JUDGMENT S.K. Singh, J.
1. By means of this writ petition, the petitioners have challenged the judgment of the Joint Director of Consolidation, Gorakhpur dated 11.6.1987, the judgment of the Assistant Settlement Officer Consolidation dated 21.1.1981 and the judgment of the Consolidation Officer dated 15.15.1976 ( Annexures 8,7 and 5) respectively. By moving an amendment application, a prayer for quashing the earlier order of the Assistant Director of Consolidation dated 28.4. 980 has also been made.
2. Heard Sri R.C. Singh, learned advocate in support of writ petition and Sri M.D. Mishra, learned advocate in opposition thereof. For disposal of writ petition, facts in brief will be useful to be summarised.
3. Proceedings are under Section 9-A(2) of UPCH Act which relates to the adjudication of title of the parties. Dispute relates to land comprised in Khata No. 18 and 182 situated in village Gaura Tappa Nai Karahi Pargana Tilpur district Gorakhpur. In the basic year record, name of respondent No. 4 (hereinafter referred to as the contesting respondent) was recorded. During consolidation partal, Beerbali father of petitioners was found to be in exclusive possession over the land in dispute. Beerbali father of the petitioners filed objection under Section 9-A(2) of UPCH Act claiming cotenancy rights on the ground that the land in dispute was acquired by Molhu who was the father of Chandra Ball and himself and thus he got half share in the land. It was further claimed that the land was settled by Zaknindar with Beerbali and Chandra Ball jointly after giving adequate premium. It was claimed that he is coming down throughout in possession and therefore, his name be entered. After some time, Beerbali filed application for amending his objection in which, it was pleaded that he gave an amount of Rs. 6000/- to Chandra Bali for his half share upon Which, he left his possession and since then he is in exclusive possession and therefore, his name alone be recorded in the revenue record. The comendment application so moved by Beer Bali was allowed. A counter objection was filed by Chandra Bail, the contesting respondent. In pant lit was stated that the land in dispute belonged to his ancestor and he is in possession as heir. In para 3 of the objection, it was stated that after the death of his father Molhu, his mother remarried with one Badri resident of Gopala and from that wedlock Beer Bali was born and thus he had no right in the land in dispute as he has right in the land of his father Badri. Thereafter, Chandra Bali also filed an amendment application by which, he prayed for deletion of averments as made in para 3 and 4 of his Objection, which contained averments of remarriage of his mother and berth of Beer Bali out of the wedlock of his mother and Badri. With the aforesaid amended pleading from both sides, parties went into trial. Petitioners in support of their case examined Beer Bali, Vishwanath and one Patiraj. Some irrigation slips, khatauni extracts of 1377 to 1379 fasli besides cane society pass book and partal book was also filed by petitioners. Respondent No. 4 examined himself in support of his case. Consolidation Officer dismissed petitioners' objection by giving a finding that Beer Ball was not the brother of contesting respondent as he is not the son of Molhu Objection of one Chedi which was based on adverse possession was allowed. Two appeals were filed before the appellate authority i.e. one by Beer Bali and other by Chandra Bali. Appeals were allowed and Beer Bali was accepted to be brother of Chandra Bali and both were accepted to be co-tenant in the land. Respondent No. 4 went in revision in which he succeeded and the Assistant Director of Consolidation by judgment dated 28.4.1980 allowed the revision and remanded the matter back to the appellate authority to consider the claim of petitioners about their Sole tenancy rights on the basis of amended pleading. After remand, appellate authority dismissed the petitioners appeal and claim of his sole right Was negatived and thus appeal of respondent No. 4 was accepted. Against the judgment of appellate authority, revision was filed by petitioners which was dismissed by the judgment dated 11.6.1987 and thus the judgment of revisional court, appellate authority and that of Consolidation officer being against the petitioners, all are under challenge in this petition.
4. Submission of learned Counsel for the petitioner is that although contesting respondent is recorded in the basic year record, but petitioners claim of co-tenancy rights has been fully established in the light of admission of Chandra Bali which he has stated in para 1 of his objection (annexure 3 to the writ petition). Submission is that Chandra bali has stated in his statement that land in dispute is ancestral and therefore, parties would be co-tenant as Beer Bali and Chandra Ball both were brothers. It has been further submitted that even if petitioners by moving amendment application have claimed higher right/share on proof of lessor share, that has to be allowed and thus petitioners having been proved to be entitled to half share, the courts below in not allowing the same, have committed error. Submission is that two inconsistent pleas i.e. sole right and co-tenancy right can be taken simultaneously and therefore, both were to be considered and petitioners claim of ca-tenancy was to be accepted. It is then submitted that the revisional court at earlier stage in remanding the matter by setting aside the judgment of appellate authority had committed an error and therefore, that judgment is also to bar set aside and the claim of petitioners' co-tenancy right as was allowed by I appellate Authority is to be maintained. In the last, it has been submitted that admission in the pleading is to be taken as best piece of evidence and therefore, the case of petitioners based on admission of contesting respondent in his objection was to be accepted by the courts below and thus the courts below in negativing the petitioners' claim have committed error. Learned counsel, in support of the submission that if claim is for higher share and party proves to be entitled to the lessor share , that is to be allowed, reliance has been placed on the decision given in the case of Bhagwati v. Deputy Director of Consolidation 2005(1) CRC 263. In support of submission that two inconsistent pleas of sole owner, and co-tenancy rights can be taken, reliance has been placed on the decision given in the case of Panchdeo Narain Srivastava v. Jyoti Sahay , Akshaya Restaurant v. P. Anjanappa AIR 199S SC 1498, and the decision given in the case of G. Nagamma v. Sironanamma . In support of the submission that if the order of remand is illegal that art be challenged at later stage, reliance has been placed on the decision given in the case of KC Bose v. Commissioner Preetam Singh v. Assistant Director of Consolidation . In support of submission that admission in the pleading is the best piece of evidence, reliance has been' placed on the decision given in the case of Basant Singh v. Janki Singh Uttam Bingh Dugal and Consolidation Officer Ltd. v. Union Bank of India .
5. In response to the aforesaid, submission of learned Counsel for the respondent is that the petitioners for getting rights in the land in dispute set up three contradictory pleadings i.e. (i) land in dispute is ancestral (ii) land in dispute is joint acquisition of the parties (iii) by taking an amount of Rs. 6.000/-, respondent surrendered his rights but the petitioners have not been able to prove either of the grounds so as to entitle them to get any right in the land in dispute. Submission is that so far claim of petitioners of getting sole right which they claimed by amending their objection, which was directed to be decided by the order of revisional court is concerned, now , petitioners are compelled to submit that they have not proved it and at the same time, for getting co-tenancy rights as argued during course of arguments, unless petitioners prove that the land in dispute is either of the time of common ancestor or that is joint acquisition, they cannot be allowed co-tenancy rights. Submission is that there is no positive evidence from the side of petitioners to prove either the joint acquisition or the land coming down from the time of common ancestor. It is submitted that in the consolidation proceedings, pleadings cannot be so strictly construed and in fact, in para 1 of the objection. ( annexure 3) as filed by respondent No. 4, averment is that land in dispute is the acquisition of his ancestor which cannot mean that both parties are the brothers or land in dispute is acquisition of the father of respondent No. 4 also. Submission is that In that very objection in para 3, it was clearly stated that respondent No. 4 Is not his brother rather he was born out of fresh wedlock of his mother With Badri on the death of his father Molhu. Submission is that even if averment ' as made in para 3 of the objection, is taken away that itself cannot make Beer Bali to be brother of Chandra Bali as it has never been admitted from the side of contesting respondent. Submission is that in the basic year record, name of contesting respondent being recorded, there was heavy burden on the petitioners' side to prove the fact that how and in what manner, they became co-tenant as they are to stand on their own legs and they cannot be allowed co-tenancy rights on technical aspect as argued on their behalf. Submission is that in fact, statements of the petitioners' witnesses i.e. Vishwanath and Patiraj which has been annexed as Annexures 9 and 10 to the writ petition are only to the effect that Beer Bali gave Rs. 6000/- to Chandra Bali and he came into possession over entire land and thus he is the sole owner of the land which has not been believed and even the petitioners, are not pressing the same and therefore, if on these facts, claim of petitioners has, been negatived, no exception can be taken to it. Submission is that all the three courts have given concurrent finding that Beer Bali was not the brother of Chandra Ball and the land in dispute has not been proved to be of the time of common ancestor or joint acquisition of both sides and thus this being the pure finding of fact to which all the three courts concurred, it cannot be a case for interference in Wit jurisdiction. Submission is that questions so argued, in support of which various decided cases have been cited are neither involved in this petition nor have any application in any manner and therefore, they need not to be referred and discussed in detail and thus, writ petition deserves dismissal.
6. In view of aforesaid submission of both sides, as noted above, this Court has examined the materials as exists on record.
7. There is no dispute about the fact that in the basic year, name of contesting respondent alone was recorded. Admittedly, in the original objection filed by petitioners' father he claimed that the land in dispute was jointly acquired by him and Chandra Bali from Zamindar by paying . adequate premium. It was claimed that his name was omitted to be recorded in the records. By getting that objection amended, petitioners' father claimed that in due course, he gave an amount of Rs. 6,000/- to Chandra Bali who left his possession and since then he is alone in possession and therefore, his name alone be recorded. In view of aforesaid two kind of pleadings which may be treated to be a claim for co-tenancy and then of sole tenancy, either of the things will have to be proved by the petitioners. For proving case of co-tenancy taking of the land jointly by giving adequate premium to Zamindar will have to be proved i.e the joint settlement with them by Zamindar. For proving the case of sole tenancy giving of consideration to Chandra Bali and surrender by him and exclusive possession of Beer Bali will have to be proved. During course of arguments, learned Counsel for the petitioners did not press the claim; of exclusive rights on account of surrender by Chandra Bali and thus emphasis of petitioners remains about co-tenancy rights on the ground that Beer Bali and Chandra Ball are brothers and thus both were co-tenant So far as claim of petitioners about their co-tenancy rights as noticed, needless to say that petitioners will have to take up a clear Stand that whether the land is of common ancestor or it was settled With two brothers namely Beer Bali and Chandra Bali jointly by Zamindar as from Annexure 1 and 2 to the writ petition which are objection and amended objection of the petitioners' side, there appears to be no pleading of the land in dispute coming from the time of common ancestor. There is only one pleading that the land was settled by Zamindar with both by taking adequate premium. At this stage, we can take note of the fact that revisional court at earlier occasion by its judgment dated 28.4.1980 remanded the matter to the appellate authority to consider the case of petitioners of their sole tenancy as they claimed by amending there objections and if that is to be taken into account, both courts have negatived the same and as observed above, learned Counsel for the petitioners did not press that claim on that ground and therefore, although pursuant to the order of remand, petitioners' claim was to remain confined about their sole rights as now but the arguments goes in respect to the co-tenancy rights, by taking the view that in consolidation proceeding, pleading may not be strictly construed, this Court considered the judgments of courts below in respect to rejection of petitioners' claim of cotenancy rights. It appears that petitioners main emphasis about their Co-tenancy rights is not on the basis of their own evidence which may be oral and documentary rather, the emphasis is to accept their rights solely on the averments made in para 1 of the objection of respondent No. 4 ( annexure 3 to the writ petition). As observed above, as the petitioners are not serious in respect to their pleading, they cannot be permitted to compel other side to be serious about his pleading also. Although by moving amendment, respondent No. 4 got paras 3 and 4 of his earlier Objection deleted but at the same time, there was clear averment in the first objection that on the death of Molhu, mother of respondent re-married and thereafter, Beer Bali was born. If that averment is accepted to be withdrawn even then there is no clear admission of the respondent that Beer Ball and Chandra Bali both are brothers. Even if for the sake of argument, It is accepted to be so, merely Beer Bali is said to be brother of Chandra Bali, he cannot be treated to be co-tenant in the property which stood in the flame of Chandra Bali. Even in joint family, there being two brothers, one may acquire property independently for himself and burden is always on the person claiming co-tenancy rights to prove that how he became co-tenant, unless the land in dispute is coming down from the time of common ancestor which is not the case here. Beer Ball claimed joint settlement try Zamindar by paying adequate premium, but on record, there is absolutely no evidence of any kind in the shape of oral or documentary and therefore, petitioners' claim of co-tenancy rights as taken in the objection by Beer Bali lacks support from any evidence. Statement of petitioners witnesses Vishwanath and Patiraj which has been brought on record states about surrender by Chandra Bali on taking money from Beer Bali, but now that stand has been surrendered/left by petitioners as noted above. Statement of fact by Chandra Bali in his objection cannot be permitted to be the sole basis for accepting the claim of petitioners that the land in dispute was ancestral. We will have to take that statement of fact by taking into account, averments as made in paras 3 and 4 of first objection although they were subsequently got deleted. We do not know under what circumstance by moving application, averments as made in paras 3 and 4 of the objection was got deleted. That aspect at the best could have been treated to be of some worth to substantiate the petitioners claim of co-tenancy if from the side of petitioners any evidence worth name besides specific pleading in this respect would have been there. Here is the case, where petitioners' side did not plead in the objection that the land in dispute is ancestral rather plea is that the land is joint acquisition of Beer Bali and Chandra Bali and at the same time, for the land coming down from the side of common ancestors, there is no evidence either oral or documentary. Not a single revenue extract has been filed which may indicate that the land in dispute was ever recorded in the name of common ancestor. Admittedly, the land "in dispute stands recorded only in the name of Chandra Bali -respondent and thus on these superfluous approach and ground to which petitioners themselves are not sure, the claim of co-tenancy rights cannot, be permitted to be allowed. All the three courts have concurred in arriving at a particular conclusion and they have recorded a clear finding that the petitioners have not been able to prove their claim of co-tenancy rights and thus, the finding so recorded prima-facie being pure finding of fact, this Court is not in a position to interfere. It is not a case where any oral or documentary evidence has been mis-interpreted, ignored or to the conclusion so arrived no reasonable person can arrive at.
8. At this stage, even by taking note of various judgments as referred by learned Counsel for the petitioners, this Court is of the view that even by accepting the consideration of claim of petitioners in that light alter ignoring technical pleas from the side of respondent, as a fact this Court has not been persuaded to find out any such evidence which can be said to be there to prove the claim of petitioners' co-tenancy right. In fact as noticed, there is neither any documentary evidence nor any oral evidence to support petitioners' plea of joint acquisition of the land on account of its Settlement by Zamindar by taking adequate premium nor any evidence to prove that the land in dispute was ever recorded in the name of common ancestor, even if Chandra Bali and Beerbali are brothers and therefore interfering in the rights of respondents as has been accepted by all three courts will not be in the ends of justice.
9. For the reasons recorded above, this Court is of the view that writ petition is concluded by findings of fact and thus deserve dismissal. Accordingly, writ petition fails and is dismissed.