JUDGMENT Poonam Srivastava, J.
1. Heard Sri N.C. Rajvanshi, Senior Advocate, assisted by Sri M.K. Rajvanshi, learned Counsel appearing for the petitioner and Sri J.N. Rai, learned Counsel appearing for the contesting respondent.
2. The dispute in the instant writ petition relates to land of Khata No. 8 consisting of 8 plots having an area of 5 bighas 9 biswas situated in village Katera Zafarabad, Pargana-Pooth, District Ghaziabad.
3. Facts giving rise to the dispute is that name of Smt. Ganga Devi widow of Lal Singh was recorded in the basic year over the land in dispute when the consolidation proceedings commenced. An objection was filed by Kale son of Dauley claiming that he was a co-tenant. According to the objector, the disputed land belonged to common ancestor. The admitted facts between the parties is that both were recorded as co-tenant in 1336 Fasli and name of co-tanant was entered in Zeman 6 (1). Subsequently, in 1356 Fasli, name of Lal Singh was recorded in Zeman 10 showing live years continuous possession of Lal Singh. Thereafter, in 1351 Fasli, name of Lal Singh continued to be recorded as Kashtkar. When Zamindari was abolished, husband of Smt. Ganga Devi Lal Singh was shown to be in continuous possession for a period of nine years and consequently he became a Seerdar. Thereafter, he got the Bhumidhari rights on 14.7.51 under Section 7 of U.P. Agricultural Tenants (Acquisition of Privileges) Act 1949. The consolidation proceedings commenced in the year 1970-71. When the objections were preferred by the contesting respondent under Section 9 of U.P. Consolidation and Holdings Act 1953 (hereinafter referred to as the Act), the consolidation officer allowed objections of the contesting respondent vide order dated 6.12.1973 holding that the petitioner and the contesting respondent had co-tenancy rights over the disputed plot. The petitioner preferred an appeal before the Settlement Officer Consolidation, which was dismissed. A revision under Section 48 of the Act was preferred before the Deputy Director of Consolidation, which was finally allowed on 24.1.1977. The contesting respondent preferred a civil misc. writ petition 484 of 1977 before this Court, which was finally allowed vide judgment and order dated 21.3.1984. The order of the Deputy Director of Consolidation was quashed and the case was remanded to the D.D.C. to decide the question as to how rights of Dauli or his descendants became extinguished over the disputed land since both were recorded initially as co-tenant in 1336 Fash. After the revision was remanded by this Court, the same was dismissed by the Deputy Director of Consolidation, Ghaziabad vide order dated 22.6.1988. which is impugned in the instant writ petition.
4. Submission on behalf of the petitioner is two folds. Sri Rajvanshi has emphasized that the courts below wrongly shifted burden on the petitioner to establish his exclusive title. Especially, when Bhoomdhari sanad was issued in favour of Lal Singh as far back as on 14.7.1951, the contesting respondent did not raise any objection whatsoever till the year 1970-71 i.e. approximately 33 years. He chose to raise his objection for the first time during the consolidation proceedings.
5. Next argument is that mere entry in 1336 Fasli is not sufficient to establish the rights of co-tenancy. It is submitted that the documentary evidence available on record, conclusively suggests that the disputed land was settled by the Zamindar in favour of Lal Singh exclusively after ejecting Jai Singh and Dauley, and also that all along, land revenue was exclusively paid by the petitioner after grant of Bhoomidhar sanad. There was no mistake regarding title of the petitioner. Besides, the petitioner was in exclusive possession of the land as it was evident from the various revenue entries and also her name having been recorded in the basic year. It is also submitted that the Deputy Director of Consolidation misinterpreted direction of this Court passed in the judgment and order dated 21.3.1984 and without applying his judicial mind, has mechanically passed the impugned order, which does not have any legs to stand.
6. Sri Rajvanshi, has placed a number of decisions in support of his contention. In the case of Ram Prasad Singh and Anr. v. Deputy Director of Consolidation and Ors. 1984 R.D. page 133, wherein it has been held that Section 33 of U.P. Tenancy Act deals with the question of co-tenancy. According to which, one can be a co-tenant by three modes namely, (i) where he is co-tenant from the commencement of the tenancy, (ii) he has become such by succession and (iii) he has been specifically recognized as such in writing by the land holder.
7. I have examined the facts of this case and come to a conclusion that in the instant case, there is no case that the parties were admitted as co-tenant since the inception of tenancy and also that the contesting respondent has become a co-tenant by succession as well as there is no such recognition in writing in favour of the contesting respondent, on the contrary Bhoomdhari sanad issued in the name of the petitioner was never challenged at any point of time, confers a qualified right in favour of the petitioner. It is also noteworthy that in case the contesting respondent relies completely in the entry pertaining to the year 1336 Fasli, then it was bounden duty to have established and fix the identity of the land. Admitted position is that entries were different in different years, which have already been detailed in the foregoing paragraph of this judgment. The entries kept on changing from 1350 to 1356 Fasli then 1351 to 1359 Fasli. It is, therefore, not acceptable that the identity of the land in question recorded in the name of the petitioner as well as contesting respondent 1336 Fasli is one and same.
8. Next decision relied upon by Sri Rajvanshi is Jaan Ali and Anr. v. Joint Director of Consolidation and Ors. 1990 A.W.C. page 9S, where it has been held that before cotenancy rights can be claimed by the contesting party, it is incumbent on him to establish that the land came down from the common ancestors with unbroken identity; the identity must be on the entire holding; and also persons claiming co-tenancy rights were in possession of the holding and paying rent of the said holding This is exactly what has happened in the instant case, the identity is not proved and there is no evidence to indicate that alter the death of the common ancestor, possession was taken over by the respondent claiming co-tenancy rights or any settlement was made in their favour, on the contrary settlement by the Zamindar in favour of the petitioner is very much on record. This aspect appears to have completely been ignored by the courts below. There is another decision, in the case of Rumal and Anr. v. Deputy Director of Consolidation and Ors. 2003 (95) R.D. page 732. While deciding the aforesaid case, this Court relied upon another decision of the Apex Court and held that claim of cotenancy rights based on solitary entry of 1336 Fasli without any continuation of the entries thereafter and also non payment of land revenue is sufficient to come to a conclusion that cotenancy does not exist. It appears that all these questions have completely been overlooked and ignored by the courts below.
9. Submission on behalf of the contesting respondent is only on the basis of entries in 1336 Fasli. He argued that all these questions pertain to question of fact and cannot be examined in exercise of jurisdiction under Article 226 of the Constitution of India and, therefore, the writ petition is liable to be dismissed.
10. I do not agree with the argument advanced on behalf of the respondent that the question regarding co-tenancy should have been decided only on the basis of solitary entry in 1336 Fasli. It was necessary that the case should have been examined in the light of various decisions of this Court and also after recording categorical finding fixing identity of the disputed plot. Admittedly, the claim of the petitioner regarding continuous period of thirty three years has neither been disputed nor any objection raised at any point of time, save when the consolidation proceedings commenced. The respondent has failed to raise any objection whatsoever regarding entries in favour of the petitioner and also non-payment of land revenue. Besides, the courts below have completely overlooked the fact that Bhoomdhari sanad issued in favour of the petitioner confers a valid title. None of the courts below have tried to consider this aspect, which was very relevant.
11. Learned Counsel for the petitioner is correct in saying that the courts below have wrongly shifted burden on the petitioner's shoulder. It appears that while passing the impugned order, observation of this Court regarding extinction of the tenancy right was considered to be a direction. The Deputy Director of Consolidation was liable to take into consideration all facts and circumstances of the case since the contesting respondent failed to fix the identity as well as establish and prove their tenancy rights in accordance with provisions of UP. Tenancy Act. It is not a case of the contesting respondent that the tenancy right was conferred by succession and he continued to be a co-tenant at the time of commencement of the tenancy up to date or he has been recognized in writing by the land-holder. Having failed to establish all these material aspects, I come to a conclusion that the judgment of Deputy Director of Consolidation, dated 22.6.1988. judgment dated 28.9.1974 passed by S.O.C and judgment dated 6.12.1973 passed by the Consolidation Officer, Buxur Meerut are not sustainable in law. The respondent has failed to establish his tenancy rights and the impugned judgment is manifestly illegal erroneous and against the record.
12. In view of what has been discussed above, the impugned judgment and orders are quashed. The writ petition is allowed.
13. There shall be no order as to costs.