JUDGMENT Ashok Bhushan, J.
1. These four writ petitions arise out of same order passed by the Deputy Director of Consolidation, Pratapgarh hence are being disposed of by this common Judgment.
2. Heard Sri V. K. S. Chaudhary, senior advocate appearing as counsel for the petitioners in Writ Petition No. 6367 of 1975 ; Sri Sankatha Rai appearing as counsel for the petitioners in Writ Petition No. 2752 of 1975 ; Sri R. N. Singh Senior Advocate assisted by Sri S. N. Singh learned counsel for the petitioners in Writ Petition No. 6217 of 1975 and Sri R. S. Misra learned counsel for the petitioner appearing in Writ Petition No. 2847 of 1975. Above counsel representing the above noted petitioners have also addressed their submissions as respondents in writ petition in which they are arrayed as respondents.
3. Facts giving rise to above writ petitions briefly noted are :
Consolidation proceedings started in village Katkamanpur, Tahsil Sadar District Pratapgarh under the provision of the U. P. Consolidation of Holdings Act, 1953. Dispute relates to basic year Khata No. 8, Khata No. 121 and Khata No. 318. In Basic year above Khatas were recorded in the names of following persons :
4. Various objections were filed under Section 9 of the U. P. Consolidation of Holdings Act regarding three Khatas. With regard to Khata No. 8 objection was filed by Ram Bodh and Basudeo claiming half share in the Khata. Objections were also filed regarding Khata No. 8 by Bhagwan Din, Ram Pratap sons of Shripal, Shanker, Ram Sundar, Vijay Nath, Ram Baran, Bhawani Pher, Beni Madhav, Sukh Narain, Sukh Nandan and Sankata Prasad claiming cotenancy right with the allegations that the Khata is ancestral. With regard to Khata No. 121 objections were also filed by Ram Bodh and Basudeo claiming half share. Other objections were filed by Bhagwan Din, Ram Pratap son of Shripal, Shanker, Vijay Nath, Ram Awadh, Ram Baran, Bhawani Pher, Beni Madhav, Ram Lagan, Sukh Narain, Sukh Nandan and Sankatha Prasad claiming cotenancy right in the Khata on the ground that it is ancestral property. With regard to Khata No. 318 which was recorded in the name of Shri Pal son of Mahadeo and thereafter in the name of his sons Bhagwan Din and Ram Pratap. Objections were filed by Shitala Prasad and Paras Nath sons of Amar Nath, Kamla Kant sons of Kade Deen praying that the name of Shripal be expunged and their names be recorded as sole Bhumidhars. Consolidation Officer after remand from the appellate court vide its order dated 18.8.1971 rejected all the objections and directed maintaining of basic year entry. Seven appeals were filed before the Settlement Officer of Consolidation. The appeal of Sukh Nandan, Ram Narain, Udit Narain and Bhagwan Deen regarding Khata No. 8 was partly allowed. The Settlement Officer of Consolidation directed recording of the names of Sukh Nandan, Sankatha Prasad, Bhagwan Deen and Ram Pratap son of Shripal, Roop Narain, Chandra Narain and Raj Narain sons of Sukh Narain and Udin Narain son of Ram Achraj as co-tenure tenant holders along with the recorded tenants. Rest of the claim of the appellants were rejected. Against the appellate order dated 9.1.1972 six revisions were filed being Revision No. 6965/507, Shitala Prasad v. Ram Pratap and Ors. ; Revision No. 6988/509/377, Udit Narain and Ors. v. Shitala Deen and Ors. ; Revision No. 6960/506/378, Sankatha Prasad and Ors. v. Shitla Deen and Ors. ; Revision No. 6952/510/379, Bhagwan Deen and Ors. v. Shitala Prasad and Ors. ; Revision No. 6987/535/380, Udit Narain v. Shitla Prasad and others and Revision No. 6979/524/381, Basudeo and Ors. v. Shitala Prasad and Ors. The Deputy Director of Consolidation dismissed all the revisions by maintaining the order passed by the Assistant Settlement Officer of Consolidation. Against the aforesaid orders passed by the consolidation authorities these four writ petitions have been filed.
5. Writ Petition No, 6367 of 1975, Ram Bodh and Ors. v. Deputy Director of Consolidation, Pratapgarh and others, (hereinafter to be referred as the first writ petition) has been filed by Ram Bodh and Basudeo claiming rights in Khata No. 8, Khata No. 121. The case of the petitioners is that the land of Khata No. 8 was ancestral land which was recorded in the names of Goverdhan and Hanuman in the first settlement. In second settlement the names of Basudeo and Smt. Nidhau widow of Goverdhan was recorded. In third settlement it was recorded in the name of Ramanand father of the petitioners and Amar Nath father of respondents Nos. 4 and 5 and grandfather of respondent No. 6. In 1356 F, it was recorded in the name of Amar Nath and Smt. Tejna wife of Dwarika. With regard to Khata No. 121 also it was claimed that in third settlement it was recorded in the name of the father of the petitioner and Amar Nath father of the respondents No. 4 and 5. In first settlement some plots were recorded in the name of Goverdhan and some in the name of Hanuman and some plots were recorded in the name of both the parties. In the second settlement Ram Kumar belonging to the family of the petitioner was recorded on 15-13-19 and Nakchhed was recorded on 18-14-2 Sri V. K. S. Chaudhary appearing for the petitioners in the first writ petition raised following submissions :
"(1) Name of the father of the petitioner being recorded in both the Khatas No. 8 and 121 in third settlement, petitioners are entitled to have half share in the Khata. Further in 1356F, the name of Smt. Tejna being daughter-in-law of the petitioner's father's brother was recorded, petitioners are entitled to be given rights in both the Khatas.
(2) Both the Assistant Settlement Officer of Consolidation and the Deputy Director of Consolidation have recorded finding that the Khata No. 8 was ancestral grove coming down from first settlement and all the respondents are entitled to have share in grove plot but in operative portion of the orders the names of the petitioners were not included to be recorded. In view of the findings recorded by the Deputy Director of Consolidation and the Assistant Settlement Officer of Consolidation that Khata No. 8 being ancestral objectors have right, petitioners claim was liable to be accepted and operative portion of the orders passed by the appellate and revisional authorities is not in consonance with the findings recorded by them."
6. Writ Petition No. 2752 of 1975 (hereinafter to be referred as the second writ petition), has been filed by Bhagwan Din and Ram Pratap sons of Sripal, Udit Narain, Roop Narain, Chandra Narain and Raj Narain sons of late Sukh Narain. The petitioners of second writ petition have claimed cotenancy right in Khata No. 121. The case of the petitioners is that land of Khata No. 121 is ancestral joint land and they are entitled for share in Khata No. 121. The finding recorded by the Assistant Settlement Officer of Consolidation and Deputy Director of Consolidation that identity of the land is not the same in third settlement, have been challenged. A family settlement dated 10.10.1957 filed before the Tehsildar in the mutation case after the death of Amar Nath has been relied by the petitioners. It is contended that the aforesaid family settlement is binding and the consolidation courts committed error in not placing reliance on the said family settlement dated 10.10.1957. Sri Sankatha Rai, learned counsel appearing for the petitioners contended that the family settlement was binding in which the land was given to the petitioners from Khata No. 121. Reliance has been placed on the judgment of the Apex Court in Kale and Ors. v. Deputy Director of Consolidation and Ors., (1976) 2 RD 69 and Sukhari and Ors. v. Deputy Director of Consolidation, Azamgarh and Ors., 1986 RD 274.
7. Writ Petition No. 6217 of 1975 has been filed by Shitala Prasad Tiwari, Paras Nath Tiwari sons of Amar Nath and Kamla Kant son of Kare Deen. The petitioners have challenged the order of the consolidation authorities regarding Khata No. 318 and also regarding Khata No. 8 in which co-tenancy rights have been given to some of the objectors. The petitioners claim is that Khatas No. 8 and 121 is exclusive Khata of the petitioners and none of the objectors have any right. With regard to Khata No. 318 the claim of Shripal and his sons Bhagwan Deen and Ram Pratap have been contested. The petitioners have supported the findings recorded by the consolidation authorities regarding Khata No. 121 and contended that the findings recorded by the consolidation authorities is finding of fact which needs no interference by this Court under Article 226 of Constitution of India. Reliance has been placed on Jagdamba Singh and Ors. v. Deputy Director of Consolidation and Ors., 1985 ALJ 671 and Sanchi and Anr. v. Deputy Director of Consolidation, Faizabad and Ors., 1985 ALJ 977. Shri R. N. Singh assisted by Sri S. N. Singh made his submissions raising above contentions.
8. Writ Petition No. 2847 of 1975 has been filed by Sukh Nandan. The claim has been made with regard to Khata No. 121. It was contended by Sri R. S. Misra, learned counsel for the petitioner that the petitioner belong to the branch of Hanuman and the land being ancestral he is entitled for share. He further contended that there was no evidence that Hanuman was ejected on 24.7.1874. It was contended by Sri Misra that all descendants were in possession of plots of Khata No. 121 and there is no evidence of any fresh settlement.
9. I have considered the respective submissions raised by counsels for the parties and have perused the record.
10. The first writ petition relates to claim of Ram Bodh and Basudeo sons of Ramanand regarding Khata No. 8 and Khata No. 121. The claim of the petitioners with regard to Khata No. 8 needs no elaborate consideration in view of the fact that both the Assistant Settlement Officer of Consolidation and Deputy Director of Consolidation recorded finding that two plots of Khata are grove which are continuing as such and right from the first settlement in grove trees planted are more than hundred years old. The Deputy Director of Consolidation in his order in fact recorded a finding that the claim of the respondents with regard to Khata No. 8 is liable to be accepted and the Deputy Director of Consolidation has affirmed the order of the Assistant Settlement Officer of Consolidation for recording the names of Sukhnandan son of Ganesh Deen, Sankatha Prasad son of Mahavir, Bhagwan Din and Ram Pratap sons of Shripal, Roop Narain, Raj Narain and Chandra Narain sons of Sukh Narain, Udin Narain as co-tenure holders in Khata No. 8. On the same finding which was recorded by the Deputy Director of Consolidation the name of Ram Bodh and Basu Deo were also entitled to be recorded over Khata No. 8 and the Assistant Settlement Officer of Consolidation and the Deputy Director of Consolidation have not directed for recording the name of the petitioners over Khata No. 8. Further, admittedly in the third settlement the name of the father of the petitioner Ramanand was recorded and in 1356 F, the name of Smt. Tejna along with Amar Nath was recorded over the Khata. The relationship of the petitioner with Smt. Tejna as shown in the admitted pedigree is as follows :
Ramdhan Goverdhan Salik Raghubir Chiranju Ms. Nidhau Ramanand Shital Ram Kumar Dwarika Mst. Tejna Mst. Tejna Ram Bodh Basu Deo
11. Admittedly the entries in 1356F over Khata No. 8 was of Smt, Tejna and Amar Nath. Khata No. 8 having been found to be ancestral, there being no fresh settlement and Smt. Tejna having claimed right as widow before date of vesting petitioners will be entitled to succeed Smt. Tejna in accordance with the provisions of Sections 171 and 172 of the U. P. Zamindari Abolition and Land Reforms Act, after the death of Smt. Tejna.
12. The claim of petitioners with regard to Khata No. 121 has also to be accepted in view of the fact that over Khata No. 121 in third settlement Ramanand was recorded and in 1356F Smt. Tejna along with Amar Nath was recorded. Accepting the findings of the Deputy Director of Consolidation and the Assistant Settlement Officer of Consolidation that identity of the land of Khata No. 121 was changed in all the three settlements taking entries of last settlement i.e., third settlement which was Ramanand and Amar Nath over Khata No. 121 it has to be accepted that the fresh settlement was in favour of father of the petitioners and Amar Nath. Ramanand died after the third settlement and before 1356F. Smt. Tejna was recorded in 1356F. The name of Smt. Tejna was on the record as widow, since after the third settlement there is no evidence of any fresh settlement hence even if only Amar Nath and Smt. Tejna are accepted as tenants of Khata No. 121 petitioners will be entitled to succeed Smt. Tejna after her death which occurred after 1356F, when Smt. Tejna died succession will open in" accordance with the provisions of Sections 171 and 172 of the U. P. Zamindari Abolition and Land Reforms Act and the petitioners will be entitled to succeed Smt. Tejna in accordance with Section 171 (r) read with Section 172. The entries of third settlement as well as 1356 F have not been disputed by any of the parties. All the consolidation courts have not rightly considered the claim of the petitioners with regard to Khata No. 121. Petitioners Ram Bodh and Basu Deo have thus clearly made out their claim in both the Khatas Nos. 8 and 121 and their writ petition deserves to be allowed and their names be recorded as co-tenants in Khatas No. 8 and 121.
13. Now coming to the second writ petition filed by Bhagwan Din and others in which the claim of the petitioners is regarding Khata No. 121. The entries of Khatas No. 121 as noted above were to the effect that in third settlement the Khata was recorded in the name of Ramanand, from the branch of Jagannath and Amar Nath (from the Branch of Ram Fakir). In 1356 F the name of Amar Nath (from the Branch of Ram Fakir) and Smt. Tejna widow of Dwarika (from the branch of Jagannath) was recorded. Both the Assistant Settlement Officer of Consolidation and the Deputy Director of Consolidation have considered the entries of Khata No. 121 an the detailed of the plot. In each settlement the area of the land and number of the plots were changed. Certain new plots were added in last settlement. Finding has been recorded by the Assistant Settlement Officer of Consolidation that in view of the change of the plots in different settlement the entity of land is not the same and the name recorded in the settlement is not on basis of inheritance but was on the basis of new settlement. Deputy Director of Consolidation has considered the details facts regarding Khata No. 121 and recorded a finding that in each settlement the numbers and area and rent have differed and in last settlement new plots were added which clearly prove that the entries were not by way of succession but on account of new settlement. The Deputy Director of Consolidation has also observed that there is no question of succession under the Oudh Rent Act. No exception can be taken to the findings recorded by the Assistant Settlement Officer of Consolidation and the Deputy Director of Consolidation. Admittedly, the number of plots and area have changed in all the three settlements, the findings that there were fresh settlement is based on materials on record and cannot be said to be perverse,
14. It is relevant to note the provisions of Oudh Rent Act, 1886 in which the rights of tenants were governed prior to enforcement of the U. P. Tenancy Act, 1939. The third settlement took place at the time when the Oudh Rent Act, 1886 was enforced. Section 10A of the Stamp Act which are relevant for the present case are extracted below:
"36. Tenant in occupation at commencement of Oudh Rent (Amendment) Act, 1921, the conditions of his statutory tenancy, ............................Every tenant, not being a tenant with a right of occupancy or sub-tenant, shall be entitled to retain possession of the holding occupied by him at the commencement of the Oudh Rent (Amendment) Act, 1921 at the rent then payable by him, for a period of ten years from the date of the last change in his rent or of the last, alteration in the area of the holding, or, where no such change or alteration has taken place, from the date on which the tenant was admitted to the occupation of the holding.
37. Tenant admitted after commencement of Oudh Rent (Amendment) Act, 1921, the conditions of his statutory tenancy,....................Every such tenant who is admitted to the occupation of a holding after the commencement of the Oudh Rent (Amendment) Act, 1921, shall be entitled to retain the same for a period of ten years from the date of his admission at a rent agreed upon with the landlord*** and every such tenant, in the area of whose holding or in the amount of whose rent any change is made by the landlord subsequently to the commencement of the Oudh Rent (Amendment) Act, 1921 shall be deemed to be admitted to the occupation of a holding within the meaning of his section."
15. Section 48 of the Oudh Rent Act, 1886 deals with the right of the heir of a deceased tenant. Section 48 of the Act is quoted below :
"48. Rights of the heir of a deceased tenant.--(1) When a statutory tenant dies, his heir shall be entitled to retain occupation of the holding at the rent payable by the deceased for a period of five years from the date of the tenant's death, and to receive compensation under the provisions of this Act for improvements, if any, made on the holding by his predecessor-in-interest, but shall not be entitle to a renewal of the tenancy :
Provided that a person who succeeds as an heir of a deceased tenant to whom Clause (e) of Sub-section (1)' of Section 62A applies shall be entitled to retain occupation of the holding at the rent payable by the deceased only for the unexpired portion of the statutory period of the deceased tenant.
(2) Subject to any rights which he may have under Section 22 as a representative of the deceased, a collateral relative who did not, at the date of the death of the deceased, share in the cultivation of the holding, shall not be deemed to be an heir of the deceased within the meaning of this section."
16. The rights of heir of the statutory tenant are very limited and the tenancy under the Oudh Rent Act was not heritable. Definition of statutory tenant as given in Section 3 (18) is quoted below :
"3 (18) "Statutory tenant" means a tenant to whom Section 36 or Section 37 applies.
Explanation.--A person who succeeds as an heir of a statutory tenant under Section 48 shall not be deemed to be a statutory tenant unless he has obtained a patta from the landlord or has remained in occupation of the holding for three years after the expiration of the period for which he is entitled to retain occupation of the holding under Section 48 :
Provided that when a holding is held by two or more co-tenants, no person who succeeds as an heir of any such co-tenant under Section 48 shall be deemed to be a statutory tenant of the holding unless he has obtained a patta from the landlord, or has remained in occupation of the holding for three years after the expiration of the period for which the heir of the last surviving co-tenant is entitled to retain occupation of the holding under Section 48."
17. The contention raised by the counsel for the petitioners that all the persons belonging to branch of Goverdhan were entitled to the share since the land of Khata No. 121 was ancestral, cannot be accepted. Both Assistant Settlement Officer of Consolidation and the Deputy Director of Consolidation have rightly held that the rights of tenants were not heritable under the Oudh Rent Act. No error has been committed by the consolidation authorities in not giving right to the petitioners in Khata No. 121.
18. Now coming to the submission of Shri Sankatha Rai based on family settlement dated 10.10.1957, it is relevant to mention that the said family settlement was not entered into by all the persons who have claimed right in Khata No. 121. Admittedly Ram Bodh and Basu Deo petitioners of first writ petition were not parties to the said settlement. The name of the father of Ram Both and Basu Deo was recorded in third settlement over Khata No. 121. Family settlement unless entered into by all the persons of the family claiming right has no binding effect. There cannot be any dispute to the proposition laid down by the Apex Court in Kale and others case (supra). The Deputy Director of Consolidation has noted that the said family settlement was filed before the Tahsildar in the mutation case which was filed after the death of Amar Nath, Tahsildar himself has not accepted the family settlement and has observed that the rights cannot be determined by the Tahsildar in mutation proceedings on the basis of family settlement and the parties are free to agitate their rights before the competent court. The Deputy Director of Consolidation did not commit any error in not relying on the said family settlement. Family settlement having entered into between the some parties of the branch of Hanuman, cannot be said to be binding on all the parties.
The judgment in Sukhart and others case (supra) 18 based on ratio as laid down in Kale and others case (supra). As observed above, the said family settlement having not been entered amongst all the parties of the family has no effect and it is not necessary to consider any further above submission.
19. In view of the above, the second writ petition deserves to be dismissed.
20. The third writ petition filed by Shitla Prasad Tewari, Paras Nath Tewari and Kamla Kant is for claiming exclusive right in Khata No. 8 and Khata No. 318.
21. With regard to land of Khata No. 8 finding has been recorded by all the three courts that the said Khata contains only two plots, namely, plot No. 594 (area 2.2.2) and plot No. 716 (area 4.7.15) and both the plots were groves. Findings have been recorded that the said groves are continuing from last third settlement in the family and the grove has more than hundred years old trees. The claim of the petitioners that the land exclusively belong to them, cannot be accepted. Admittedly in third settlement along with the name of the father of the petitioners the name of Ramanand from the branch of Goverdhan was also recorded. The identity of the land being continuing for more than hundred years courts below have rightly granted co-tenancy right in grove to the other members of the family. Petitioners- have failed to establish their exclusive right over the plots of Khata No. 8.
22. Coming to the land of Khata No. 318 the said Khata was recorded in the name of Sri Pal and thereafter in the name of Ram Pratap and Bhagwan Din. The Assistant Settlement Officer of Consolidation and Deputy Director of Consolidation both have recorded finding that the name of Sripal came on Khata No. 318 under the orders passed by the Judicial Officer. Petitioners failed to establish their right over Khata No. 318. They have not been able to show that the land of Khata No. 318 has been recorded in the names of the petitioners. All the Courts have rightly maintained the basic year entry with regard to Khata No. 318. There is no error in the Judgment of all the three courts below regarding Khata No. 318. The Writ Petition No. 6217 of 1975 also deserves to be dismissed.
23. Fourth Writ Petition No. 2847 of 1975, Sukhnandan v. Deputy Director of Consolidation and Ors., has been filed by Sukhnandan claiming rights over Khata No. 121. For the reasons given for rejecting the claim of Bhagwan Din and others in Writ Petition No. 2752 of 1975 regarding Khata No. 121 the claim of Sukhnandan for Khata No. 121 can also not be accepted. In so far as the claim of the petitioners that the members of both the branches were in possession of plots of Khata No. 121 suffice it to say that no evidence worth credence was given by the petitioners before the Courts below nor any such submission has been raised before the Courts below by the petitioners claiming right on the basis of possession. The claim of Sukhnandan with regard to Khata No. 121 also cannot be accepted and the fourth writ petition deserves to be dismissed.
24. In view of what has been said above the Writ Petition No. 6367 of 1975. Ram Bodh and Ors. v. Deputy Director of Consolidation, is allowed. The orders of all the three courts refusing the claim of the petitioners regarding Khata Nos. 8 and 121 are quashed and the claim of the petitioners regarding Khata No. 8 along with the persons whose claims have already been allowed by the Assistant Settlement Officer of Consolidation, is upheld. The claim of the petitioners regarding Khata No. 121 is also allowed and their names be recorded with recorded tenure holders. The Writ Petition No. 6367 of 1975 is allowed to the above extent.
25. The Writ Petition Nos. 2752 of 1975, 6217 of 1975 and 2847 of 1975 are dismissed. Parties shall bear their own costs.