Heard learned counsel for the petitioner.
The petitioner admits the pedigree as extracted in Paragraph 4 of the writ petition which is as follows:-
Gopi Kashi Pyare Pathru Adhare (died issueless) Jhabbar Tankoo Hari Ram (self) Ram Subhag Ayodhya Ram Avadh Simitra Chandrawati (wife) (wife) In Paragraph 5 of the writ petition it is also admitted that Adhare, who is reported to have died issueless, had a surviving widow Smt. Dhupia.
The allegation made is that Dhupia had remarried. No evidence worth the name is on record to indicate as to the remarriage of Dhupia. In the absence of any such evidence the presumption would be that Dhupia had not remarried and was entitled to succeed to the holding of Adhare. Dhupia appears to have executed a sale deed during her lifetime in favour of respondent no. 3 and 4 who belong to the same pedigree extracted hereinabove.
In view of the aforesaid background so long as the sale deed executed by Dhupia is not cancelled, the claim of respondent no. 3 and 4 cannot be said to be against record.
To the contrary if the name of Adhare's widow had been left out from being recorded during consolidation operations the same could have been incorporated in the revenue records on the basis of undisputed succession, moreso when the fact that Dhupia is the widow of Adhare is not disputed.
Learned counsel submits that this ought to have been done in proceedings under Section 34 of the U.P. Land Revenue Act, 1901 and not in proceedings under Section 33/39 of the said Act.
Be that as it may, in view of the fact that Dhupia was the widow of Adhare, this Court would not interfere with the impugned order so long as the said factum is not dislodged or the sale deed executed by Dhupia is not cancelled. Accordingly, I am not inclined to interfere with the impugned order under Article 226 of the Constitution of India.
The writ petition is dismissed with the aforesaid observation.
Order Date :- 2.1.2012 Sahu