JUDGMENT S.K. Singh, J.
1. By means of this writ petition, petitioner has challenged judgment of the Deputy Director of Consolidation, Allahabad dated 17.5.1975 and 16.5.1975 (Annexures 5 and 4 respectively).
2. Sri Ram Niwas Singh, learned Advocate appeared in support of this writ petition and Sri R.N. Singh, learned Senior Advocate assisted by Sri Rai appeared for respondents No. 2 and 3 and Sri Sheo Nath Singh, learned Advocate appeared on behalf of heirs of respondent No. 5.
3. Facts in brief which can be said to be not in dispute can be summarised for convenient disposal of the matter. Two small pedigrees, if mentioned at this place then they will be of assistance to appreciate rival claim and therefore, they are being given at this place;
First Pedigree:
Maiku
------------------------------------------
4. In the basic year record, name of Ram Niwaj and Munnu sons or Kamta and Basanti wife of Thakurdm was recorded/Three sets of objections were filed before the Consolidation Officer. First objection was on behalf of respondent No. 4 for expunction of the name of Bansanti and thus the right of petitioner and respondent No. 4 would be to the extent of half and half share. The second objection was on behalf of respondent No. 2 and 3 claiming themselves to be co-tenant to the extent of half share as they claimed rights through Surajpal who was recorded in the earliest record. The third objection was on behalf of respondents No. 5 and 6 on the ground that they are daughters of Thakurdin. All the parties led their respective evidence, upon which the Consolidation Officer passed order on 16.7.1974 by which objection of respondents No. 2 and 3 and that of respondent No. 5 and 6 was rejected and basic year entry was maintained with the share of Basanti as half and petitioner and the respondent No. 4 as 1/4th each. Against the order of Consolidation Officer, appeal was filed by respondents No. 2 and 3 only. No appeal was filed by respondents No. 5 and 6. Appeal filed by respondents No. 2 and 3 was dismissed on 20.11.1974. Against the judgment of appellate authority, revision was filed by respondents No. 2 and 3. During pendency of revision, Basanti wife of Thakurdin died, upon which, substitution application was filed by respondents No. 5 and 6 for bringing them on record as heirs of Mst. Basanti being daughter of Thakurdin. The Deputy Director of Consolidation by order dated 16.5.1975 (Annexure 5) gave a finding that question of heir-ship is a disputed one and an appeal in this respect against the order of Consolidation Officer is pending and thus without affecting claim/right of parties in respect to heir ship/succession of Basanti, the name of respondents No. 5 and 6 was permitted to bring on record as heirs and legal representatives of Smt. Basanti. It was further observed by the Deputy Director of Consolidation that this controversy will be finally decided under Section 12 of UPCH Act. Arguments were heard on merits of revision and on 17.5.1975, the revision filed by respondents No. 2 and 3 was allowed and their claim to the extent of half share was accepted and the share of Smt. Basanti was declared as 1/6th and the share of petitioner and respondent No. 4 was held to be 1/6th each. Thus, the petitioner's challenge , in this petition is two fold i.e.(I) against respondents No. 2 and 3 and (II) against respondents No. 5 and 6 who were held to be heirs and legal representative of Smt. Basanti. In the event, respondents No. 5 and 6 are not held to be heirs of Smt. Basanti, then so far share/right of Smt. Basanti is concerned petitioner may get by way of survivorship. It is in this back ground, submission of learned Counsel for petitioner and learned Counsel for respondents is to be noticed.
5. Learned Counsel for petitioner to challenge/oppose the claim of first set of claimants i.e. respondents No. 2 and 3 submits that the Deputy Director of Consolidation in accepting claim/rights of respondents No. 2 and 3 has committed a manifest error for simple reason that findings of fact recorded by two courts i.e. Consolidation Officer and Settlement Officer Consolidation has been illegally set aside in the revisional exercise. It is pointed out that the Deputy Director of Consolidation has given judgment on wrong assumption of facts in respect to the judgment dated 9,4.1940 by saying that it was passed in the proceeding under Section 33/39 of U.P. Land Revenue Act, although the fact has been proved to be otherwise. It is further submitted that by operation of law, petitioner having being recorded before date of vesting became Sirdar and continued in possession , paid land revenue exclusively and as such there being presumption of correctness of basic year entry, the Deputy Director of Consolidation has wrongly negatived petitioner's contention and gave rights to respondents No. 2 and 3 on the basis of old revenue entry which was explained to have been validly expunged. Submission is that long standing entry could not have been brushed aside by the Deputy Director of Consolidation . In support of submission that ignoring the worth of long standing entry is not justified, reliance has been placed on the judgment of this Court given in the case of Ramesh Ramanarayan Dangare v. Vithabai and Anr. . In respect to the submission that findings of fact cannot be set aside by the Deputy Director of Consolidation, reliance has been placed on the judgment of Apex Court given in the case of Gaya Din v. Hanuman Prasad .
6. To challenge/oppose the claim of second set of claimant namely respondents No. 5 and 6, submission of learned Counsel for petitioner is that Consolidation Officer by its judgment dated 16.7.1974 gave a finding that they are not daughters of Thakurdin and therefore their objection was rejected but no appeal or revision was filed by respondents No. 5 and 6 and therefore, their claim can be safely said to be barred and now by accepting /allowing substitution application on 16.5.1975 by accepting their claim that they are daughters of Basanti who was admittedly wife of Thakurdin, respondents No. 5 and 6 cannot be accepted to be daughters of Thakurdin. It is on this basis, submission is that the order of Deputy Director of Consolidation dated 16.5.1975 bringing respondents No. 5 and 6 on record as heirs and legal representatives of Smt. Basanti is clearly illegal and thus, if they are not accepted to be heirs, then the petitioner may get rights/land of the share of Smt. Basanti. On the aforesaid premises, submission is that the order of Deputy Director of Consolidation dated 16.5.1975 and order dated 17.5.1975 are liable to be quashed/modified.
7. In response to the aforesaid, Sri R.N. Singh, learned Senior Advocate assisted by Sri Rai, learned advocate appearing for respondents No. 2 and 3 submits that argument of learned Counsel for petitioner that the finding of fact recorded by Consolidation Officer and Settlement Officer Consolidation has been set aside by the Deputy Director of Consolidation and he passed order on wrong assumption of the facts and by operation of law, petitioner became Sirdar of the land in dispute as there happened to be long standing entry in his favour, is totally misconceived and has no substance. Submission is that the judgment of the two courts below was clearly based on wrong burden of proof on the respondents and appellate authority based its judgment solely on the basis of the order which is said to have been passed by the Sub-Divisional Officer on 9.4.1940 about which petitioner has not been able to prove that it was passed in what proceeding and whether it related to the land in dispute and therefore, if the Deputy Director of Consolidation by placing correct burden of proof to prove the claim and by giving correct interpretation to the judgment dated 9.4.1940 accepted the claim of respondents, then no exception can be taken to it. Submission is that on own finding of appellate authority, identity of land in dispute which was coming down from the time of Thakurdin and Surajpal has not been changed and the land in dispute was also recorded in the name of Surajpal the predecessor of respondents No. 2 and 3 in 1333 Fasli 1347 Fasli with 18 and 32 year duration and therefore, it was for petitioner to prove the validity of omission of the name of predecessor of respondents in 1348 Fasli which has been found to be not proved and therefore, if on this set of evidence, the Deputy Director of Consolidation by recording various findings has accepted their claim, then it cannot be said to be erroneous. Submission is that from own statement of petitioner which has been referred by the Deputy Director of Consolidation , the claim of respondents stands fully proved . It is pointed out that as the Consolidation Officer and the Settlement Officer Consolidation has not appreciated the claim of parties in a legal perspective and there was an error in recording required finding, the Deputy Director of Consolidation was fully justified in correcting the error in the judgment of two courts which was apparent on record. Submission is that the petitioner has not been able to meet the findings so recorded by the Deputy Director of Consolidation by pointing out any error which can be said to be error apparent on the face of record and therefore, writ petition in so far it challenges the claim of respondents No. 2 and 3 is liable to be dismissed.
8. In respect to second set of claimants i.e. respondents No. 5 and 6, Sri Shiv Nath Singh, learned advocate submits that he has filed judgment of Consolidation Officer dated 13.10.1975 and of Deputy Director of Consolidation dated 27.1.1977 along with affidavit filed by Sripal Singh from which, it is clear that his client has been accepted to be the daughter of Thakurdin and order for their mutation in respect to the chak No. 206 and 159 of village Garai Post Sirathur, Allahabad has been made and therefore, if the Deputy Director of Consolidation in the impugned order dated 16.5.1975 has directed for bringing them on record as heirs and legal representatives of deceased Basanti, then petitioner cannot object to the same. Submission is that as in the judgment of Deputy Director of Consolidation dated 17.5.1975, share has been given to Smt. Basanti and by order dated 16.5.1975, respondents No. 5 and 6 have been brought on record as heirs and legal representative of Smt. Basanti only for the purpose of prosecution of revision without affecting rights/claim of any claimant in respect to the succession of Smt. Basanti, then it is always open for the parties to fight this matter again if this Court so directs, upon which both sides may get appropriate order which is to satisfy the grievance of petitioner also. Thus, the submission is that this matter needs examination and final decision, keeping in mind the purport of the order of Deputy Director of Consolidation dated 16.5.1975 and the orders of Consolidation Officer dated 13.10.1978 and Deputy Director of Consolidation dated 27.1.1977 which have been filed as Annexures C.A-III and C.A-IV along with counter affidavit filed on behalf of respondents.
9. In view of aforesaid, this Court has given serious thought over the matter and has perused record as is available before this Court and thus proposes to deal the issue.
10. So far as claim of petitioner qua respondents No. 2 and 3 is concerned, there is no dispute about the fact that in the earlier revenue record i.e. Khatauni 1333 Fasli, name of Thakurdin and Surajpal and Hub Lal son of Sukru was recorded with 18 years duration. In the Khatauni 1347 Fasli, same entry continued with 32 year duration. It is thereafter in 1348 Fasli, name of Thakurdin alone came and thus, the name of Surajpal who was admittedly predecessor of respondent Nos. 2 and 3 came to be omitted. There is clear finding of the Settlement Officer Consolidation that identity of land was never changed which came down from the time of Thakurdin. Thus, there cannot be any dispute that Thakurdin through whom petitioner is claiming and Surajpal through whom respondents are claiming happened to be the co-tenant. Now, the only basis to non suit respondents, is omission of the name of Surajpal in 1348 Fasli which is claimed to be in view of order of Sub Divisional Officer dated 9.4.1940. So far as Consolidation Officer is concerned, in his judgment there is absolutely no discussion which can be said to be of any worth on the basis of which claim of respondents can be negatived and there is no reference even to the order dated 9.4.1940 which is main basis of contention of petitioner. Appellate Authority has just mentioned about the order of Sub Divisional Officer dated 9.4.1940 and by referring to the same, a conclusion has been arrived at that as by that order name of Hub Lal and Chotey Lal was expunged from joint tenancy, this explains reason for non existence of names of respondents. Before the appellate authority there was serious objection from the side of respondents No. 2 and 3 who happened to be appellants that the order dated 9.4.1940 do not make any mention about the land in dispute but the appellate authority on the ground that the appellants have not proved that whether there was any other land with them rejected the contention/objection of the appellants. On perusal of judgment of appellate authority, it is crystal clear that in very brief, as noticed above, entire discussion/conclusion has been arrived at. It is in this state of discussion of important issue about rights/title of two claimants which on finalisation of the consolidation has to attain finality for all the times to come, the discussion in the judgment of Deputy Director of Consolidation is to be appreciated that whether by noticing various details and referring to various evidence, he has drawn a conclusion which can be accepted in law or on mere technical submission of learned Counsel for petitioner that as two courts have negatived claim of respondents, the Deputy Director of Consolidation being debarred from looking into claim of respondents have committed an error in allowing revision.
11. Needless to say that law is settled that finding of fact can be said to be binding only when the Court recording that finding has recorded the same on correct appreciation of fact by placing correct burden of proof on parties, by drawing correct inference to a document or evidence. If the finding of fact is found to be perverse, not sustainable from the evidence and there is an error In drawing conclusion then finding of fact can not be said to be binding on higher court and it is always permissible to look into facts and take contrary view which is permissible in law. Here is the case where in fact, no finding on question of fact can be said to have been validly recorded either by Consolidation Officer or by Settlement Officer Consolidation rather a finding on legal aspect has been recorded and that too by placing wrong burden of proof on the respondents and by misinterpreting the order of Sub-Divisional Officer dated 9.4.1940. Admittedly, land in dispute happened to be the joint tenancy of petitioner's predecessor and predecessor of respondents No. 2 and 3. If the land is found once to be joint tenancy then the rights of co-tenant can only be permitted to be negatived if his name has been expunged in a valid proceeding in a competent Court or his rights are proved to have come to an end on principle of ouster and hostile possession. Here it is not the case of petitioner that the rights of respondents came to an end on principle of ouster and hostile possession. Here , this is a simple case that the name of predecessor of respondents was expunged by the order of Sub Divisional Officer dated 9.4.1940 and thus the burden was on the petitioner to prove that order of Sub Divisional Officer was passed in a valid proceeding by a competent Court and that order related to the land in dispute as there was serious dispute in this respect. The burden of proof can never operate in negative form. It is always for the claimant to prove a positive fact by placing a positive evidence in support of it. It was for the petitioner to prove that the order of Sub-Divisional Officer was passed by competent Court in a regular suit in which name of co-tenant can be legal expunged. It was for the petitioner to prove that the order of Sub-Divisional Officer related to the land in dispute. There is no finding to this effect by appellate authority and the Consolidation Officer has not even referred to this aspect. The Deputy Director of Consolidation by analyzing all these aspects has given a finding that the order of Sub Divisional Officer has not been proved to be in a regular proceeding and therefore it can obviously be treated to be in a summary proceeding. The Deputy Director of Consolidation has given a further finding that the petitioner's claimed that the order was passed on admission/consent of respondents but in the order of Sub Divisional Officer, there is absolutely no such finding/mention of any admission/consent of respondents. There is a further fact that in the year 1940, Chotey Lal was minor. It is on these premises, the Deputy Director of Consolidation found that expunction of the name of respondents and negativing of their rights solely on the basis of the order of Sub Divisional Officer dated 9.4.1940, cannot be accepted to be proper. In respect to other aspect about possession as argued by counsel for petitioner, the Deputy Director of Consolidation has given a clear finding that respondent No. 4 who is the beneficiary with petitioner has clearly admitted right/possession of respondents No. 2 and 3 for their share. Statement of petitioner has also been referred by the Deputy Director of Consolidation who has clearly stated that on the share of respondents No. 2 and 3, he is not in possession. Petitioner has further admitted that the land of respondents No. 2 and 3 is separate and is not with the petitioner. It has been stated by the petitioner that how the names of respondents No. 2 and 3 was omitted, he does not know. In view of the aforesaid discussion, conclusion has been drawn by the Deputy Director of Consolidation that the petitioner has not been able to prove that he is in exclusive possession over the entire land and how and in what manner name of respondents was omitted from the land in dispute. The Deputy Director of Consolidation finally concluded that in view of Khatauni 1333 and 1347 Fasli, it is clear that both parties happened to be co-tenant and identity of land is not broken and therefore, as it has not been proved by petitioner that the respondents were ousted from their share/rights and he is in hostile possession over the land in dispute, merely on account of an order of Sub Divisional Officer if it was passed in a correction proceeding case, rights and title of respondents cannot be permitted to come to an end. This Court finds no infirmity in the aforesaid analysis and conclusion so drawn and thus to conclude the writ petition merits dismissal qua respondents No. 2 and 3.
12. So far as claim of petitioner against respondents No. 5 and 6 i.e. in respect to rights of Smt. Basanti is concerned, there is no dispute about the fact that the Deputy Director of Consolidation in his order dated 16.5.1975 has not finally decided the issue about heir ship of Smt. Basanti and no final finding has been recorded that they are daughters of Smt. Basanti rather an observation has been made that question of heir ship is disputed and is pending adjudication in an appeal and therefore, without affecting the question of heir ship of Smt. Basanti, for the purposes of prosecution of revision, they were permitted to be brought on record as claimed by them. Thus by aforesaid, they automatically cannot be treated to be daughters of deceased Smt. Basanti/Thakurdin and they cannot be finally accepted to be heirs and legal representative of deceased Basanti. But at the same time, respondents have filed two judgments before this Court along with counter affidavit in which two orders of Consolidation Officer and the Deputy Director of Consolidation have been annexed. The order of Deputy Director of Consolidation dated 13.10.19/8 states that in proceeding under Section 9-A(2) of UPCH Act in respect to Trilokpur, respondents were held to be daughters of Thakurdin. The judgment of Consolidation Officer dated 13.10.1978 directs for entering name of respondents No. 5 and 6 over chak No. 206 and 159 of village Garai. In respect to these documents as has been filed in the counter affidavit, this Court cannot be an appropriate forum to enter into trial and to record finding in respect to heir ship of respondents No. 5 and 6 or otherwise. Although respondents no, 5 and 6 have not filed any appeal against the order of Consolidation Officer in which finding was recorded that they are not daughters of Thakurdin but at the same time , there is mention in the judgment of Consolidation Officer dated 13.10.1978 that in respect to the land of village Trilokpur at the level of Settlement Officer Consolidation and Deputy Director of Consolidation , they have been accepted to be daughters of Thakurdin from his first wife and as Deputy Director of Consolidation in its order dated 16.5.1975 which relates to the land in dispute has not finally decided this issue and they have been accepted to be legal representatives of Smt. Basanti only for the purposes of prosecution of case, it will be in the ends of justice to call upon the Deputy Director of Consolidation to entertain the dispute between petitioner and the claimants through Basanti afresh and decide this issue, keeping in mind the judgments/documents which may be filed by the claimants claiming through respondents No. 5 and 6. Thus to conclude, the claim/dispute between petitioner and respondents No. 5 and 6 or the persons claiming through them will enter into fresh fight before the Deputy Director of Consolidation by getting evidence on the date fixed which will be decided by the Deputy Director of Consolidation by giving opportunity of hearing to all concerned, preferably within three months from the date of filing of certified copy of this order by either of the side.
13. For the reasons recorded above, this writ petition succeeds in part and is allowed accordingly. The impugned judgment of the Deputy Director of Consolidation dated 17.5.1975 is hereby maintained in so far it has decided rights/share of petitioner, respondents No. 4, and respondents No. 2 and 3. In respect to the claim of petitioner relating relation-to the rights of Mst. Basanti widow of Thakurdin, the dispute is made open to be resolved before the Deputy Director of Consolidation in the manner as indicated above.