JUDGMENT : Rajan Roy, J. 1. Heard Shri M.A. Khan, learned Senior Counsel along with Shri Vijay Bahadur Verma, learned Counsel for the petitioner, Shri Jagdish Prasad Maurya, learned Additional Chief Standing Counsel and Shri Nirankar Nath Jaiswal along with Shri Prashant Jaiswal, learned Counsel for the private opposite parties. 2. Certified copy of the appeal filed before the Settlement Officer Consolidation is taken on record. 3. This a writ petition under Article 226 of the Constitution of India challenging the orders of the Consolidation Officer, S.O.C. and the Deputy Director of Consolidation by which the objections of the private opposite parties claiming co-tenancy rights in respect of lands forming part of Khata No. 57 to the extent of half share, were allowed and the same, as affirmed at the Appellate and Revisional stage, have been challenged. 4. The dispute pertains to Khata No. 57(57-A, B, C, D, E). Khata No. 57 was formed from various Khatas as is mentioned in the order of the D.D.C. The Khata comprises of a total number of 59 Gatas. It is not in dispute that in respect of 8 of the 59 Gatas bearing Nos. 408, 409, 410, 411, 412, 413, 414 and 415 a suit was filed by Ram Chandar and Bhagwant Prasad recorded tenure holders of the Khatas in question for ejectment of Aditya Prasad and Harihar Prasad sons of Raghubar Das and for possession of the said Gata under section 180 of U.P. Tenancy Act, 1939 (hereinafter referred to as the 'Act, 1939'). The Suit bearing No. 74 of 1945 was allowed by the Munsif vide judgment dated 18.11.1940, against which Aditya Prasad and Harihar Prasad filed an Appeal bearing No. 144 of 1946 which was allowed on 19.2.1946 and the Suit of Bhagwant Prasad and Thakur Prasad was dismissed. While allowing the Appeal the District Judge took into consideration the fact that during pendency of the dispute, without intervention of the Court, the parties entered into a registered agreement for referring the matter to Arbitration by 'Panchas'. The said 'Panchas' rendered their decision holding that the disputed property was joint family property and the said decision as has been mentioned in the orders of the Courts below, was got registered. The said 'Panchas' rendered their decision holding that the disputed property was joint family property and the said decision as has been mentioned in the orders of the Courts below, was got registered. The decision of the 'Panchas' was rendered in 1944 and it had been filed in the proceedings under section 180 of the U.P. Tenancy Act, 1939 and was available before the Appellate Court as referred hereinabove. The District Judge was also persuaded by the fact that Ram Khulwant the father of the petitioner-Thakur Prasad did not enter the witness box to belie the oral testimony of Aditya Prasad. Accordingly, he held that the land in dispute was joint family property. 5. Thakur Prasad s/o. Ram Khulwant is the petitioner herein, whereas, Aditya Prasad and Harihar Prasad and others are the opposite parties herein. All of them belong to the family of the common ancestor Mahaveer and there is no dispute with regard to the family tree. 6. The dispute is with regard to co-tenancy rights claimed by the sons of Raghubar Dayal i.e. Aditya Prasad and Harihar Prasad. 7. It is not out of place to mention that in 1941/1942 a dispute had arisen between the parties wherein Ram Khulwant had initiated criminal proceedings alleging forcible cultivation of some of the Gatas by the private opposite parties, thereby, alleging an offence under section 447 I.P.C., which was decided in 1942 and it is said that the Magistrate dismissed the case on the ground that the property was joint family property. The lodging of the criminal case was in respect of only some of the Gatas, as, has been mentioned in the orders of the Courts below, therefore, there is reasonable basis to believe that this was in respect of the 8 Gatas for which subsequently i.e. after the dismissal of the criminal case, suit proceedings were initiated under section 180 of the Act, 1939 and there is nothing on record to show that the dispute was in respect of all the 59 Gatas. It is not in dispute that so far as 8 Gatas are concerned, the private opposite parties are in possession. 8. It appears that at some point of time in the year 1970s Consolidation Operations started, wherein, objections were filed by the private opposite parties claiming tenancy rights to the extent of half share in the lands forming part of Kata No. 57. 8. It appears that at some point of time in the year 1970s Consolidation Operations started, wherein, objections were filed by the private opposite parties claiming tenancy rights to the extent of half share in the lands forming part of Kata No. 57. The Consolidation Officer persuaded by the decision of the Appellate Court arising out of proceedings under section 180 of the Act, 1939, the decision of the 'Panchas' rendered in 1944; the testimony of Ram Autar, who was one of the 'Panchas' the testimony of another person Ram Sumiran who also testified that such decision was taken by the 'Panchas' the decision of the Munsif in Case No. 376 under section 447 I.P.C. dated 21.11.1942; testimony of Bhagwant Prasad in case No. 176 under section 180 of the Act, 1939 dated 18.9.1944; factum of family tree having been accepted and the revenue receipts filed by Aditya Prasad, allowed the objections holding that on the basis of the aforesaid evidence the decision of the 'Panchas' was proved and that the land comprising Khata No. 57 was joint family property was also proved. 9. Being aggrieved the petitioner herein filed an Appeal under section 11 of the U.P. Consolidation of Holdings Act, 1953 before the Settlement Officer, Consolidation, who affirmed the judgment of the Consolidation Officer. 10. Being further aggrieved the petitioner herein filed a revision under section 48 of the Act, 1953, which was also dismissed. It is against the aforesaid background that this writ petition was filed in the year 1984. An interim order was passed in this case on 22.8.1984 to the effect that until further orders the possession of the petitioner over the disputed land shall not be disturbed. 11. It is against the aforesaid background that this writ petition was filed in the year 1984. An interim order was passed in this case on 22.8.1984 to the effect that until further orders the possession of the petitioner over the disputed land shall not be disturbed. 11. The contention of Shri M.A. Khan, learned Senior Counsel along with Shri Vijay Bahadur Verma and Shri U.S. Sahai, learned Counsel for the petitioner was that the dispute involved in the proceedings under section 180 was only in respect of 8 Gatas and therefore, any decision thereon at the Appellate stage and findings recorded in this regard would operate only in respect of the said 8 Gatas and this could not be the basis for holding that all the remaining Gatas were also joint family property nor the principles of acquiescence, estoppel or res-judicata could be applied in this regard with regard to the other Gatas, which were not the subject matter in dispute at that stage. Secondly, in order to prove that the land was joint family property it was required to be proved that the identity of the land had come down from the common ancestor as it is, without much difference or deviation. For any deviation or difference in this regard there should have been an explanation but this aspect of the matter was ignored by the Courts below, which were persuaded by the earlier decision in respect of the 8 Gatas arising out of the proceedings under section 180 of the Act, 1939 and the decision of the 'Panchas', which in fact was never made Rule of the Court as was necessary in view of the Arbitration Act, 1940. The decision of the criminal Court could not be taken as evidence of the fact that the land was joint family property. He also invited the attention of the Court to various documents on record including the testimony of Aditya Prasad to show that the land in dispute had been acquired at different times as was evident from different 'Muddats' (Periods) mentioned in the revenue records as has also been mentioned in the order of the D.D.C. and a fact which was accepted by Aditya Prasad in his testimony who had also stated that Aditya Prasad and Thakur Prasad were living separately. 12. 12. Shri Vijay Bahadur Verma, learned Counsel, who also argued on behalf of the petitioner on the same lines as aforesaid, laid great emphasis on the provisions of section 180(2) and alleged compromise said to have been arrived at between the parties in respect of the lands falling in another village-Mahadevkala to submit that as a, result of the said compromise the lands in Village-Mahadevkala fell in the share of the private opposite parties with the condition that they would not raise any claim with regard to lands recorded in the name of Ram Khulwant/Thukur Prasad in Village-Parsauna Maheshpur i.e. the village, relating to which, the dispute is to be adjudicated in this writ petition. 13. Shri N.N. Jaiswal, learned Counsel appearing for the private opposite parties submitted that all the three Courts below had recorded concurrent findings of facts, which did not require any interference. He took the Court through all the three judgments rendered by the three Courts below and defended the same on the basis of the reasons mentioned therein. In this regard he relied upon the decisions reported in Hasan Ali and Ors. v. State of U.P. and Ors. 1992 Supp (2) SCC 70; Muneshwar (dead) by L.Rs. v. Raja Mohammad Khan and Ors. 1998 (89) RD 615 (SC), and Gram Sabha, Dhaniya Mau v. Ram Manohar (Dead) by L.Rs. and Ors. 2010 (110) RD 186 (SC). 14. In this regard he relied upon the decisions reported in Hasan Ali and Ors. v. State of U.P. and Ors. 1992 Supp (2) SCC 70; Muneshwar (dead) by L.Rs. v. Raja Mohammad Khan and Ors. 1998 (89) RD 615 (SC), and Gram Sabha, Dhaniya Mau v. Ram Manohar (Dead) by L.Rs. and Ors. 2010 (110) RD 186 (SC). 14. As regards the compromise said to have been arrived at between the parties in the consolidation operations in Village Mahadevkala, on a perusal of the certified copy of the Appeal filed by the petitioner before the S.O.C., which has been taken on record, the Court does not find any such plea, based on such compromise, having been raised therein, even though, the compromise is alleged to have been filed before the Consolidation Officer, therefore, this plea can not be taken into consideration by the writ Court for the first time, specially as, there is no order of the Consolidation Officer in terms of the said compromise, although, it is said that the Amaldramat was made in the Khatauni based on such order which was passed on 28.8.1974, but, the fact of the matter is that the private opposite parties were already recorded in respect of the land in Village-Mahadevkala prior to the filing of the objections by the petitioner, therefore, the said entry in the absence of an order of the Consolidation Officer establishing that the compromise had been accepted and some decision had been taken in terms thereof, can not be considered by this Court. 15. This Court finds merit in the contention of the learned Counsel for the petitioner that in order to establish co-tenancy rights in agricultural land either the claimant has to prove that the land was purchased from joint family funds or he should establish that the lands in dispute were recorded in the name of a common ancestor and after his death had come down to the successors, and was recorded in the name of the eldest of the successors, with the identity intact as it is. This Court finds that none of the three Courts below have considered this aspect of the matter. This Court finds that none of the three Courts below have considered this aspect of the matter. All the three Courts below were persuaded by the fact that when the suit proceedings were initiated by the petitioner under section 180 of the Act, 1939, while dismissing the same at the Appellate stage, the District Judge, taking into consideration the decision rendered by the 'Panchas' and the oral evidence available before him, held that the disputed property was joint family property. In this regard this Court is of the view that the dispute in those proceedings pertained to only 8 Gatas and there is no dispute about this fact, therefore, any finding recorded therein and the principle of estoppel, acquiescence or res-judicata, as applied by the Courts below, would apply only in respect of these 8 Gatas which were the subject matter of the said proceedings and the said decision by itself can not create any right in favour of the private opposite parties with regard to remaining 51 Gatas of Khata No. 57 which were not the subject matter of the said proceedings. Merely because, in the suit proceedings, while filing the written statement, the details of the Gatas other that the 8 Gatas in dispute were also mentioned with the assertion that they were also joint family property, it would not help the private opposite parties unless and until their jointness was an issue directly and substantially involved and was decided in those proceedings. 16. As regards reliance placed by the Courts below on the decision of the 'Panchas' which was rendered in 1944, this Court finds merit in the contention of the learned Counsel for the petitioner that as per the Arbitration Act, 1940 which was then existing, such an award by the 'Panchas' was required to be made Rule of the Court. The learned Counsel for the private opposite parties could not show that this was not required. However, even assuming that the said decision was got registered by the parties and was not challenged, the fact of the matter is that there is nothing on record to show that what was referred to the 'Panchas' was a dispute pertaining to all the 59 Gatas of Khata No. 57. However, even assuming that the said decision was got registered by the parties and was not challenged, the fact of the matter is that there is nothing on record to show that what was referred to the 'Panchas' was a dispute pertaining to all the 59 Gatas of Khata No. 57. The material on record and the sequence of events show that the private opposite parties forcibly cultivated some of the Gatas in 1941/1942 which led to filing of the criminal case which was decided in 1942 allegedly holding that the property being joint no offence was made out. It seems that because of this decision of the Magistrate in the criminal case, civil proceedings were initiated under section 180 of the Act, 1939 in respect of the 8 Gatas as already mentioned hereinabove. There is nothing on record to show that any dispute had arisen in respect of all the 59 Gatas or any proceedings were initiated by the private opposite parties in respect of these Gatas or for that matter any proceedings were initiated by the petitioner in respect of all the 59 Gatas. It is, also an admitted fact that during pendency of the aforesaid dispute pertaining to 8 Gatas, without intervention of the Courts, the parties referred the matter to Arbitration before the 'Panchas'. When the Courts below have mentioned that the disputed property was held to be joint family property by the 'Panchas' and in this context have also referred to the testimony of Ram Autar and Ram Sumiran they have failed to appreciate that the disputed property at the stage was the 8 Gatas which were part of Khata No. 57 and inspite of repeated queries the learned Counsel for the private opposite parties could not show any document on record to establish that there was already existing a dispute in respect of all the 59 Gatas. It is not a case where Ram Khulwant or Thakur Prasad may have admitted to the half share of the private opposite parties in all the 59 Gatas of the Khata in dispute. Therefore, the Courts below clearly erred on this count also. 17. It is not a case where Ram Khulwant or Thakur Prasad may have admitted to the half share of the private opposite parties in all the 59 Gatas of the Khata in dispute. Therefore, the Courts below clearly erred on this count also. 17. Moreover, if the basis for claiming co-tenancy rights in all the 59 Gatas during the consolidation operations initiated sometimes in the 1970 was the judgment rendered by the Appellate Court on 19.2.1946 in proceedings arising from section 180 of the Act, 1939, then, the question arises as to why they remained silent for 30 years till consolidation operations started and did not get their names recorded in respect of Khata No. 57 claiming such rights in respect of all the 59 Gatas based on the said decision. 18. Furthermore, there is another aspect of the matter in this very context. Khata No. 57 was recorded in the name of Bhagwant Prasad and Ram Khulwant. Ram Khulwant was the father of the petitioner-Thakur Prasad. In the order of the District Judge arising out of the proceedings under section 180 it has come that Bhagwant Prasad belonged to his family but in the family tree disclosed by the private opposite parties before the Courts below the name of Bhagwant Prasad does not find mention. Assuming that he may have belonged to some other branch of the family, one thing is obvious that he did not claim any right through Mahaveer, the common ancestor of the parties herein. In this context it needs to be mentioned that after the death of Bhagwant Prasad, his wife Murat Dei claimed partition and division of share vis-a-vis. Ram Khulwant by initiating suit proceedings under section 176 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 in the year 1958 i.e. much after the judgment of the District Judge in Appeal No. 144 of 1946 and the decision of the 'Panchas' in 1944, as also, the decision of the Magistrate in the criminal case in 1942. Ram Khulwant by initiating suit proceedings under section 176 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 in the year 1958 i.e. much after the judgment of the District Judge in Appeal No. 144 of 1946 and the decision of the 'Panchas' in 1944, as also, the decision of the Magistrate in the criminal case in 1942. Aditya Prasad raised an objection in those proceedings which was dismissed on the ground he was claiming share in the land recorded in the name of Ram Khulwant and not with regard to Bhagwant Prasad, therefore, he could maintain a separate suit, but, even then, Aditya Prasad and Harihar Prasad did not initiate any proceeding under section 176 of the Act, 1950 in the year 1958 or thereafter, for another 15 to 20 years, although, they could have done so on the basis of the very documents which were subsequently made the basis for raising their claim which was accepted by the C.O. etc. in the 1970s, if they had a genuine claim in this regard. This is also a factor which goes against them regarding their claim to the land being joint family property. 19. Most importantly, the Consolidation Officer and the S.O.C. have not recorded any finding based on the Partal during consolidation operation and the details entered in Form 2-A that the private opposite parties were found to be in possession on half of the land so as to give support to their claim that the lands were joint family property. The D.D.C., surprisingly enough, was persuaded by some revenue receipts filed by the opposite parties and has made observations that they were in possession without referring as to what was found during Partal and whether they were mentioned as being in possession in Form - 2-A which constituted a material evidence and should have been seen. Revenue receipts by themselves could not be a proof of possession unless they are corroborated by other evidence at least in the facts of the present case. 20. On a careful perusal of the judgments of all the three Courts below, this Court has no hesitation in saying that there is no sustainable finding recorded by any of the three Courts that the private opposite parties were found to be in possession of half of the total lands forming part of Khata No. 57 comprising of 59 Gatas. On a careful perusal of the judgments of all the three Courts below, this Court has no hesitation in saying that there is no sustainable finding recorded by any of the three Courts that the private opposite parties were found to be in possession of half of the total lands forming part of Khata No. 57 comprising of 59 Gatas. Had it been so then coupled with the revenue receipts a presumption could have been raised that the property was joint family property. The findings in this regard are thus perverse. 21. As regards the testimonies of Ram Autar and Ram Sumiran, as has already been stated hereinabove, those were only in respect to the dispute which was referred to the 'Panchas' in respect of the disputed property at that time and there is nothing on record to show that this dispute pertained to all the 59 Gatas, in fact, the material on record clearly shows that the dispute was only in respect of 8 Gatas, therefore, their testimony is good only for these 8 Gatas in respect of which the private opposite parties have already perfected their rights under the judgments of the District Judge dated 19.2.1946 and regarding which there is no dispute as the said decision was not challenged by the petitioner. As regards the testimony of Bhagwant Prasad it has also to be understood in the same context as this is also in respect of the dispute referred to the 'Panchas'. 22. Lastly, this Court has carefully perused the testimony of Aditya Prasad during the consolidation operations recorded on 27.5.1974 as also his cross examination, wherein, it is found that he has himself stated that the lands have been acquired at different times by different persons including Thakur Prasad, and that Thakur Prasad and Aditya Prasad were living separately. There is other material on record to show that the lands were acquired at different times and the 'Muddat' i.e. the period for which the lands are recorded in the name of recorded tenure holders are different in various records and in some of the records 'Muddat' has been mentioned 5 years and to other 3 years. No endeavour was made by the private opposite parties to show that all these lands which were disputed, were ever recorded in the name of the common ancestor Mahaveer. No endeavour was made by the private opposite parties to show that all these lands which were disputed, were ever recorded in the name of the common ancestor Mahaveer. The learned Counsel for the private opposite parties could not demonstrate this fact to this Court inspite of repeated requests. The date of death of Mahaveer is also not known. Had it been known, then, some inference could have been drawn in this regard on the basis of 'Muddat' mentioned in the revenue records. It is also well settled that in a claim of co-tenancy where the claim is in respect of a number of Gatas it is not permissible to declare some of such Gatas as joint family property piecemeal. Reference may be made in this regard to the case of Jagdamba Singh and others v. Deputy Director of Consolidation and others, 1985 RD 281 (HC-LB). It is also not known as to when Ram Khulwant was born. 23. In this view of the matter, all the three Courts below have committed a grave error in failing to consider as to whether the lands in dispute were ever recorded in the name of the common ancestor Mahaveer and had come down to the successors, even if, recorded in the name of Ram Khulwant and Thakur Prasad, with the identity intact as it is or with minor deviation which could be explained, in keeping with the settled law on the subject as enunciated in the case of Jagdamba Singh (supra). The law in this regard was also enunciated in the case of Ram Prasad and others v. Deputy Director of Consolidation, Pratapgarh and Ors., Writ Petition No. 2205 (Cons.) of 1980, decided on 15.3.2019. The entire approach of all the three Courts below in the matter is based on a wrong factual and legal premise, therefore, their orders can not be sustained. The matter requires reconsideration and therefore, it is liable to be remanded back to the Deputy Director of Consolidation. 24. At the relevant time i.e. in 1330 fasli the Oudh Rent Act, 1886 was applicable wherein tenancy was not heritable per se except that the legal heirs of the tenant were entitled to continue for the remaining period of the Patta. 24. At the relevant time i.e. in 1330 fasli the Oudh Rent Act, 1886 was applicable wherein tenancy was not heritable per se except that the legal heirs of the tenant were entitled to continue for the remaining period of the Patta. Even in this regard the statutory position was different for the period prior to 1921 and thereafter, as has been discussed by this Court in Writ Petition No. 2205 (Cons.) of 1980; Ram Prasad and Ors. v. Deputy Director of Consolidation, Pratapgarh and Ors., decided on 15.3.2019 and Aditya Prasad has himself in his testimony referred that Patta had been granted, therefore, this aspect of the matter should have also been taken into consideration but has not been considered by the three Courts below. 25. While this Court is conscious of the fact that in a case where all the three Courts below have ruled against the petitioner the scope of interference under Article 226 of the Constitution of India is limited, but, considering the reasons given hereinabove, there are valid grounds for such interference as, the very approach of the Courts below has been erroneous. Reference may be made in this regard to the decision of the Supreme Court in Variety Emporium v. V.R.M. Mohd. Ibrahim Naina, 1985 (1) SCC 251 , wherein in the context of concurrent findings of three Courts albeit in the context of jurisdiction under Article 136 it had been observed that such jurisdiction has to be exercised sparingly, but, that can not mean that injustice must be perpetuated because it has been done three times in a case. Once the burden of showing that a concurrent decision of two of more Courts or Tribunals is manifestly un-just, is discharged. It is the duty of the Courts to remedy the injustice. The observations in the said case apply on all its fours to the case at hand. 26. In view of the above, all the impugned orders are quashed. The revision of the petitioner shall now stand restored before the D.D.C. for a consideration afresh keeping in mind the observations made hereinabove and the law on the subject. 27. As all the parties are represented before this Court it would be appropriate if they appear before the D.D.C. on 22.5.2019. The D.D.C. shall proceed to consider the matter as per law. 27. As all the parties are represented before this Court it would be appropriate if they appear before the D.D.C. on 22.5.2019. The D.D.C. shall proceed to consider the matter as per law. It is, however, made clear that so far as the identity of the land being the same is concerned, the observations of this Court are only with regard to validity of the impugned orders which have been quashed and they shall not be treated as coming in the way of the D.D.C. in recording his own findings afresh based on the material and evidence available before him or which may be adduced by the parties hereinafter. He may also take into consideration Form-2-A prepared during the consolidation operation to see as to whether the private opposite parties were found to be in possession of the substantial portion of the land equal to or near about the share being claimed by them, as, if it is so found, then, it may be relevant coupled with the revenue receipts filed by them keeping in mind the period to which the receipts relate. 28. It is open for the D.D.C. to see as to whether the dispute referred to the 'Panchas' was in respect of all the 59 Gatas. If so, its effect, the D.D.C. shall conclude the proceedings within a period of 8 months from 22.5.2019. 29. As regards the money deposited in this Court by the learned Counsel for the petitioner in. pursuance to the interim order dated 22.8.1984 the same shall abide by the decision of the D.D.C. After the decision by the D.D.C. it shall be open for the concerned parties to move an application before this Court for release of the same. 30. Subject to the above, the writ petition stands allowed.