JUDGMENT Shitla Prasad Srivastava, J.
1. Heard learned counsel for the petitioner and Sri. S. K. Misra, learned counsel for the respondents.
2. Learned counsel for the petitioner prayed for grant of some time to file rejoinder-affidavit. He has submitted that his client is in Jail, therefore, rejoinder-affidavit could not be filed and some time may be granted for filing the same.
3. Order-sheet dated 8.2.1997 is clear to this effect that the matter was treated to be old one and it was ordered to be taken up for hearing even in 1997, therefore, the prayer made by learned counsel for the petitioner for -time to file rejoinder-affidavit cannot be allowed. Learned counsel for the parties are agreed for argument on merit.
4. The brief facts giving rise to the present petition as stated in the writ petition are that during the course of consolidation proceeding, a proceeding for carvatlon of chak started. The petitioner's chak was not disturbed upto the stage of S.O.C. Two persons, namely Kallu and Mahadeo filed revisions against the order of the S.O.C. challenging the allotment and adjustment made by the S.O.C. The present petitioner was a party to that Revision No. 1429 of 1989, Kalloo v. Bhola and others and Revision No. 19 of 1989, Mahadeo v. Kallo and others. The petitioner was one of the respondents in the aforesaid revisions. Both the revisions were taken together. The D.D.C. allowed the revision of Kallu which was filed against Bhola and dismissed the revision of Mahadeo on 31.10.1990. The petitioner has filed the present petition under Article 226 of the Constitution of India for quashing the order of the D.D.C dated 31.10.1990, which has been filed as Annexure-5 to the writ petition.
5. Learned counsel for the petitioner has submitted that the petitioner's original holding was plot Nos. 643/2, 646/1 and 646/2, which has been shown in the Annexure-2 which has been filed along with the writ petition. The grievance of the petitioner is that plot No. 646/1 is the original holding of the petitioner and he has his private source of irrigation, i.e., well, on this plot. That plot was not given to the petitioner by the D.D.C., rather he has been given plot adjacent to the well which will cause inconvenience for him to Irrigate his plot. His submission is that the plot on which his private source of irrigation is existed should have been given to him and as it has not been done by the D.D.C., he has committed an error in law which is violation of principles laid down under Section 19 of the Consolidation of Holdings Act. His submission is that when admittedly plot No. 646/1 had a private source of irrigation, then the D.D.C. should not have ignored that plot.
6. A counter-affidavit has been filed. In para 3 of the counter-affidavit. It is specifically stated that plot No. 646 was having an area of 12 Bighas. In that plot, the contesting respondent Kallu, Bhola and Mahadeo son of Nand Kishore and Jagannath son of Manna were the co-tenants. Jagannath had half share over the entire Gata which has been transferred to the Kallu's wife Smt. Chameli Kunwar by a registered sale-deed. Kallu had 1/4th share whereas Bhola and Mahadeo had 1/8th share each. The facts stated in para 3 of the counter-affidavit it could not be denied by the petitioner as no rejoinder-affidavit has been filed by him.
7. Sri S. K. Misra, learned counsel for the respondents has urged that when plot No. 646 was a co-tenancy of the petitioner as well as of the contesting respondents and both of them being real brothers holding share in it, but subsequently sub-division of the aforesaid plot took place and the petitioner was given plot Nos. 643/2. 646/1 and 646/2 in his share which is clear from the Annexure filed along with the writ petition. His submission is that If plot No. 646/2 has been given to the petitioner which is adjacent to the private source of irrigation, which according to the petitioner is situated in plot No. 646/1. then equity has been adjusted and the benefit of private source of Irrigation has not been taken away from the petitioner and as the contesting respondent was himself a co-tenant, therefore, if he has been given some portion of plot No. 646 it cannot be said that the D.D.C. has committed error in the adjustment of the chaks.
8. In reply to the argument of the learned counsel for the respondent, learned counsel for the petitioner has submitted that plot No. 646/1 has a private source of irrigation and as this plot has not been given to him by the D.D.C., his right of irrigation has been taken away. So far as the title over the well is concerned, his submission is that there is no dispute that the well is of the petitioner and if this well is taken away, he will not be in position to get the benefit of irrigation on account of this illegal allotment.
9. Heard learned counsel for the parties at length and after going through the record, I am of the view that there appears to be no error or illegality in passing the impugned order. When the parties were co-tenants and plot No. 646 measuring 12 Bighas which was divided in different sub-plots amongst the co-sharers and the petitioner was given plot Nos. 646/1 and 646/2 and other portion of it was given to the contesting respondent and if out of this, plot No. 646/1, excluding the well has been given to other side and it has not been given to the petitioner and the petitioner has been adjusted with plot No. 646/2, the equity has been adjusted and there would have been no loss to the petitioner. If it is assumed that the well was also given to other person, then this adjustment would not have been done without paying any compensation. From the order of the D.D.C., it is clear that nowhere it has been held that the well has been given to any other person, rather the finding is that the petitioner has source of irrigation near plot No. 646/2 which has been given to him. Therefore, the apprehension of the petitioner so far as the title of the well is concerned is not correct. The finding of the D.D.C. appears to be based on principle of equity. Apart from factual aspect there is legal aspect also as urged by Sri Paul that in view of Section 19 of the Consolidation of Holdings Act, it is mandatory that the same plot must be given to the petitioner where his private source of irrigation exists.
10. A bare perusal of Section 19 shows that the consolidation scheme shall fulfill certain conditions laid down in the section. Sub-clause (f) of this Section says that every tenure-holder is, as far as possible, allotted the plot on which exists his private source of irrigation or any other improvement, together with an area in the vicinity equal to the valuation of the plots originally held by him there.
11. This sub-clause makes it clear that though the word "shall" has been used in the beginning of the sentence but while making allotment the principle of "as far as possible" shall follow. If the word "shall" is interpreted, then it will not be possible to allot the original holding to every person and the implementation of the consolidation scheme will frustrate, rather it would be meaningless. The original holding is to be considered in view of the provision of sub-clause (f) of the Consolidation of Holdings Act, that is why the words "as far as possible" have been used. It is not necessary for the D.D.C. to say it is impossible but he has to make adjustment on the principle of as far as possible.
12. From the bare perusal of the sub-clause (f), the equity has been adjusted between the co-sharers, rather between the real brothers. Therefore, there appears to be no illegality or irregularity committed by the D.D.C. while passing the impugned order.
13. The writ petition has no force. It is dismissed but there shall be no order as to cost.