JUDGMENT Poonam Srivastava, J.
1. Heard Sri Aditya Narayan, learned Counsel for the petitioner and learned Counsel for the respondent,.
2. The order dated 17.7.1980 passed by the Deputy Director of Consolidation, Varanasi (annexure No. 3 to the writ petition) is impugned in the instant writ petition.
3. The dispute relates to plot No. 314 of Khata No. 245 of village Asbalpur, District Varanasi. The petitioner was recorded a Sirdar in the basic year. The respondent Nos. 2 to 4 and the petitioner are descendants of the common ancestor Ram Phal. Pedigree has been detailed in paragraph No. 2 of the writ petition When the consolidation proceedings were started, two sets of objections were filed. First set of objection under Section 9 of U.P. Holdings and Consolidation Act (hereinafter referred to as the Act) was preferred by two sons of Mahabir claiming one third share. Second set of objection was filed by the respondents, who are sons of Jagardeo. The petitioner is son of Mahadeo and two other sons namely Sahdeo and Ram Harakh died issueless. The respondent Nos. 2 to 4 and Chauharja son of Mahabir entered into a compromise before the Assistant Consolidation Officer and manage to get one third share over the plot by means of the order dated 21.3.1973. The petitioner was not a party to the said compromise as such he preferred an appeal, which was dismissed on 10.12.1975 but the revision filed before the Deputy Director of Consolidation was allowed and the matter was remanded to the Assistant Consolidation Officer for afresh decision. Oral and documentary evidence were adduced before the Consolidation Officer. Objections filed by the respondents and Chauharja were rejected. The Consolidation Officer came to a conclusion that the objectors were not able to establish that the disputed property was a joint property and that it was sole acquisition by sale by the petitioner's father Mahadeo. There was no proof to establish that the property was purchased from H.U.F. and finally basic year entry was maintained vide order dated 14.10.1977. The contesting respondents/objectors second set preferred an appeal before the S.O.C., which was dismissed vide order dated 24.1.1978, and the same was challenged before the Deputy Director of Consolidation in revision. The revisional court allowed the revision filed under Section 48 of the Act and allocated half share to the respondent Nos. 2 to 4. The Deputy Director of Consolidation reversed finding of Consolidation Officer and S.O.C. on an assumption that Khata No. 91 was recorded in the name of Ram Harakh, Jai Deo and Sahdeo in 1377 Fasli to 1379 Fasli, which was admittedly a joint family property and recorded in the name of Ram Phal in 1308 Fash Inference drawn by the Deputy Director of Consolidation is on account of the fact that he was led away by the forged compromise dated 21.7.1973. Admittedly, the said compromise having been set aside by the Deputy Director of Consolidation himself vide order dated 10.12.1975, the compromise became non-existent and, therefore, no reliance could have been placed by the Deputy Director of Consolidation on the said document.
4. Learned Counsel for the petitioner has placed statements of Ram Shanker as well as contesting respondents, which were recorded by the Consolidation Authority. It is also submitted that the Deputy Director of Consolidation was led away by another aspect of the matter that since the petitioner and respondents are residing in one ancestral residential house and name of all the family members are entered in respect of the said house, therefore, all other properties are necessarily a joint property.
5. Learned Counsel for the petitioner has place reliance on a number of decisions Ram Chancier Dubey and Anr. v. The Deputy Director of Consolidation, Deoria and Ors. , wherein this Court came to a conclusion that the purchase of Bhomdhari land made by Karia of H.U.F. could be held to be from nucleus of a joint family for the benefit of members of H.U.F., if it is so established by the person claiming it to be a property purchased by Karia in his capacity For ready perusal, paragraph No. 21 of the aforesaid decision is quoted below:
So far as Khata Nos. 95-A and 95-B are concerned, the same were also entered in the name of Sarju as his sirdari. It is also settled that a member of the joint Hindu family, even if he is joint can possess separate property. Such property belongs exclusively to him and no member of the coparcenery, not even his male heirs can acquire any interest in it. Accordingly, even if it is correct that the petitioners were the members of the joint family of which the respondent No. 4 was also a coparcener, the same would not entitle respondent No. 4 to get rights of a sirdar over the disputed land. The Settlement Officer and the Deputy Director of Consolidation held the respondent No. 4 to be the sirdar of this Khata simply on the basis that he was a member of the joint family. None of the two authorities found any evidence on record to show that the property was either acquired by respondent No. 4 along with the petitioner or that the petitioners threw it into the common hotchpot. The claim of the respondent No. 4, therefore, over these plots simply on the basis that as both the parties were living jointly, therefore, the property must be held to be the joint property of all cannot be accepted. The submission of the learned Counsel for the respondent No. 4 that the name of Sarju was recorded in the representative capacity because he was the Karta of the family cannot also be accepted inasmuch as there is no evidence on record to prove that the land of these two Khatas were ever treated by the petitioners or the respondent No. 4 as that of the joint family. Accordingly, the claim of respondent No. 4 with regard to Khata Nos. 95-A and 95-B cannot be upheld.
6. Facts of the instant case appears to be similar with the one, cited above. None of the two authorities found any evidence on record to show that the property was acquired by Mahadeo as Karta of family and from the nucleus of H.U.F. and, therefore, two authorities specifically came to a conclusion that it was an exclusive property of Mahadeo. The revisional court, however, set aside the aforesaid finding Similar view has been expressed by the Apex Court in the case of Murarka Properties (T) Ltd. and Anr. v. Beharilal Murarka and Ors. . Another decision relied upon by the counsel for the petitioner is Chikkam Koteshwara Rao v. Chikkam Subbarao and Ors. . Paragraph No. 3 of the said decision is quoted below:
It is clear from the judgment of the High Court that but for the aforementioned statement of the appellant, the High Court would not have disturbed the finding of the trial Court as regards the properties covered by Exh. B-6. Before the right of a party can be considered to have been defeated on the basis of an alleged admission by him, the implication of the statement made by him must be clear and conclusive. There should be no doubt or ambiguity about the alleged admission. There is no difference in the nature of the acquisitions made under Exhs. B-2 and B-5 and B-7 and that made under Exh. B-6. They were all made during the lifetime of Reddinaidu.
7. On the basis of statement of Rama Shanker son of Jagardeo, which is annexed as annexure No. 2 to the rejoinder affidavit, wherein it has clearly been stated that Mahadeo had separated very early. In view of the aforesaid admission, the decision of a Division Bench of this Court held in the case of Sahu Tribeni Prasad and Anr. v. Bharat Inder and Ors. 1965 A.L.J. page 952. If a coparcener separates from joint family, presumption of jointness does not continue of the person alleging mat remaining member continued to remain joint or reunited must necessarily be proved.
8. In the instant case, objections of the contesting respondents were rejected by the Consolidation Officer. Entry in C.H. Form No. 5 is an ample proof of the fact that name of ancestor was nowhere mentioned. It was an exclusive holding of the petitioner The rights of the petitioner could not be transferred since specific finding is that name of Mahadeo son of Ram Phal was entered since last 18 years in column No. 8 in 1359 Fash. Since the documentary evidence as well as oral evidence could not establish the claim of the contesting respondents, the Consolidation Officer and S.O.C. had rightly rejected their objections. The Deputy Director of Consolidation besides exceeding his jurisdiction has also come to an illegal conclusion, which cannot be left to stand and is liable to be set aside. The petitioner is in cultivatory possession of the disputed property.
9. In view of what has been discussed above, the order dated 17.7.1980 passed by the Deputy Director of Consolidation, Varanasi is set aside. The writ petition is allowed. The matter is remanded to the Deputy Director of Consolidation for a fresh decision. The Deputy Director of Consolidation shall make effort to decide the matter expeditiously.