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Judgment
Rajiv Sharma, J.
Heard learned counsel for the parties.
By means of the instant writ petition, the petitioners are assailing the order dated 25.2.1977 passed by the Deputy Director of Consolidation.
During the course of the consolidation proceedings, a dispute has arisen in respect of 34 plots measuring 37 bighas of land situate in village Bhogalpur, Pargana Hathgaon, district Fatehpur. Khata Nos. 72 and 72A were recorded in the basic year Khatauni in the name of petitioners, Smt. Sundara and Smt. Chhedui as bhumidhars, whereas Khata No. 72 in the name of petitioners Dularwa and Piarwa. The contesting respondents Krishna Pal and others filed an objection under Section 9 of the U.P. Consolidation of Holdings Act, claiming therein that they are the cotenants in the aforesaid Khatas on account of the fact that the property in dispute is ancestral and further the pedigree has not been disputed before this Court though the same was disputed before the Consolidation Officer and the Consolidation Officer, on the basis of the pleadings and submissions made before him, framed the following issues :
the Consolidation Officer, after hearing the respective submissions of the parties and perusing the statements recorded, vide order dated 12.11.1973, a finding has been recorded that the property in question, which was recorded in the name of Bacha in 1284 fasli was a selfacquired property and was not an ancestral property and accordingly, chaks were carved out.
Feeling aggrieved by the order dated 12.11.1973, the contesting respondents filed an appeal and the Settlement Officer Consolidation, vide order dated 10.7.1974, while upholding the order dated 12.11.1973, dismissed the appeal with a finding that source of acquisition of the property in question was selfacquired of Bacha.
The contesting respondents not being satisfied with the order dated 10.7.1974 filed a revision and the Deputy Director of Consolidation, vide order dated 25.2.1977, while allowing the revision, setaside the order dated 10.7.1974 passed by the Settlement Officer Consolidation but the Deputy Director of Consolidation did not disturb the source of acquisition of the property in question but came to the conclusion that as the petitioners and contesting opposite parties are common dissidents of Durga and as such, property in question should be divided accordingly amongst ancestors of the petitioners as well as contesting opposite parties. Feeling aggrieved, the petitioners preferred the instant writ petition inter alia on the grounds that the burden of proof has wrongly been shifted at the shoulder of the petitioners to prove that the property was acquired by Bacha, the ancestor of the petitioners family but as a matter of fact the burden was on the shoulder of the contesting respondents to prove that it was the joint property and acquired by the common ancestors, in the absence of no entry in the name of the common ancestor, the Deputy Director of Consolidation has no jurisdiction to hold that they are cotenants merely on the basis of surmises.
Learned counsel for the petitioners submits that the plea of cotenancy and jointness of the representative capacity of Bacha are after thought, as the said point was never raised in the earlier litigation rather admissions were made in favour of the petitioners. The Deputy Director of Consolidation erred in holding that the property in question was the ancestral property.
On the other hand, learned counsel for the contesting respondents submits that land in dispute was acquired by Durga, the common ancestor of the parties. After the death of Durga, the name of Bacha alone came to be entered as the head of joint Hindu family consisting of two brothers and their progeny. The Settlement Officer Consolidation did not scrutinize the entry of 1284 Fasli. The entry of 1284 Fasli was of old occupancy tenancy in the name of Bachcha. The Deputy Director of Consolidation has rightly hold that the property in question was ancestral property and were in possession of that share.
I have heard learned counsel for the parties and perused the record.
As finding with regards to the source of acquisition recorded by the Consolidation Officer as well as Settlement Officer Consolidation and also by the Deputy Director of Consolidation was not disturbed but the Deputy Director of Consolidation has wrongly arrived at the conclusion that the property in question is an old occupancy and accordingly carved out the chaks in respect of the petitioners and opposite parties and as such he erred in laws and facts that the property was acquired by Bacha and further the name was also endorsed in the revenue records in 1284 Fasli.
In view of the above, the writ petition is allowed. The order dated 25.2.1977 passed by the Deputy Director of Consolidation is hereby setaside.