Akhandu (dead) and Ors. vs Deputy Director of Consolidation Mirzapur & Ors.

B. K. Sharma, J.—This writ petition was filed by Akhandu and Ram Dhari against the Deputy Director of Consolidation (opposite party 1st set), Raghubir (opposite party Ilnd set), Basantoo and Molai (opposite parties Illrd set) and Khaderu (opposite party I Vth set).

The following pedigrees are not disputed:

Diagram on page no. 145 of book no. 75 of JCLR.

The dispute related to Khata No. 60 of village Shikatiha, Paragana Kantit, district Mirzapur. In the basic year''s Khatauni, the names of Mahadeo and Bhagwati, sons of Ramesar, Akhandu and Ramdhari, sons of Bodhai, Basantoo, s/o Jagesar and Molai, son of Bansi were recorded as cosirdar of the said land, Khaderu, opposite party No. 5 alongwith Mata Prasad and Shitla Prasad (now deceased) filed objectio''n under Section 9 of theU.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act) with the prayer that they also be recorded as cosirdars of the disputed land. Nankoo Ram, son of Raghubir, (present opposite party No. 2) filed a separate objection on 71273 on behalf of Mahadeo and others claiming 1/2 share for Mahadeo and Raghubir and l/4th share for Basantoo and Molai. The said objection purported to bear the tumbimpressions of Basantoo and Molai (present opposite parties No. 3 and 4) also but at a subsequent stage of litigation Basantoo and Molai denied their thumbimpressions on the said objection. A true copy of the objection of Mahadeo (now deceased) and Raghubir dated 71273 has been filed as Annexure1 to the writ petition, In this objection Mahadeo and Raghubir claimed that the share of the present petitioners was only l/4th. They also claimed that Khaderu, Shital Prasad and Mata prasad had no concern with the land in dispute.

During the hearing of the said objections Mahadeo gave a statement before the Consolidation Officer on 11174, the material part of which were as follows:

���� VIWADIT BHUMI MEN 3 HISSA HAI. EK HISSE MEN BASANTOO WA MOLAI, EK HISSE MEN MAIN WA RAGHUBIR WA KE HISSE MEN AKHANDU WA RAMDHARI HAIN. ISEE ANUSAR KABJA HAI��.�

A copy of this statement has been filed as Annexure 2 to this writ petition.

The Consolidation Officer rejected the claim of cotenancy of Khaderu, Shitla Prasad and Mata Prasad and declared the share of the present petitioners as l/3rd, share of Basan too and Molai as l/3rd. This order of the Consolidation Officer was dated 141 1974. Against this order of the Consolidation Officer two sets of appeal were filed before the Settlement Officer Consolidation. One appeal was filed by Khaderu (present opposite party No. 5) and another appeal was filed by Mahadeo (deceased) and Raghubir (present opposite party No. 2). Both these appeals were dismissed by the Settlement Officer Consolidation by his judgment and order dated 2991974, He dismissed the claim of cotenancy of Khaderu (present opposite party No. 5) and upheld the order of the Consolidation Officer aforesaid regarding the shares of others. As against this order of the Settlement Officer Consolidation dated 2991974, tevision No. 4873 was filed by Mahadeo (deceased) and Raghubir (present opjposite party No. 2) and revision No. 7877 was filed by Mata Prasad (deceased) and Khaderu (present opposite party No. 5). The Deputy Director of Consolidation disposed of both the said revisions by a common judgment and order dated 2131975 (Annexure3 to the writ petition). He upheld the order of the Settlement Officer Consolidation in so far as Mata Prasad was concerned and held that the Consolidation Officer and the Settlement Officer, Consolidation committed no mistake in rejecting their claim. In regard to revision No. 4873 the Deputy Director of Consolidation observed that the said officers based their judgments (in regard to the parties concerned) mainly on the oral evidence of Mata Prasad, who admitted the three shares in the disputed land. He further observed that it is true that revisionist Mahadeo (deceased) had accepted the existence of three shares in his statement but further stated that the in revisionist did not say that all the three shares were equal and that in the court of Consolidation Officer it was not asked from the revisionist (Mahadeo) as to what was his pedigree on the basis of which he claimed 1/2 share ("......CHAKBANDI ADHIKARI KE NYAYALAY MEN IS SAMBANDH MEN NIGRANI KARTA SE YAH NAHIN POONCHHA GAYA KI USKA ANSH KUL KYA HAIJISKE AADHAR PAR WAH VIVADGRAST BHUKSHETRA MEN AADHA HISSA MANGATA HAI.........."). It was further observed that the share was determined by the Consolidation Officer without full enquiry and the revision of Mahadeo and others was allowed and the case was remanded to the Consolidation Officer to dispose it of after affording opportunity to the parties to adduce evidence. After remand the parties adduced fresh evidence before the Consolidation Officer but Mahadeo did not enter into the witness box. The Consolidation Officer vide his order dated 1591975 allowed the objection of Mahadeo and others and declared the share of Mahadeo and Raghubir as l/4th each, share of present petitioner No. 1 Akhandu and petitioner No. 2 Ramdhari as l/8th each and the share of Basantoo and Molai (present opposite parties No. 3 and 4) taken together to be l/4th. A copy of the aforesaid order of the Consolidation Officer dated 1591975 has been filed as Annexure10 to the writ petition. The present petitioners filed an appeal against the said order dated 15975 of the Consolidation Officer before the Settlement Officer Consolidation. A copy of the memo of appeal aforesaid was Annexure II to the writ petition. Basantoo and Molai (present opposite parties No. 3 and 4) preferred aseparate appeal on 101175 against the same judgment and order of the Consolidation Officer. A copy of their memo of appeal aforesaid has been filed as Annexure12 to the writ petition. During the pendency of the said appeals before the Settlement Officer Consolidation Mahadeo died leaving behind him Raghubir (present opposite party No. 2) as his heir and legal representative. The Settlement Officer Consolidation by his order dated 12ll1976allowed the appeal of the present petitioners and declared their share to be l/6th each i.e. l/3rd taken together, the share of Raghubir was declared to be l/3rd and the share of Basantoo and Molai taken together was held to be l/3rd. A copy of the said judgment of the Settlement Officer Consolidation dated 121176 has been filed as Annexure13 to the writ petition.

Raghubir (present opposite party No. 2) filed a revision No. 357 before the Deputy Director of Consolidation against the aforesaid order of the Settlement Officer Consolidation dated 12 111976. Another revision was also filed against the same order of the Settlement Officer Consolidation. Both these revisions were disposed of by the Deputy Director of Consolidation by his order dated 171276, a copy of which has filed as Annexure14 to the writ petition.

During the pendency of this writ petition Basantoo (opposite party No. 3) died and Molai (present opposite party No. 4) his heir and legal representative was already on record. Akhandu, petitioner No. 1, died. He left behind him his sons Rajdhari, Kewla, Hingu, Ludhar, Bimla, Sanga and his brother Ramdhari (present petitioner No. 2) as his heirs and legal representatives. They were substituted as petitioners No. 1/1 to 1/6.

Raghubir opposite party No. 2, also died. He left behind his four sons, namely, Kalloo, Chhotey Lai, Nankoo and Doctor as his heirs and legal representatives. They were substituted as opposite parties No. 2/1 to 2/4.

Molai, opposite party No. 4, also died leaving behind his sons Brij Lai and Govind Lai. They were substituted as opposite parties No. 4/1 and 4/2 in this writ petition.

Only opposite party No. 2, Rabhubir, contested the writ petition and filed counteraffidavit though other opposite parties too were duly served. The writ Petition is now being contested by heirs of deceased Raghubir, opposite parties No. 2/1 to 2/4.

11.1 have heard the Counsel for the contesting parties and have also gone through the record.

Section 48 of the U.R Consolidation of Holdings Act runs as follows:

"48 Revision and reference.(I) The disposal afresh after affording opportunity Director of Consolidation may call for and examined the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings or as to the correctness, legality or piopriety of any order other than interlocutory order passed by such authority in the case of proceedings and may, after allowing the parties concerned an opportunity of being heard, make such order in the case of proceedings as he thinks fit.�

The Apex Court has summarised direction for Mahadeo to disclose the the limits of the powers of the Deputy family pedigree on which basis he was Director of Consolidation while disposing claiming 1/2 share for his branch i.e. the of revision under Section 48 of the Act in branch of Rameshwar, consisting of himthe following words in the authority Ram self and Raghubir. There was, of course, a Dular v. Deputy Director of Consolidation, consequential direction to the parties to Jaunpur and others, 1994 R.D. 290, at page lead their evidence. The Consolidation 292:

".................It is clear that the Director had power to satisfy himself as to the legality of the proceedings or as to the correctness of the proceedings or correctness, legality or propriety any order other than interlocutory order passed by the authorities under the Act. But in considering the correctness, legality or propriety of the order or correctness of the proceedings or regularity thereof it cannot assume to itself the jurisdiction of the original authority as a fact finding authority by appreciating for itself of these facts de novo. It has to consider whether the legally admissible evidence had not been considered by the authorities in recording a finding of fact or law or the conclusion reached by it is based on no evidence, any patent illegality or impropriety had been committed or there was any procedural irregularity, which goes to the root of the matter had been committed in recording the order or finding....."

13.The order dated 21375passed by the then Deputy Director of Consolidation (AnnexureIII) contains the observation that it is true that revisionist Mahadeo had accepted the existence of these shares in his statement but he did not say that all the three shares were equal and that in the Court of Consolidation Officer it was not asked from him as to what was the pedigree on the basis of which he claimed 1/2 share. It was further observed that the Consolidation Officer determined the shares without full enquiry and with this background of observations he made the remand to the Consolidation Officer for disposal afresh after affording opportunity to the parties to adduce evidence.

Learned Counsel for opposite party Raghubir claimed that there was no direction to Mahadeo to give the pedigree while the learned Counsel for the petitioners claimed that there was a direction for Mahadeo to give his family pedigree on which basis the claim of 1/2 share was made by him. From reading the remand order as a whole there may be no interpretation other than that there was a direction for Mahadeo disclose the family pedigree on which basis the claim of 1/2 share for his branch i.e. the branch of Rameshwar, consisting of himself and Raghubir. There was, of course, a consequential direction to the parties lead their evidence. The Consolidation Officer, who gave his decision dated 15975 (AnnexureX to the writ petition) after remand did not make any mention that proceedings or as to the correctness of the the Dy. Director of Consolidation wanted proceedings or correctness, legality or propriety compliance of the direction but it did not mean that there was no direction. The passed by the authorities under the Act. But in Settlement Officer Consolidation in his considering the correctness, legality or propriety judgment dated 12111976 an appeal (AnnexureXIII to the writ petition) made a mention about the observations and directions made by the Deputy Director of Consolidation that the remand has bee made with this direction "............CHAKBANDI ADHIKARI NE N1GRANI KARTASEYAHNAHINPOOCHHAKI TJSKA BANSHBRIKSHA KYA HAL TJNHONEN YAH BHILIKHA KIPAK SHO KO PUNAH SAKSHYA KA AUSAR DEKAR MAMLE KA NISTARAN KAREN.....". He has also placed on record the contention of the learned Counsel for the present petitioners that Mahadeo has not made compliance of the direction to disclose his family pedigree. In this regard he has observed that in his statement dated 1111974 (AnnexureII to the writ petition) prior to remand before the Consolidation Officer Mahadeo had stated that there were three shares in the disputed land, Basantoo and Molai were in one share, Mahadeo and Raghubir were in second share and Akhandu and Ramdhari were in third share and that from this it is clear that the shares of all branches were equal. The Settlement Officer Consolidation has also observed in his judgment that after remand Raghubir (who entered in the witness box on behalf of the said branch) was asked about the family pedigree but he stated that he could not tell the pedigree of his family. He further observed that Mahadeo, who was an elder person of that family and was also alive at the time of the litigation before the Consolidation Officer did not enter in the witness box in the Court of Consolidation Officer and so he(the S.O.C.) inferred from it that he (Mahadeo) not enter the witness box because he could not conceal the truth and because he had already made statement before the court in which he has mentioned three shares and so he was deliberately kept out of witness box. A copy of thestatement of Raghubir after the remand is Annexure7 to the writ petition. In this statement he has stated." MAHADEO AAJ AAYE HAIN UNKI TABIYAT KHARAB HAI. ADALAT MEN BAAHAR BAITHA HAI. YAH MUJHE MAALOOM HAI KI MAHADEO KA BAYAN PADHA HUWA HAI...... MAIN APNE KHANDAN KA SHAJRA KHANDAN NAHIN BATASAKTA..........."

It came in the statement of Akhandu (DW 2) before the Consolidation Officer after me remand, (AnnexureIX) "........MAHADEO NE IS MUKADMA KE PAHLE BHI BAYAN KIYA THA MAHADEO GHAR PAR HAI. CHALNE PHIRNE MEN SAMARTH HAI TATHA YAHAN ADALAT MEN BHI KAI BAR AAYE THE....." In the background of the observations in the remand order of the Deputy Director of Consolidation dated 21375 an adverse inference was legitimately drawn against Mahadeo and Raghubir and this adverse inference went to support the order dated 12111976 passed by the Settlement Officer Consolidation in the appeal by Akhandu and others.

In the remand order dated 21375 passed by the then Deputy Director of Consolidation (AnnexureIII to the writ petition) which was finding on all the parties as it had become final between them contained clearcut observation that though in the Khatauni of 1309F Devi Lohar ancestor of Mahadeo was mentioned but in 1365Fdifferent names came in that Khata and the duration was given as 32 years,that if Khata of l309F contmued as before then in the Khatauni of 1356F the duration must have been recorded at least 50 years and that it was clear from these facts that a settlement in respect of the land in dispute took place again after 1309F. It was on the basis of this conclusion that the Deputy Director of Consolidation held that no title could be held in favour of Mata Prasad and others on the basis of entry of 1309F. These observations were tantamount to a finding of the Deputy Director of Consolidation equally binding on the parties. The Consolidation Officer in his judgment dated 15975 (Annexure10 to the writ petition) has made the Khatauni of 1309 F as the basis of 1/2 share of the branch of Mahadeo and Raghubir. He has observed that opposite parties of the case i.e. the present petitioner had contended that fresh settlement of the disputed land was made by Zamindar after 1309F and that from the extract of Khatauni 1346Fit appears that this holding was created round about 1324F because in the extract of Khatauni 1346F the duration has been given as 22 years. However, the Consolidation Officer discarded this reasoning on the ground that there is no evidence on the record of a fresh settlement of the disputed land and that even the witness Vindhwasini, who was called from that side did not say anything about the fresh settlement and was even not in a position to make a statement about the fresh settlement of the disputed land. The factum of such a settlement has been accepted in the remand order itself and this could not have been upset by the Conselidation Officer in his judgment dated 15975 (Annexure10 to the writ petition) and it could not have been upset by the Deputy Director of Consolidation in the revision in his impugned judgment dated 171276 (Annexure14 to the writ petition). The Consolidation Officer in his order dated 15975 (Annexure10 to the writ petition) after remand stated that the witness Vindhwasini aforesaid had admitted in his crossexamination that he attained his age of discretion 1516 years before the date of his statement and that from the age of his discretion people were cultivating the land in the same manner i.e. those who were cultivating from the age of his discretion. He had placed on record that this witness has stated that all the three parties are cultivating l/3rd share each but upset its effect by referring to his statement in crossexamination that he could not tell as to how many biswa area each party was cultivating. This reasoning was untenable. The remand order was dated 21375 and so this statement of the witness would have been recorded sometime after it and before 15975, the date of judgment of the Consolidation Officer. So the age of discretion of the witness would come to be 1367F or near about it. Therefore, this statement of the witness recorded by the Consolidation Officer could by no means have any relation with the state of facts existing on 1309F. There will be no jurisdiction to carry the presumption of continuity of the state of ai�airs backwards right upto 1309F on the basis of the statement of this witness. All that comes out from a careful examination of the statement of this witness was that he had no clear idea about the actual area at the spot. Nevertheless, his statement was to the effect that each of the three sets of parties was holding equal share i.e. equal share of l/3rd each in the total land. The Consolidation Officer in his judgment and order dated 15975 (AnnexureX) also drew an inference adverse to the present petitioners on a reading of statement of Akhandu, petitioner No. 1. He stated in his judgment and order that Akhandu has stated in his cross examination that the three branches used to cultivate the disputed 1 and before his father Basantoo and Mahadeo took the disputed land and in the proportion they continued to cultivate the disputed land before the fresh statement about the land they continued to cultivate the land in the same proportion.

The Consolidation Officer in his judgment aforesaid held that firstly, the factum of fresh settlement is not established, secondly that even if somehow it is held to be established then from the statement of Akhandu, it gets established that even after the second settlement no change had taken placec in the shares of the parties. On the said reasoning the Consolidation Officer observed that it becomes unnecessary to consider the contention of the Counsel for the second party i.e. the present petitioners that in his previous statement Mahadeo had admitted l/3rd share each of all the three parties and further observed that the earlier admission of Mahadeo gets finished in view of what have been said above. This subsequent inferencec of the Consolidation Officer is obviously untenable. All that could follow from the statement relied upon by the Consolidation Officer was that the proportion of shares of all the three sets existing immediately before the new settlement of the disputed land of about 1324F continued even after the second settlement. In no case could there be continuity between the position of 1309F and the position just before 1324F. It was not necessary that direct evidence should have been furnished to show a fresh settlement of land in near about 1324F. The existence of fresh settlement of land could be inferred from the revenue records as has been done by the Deputy Director of Consolidation in his remand order dated 21375. Moreover, the said observation and finding of the Deputy Director of Consolidation was binding on the parties as also on himself.

On the point of the alleged continuity in the shares the learned Counsel for the petitioners has dealt with in detail in para 22 of the writ petition. He has rightly pointed out that the following circumstances conclusively establish that there was no continuity of the old tenure holders of 1309F in 1346F.

Firstly the name of Teemal, Khaderu, Mata Prasad or Shital successors of Devi does not find mention in 1346F, secondly, Bodhai, father of the petitioners or any ancestor of the petitioners, was not recorded in 1309F. The tenancy in favour of Bodhai, father of the petitioners for the first time created in 1324 F, as borne out from Khatauni 1346F, thirdly, in 1309F, there were different holdings, different rent, and different area, but in 1346F, there was joint Khata in the name of Rameshar, Bodhai, Banshi and Basantoo. In no case, those holdings could have been clubbed together in 1346F, unless there was fresh settlement in between 1309F and 1346F, fourthly, the duration of 22 years, mentioned in Khatauni 1346F conclusively indicates that fresh settlement was made in 1324F, fifthly, the rent of Rs. 53 mentioned in 1346F could not be reconciled with the different amount of rent, mentioned for Khata Nos. 82, 83 and 84 separately. In Khata No. 82, the rent was shown Rs. 17 for Khata No. 83 rent was shown Rs. 8 and 6 Anna, for Khata No. 84, the rent was shown 8 Rupees 6 Anna, separately. Even the total amount of the rent of all those 3 Galas comes to 33 Rupees 12 Annas which has no connection with Rs. 53 andsixthfy, in Khatauni 1309F, the nature of tenure was mentioned in nonoccupancy tenancy ; which in khatauni 1346F, the nature of the tenure was mentioned in Jama 8 (hereditary tenancy).

The Consolidation Officer has also placed on record the circumstance that m the objection dated 71273 filed before the Consolidation Officer Basantoo and Molai were coobjectors and therein they and accepted that the share of Mahadeo had Raghubir was 1/2 share and they have no right to say anything against the same. This observation is based on the assumption that Basantoo and Molai had subscribed to the objection filed by Mahadeo and Raghubir before the Consolidation Officer on 71273. The fact is that Basantoo and Mulai had denied their thumbimpression on the said objection and the said objection had never been verified by any officer, then the said objections were filed before the Consolidation Officer not by themselves but by a third person Nanku and so unless it was established that Basantoo and Mulai had put their thumbimpression and or signatures on those objections, it cannot bind them by the assertions made therein. As noted above, they have preferred an appeal against the order of the Consolidation Officer on 1011 75, whose copy is Annexure12 to the writ petition and those objections have been entertained and disposed of by the Settlement Officer Consolidation on merits. In any case, any assertion of the that side could not bind the petitioners.

It is true that the statement of Mahadeo on its face value would mean the shares of all the three branches were equal inter se but if the Deputy Director of Consolidation by his remand order made the remand with his observations aforesaid it could only mean that he had given an opportunity to Mahadeo and Raghubir to show that they had 1/2 share in the holding as they claimed. Taking the statement of Mahadeo as not categorically stating the share of each set, the remand order could only be taken to mean that if Mahadeo could show his pedigree, which gave rise to the inference that his share in the land was 1/2 and the share of other two sets was only l/4th each, then he may be given relief accordingly but the remand order equally implied that if he was unable to show a pedigree which involved a greater share than l/3rd as would have been normally fallen to the lot of each branch the share of each branch would be l/3rd each in the land in dispute. So if Mahadeo had avoided to enter the witness box after the remand and Raghubir, who entered the witness box, failed to give any pedigree and even otherwise also failed to show as to how they claim more than l/3rd share, then on the basis of the statement of Mahadeo, the only inference that could be drawn was that the share of each set was l/3rd only in the disputed land. That being the position, the order of the Consolidation Officer dated 15975 made after the remand was wholly untenable and the Settlement Officer Consolidation was very much justified in upsetting the same and in passing the order dated 121176 (Annexure13 to the writ petition) holding l/3rd share of the each branch. He has referred to the entry of Khatauni 1309F and after the perusal of the same he held that it is clear that in Khata No. 82,6 Gatas were in the names of Rameshwar with area 3 bigha 8 biswa, Lagan Rs. 17 and duration 3 years, in Khata No. 83,3 Gatas were in the name of Devi Lohar with area 1 bigha 10 biswa, Lagan Rs. 8 and 6 anna and duration 3 years, in Khata No. 84,2 Gatas were in the name of Jageshar Lohar with area 1 bigha 11 biswa, Lagan Rs. 8 and 6 Anna and duration 3 years. He has also observed that from a perusal of Khatauni 1346F, it is clear that all the Gatas of 1309F are entered in the name of Rameshar, s/o Chingan, Bodhai, s/o Bachai and Banshi and Basantoo, son of Jagesar with a duration of 20 years with rent of Rs. 53 and further in 1356Pr the same land was recorded with Lagan Rs. 53 and duration 32 years and from it is clear that for the land which was entered in 1309F a fresh settlement was made in 1324F and no settlement was made with the branch of Devi of 1309F. He further observed that in view oftthe above it will not be proper to divide the share making entry of 1309F as the basis, he referred to the statement of Mahadeo dated lll1974 and on its basis held that there were three shares in the disputed land and each sharewas equal.

I have already given my interpretation of the remand order earlier. The gist was that in the ordinary course the share would have been l/3rd each, but since Mahadeo claimed more than l/3rd share in the disputed land, an opportunity was given to him to show how he claimed to have more than 1.3rd share which would have come in the ordinary course to each branch concerned. Obviously, Mahadeo and Raghubir did not show how they were entitled to more than l/3rd share and consequently on the basis of the statement of Mahadeo dated 11174 it was proper to hold the share of each branch as l/3rd. In his judgment and order dated 12111976 the Settlement Officer Consolidation has referred to the failure of Mahadeo to enter into the witness box and failure of Raghubir to disclose the pedigree. In fact he stated that Raghubir pleaded ignorance about the pedigree and that Mahadeo avoided to enter the witness box for obvious reason. He has also referred to the matter of joining of Basantoo and Molai in the objection before the Consolidation Officer presented by Nankuram, s/o Raghubir. He has rightly observed that no officer had verified these objections and these objections were presented by a third person Nankuram and consequently the allegations contained in the said objections had no binding effect on Basantoo and Molai. He categorically stated that Mahadeo and others could not show by producing any Patta or relevant record to establish that they had 1/2 share in the disputed land and there was no reason why the statement of Mahadeo made on 11174 should not be acted upon. The judgment of the Settlement Officer Consolidation dated 12111976 was a sound one discussing all the material which was involved and giving sound reasons for upsetting the order of the Consolidation Officer and so the Deputy Director of Consolidation had obviously no jurisdiction to upset in revision the findings of fact given by the Settlement Officer Consolidation in his judgment and order dated 121176 in appeal. The Deputy Director of Consolidation in his impugned order dated 171276 has followed the reasoning given by the Consolidation Officer in his order dated 1591975. As has been held by the Apex Court in the authority Ram Dular v. Deputy Director of Consolidation (aforesaid) in a revision under Section 48 of the U.P. Consolidation of Holdings Act the Deputy Director of Consolidation cannot assume to itself the jurisdiction of the original authority as a fact finding authority and in the present case this is what virtually he has done. The assessment of facts made by him is also untenable on merits. He misinterpreted the remand order as a direction that the pedigree of the parties should be disclosed. Only Mahadeo (and Raghubir) had to give the pedigree to show how they were entitled to more than l/3rd share in the disputed land. In this way a totally wrong reading of the remand order led him to observe that none of the parties cared to give their pedigree. Actually it was for Mahadeo and Raghubir to show how they were entitled to more than l/3rd share than what they would have got in the ordinary course on the admission of Mahadeo dated 11174. The observation of the Deputy Director of Consolidation in the impugned order, "............None of the parties cared to give a pedigree, the learned S.O.C. held Mahadeo and Raghubir responsible for this noncompliance. This is rather erroneous view taken by the learned S.O.C....." it was

manifestly untenable. The Deputy Director of Consolidation has observed that it was argued that as a matter of fact, there was no need of a pedigree for the decision of the shares of the parties in the case because it is not the case of the parties that the plots in dispute have come to them by way of succession from a common ancestor. But it has not been categorically stated by the Deputy Director of Consolidation is to who advanced this plea but it appears that it was advanced by the branch of Mahadeo and Raghubir. It was to be kept in mind that the remand was made at the instance of Mahadeo and Ragubir on the assumption that they did not get proper opportunity to set out their pedigree justifying more than l/3rd share to them. The reasoning advanced before the Dy. Director at the time of passing of the impugned judgment was that 3 bigha 8 biswa area of Khata No. 82 is recorded in the name of Rameshwar comprising of 63 plots in the khatauni of 1309F and hence it was argued before him that Khatas previously recorded in the name of Rameshwar and others were merged together but they continued with the same share in the Khata according to the area recorded in 1309F. After recording the contentions of the respondents (present petitioners) he observed as follows:

"It is clear that in 1309F about 1/2 area of the present Khata was under the tenancy of Ramesar the predecessor of Raghubir and the remaining 1/2 area was equally divided between Devi and Jagesar, the predecessors of remaining cotenure holders. By some arrangement all the 3 Khatas were merged into one and one single khata was recorded jointly in the names of Ramesar, Budhai and Basantoo and others. There is nothing on record to show that they had accepted l/3rd share each when the tenacny was merged into a single Khata. It is natural to suppose that they must have merged the Khata into one with their old shares intact......"

In view of that I have already observed above, the aforesaid observations of the Deputy Director of Consolidation are untenable. As I have already discussed above, it was not an arrangement betwejen the same parties or their successors and then the Khata was recorded jointly in view of the fresh settlement made between the parties (those who were at the time of the fresh settlement of the land) and in the ordinary course in the absence of specification of shares of each branch, the shares would be taken as equal. There could be unequal shares if there was a reason flowing from the pedigree set up or for other reason and here no reason had been specified for unequal shares. It was simply asserted to give Mahadeo and Raghubir a larger share because of the Entry of 1309F, about which there was no continuity as noted earlier. The statements about the continuity of holdings at the time of fresh settlement did not mean that the state of possession was in accordance with the proportion as recorded in 1309F. Much water has flown down the Gangas during this long period and as noted earlier there were material differences between the position of 1309F and the position at or about the time of fresh settlement of the present land in dispute between the present set of parties in 1324E The Deputy Director of Consolidation fell in the same error in which the Consolidation Officer had fallen while interpreting the statement of Akhandu about continuity of cultivation from before the date of new arrangement of the land. This statement of Akhandu does not import that the proportion of the share in the land was same as it was recorded in 1309E The Deputy Director of Consolidation in his impugned judgment has held the statement of Mahadeo as vague on the ground that the statement of Mahadeo does not clearly indicate the shares of each of the parties was l/3rd share. This is an untenable reasoning of the Deputy Director of Consolidation. In the absence of any further material this statement of Mahadeo could not be discarded to benefit Mahadeo''s side by calling it vague rather it has to be given effect to by inferring from it in the absence of material showing higher share to the branch of Mahadeo and Raghubir that the share of each branch was l/3rd.

In view of the above discussion, it is clear that the Deputy Director of Consolidation had travelled beyond his jurisdiction while assessing the facts afresh when the judgment and order dated 121176 of the Settlement Officer Consolidation in appeal contained clearcut findings of fact based on proper appreciation of evidence and there was absolutely no reason to upset the same. Further, as discussed earlier, fresh assessment of facts made by him in the revision is wholly untenable and he has committed a manifest error by reversing the order of the Settlement Officer Consolidation dated 121176 (Annexure13 to the writ petition).

Consequently, the writ petition is allowed. The judgment and order dated 171276 passed by the Deputy Director of Consolidation (Annexure14 to the writ petition) is quashed and the judgment of the Settlement Officer Consolidation dated 1211 76 (Annexure13 to the writ petition) is restored.