JUDGMENT S.K. Singh, J.
1. By means of this writ petition, petitioners have prayed for quashing the judgment of the Deputy Director of Consolidation dated 25.9.1978 in so far as it is against them and the judgment of the Settlement Officer Consolidation dated 18.7.1977.
2. Heard Sri M.D. Singh Shekhar and Sri Rajendra Kumar, Advocate in support of writ petition and Sri Sankatha Rai Advocate in opposition thereof.
3. In the basic year record, name of both sides was recorded over the land in dispute. An objection was filed by the opposite party claiming sole right in the land and expunction of the entry in favour of petitioners. Petitioners objected to the claim of respondents and they pleaded for their co-tenancy rights. Petitioners in support of their case examined one of the petitioner as witness, whereas respondents in support of their case, examined one of the respondent as witness Documentary evidence were also filed by both sides. The Consolidation Officer on consideration of the facts rejected the objection of the respondent by the order dated 27.12.1976. In the appeal filed by opposite parties, they got success and the name of petitioners was directed to be expunged. Revision filed by the petitioners was partly allowed and in two plots i.e. plot No. 391 and 408 they were held to be co-tenant and remaining plots were accepted to be the sole tenancy of respondents. Thus, this writ petition by the petitioners.
4. Submission of learned counsel for the petitioner is that in view of long standing entry in favour of petitioner's predecessor since 1334 Fasli, which was not objected by respondents' side, the claim of petitioners has been wrongly negatived by the courts below. Submission is that burden was on the opposite party to prove that land in dispute is sole acquisition of their branch. Submission is that the respondents have neither pleaded nor proved that when partition took place in the family and how they acquired the land separately. Submission is that the petitioner's statement which was on the question of possession and about their rights has been wrongly discarded without any analysis. It is on the aforesaid premises, submission is that the judgment of Consolidation Officer allowing cotenancy right was perfectly justified which was wrongly interfered by higher courts. In support of the submission that co-tenancy rights can be acquired by estoppel, reliance has been placed on the decision given in the case of Smt. Jagni reported in 1972 RD page 96. Another. judgment of this Court given in the case of Ram Prasad reported in 1984 RD page 133 in support of claim of co-tenancy rights on account of long entry has been placed.
5. In response to the aforesaid, Sri Rai, learned advocate submits that so far as two plots are concerned i.e. plot Nos. 391 and 408 as they were recorded in the name of common ancestor Ilahi, they have been rightly given to both sides and so far remaining plots are concerned, they were recorded for the first time 1309 falsi in the name of Imam Ali alone merely on the fact that in 1334 Fasli, name of both sides came to be recorded, petitioners cannot be allowed co-tenancy right. Submission is that for accepting cotenancy rights, two things are required to be proved by the person claiming co-tenancy (i) either land was recorded in the name of common ancestor at any point of time (ii) land was acquired with the help of joint family fund.
6. Submission is that if these two situations are not there, then heavy burden lies on the person claiming co-tenancy rights and unless he is able to establish that how and in what manner, he became co-tenant, the claim cannot be accepted. Submission is that even if entry continued for any long time, unless its origin is proved to be under any valid authority, merely on the ground of long entry, co-tenancy rights cannot be accepted. Submission is that here is the case where petitioners have not been able to prove their possession for any time over the land in dispute and therefore, courts below have rightly negatived their claim. In support of the submission that merely on account of long entry co-tenancy right is not to be accepted unless it is supported by some thing i.e. possession, payment of revenue receipts etc., reliance has been placed on the case of Ram Prasad Singh (supra) on which reliance has been placed by learned counsel for the petitioner also. In view of aforesaid, argument is that as the finding on the question of fact has been recorded by courts below, that cannot be interfered.
In view of aforesaid, Court has examined the matter.
7. There is no dispute about the fact that Ilahi was the common ancestor. There is also no dispute about the fact that over plot Nos. 391 and 408, name of Ilahi was recorded in 1282 Fasli. There is also no dispute about the fact that over remaining plots name of Imam Ali-predecessor of respondents alone was recorded in 1309 Fasli. It is thereafter all the plots i.e. two plots recorded in the name of Ilahi and plots recorded in the name of Imam Ali, came in 1334 Fasli in the name of both sides. Thus, it is to be seen that whether any land which was recorded for the first time in the name of one branch, whether the other branch, on account of joint entry over that plot in subsequent year can claim and given co-tenancy rights, if other branch objects to it. Here it is to be observed that although party belongs to Muslim community but even in respect to Hindu family, law is settled that there is presumption about joint Hindu family but not against joint Hindu family property. Unless land is coming down from time of common ancestor, it has to be proved by the branch who was not initially recorded that how and in what manner the entry in the name of other branch also came for the first time. How and in what manner land was acquired for the benefit of joint family and whether with the aid of joint family fund. During course of arguments, learned counsel for the petitioners tried to lay emphasis for their claim on the basis of plea which was taken before the appellate authority that on acquisition of certain plots for carving a canal, compensation was shared by both sides and on the basis of certain land revenue receipts/irrigation receipts. These documents appears to have been filed along with supplementary affidavit and supplementary rejoinder affidavit in this court. On perusal of the judgment of appellate authority and the revisional court, things becomes clear that the plea of sharing of compensation as taken before appellate authority was tested by the appellate authority in the light of objection from other side and it was found that there is no proof in support thereof, upon which, appellate authority has given a finding that he has examined entire evidence so available on record. The appellate authority has given clear finding that there is no evidence on record to prove the same. There is further finding that "in all 218 receipts which consists of land revenue Receipts and irrigation receipts were filed by the respondents and there is further clear finding that not a single receipt of any kind has been filed by the petitioners and thus finding about non sharing in compensation and about possession being based on documentary evidence cannot be said to be erroneous or perverse. Now comes the question about consideration of argument of learned counsel that there was statement of petitioner about possession which was to be believed. This Court is afraid that if there is solitary statement of petitioner and that is rebutted by statement of respondent, coupled with voluminous documents i.e. land revenue receipts/irrigation receipts then if two courts have preferred to rely and they believed the version of respondents in preference to the petitioners' contention about their possession, then no exception can be taken to that approach. It is not to be emphasized that although on the basis of long standing entry, co-tenancy right on the plea of acquisition of co-tenancy by estoppel can be claimed but at the same time, the judgment given by this Court in the case of Ram Prasad Singh (supra) on which reliance has been placed by learned counsel for petitioners themselves, makes it clear that in order to prove case of co-tenancy, it was necessary for the parties to prove that besides entry in their favour, they were also in possession and paying rent even for some time. It is for the reason that entry if not proved to be backed by valid origin or from time of common ancestor, then to take advantage of only entry, something more is to be proved which appears to be not here. In the decision referred by learned counsel for petitioners, on the aforesaid ground as no evidence in this respect was available in support of co-tenancy right, this Court negatived the claim of co-tenancy. It is not to be reiterated that as the entry for the first time came in the name of Imam Ali, it was for the petitioners to prove that how and in what manner, acquisition by Imam Ali can be said to be for the benefit of other members of family even if family was joint. These things were to be pleaded and proved by the petitioners. Thus, this Court on a consideration of aforesaid, is of the view that the petitioners have failed to establish that how and in what manner, but for the entry in their favour, which has not been proved to have come in the record under any valid authority or on direction of any court, they can become co-tenant. In view of the fact that the courts below have given finding that the respondents remained in possession throughout and they paid land revenue and irrigation charges, claim of Go-tenancy of the petitioners has been rightly negatived. In so far as entry over two plots is concerned, at one point of time as these plots were recorded in the name of common ancestor Ilahi, they have rightly been given to both sides.
8. For the reasons recorded above, this writ petition fails and is dismissed.