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2023 DIGILAW 2722 (ALL)

Puranwasi v. D. D. C.

2023-12-01

SAURABH SHYAM SHAMSHERY

body2023
JUDGMENT : (Saurabh Shyam Shamshery, J.) 1. Heard Sri Kedar Nath Mishra, learned counsel for petitioner and Sri Sharad Chand Singh, learned A.C.S.C. for State. 2. The dispute is related to plot No.85 being area of 00.35 and 86 being area of 1.36 of Khata Khatauni No.42 situated in village Manga Kodar Tappa Nagva Tikar Pargana Silhat, Tehsil Sadar, District Deoria. 3. In basic year, when consolidation proceeding commenced, the name of petitioner was recorded as a tenant holder. 4. The opposite party No.3 has filed objection before the Consolidation Officer claiming co-tenancy rights to the extent of half share and also for partition by separation of chaks. It was claimed by original opposite party No.3-(Chhedi son of Khedu) and that Khedu was son of Phagu, however petitioner has disputed that Khedu and Puranwasi were not brother. Puranwasi was only son of Phagu. 5. In initial round, objection filed by respondents were rejected by the Consolidation Officer. The appeal thereof was partly allowed and Deputy Director of Consolidation by order dated 21.2.1972 remitted the case to Consolidation Officer to decide afresh. 6. In second round of litigation, the Consolidation Officer has considered documentary and oral evidence fresh and rejected the case of original respondent No.3-(Chhedi) by order dated 26.05.1975 and relevant part thereof is reproduced hereinafter:- 7. The original respondent No.3 thereafter filed an appeal which was allowed in part. The claim of contesting respondent was rejected qua to Khata Nos. 1, 2 and 790, however, his claim of co-tenancy in Khata Nos. 85 and 86 was allowed by declaring that respondent No.3 was son of Khedu and grand son of Phagu. It was held that respondent No.3 was brother of original petitioner. The relevant part thereof is reproduced hereinafter :- 8. In the aforesaid circumstances, both parties referred revision petitions, however, both petitions were rejected by order dated 18.03.1976 and relevant part thereof is mentioned hereinafter : (Emphasis Supplied) 9. Learned counsel for petitioner has submitted that the Consolidation Officer while considering the evidence led on issues framed, returned a specific finding and rejected the claim of contesting respondent as well as held that contesting respondent No.3 was not a part of petitioner’s family. 10. Learned counsel for petitioner has submitted that the Consolidation Officer while considering the evidence led on issues framed, returned a specific finding and rejected the claim of contesting respondent as well as held that contesting respondent No.3 was not a part of petitioner’s family. 10. Learned counsel further submitted that number of documents were placed before Consolidation Officer in support of his claim which are part of order passed by him and that Consolidation Officer has rightly placed reliance on ‘Kutumb Register’, wherein contesting respondent’s name was not recorded and that for almost three decades, original respondent never tried to take any step to record his name in revenue records. 11. Learned counsel further submitted that Appellate Authority in a very cursory manner has shifted the entire burden on petitioner to prove that contesting respondent No.3 was not his brother. The original petitioner have discharged initial burden and it was on respondent No.3 to prove that he is part of pedigree of petitioner. 12. Learned counsel further submitted that Revisional Authority has committed same error. Both authorities have committed further error that on said evidence, claim of original petitioner was considered on three khatas but on same set of evidence they have erroneously accepted claim of contesting respondent and wrongly held contesting respondent to be co-tenant on Khata Nos. 85 and 86. 13. Since no one has entered appearance on behalf of respondents, therefore, Sri Sharad Chand Singh, learned A.C.S.C. for State has assisted the Court. 14. In present case, there are two issues, first whether contesting respondent (Khedu) is also son of Phagu and if the answer is in affirmative, whether he is a co-tenure in Khata No.85 and 86. 15. The Consolidation Officer has rejected that Khedu is also a son of Phagu. The Consolidation Officer has returned a finding that in the family register, name of Khedu was not mentioned. Puranwasi was only Karta as well as Khedu has never took any step to correct revenue records, whereas Appellate Authority has relied upon statement of Chhedi on basis of Family Register of village Baranai where Khedu son of Phagu was registerd. The Appellate Authority has placed reliance on statement of witnesses of Khedu and rejected statement of Ram Swaroop son of Puranwasi, who has denied any relation with Khedu. 16. The Appellate Authority has placed reliance on statement of witnesses of Khedu and rejected statement of Ram Swaroop son of Puranwasi, who has denied any relation with Khedu. 16. From above, it would be relevant that Family Register maintained at village Manga Kodar, name of Khedu was not mentioned i.e. he was not a part of petitioner’s family. Son of Puranwasi has also denied any relationship with Khedu. The reliance placed by Appellate Authority on Family Register of other village, where no details was mentioned about petitioner’s family was without any basis. There was no legal basis to accept oral testimony of witness of respondent and to reject evidence of witnesses of petitioner’s side. 17. The Appellate Authority has not appreciated the finding returned by Consolidation Officer that respondent has for a very long time has not taken any step to agitate his right or to prove his parentage. Appellate Authority has not even considered this issue. 18. The Appellate Authority has also without any basis held that on gata No.85 and 86, respondent has right of co-tenure holder, however, on same set of evidence rejected his claim on other property being self acquired property of Puranwasi. The findings were based on incorrect appreciation of revenue records. Therefore, there are multiple legal error committed by Appellate Authority and erroneously confirmed by the Revisional Authority. 19. In view of above, order of Appellate Authority and Revisional Authority are set aside and order passed by Consolidation Officer is upheld. 20. This writ petition is accordingly, allowed.