JUDGMENT Krishna Murari, J.
1. By means of this petition filed under Article 226 of the Constitution of India, the petitioners have challenged the order dated 14.1.1976 and 29.1.1977 passed by Settlement Officer consolidation and Deputy Director of Consolidation respectively.
2. At the start of Consolidation proceedings the dispute between the parties was with regard to khata No. 2,3,4,5, 84, 86 and 90. One Smt. Phulpatia filed an objection in respect of khatas claiming to be the daughter and heir of Mst. Sukhia. Another objection was filed by respondent No. 3 Shyam Narain on behalf of his minor son Lallan alias Lal Bahadur in respect of aforesaid khatas claiming rights as son and sole heir of Mst. Sukhia. The petitioners also filed three objections on the ground that Bipat, husband of Smt. Sukhia belonged to their family. After death of Bipat Mst. Sukhia remarried with respondent No. 3, Shyam Narain and as such ceased to have any interest in the khatas. Her name was wrongly recorded in the revenue records and was liable to be expunged and the petitioners are entitled to have shares according to their pedigree.
3. All the objections were consolidated and decided by the Consolidation Officer by a common judgment dated 6.12.1973.
4. The objections filed by Smt. Phulpatia and Lallan alias Lal Bhadur minor were rejected and the petitioners and respondents second set were held to be co-sharer. Since khata No. 4 and 5 were in the nature of grove as such the same were not partitioned. In the remaining 5 khatas they were allotted share according to the pedigree. The objections of Lallan alias Lal Bahadur and Smt. Phulpatia both claiming as heirs of Mst. Sukhia was rejected by the Consolidation Officer on the ground vide order dated 21.9.1973 their claim as heir of Mst. Sukhia with regard to property situate in village Newada was already rejected and the same operated as resjudicata.
5. Lallan alias Lal Bahadur did not file any appeal. Mst. Phulpatia filed an appeal before Settlement Officer Consolidation. Another appeal was filed by respondent No. 3 Shyam Narain only with respect of khata No. 86 on the ground that since his name was recorded along with Mst. Sukhia who has died heirless as such he is entitled to succeed being a co-tenure holder in accordance with provision of Section 175 of U.P.Z.A. & L.R. Act.
6. The appeal filed by Mst Phulpatia was rejected by the Settlement Officer Consolidation. In so far as appeal filed by respondent No. 3 Shyam Narain is concerned the same was allowed on the ground that since his name is recorded over the khata No. 86 along with Mst. Sukhia who has died heirless as such he is entitled to succeed her as a co tenant under Section 175 of U.P.Z.A.& L.R. Act.
7. Mst. Phulpatia did not file any revision and the appellate order against her became final. The petitioners filed a revision challenging the order of Settlement Officer Consolidation allowing the appeal of respondent No. 3 with regard to khata No. 86 which was dismissed by the Deputy Director of Consolidation by the impugned order. Thus the dispute in the present writ petition is confined only with regard to khata No. 86.
8. The Consolidation Officer while allowing the objection of the petitioners held that the name of Shyam Narain respondent No. 3 came to be recorded over the kahta No. 86 along with Mst. Sukhia without any order of a competent authority. In appeal the Settlement Officer Consolidation recorded a finding that in the basic year the name of Shyam Narain was recorded over the kahta in dispute along with Mst Sukhia and it appears that he was accepted as co-tenant by Mst Sukhia. On the basis of said finding he allowed the claim of respondent No. 3 as a co-tenant entitled to inherit the khata in dispute under Section 175 of U.P.Z.A. & L.R. Act. The same findings were confirmed by the Deputy Director of Consolidation and the revision field by the petitioners was dismissed.
9. It has been urged by the learned counsel for the petitioners that since entry of the name of Shyam Narain, respondent No. 3 was made without any order of competent authority as such no right would accrue on the basis of the same.
10. In reply it has been contented by the learned counsel for the respondents that the name of Shyam Narain has been recorded from a very long period without any objection and as such he is entitled to become co-tenant by estopple. In support of his contention learned counsel for the respondents has placed reliance on the judgment of this Court in the case of Bhagan Ram v. State of U.P. 1978 RD 396, Doodh Nath Kori v. Smt. Dhanraja 1964 RD 324. It has Further been urged that respondent No. 3- Shyam Narain was accepted as co tenant and that is how his name came to be recorded along with Mst. Sukhia.
11. There can be no manner of doubt that entry made in the records without any authority of law does not confer any right. The Consolidation Officer recorded a finding that name of respondent No. 3 was recorded without any order of any competent authority. The Settlement Officer Consolidation and Deputy Director of Consolidation have simply relied upon the said entry and without entering into the question, hey proceeded on the assumption that on account of long standing entries the respondent No. 3 has acquired co-tenancy rights in khata in dispute along with Mst. Shkhia and as such he is entitled to succeed in accordance with provision of Section 175 of U.P. Z.A.& L.R. Act.
12. In the case of Doodhnath Kori and Bhagan Ram ( supra ) relied upon by the learned counsel for the respondents, the court has taken a view that Section 23 of the Tenancy act and Section 33 of the U.P. Tenancy Act do not exhaustively laid down the mode in which a person could have become a co-tenant and the acquisition of co-tenancy right by estopple was not opposed to the provision of any statute. In the case of Doodhnath Kori ( supra ) a suit was filed for declaration that the plaintiffs were the exclusive sirdar of the land in dispute and the name of defendant Dubar was wrongly recorded in the revenue records. The suit was contested by the defendants on the ground that he was co-sirdar in the land in dispute with the plaintiff and was in possession as such and all the three courts found that defendant, Dubar was in continuous possession and became a co-tenant of the land in dispute by estopple and the plaintiffs are precluded from questioning his right as such. Similarly in the case of Bhaganram ( supra ) the name of defendant remained entered in the revenue records and they were found to be in joint possession for more than 18 years and as such it was held that they had acquired co-tenancy right by virtue of their claims being recorded in the revenue records for a long period and also possession. Thus it would be seen that possession was a very relevant factor in both the aforesaid cases. The co-tenancy right was recognized not on the basis of entry in revenue records for a long period alone but also because they were found to be in possession for a long period as well. In the present case, there is no finding either by Settlement Officer Consolidation or by the Deputy Director of Consolidation that respondent No. 3 was also in possession In khata in dispute. Unless the respondent No. 3 was found to be in possession merely because his name was recorded in the revenue record for a long period would not confer any right upon him. Possession is a question of fact which requires to be pleaded and proved. There is nothing on record to indicate that respondent No. 3 pleaded or proved his possession over the khata in dispute. In case respondent No. 3 would have been able to prove the factum of. his possession over the khata in dispute the situation might have been different. However, mere long standing entries in the revenue record without any legal sanction or authority of law and without possession will confer no rights. Thus the two case laws laid down by the learned counsel for the respondents are distinguishable on facts and are of no help to the respondents.
13. It has next been contended by the learned counsel for the petitioners that the finding of Settlement Officer Consolidation and Deputy Director of Consolidating that once Mst. Sukhia accepted respondent No. 3 as a co-tenant he would become a co-tenant is patently erroneous and against the provision of Section 33 of the U.P. Tenancy Act. The proviso to Section 33 of the U.P. Tenancy Act 1939 clearly lays down that no person shall be deemed to be a co tenant notwithstanding that he may have shared in cultivation of holding unless he was a co tenant from the commencement of the tenancy or has become as such by succession or has been specially recognized as such in writing by the land holder. In the instant case respondent No. 3 alleged to have become co tenant of Mst Sukhia but nothing has been brought on record to indicate that any written consent of Zamindar was obtained. In view of proviso of Section 33 of the U.P. Tenancy Act respondent No. 3 can not become a co tenant merely because he was accepted as such by Mst. Sukhia. The finding recorded by Settlement Officer Consolidation and Deputy Director of Consolidation that once respondent No. 3 was accepted as co tenant by Mst Sukhia the same shall be binding on all the parties is patently illegal and erroneous and against the provision of Proviso to Section 33 of the U.P. Tenancy Act.
14. Another contention raised by learned counsel for the respondents is that Mst Sukhia and respondent No. 3 jointly obtained bhumidhari sanad in their name under the provision of U.P. Agricultural Tenants (acquisition of privileges) Act 1949 and thus respondent No. 3 shall be deemed to have become a co tenant and later co bhumidhar of plots. My attention has been drawn to the averments made in paragraph No. 4 of the counter affidavit wherein it has been stated that Mst. Sukhia filed an application for declaration of Bhumidhari rights under U.P. Agricultural Tenants (Acquisition of Privileges) Act 1949 and she along with opposite party No. 3 were declared bhumidhar by the order of Tehsildar dated 11.1.1950 and 25.6.1951. However, the petitioner in paragraph No. 12 of the rejoinder affidavit has denied the contents of paragraph No. 4 of the counter affidavit as false. It is stated that this plea has been taken malafidely and as a after thought and was not taken before the Consolidation authorities. It has further been stated that the application for declaration of bhumidhari rights and the alleged order dated 11.1.1951 and 25.6.1951 has not been brought on record. It has been pointed out that respondent No. 3 is only relying upon some entries made in khatauni 1359 Fasli which has been filed as annexure C.A. 1. It has also been stated that khatauni extract filed before this court was not filed before Consolidation Authority.
15. From a perusal of judgment of the Consolidation Authorities it is apparent that this plea was not raised before them nor any document in this regards was filed. Even before this court only averments have been made in the counter affidavit but no documentary evidence has been brought on record to substitute the same. Reliance is being placed upon alleged entry in khatauni of 1359 fasli which contains a reference of order dated 11.1.1950 passed by Tehsildar.
16. From the pleadings set up by the respondent No. 3 in his counter affidavit it appears that Mst. Sukhia filed an application for declaration of bhumidhari rights and she along with respondent No. 3 were declared bhumidhar by the order of Tehsildar.
17. The question which arises for consideration is whether respondent No. 3 by virtue of having obtained joint bhumidhari sanad along with Mst Sukhia can be deemed to have become a co tenant and later co bhumidhar of the khata in dispute. It is well settled that only a co tenant is entitled to apply under'Section 3-B of the U.P. Agricultural Tenants (acquisition of privileges) Act 1949 and only a co tenant can be granted declaration under Section 6 of the said Act. There is nothing on record to indicate that Zamindar had consented in writing for co-option of respondent No. 3 as a co-tenant as such he could not, in view of proviso of Section 33 of the U.P. Tenancy Act 1939 be deemed to be a co tenant and being not a cotenant he could not be granted any declaration under Section 6 of the Act. The view taken by me finds support from a judgment of Learned Single Judge in the case of Ramayan Singh v. Balbhadra Chawdhary 1966 RD 416 and a Division Bench decision in the case of Raghuram v. Ram Swaroop and Ors. 1968 RD 133.
18. It is therefore clear that both the Settlement Officer Consolidation and Deputy Director of Consolidation committed a manifest error of law in holding respondent No. 3 as a co-tenant of khata in dispute along with Mst. Shukhia.
19. In view of the aforesaid discussions, the impugned orders of Settlement Officer Consolidation and Deputy Director of Consolidation are not liable to be sustained and are hereby quashed. The writ petition stands allowed.
20. However, in the facts and circumstances of the case there shall be no order as to costs.