Moreover, the pedigree is admitted to the parties. It is also noteworthy that at some point of time, name of only one son of Jhinak was recorded and other sons/grand sons claimed their co-tenancy rights where it was admitted by them that the suit property was a joint family property. 54. For all the above noted reasons, this Court has not been able to convince itself with the arguments of the defendants/respondents that the order dated 26.7.1978 passed by the D.D.C, Deoria, is perfectly justified. This apart, the findings recorded by the D.D.C regarding possession of the defendants are wholly without any basis. The order dated 26.7.1978 passed by the D.D.C, Deoria is, therefore, quashed. 55. However, for the reasons given in the foregoing paragraphs of this judgement, this Court is also not convinced with the findings returned by Consolidation Officer and S.O.C on the question of possession and nature and identity of the lands in three Khatas namely Khata Nos. 111, 135 and 141. The findings in this regard recorded in both the orders dated 5.11.1976 and 21.1.1977 passed by the Consolidation Officer and Settlement Officer, Consolidation; respectively, therefore, cannot be sustained. 56. In view of the above, facts and circumstances of the case, the matter requires fresh consideration by the competent authority. It is, therefore, remitted back with the direction to the Competent Authority to decide the issue raised by the parties keeping in view of the observations made herein above and considering the law laid down by the Apex Court as noted above. 57. With the above observations and directions, the writ petition No. 8391 of 1978 is partly allowed. 58. The orders impugned in the connected writ petitions No. 12017 of 1996 and 15431 of 2015 are consequential orders and loose their efficacy after the decision in writ petition No. 8391 of 1978. Both the aforesaid writ petitions are, thus, rendered infructuous. The interim orders passed therein stood discharged. 59. The matter is critically old as the parties are litigating since the year 1976. Both the aforesaid writ petitions are, thus, rendered infructuous. The interim orders passed therein stood discharged. 59. The matter is critically old as the parties are litigating since the year 1976. A direction is, therefore, issued to the Competent authority to grant opportunity to the parties to lead their evidence within a shortest possible time and to decide the proceedings, expeditiously, preferably within a period of eight months from the date of submission of certified copy of this order. 60. All the three writ petitions are finally decided, accordingly.