JUDGMENT Shitla Prasad Srivastava, J.
1. This petition under Article 226 of the Constitution of India has been filed by the petitioner for quashing the order dated 29th August, 1973 (incorrectly typed as 19.8.1973) 20th October. 1972 and 30th November, 1970, passed by the Deputy Director of Consolidation and Consolidation Officer respectively.
2. The brief facts as stated in the writ petition for the purpose of the present case are that the disputed plots pertaining to Khata No. 105 of village Kusumhi. Tehsll Bansi, district Basti was recorded in the basic year khatoni in the name of the petitioner as sirdar. Respondent No. 4, namely, Mahant Harihar Das filed an objection under Section 9 of the U. P. Consolidation of Holdings Act claiming plot in dispute on the allegations that they were his khudkast plots before the date of vesting and after the date of vesting, he is in possession over the same as bhumidhar. The claim of the respondent No. 4 was contested by the petitioner on the ground that the disputed plot Nos. 548, 952. 953, 922/1 and 922/6 were never khudkast plots of respondent No. 4. Plot Nos. 548, 952 and 953 were recorded as banjar prior to the date of vesting and plot Nos. 922/1 and 922/6 were recorded as hereditary tenancy of one Risiyawan and the petitioner claimed these plots on the basis of possession and the remaining plots were claimed by the petitioner on the ground that they were let out to him before the date of vesting and the petitioner claimed hereditary tenancy before the date of vesting and after the date of vesting became sirdar and remained in possession throughout.
3. Second set of objection was filed by respondent No. 5 Bhikhari claiming plot No. 922/5 and respondent No. 6 filed objection claimed plot No. 922/6 and respondent No. 7 and others claimed different plots. The petitioner' contested the claim of the objectors.
4. The Consolidation Officer vide order dated 30th November, 1970. allowed the objection of the respondent Nos. 5 to 15 In respect of the plots claimed by them, allowed the objection of respondent No. 4 in respect of remaining plots of Khata No. 105.
5. The petitioner challenged the order passed by the Consolidation Officer, which was affirmed by order dated 16th April, 1971 by the Settlement Officer, Consolidation. The petitioner filed a revision which was allowed and the case was remanded to the Settlement Officer, Consolidation for a fresh decision vide order dated 10th August, 1971.
6. After remand, the Settlement Officer, Consolidation vide order dated 20th October, 1972 modified the order of the Consolidation Officer to the extent that the name of Rlsiawan be recorded over the plot Nos. 922/1 and 922/6. A revision was filed by the petitioner. On 29th August. 1973, the Deputy Director of Consolidation affirmed the order passed by the Settlement Officer (Consolidation). The petitioner has challenged all these orders in the present writ petition.
7. It is stated by the petitioner that the petitioner was tenant of the land in dispute except plot Nos. 548, 952, 953. 922/1 and 922/6 but his name was not recorded, therefore, he filed an application for correction of the paper and in that case the respondent No. 4 admitted that the petitioner is the tenant of those plots and on the basis of the aforesaid admission, the Naib Tehslldar allowed the application vide order dated 30th September, 1948. It is further stated that in the year 1964 the respondent No. 4 filed a declaratory suit against the petitioner in respect of the plots in dispute and certain plots of Khata Nos. 98 Ka and 98 Kha and that suit was decided on the basis of the compromise and petitioner's title and possession over the disputed plots were accepted by the respondent No. 4. Petitioner filed certified copy of record of right and misalband showing the aforesaid compromise and also filed a copy of the order passed by the Naib Tehslldar. It is further stated that in 1969 the respondent No. 4 filed a correction of papers case against the petitioner in respect of plot in dispute but that stood abated because of consolidation operation. The contention of the petitioner is that Risiawan was the tenant of plot Nos. 922/1 and 922/6 and died more than 12 years before the start of the consolidation operation and this fact was brought to the notice of the Deputy Director of Consolidation, but it has not been considered. It has been further stated that the respondent No. 5 to 15 were never recorded prior to 1373 fasli and the consolidation came in the village in 1969 fasli. The argument of the learned counsel for the petitioner is that the Consolidation Officer misconstrued the evidence on record in holding that the property being Sir and Khudkast was admitted to the petitioner of respondent No. 4. It is submitted that there was no such admission on record. It is further contended that the Deputy Director of Consolidation and Settlement Officer. Consolidation had no jurisdiction to expunge the name of the petitioner and entered the name of Rlsiawan in absence of any objection and appeal on behalf of Risiawan and the petitioner being recorded as tenure-holder in basic year khatoni, no right can be given to Rlsiawan on the objection of the respondent No. 4. Rlsiawan had died long before the start of consolidation operation. It is further submitted that the compromise is valid and binding on the respondent No. 4. He has further submitted that the Consolidation Officer had drawn an adverse inference against the petitioner, because the file of revenue case was not traceable and could not be produced before the Court. He has further submitted that the finding recorded by the Settlement Officer, Consolidation that the petitioner was Mukhtare-Am of respondent No. 4, therefore, he got the land is against the evidence and further that Natb Tehslldar had jurisdiction on 30th September, 1948, to order correction of paper and the claim of the petitioner was admitted by the respondent No. 4 on the basis of the compromise in 1948.
8. Mr. S. D. Pathak appearing for the contesting respondent has submitted that there was no compromise filed by his client, respondent No. 4 giving rise to order dated 30th September. 1948. The petitioner played a fraud in manipulating that the entry and finding to this effect has been given by the consolidation authorities. It is further submitted that the Nalb Tehslldar had no jurisdiction to pass the order without any proceeding for correction of papers. He has also placed before the Court the provisions of Section 167 of the Evidence Act to the effect that apart from the observation regarding non-
production of the file there were other evidence to arrive at the conclusion that there was no compromise and fraud was played.
9. I have heard the learned counsel for the parties and have perused the record of the writ petition. From perusal of the Judgment of the Consolidation Officer, it is clear that the property was khudkast of respondent No. 4 and it was recorded in 1355 fasli and in 1355 fasli for the first time, it was recorded in the name of the petitioner within one year's period and land revenue was mentioned therein and in remarks column, there is a reference of an order passed by the Naib Tehsildar dated 30th September, 1948. The Consolidation Officer found that the name of the petitioner was recorded in zaman 8 on the basis of the order of Naib Tehsildar, but he found that there Is no copy of Iqwal Dawa in favour of the petitioner. He held that fraud was played by the petitioner on Mahant Haridas and further that after Zamindari abolition, the property belonged to the respondent No. 4. Before the Settlement Officer, Consolidation. there were eight appeals. The Settlement Officer, Consolidation while considering the right of parties observed that if Mahant had settled the land with the petitioner on payment of Rs. 109.00 as land revenue, then there was no need to file suit under Section 229B and compromise the same with the petitioner. He also observed that the file of the case under Section 229B is not traceable in the office of Judicial Officer and It appears to be purposive correct decision may not be taken. He held that as Bhola Nath (Petitioner) was Mukhtare-Am of Mahant. therefore, he manipulated everything and got entry of hereditary tenancy made In his favour. The Deputy Director of Consolidation held that the Naib Tehsildar was not competent to pass orders in absence of any compromise alleged to have been filed by the respondent No. 4 gives rise to suspicion regarding every proceeding commenced by the petitioner. He has arrived at the conclusion that the petitioner cannot get any right or title only on the basis of entry in 1359 fasli as it is proved to be doubtful and further that the Naib Tehsildar had no right or authority to make such entry. From the judgment and arguments of the learned counsel for the parties, it is clear that only one point was to be determined and decided by the Court as to whether the petitioner acquired any right on the basis of alleged order of Naib Tehsildar. dated 30th September, 1948, on the basis of any compromise said to have been filed in suit under Section 229B or any proceeding for correction of the papers. The second question which is also covered in this point is as to whether the Naib Tehsildar had any authority on 30th September, 1948. to make such entry in the record of right of zaman 8. Sri Ashok Bhushan learned counsel for the petitioner has placed before the Court part VIII of the Land Records Manual which deals with the duties of Tehsildar and Naib Tehsildar. He has placed reliance on paragraphs 6 and 13 (III) of this part, which is as under, broadly speaking the main duties of Tehsildars and Naib Tehsildars in connection with the Land Records falls under the following heads :
(i) Testing of supervisor qanungo's work.
(ii) Supervision of registrar qanungo's office.
(iii) Supervision of patwari school, if any.
(iv) Disposal of mutation reports.
(v) Disposal of other than mutation reports received from patwaris and qanungos.
(vi) Distribution of patwari's pay.
(vii) Drawing up of explanatory supplements to statistical returns.
(viii) Indenting of patwari and qanungo forms.
His submission is that sub-clause (5) gives power for disposal of other than mutation reports, therefore, the Naib Tehsildar had power to pass order and make entry in zaman 8 as has been done In this case, Zaman 8 is the land held by the hereditary tenant as is clear from paragraph 124 (1), Chapter 8 of the Land Records Manual, which is an arrangement of holding khatoni. Paragraph 124 is quoted herein below :
(8) Land held by hereditary tenant.
(9) Land held by hereditary tenants with special rights e.g. persons holding land in virtue of permanent leases with heritable and transferable rights.
(d) tenants of lands acquired by a Town Improvement Trust in accordance with a scheme sanctioned under Section 42 of a municipality for a purpose mentioned in clause (a) or clause (c) of Section 8 of the United Provinces Municipalities Act. 1916 ;
(e) tenants of lands within the boundaries of any Provincial Government forest ;
(f) tenants of lands set apart for municipal trenching grounds ;
(g) tenants of lands held or acquired by educational institutions for purposes of instruction in agriculture ;
(h) tenants of any land acquired or held for a public purpose or a work of public utility :
(i) tenants of such areas included in tea estates as the Provincial Government. with the previous approval of both Houses of the Legislature, may notify as areas in which, in the interest of the tea industry, hereditary rights should not accrue ;
(j) tenants of land used for casual or occasional cultivation in the bed of a river ;
(k) tenants of such tracts of shifting or unstable cultivation as the Provincial Government may specify by notification in the Gazette ;
(l) tenants cultivating grove land of class (14) (iv) :
(m) tenants holding land for pasturage ;
(n) tenants of land covered by water and used for the purpose of growing singhara or other produce ;
(o) tenants of land forming part of property which consists wholly of specific area of clauses (1), (2) (i) and (2) (ii) and which has been mortgaged with possession and in which the mortgagor has waived his exproprietary rights under Section 15(5) of the Agra Tenancy Act, 1926 and 12 years have not elapsed since the date of transfer of possession by the mortgagor to the mortgagee ;
(p) holders of lands referred to in sub-paragraph (4) of paragraph 73 ;
(q) holders of lands referred to in the note to paragraph 75 ; and
(r) tenants of khudkast of class (2) (iii) when such land is let out by the landlord who is in the military, naval or air service of the Crown and the local rate payable by him does not exceed twentyfive rupees per annum.
10. His contention is that when the zamindar has settled the land, accepted the petitioner as hereditary tenant, the Naib Tehsildar has rightly recorded him in zaman 8. After going through paragraphs 6 and 13 as quoted above. I am of the view that sub-paragraph (5) deals with other than the mutation report received from the Patwari or Kanungo. In the instant case, it is not the case of the petitioner that the Naib Tehsildar passed the order on the basis of any such report, therefore, to my mind this paragraph is not applicable. As the provisions of Land Records Manual and authority of the Naib Tehsildar to make disputed entry on 30.9.1948 has not been properly considered by either of the consolidation authorities, rather they have passed the judgments on assumptions and surmises and have also decided the case in absence of the file only on the basis of doubts and the file of the revenue case for which an adverse inference was drawn against the petitioner has now been traced out and It was summoned by this Court and was available at the time of final hearing, but could not be seen as the question of fact was to be determined after seeing the file on the point as to whether there was any compromise filed by respondent No. 4 or not. which could not be determined by this Court, therefore, I am of the view that the matter should be sent back to the Deputy Director of Consolidation, who is now competent to appraise the evidence and give a finding on fact and also to see the relevant provisions of Land Records Manual. The file which has been summoned is being sent back to the Court concerned to decide the right of the parties afresh after giving opportunity of hearing to the parties concerned. It will be of no use to send the file to the Consolidation Officer. Therefore, the writ petition is allowed and the order dated 29th August, 1973, passed by respondent No. 1 is hereby set aside and the case Is being sent back to the Deputy Director of Consolidation to decide It afresh in accordance with the observations made in the body of this Judgment.
11. There will be no orders as to costs.