Ram Lal and Another vs Hari Krishna and Others

S. P. Srivastava, J.—This writ petition, under Article 226 of the Constitution, has been filed by the petitioners for quashing the order dated 431976 passed by the Dy. Director of Consolidation, copy of which has been filed as Annexure8 to the writ petition.

The brief facts for the purpose of the writ petition are that, the plot in question was recorded in the basic year Khatauni in the name of Har Kishan and others as Sirdar and the names of the petitioners were recorded in Clause 9. The petitioners filed objection claiming sirdari right on the basis of their continuous possession over the plot in dispute. The claim of the petitioners was denied by the respondents by filing reply under Section9 of the Consolidation of Holdings Act. It was stated that the petitioners were never in possession and the entry made is also incorrect and be expugned.

It appears that the petitioners in support of their contention filed Khasra of 1366 to 1377 Fasli. They have also examined themselves as witnesses. The Consolidation Officer has held that in Khasra 1366 to 1377 Fasli the petitioners'' Ram Lai and Sri Ram are recorded in subtenant column, as such, they have proved their possession and held that the petitioners are sirdars and ordered for expunging the names of the contesting respondents. Aggrieved by the aforesaid order an appeal was filed by Har Kishan. The appellate authority also considered the statement of Har Kishan ind held that the statement of Har Kishan is that Ram Lai was recorded as subtenant and that he was taking copy of the revenue extract every year. The finding recorded by the Consolidation Officer was affirmed by the lower appellate Court. Aggrieved by the aforesaid order a revision was filed before the Dy. Director of Consolidation, who allowed the revision and set aside the finding recorded by the Consolidation Officer as well as by the Settlement Officer Consolidation and also expugned Clause 9 entry in favour of the petitioners. (The petitioners aggrieved by the aforesaid judgment and order of the Dy. Director of Consolidation have filed the present writ petition in this Court.

A counteraffidavit has been filed. In reply to the counter affidavit a rejoinderaffidavit has been filed. In counter affidavit and rejoinder affidavit parties have reiterated the facts as stated by them before the Consolidation authorities. ''Therefore, it is not necessary to mention in detail the contents of the counteraffidavit and rejoinderaffidavit.

Heard learned Counsel for the parties. Learned Counsel for the petitioners has urged that the petitioners have taken objection that they have matured their right as sirdar on account of continuous possession for more than 12 years, therefore, the entry in Clause 9 was against the law and they should have been recorded as sirdar. The submission of the learned Counsel for the petitioners is that in the documents) which were filed by the petitioners their names were recorded as sirdar but the aforesaid documents were not properly read by the Dy. Director of Consolidation rather the has misinterpreted the same, as such, the finding recorded by the Dy. Director of Consolidation is contriary to the facts available on the record and also against the law. It is stated that Hari Kishan appeared as witness and he has admitted that the petitioners were recorded in shikmi column.

Sri Shyam Narain, learned Counsel for the respondent has vehemently urged and opposed the contention raised on behalf of the petitioners. He has submitted that from a perusal of Annexure1 to the writ petition it is clear that the petitioners were basing their rights on the basis of Clause 9 entry, therefore, they cannot take any undue advantage of the statement made by Hari Kishan. The finding recorded by the Dy. Director of Consolidation is that for the first time the names of the petitioners were recorded in Clause 9 by order of some body. From the order it is not clear as to who passed the order and when this order was passed and regarding which plot this order was passed. The'' Dy. Director of Consolidation has rightly held that such entry cannot be believed and the petitioners have failed to prove their continuous possession over the property in dispute, ft is further submitted that admittedly when the names of the petitioners were recorded and they were original tenureholders therefore, in this case it was the duty and responsibility of the persons who has filed objection is proved that the entry is contrary to law or they have perfected their rights. Since from the finding recorded by the Dy. Director of Consolidation that the petitioners have no right and that too without any order of the Court or authority, issuance of P.A. 10 is not in accordance with law and no right can accrue claiming right on the basis of such entry. It is not open to the Court to hold for the first time that he has acquired right which was in subtenancy column of the revenue record. The finding of the Dy. Director of Consolidation is based on materials available on record after considering the revenue entries and the admission made by the petitioners in their own statement as well as on the basis of the pleading which they took in their objection and thus it cannot be said that the order was illegal and without jurisdiction.

After hearing learned Counsel for the parties I am of the view that it is true that a person who has claimed possession is required to prove, firstly, that the entry was made in accordance with law, secondly, that he continued in possession for more than statutory period and acquired sirdari right. He must prove that the basic year entry was wrong and there is no need to continue the entry in Clause 9. In this case if it is held that the petitioners have not acquired right on the basis of the entry then certainly they will not acquire sirdari right. But apart from that as the finding of the Consolidation Officer was to the effect that the petitioners were recorded as subtenants and the Dy. Director of Consolidation has not considered the facts of this entry rather he has held otherwise I am of the view that the Dy; Director of Consolidation should have considered the entry while reversing the order of the Consolidation Officer. It may be that the Order of the Dy. Director of Consolidation is incorrect but nevertheless he has not set aside the finding recorded by the Consolidation Officer that the petitioners are entered as Shikmi. Therefore,, the matter should be reconsidered by the Dy. Director of Consolidation apart from the statement of Har Kishan wherein he has stated that he was taking revenue extract every year in which Ram Lai was recorded as Shikmi. Since the point requires reconsideration, I, therefore, set aside the order passed by the Dy. Director of Consolidation and remand the case back to the Dy. Director of Consolidation to restore the revision to its original number and decide it afresh firstly, on the point that 1366 to 1377 fasli mention the name of the petitioners or not and if so then what right has been acquired by the petitioners and secondly, whether there is statement of Har Kishan admitting the petitioner as subtenant. He will give opportunity to the parties of hearing and as per observation of this Court shall reconsider the case afresh.

Accordingly, the writ petition is allowed. The judgment of the Dy. Director of Consolidation dated 431976 is hereby set aside. The matter is being sent back to the Dy. Director of Consolidation to decide the case afresh after giving opportunity of hearing to the parties. There shall be no order as to cost.

The case appears to be old one. Therefore, the Dy. Director of Consolidation will decide the matter at an early date. Parties shall also cooperate in deciding the case.

Sri A.K. Dwivedi, learned Counsel for the petitioners has argued the case at length.