JUDGMENT S.S. Chauhan, J.
1. The present writ petition has been filed challenging the orders dated 25.7.1978, 7.4.1981 and 18.11.1982 passed by the opposite parties No. 3 to 1.
2. The facts in brief are that the dispute relates to khata Nos. 95, 138 and plot No. 114 of Village Damodara, Pargana Barausa, Tehsil and District Sultanpur. In the basic year khata No. 138 was recorded in the name of the petitioners while khata No. 95 was recorded in the name of opposite party No. 4. The petitioners filed objection under Section 9 of the U.P. Consolidation of Holdings Act (hereinafter referred to as the ''Act') thereby claiming to be sole tenure holders of plot No. 114 measuring 0-16-0 while on the other hand the opposite party No. 4 filed objection claiming half share in khata Nos. 138 and 95 and claimed to be recorded as tenure holder over plot No. 114 measuring 0-16-0. The parties adduced evidence before the Consolidation Officer and thereafter the objection of the petitioners was rejected. Feeling aggrieved with the rejection of the objection, the petitioners preferred an appeal before the Settlement Officer Consolidation and the same was also dismissed by means of order dated 7.4.1981. The petitioners feeling aggrieved with both the orders of Consolidation Officer as well as the Settlement Officer Consolidation, preferred a revision under Section 48 of the Act before the Deputy Director of Consolidation, which too was dismissed on 18.11.1982. Learned Counsel for the petitioners has submitted that the petitioners are entitled to the extent of 2/3rd share in the aforesaid plots on the basis of Partition Suit No. 1/23, which was filed by the opposite party No. 4 under the guardianship of his mother in the Court of Judicial Officer (Assistant Collector) on 5/6th of February, 1948 against Sri Anant Ram, father of the petitioners, for partition and declaration. The said suit was filed under the provisions of U.P. Tenancy Act. In the said suit the opposite party No. 4 through her mother claimed 2/3rd share by claiming the share of Suraj Narain also on the ground that Suraj Narain at the time of his death was living with Jagat Narain, i.e. opposite party No. 4. It is submitted that the said suit was decreed and thereafter an appeal was filed and in the appeal the Additional Commissioner by means of order dated 6.7.1949 allowed the claim of the petitioners and held that the petitioners are entitled to 2/3rd of the holding of Thakur Prasad being the common ancestor. He further submitted that the copies of the preliminary decree (Chittha batwara) and the dakhalnama i.e. delivery of possession were placed before the Consolidation Officer, but all these relevant evidence, which decided the share of the parties, was not taken into consideration, but in fact it was ignored on technical ground.
3. Learned Counsel for the opposite party No. 4 has submitted that the appellate order was not placed before the consolidation authorities and the preliminary decree could not indicate as to whether the right of the parties were finally determined or not. He further submitted that finding of the res judicata has been recorded by the Consolidation Officer and, therefore, the orders passed by the authorities below do not require any interference. The finding is concluded by concurrent finding of fact and, therefore, also under Article 226 of the Constitution of India no interference is required by this Court. He has also submitted that opposite party No. 4 is entitled to the extent of half share and to that extent only the claim has been allowed and it is logical and legal according to the family pedigree that the petitioners are entitled to half share in the holding of Thakur Prasad.
4. I have heard the learned Counsel for the parties and gone through the record.
5. The Consolidation Officer while considering the objection of the petitioners has specifically said that Ram Kalap i.e. petitioner No. 1 has demanded 2/3rd share on the basis of the order dated 8.7.1954. It has also been admitted by him that the petitioners have filed chittha Batwara i.e. preliminary decree dated 7.6.1954. It is not in dispute that the preliminary decree was prepared after the order of the Additional Commissioner dated 6.7.1949 and thereafter possession was also given to the parties in accordance with their share decided by the Additional Commissioner. The final decree was prepared on 24.6.1954 and the possession was given on 8.7.1954. The Consolidation Officer has ignored the preliminary decree on the ground that the final order has been passed on 8.6.1954, whereas the final decision was passed by the Additional Commissioner on 6.7.1949 and in pursuance thereof the preliminary decree was prepared on 7.6.1954 and on 24.6.1954 the final decree was prepared and the possession was given on 8.7.1954. It seems that the Consolidation Officer has misread the evidence on record and thereby proceeded to record a perverse finding. The Settlement Officer Consolidation and the Deputy Director of Consolidation also adopted the same line of reasoning while agreeing with the findings of the Consolidation Officer. It is not in dispute that the decision of the Additional Commissioner was not placed on record before the Consolidation Officer, but the preliminary decree dated 7.6.1954 was prepared in pursuance to the order of the Additional Commissioner dated 6.7.1949. According to the decision of the Additional Commissioner the petitioners' share has been held to be 2/3rd and that decision carries the affect of res judicata or not and whether the said decision would be binding upon the parties in a subsequent litigation during the consolidation proceedings is a question to be decided by the authorities below. This Court only finds that the consolidation authorities have not considered the order of the Additional Commissioner and the preliminary decree in the correct perspective although it was on record as they have ignored the same by misreading the evidence. The perversity is apparent from the orders of the consolidation authorities, as such, they are liable to be set aside.
6. The writ petition is accordingly allowed and the orders dated 25.7.1978, 7.4.1981 and 18.11.1982 passed by the opposite parties No. 3 to 1 are hereby set aside. The matter is remanded to the Consolidation Officer concerned, who shall consider and decide the matter afresh in the light of observations made in the order within a period of six months from the date a certified copy of this order is produced before him
7. There shall be no order as to costs.