# Keshav Dayal & Ors v. Addl. Collector

- **Citation:** (2020) 2 ILRA 162
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-05
- **Case number:** Consolidation No. 8422 of 1987
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/keshav-dayal-ors-v-addl-collector-45548
- **Pages:** 9

## Headnote

A. U.P C&H Act-challenging-order allowing
ojection of R.4-directing names of R-4 to 7-to
be recorded as co-tenure holders-Petitioner's
father-khudkasht of-land in dispute-cannot be
divided-amongst co-sharers of other propertiesmerely for this reason-co-sharers right can't be
waived-unless-proved-land
in
dispute-self
acquired-and not ancestral-petitioners failed to
prove the same-Dismissed.

B. Held, in the present case it has been proved
from the pleadings and evidence that the land in
dispute was acquired by Durga Prasad and the
petitioners have neither set up nor established
the plea of 'ouster'. Therefore all the sons of
Durga Prasad have equal share and the
Consolidation Officer has rightly directed to
record the names of opposite party nos.4 to 7 as
co-tenure holders and determined their shares
accordingly.The appeal filed by the petitioners
was duly considered and rejected by the
Settlement Officer Consolidation. Similarly the
Deputy Director of Consolidation in the revision
found that the name of Vidyadhar was recorded
on behalf of all and rejected the revision. This
Court does not find any illegality or error in the
findings recorded by the learned Consolidation
Officer, Settlement Officer Consolidation and the
Deputy Director of Consolidation which are
based
on
cogent
evidence
and
correct
appreciation of evidence and law. Therefore the
present writ petition is misconceived and lacks
merit.The writ-petition is, accordingly, dismissed.

Writ
Petition
dismissed.
(E-8)
4 All. Keshav Dayal & Ors. Vs. Addl. Collector
163
List of cases cited:

## Text

162 INDIAN LAW REPORTS ALLAHABAD SERIES
adjustment of Chaks, done by the Deputy
Director of Consolidation. This submission is
not required to be gone into by this Court, in
view of what has already been said above. The
submission of Sri Santosh Kumar Singh on the
other hand that no prejudice to the petitioner
has been caused, inasmuch as, he has been
provided a Chak that is not far flung from his
original holding, does not appeal to this Court
for reasons of the indicated prejudice that has
been caused to the petitioner.

27. In the result, this writ petition
succeeds and his allowed. The impugned
order dated 09.04.1987 passed by the
Assistant
Director
of
Consolidation,
Ghazipur
Camp
Office
Bareilly
in
Revision No. 362 is hereby quashed.

28. The Revision shall stand restored
to the file of the concerned Assistant
Director/Deputy
Director
of
Consolidation, who will determine it
afresh after hearing both parties in
accordance with law. Both parties will
appear before the District Deputy Director
of
Consolidation/Collector,
Ballia
on
09.12.2019.

29. The District Deputy Director of
Consolidation will assign the matter to the
competent
Deputy
Director
of
Consolidation (unless he chooses to take
up the Revision himself) who will proceed
to decide this Revision as directed
hereinabove, within a period of six months
of the parties first appearing before him.

30. There shall be no order as to costs.
----------
(2020)02ILR A162

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.02.2020

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Consolidation No. 8422 of 1987

Keshav Dayal & Ors. ...Petitioner
Versus
Addl. Collector ...Respondent

Counsel for the Petitioner:
Nirmal Tiwari, Nirmal Tewari

Counsel for the Respondent:
C.S.C., Birendra Narain Shukla

A. U.P C&H Act-challenging-order allowing
ojection of R.4-directing names of R-4 to 7-to
be recorded as co-tenure holders-Petitioner's
father-khudkasht of-land in dispute-cannot be
divided-amongst co-sharers of other propertiesmerely for this reason-co-sharers right can't be
waived-unless-proved-land
in
dispute-self
acquired-and not ancestral-petitioners failed to
prove the same-Dismissed.

B. Held, in the present case it has been proved
from the pleadings and evidence that the land in
dispute was acquired by Durga Prasad and the
petitioners have neither set up nor established
the plea of 'ouster'. Therefore all the sons of
Durga Prasad have equal share and the
Consolidation Officer has rightly directed to
record the names of opposite party nos.4 to 7 as
co-tenure holders and determined their shares
accordingly.The appeal filed by the petitioners
was duly considered and rejected by the
Settlement Officer Consolidation. Similarly the
Deputy Director of Consolidation in the revision
found that the name of Vidyadhar was recorded
on behalf of all and rejected the revision. This
Court does not find any illegality or error in the
findings recorded by the learned Consolidation
Officer, Settlement Officer Consolidation and the
Deputy Director of Consolidation which are
based
on
cogent
evidence
and
correct
appreciation of evidence and law. Therefore the
present writ petition is misconceived and lacks
merit.The writ-petition is, accordingly, dismissed.

Writ
Petition
dismissed.
(E-8)
4 All. Keshav Dayal & Ors. Vs. Addl. Collector
163
List of cases cited:

1. Rama Kant Singh & Others vs D.D.C &
Ors;1965 ALJ 313

2. Dharam Prakash and anr vs D.D.C, U.P. Lko;
1970 ALJ 193.

3. Kailash Rai versus Jai Jai Ram; (1973) 1 SCC 527.

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Sri Nirmal Tiwari, learned
counsel for the petitioners and Sri Birendra
Narain Shukla, learned counsel for the
opposite parites.

2. The instant writ petition has been
filed
challenging
the
order
dated
18.02.1976 passed in Case No.581 under
Section 9-A(2) of the Consolidation of
Holdings Act by the Consolidation Officer,
by means of which the objection filed by
the respondent no.4 was allowed and the
names of opposite party nos. 4 to 7 has
been directed to be recorded as co-tenure
holders and order dated 29.09.1976 passed
by Settlement Officer Consolidation in
Appeal No.829 filed under Section 11 of
the Consolidation of Holdings Act and
order dated 21.01.1987 passed on revision
No.15/1344/36 under Section 48 of the
Consolidation of Holdings Act filed by the
petitioners.

3. Submission of learned counsel for
the petitioners is that the dispute relates to
Khata No.12, which was recorded in the
name of the father of the petitioners as
Khudkasht in the 1356 Fasli and 1359
Fasli. Therefore it cannot be divided and
recorded in the name of the co-sharers of
the other properties. He further submitted
that merely because Vidyadhar was
appointed Lambardar and the power of
attorney was in his favour, the land
recorded as Khudkasht in the name of the
petitioners cannot be divided. His further
submission is that without considering the
objection of the petitioners, the objection
of the opposite party no.4 has been
allowed and the property has been divided.
The appeal filed by the petitioners has
been dismissed by the Settlement Officer
Consolidation and the Deputy Director of
Consolidation
has
also
rejected
the
revision without considering the aforesaid
facts. Therefore the impugned orders are
liable to be quashed and the writ petition is
liable to be allowed with cost.

4. In support of his submissions,
learned counsel for the petitioners has
relied on the judgments of this Court in the
case of Rama Kant Singh & Others
versus Deputy Director of Consolidation
& Others;1965 ALJ 313 and Dharam
Prakash and another verus Deputy
Director of Consolidation, U.P. Lucknow;
1970 ALJ 193.

5. On the other hand, learned counsel
for the respondents submitted that though
the land was recorded in the name of the
father of the petitioners, Vidyadhar but the
land was acquired by the grand father of
the petitioners; namely, Durga Prasad and
his
three
sons
namely
Gangadhar,
Laxmidhar and Vidyadhar were his legal
heirs and co-sharers of property. However,
since their father was old and used to
remain ill and two brothers were living out
therefore they had executed power of
attorney in favour of the petitioners' father
Vidyadhar in regard to the land in
question.
Vidyadhar
was
also
got
appointed as Lambardar for the property
in question by his father and two brothers.
Therefore merely because the name of the
petitioners'
father
was
recorded
as
Khudkasht, he is not entitled for the said
164 INDIAN LAW REPORTS ALLAHABAD SERIES
land to be recorded in his exclusive name
because his name was recorded on behalf
of all co-sharers. It is settled proposition of
law that even if the land was recorded in
the name of one of the co-sharer, i.e.,
father of the petitioners in the present case,
the same was on behalf of all the cosharers. Therefore the power of attorney
was given to him and he was got appointed
as Lambardar also by them.

6. The respondents had filed the
evidence before the Consolidation Officer
and after considering the same, objection
of the opposite party no.4 was allowed and
the property was divided and their names
were directed to be recorded. Therefore
the present writ-petition is mis-conceived
and liable to be dismissed with cost. In
support
of
his
submissions,
learned
counsel for the respondents has relied on
the judgment of the Hon'ble Apex Court in
the case of Kailash Rai versus Jai Jai
Ram; (1973) 1 SCC 527.

7. I have considered the submissions
of learned counsel for the parties and
perused the records.

8. The dispute in the present writ
petition relates to Khata No.12, which was
recorded in the basic year in the name of
Vidyadhar, Son of Durga Prasad; father of
the petitioners no. 1 and 2 and grand father
of petitioner no.3/1. The objection was
filed by the opposite party no.4 before the
Consolidation Officer under Section 9A(2) for recording their names as cotenure holders stating therein that some
land out of the land in dispute was
acquired by their grand father Durga
Prasad through Sankalp and the remaining
land was purchased by him, the sale deed
of which was got executed in the name of
his sons namely Gangadhar, Laxmidhar
and Vidyadhar. The said land is ancestral
property. The grand father Durga Prasad
had become old and used to remain ill,
therefore, he had executed power of
attorney in the name of the father of the
petitioners i.e, Vidyadhar. The other two
sons namely Gangadhar and Laxmidhar
were in service and out of town. Therefore
they had also executed power of attorney
in favour of Vidyadhar and got him
appointed as Lambardar. Vidyadhar used
to live in the village and look after the
cultivation on behalf of all, therefore all of
them have equal share in the land in
dispute and their names should be
recorded
as
co-tenure
holders
and
partitioned accordingly.

9. The father of the petitioners had
denied the objections and possession of the
opposite parties and stated that he is in
exclusive possession. Vidyadhar died
during pendency of the case and after his
death his widow namely Smt. Shanti Devi
had filed the objections stating therein that
she has got the land through Will from her
husband. Therefore her name should be
recorded.
The
petitioners
also
filed
objections and stated that the said land was
neither acquired in Sankalp nor purchased
by Durga Prasad. The said land was the
sole Khudkasht of their father Vidyadhar
and there is no right of Smt. Gyan Devi in
the said property and Smt.Jagdei, the other
wife of their father has died.

10. The petitioners had filed
Khataunis of 1356 falsi,1359 fasli, 1373 to
1375 fasli, Jotbahi 1376 fasli to 1378
fasli,irrigation
slips,
land
revenue
receipts,taqavi receipts, copy of the order
dated
04.08.1973
passed
by
the
Consolidation Officer and copy of the
Aakar Patra No..41 and 45, Khatauni 1369
to 1371 fasli and Aakar Patra 23. The
4 All. Keshav Dayal & Ors. Vs. Addl. Collector
165
opposite parties had filed a copy of the
power of attorney executed by Badri
prasad in favour of Vidydhar and copies of
the sale deed dated 17.07.1928,11.04.1932
and 30.08.1938, copy of the order passed
by the Munsif dated 17.08.1930, copy of
the order passed by the Sub Divisional
Officer dated 05.04.1930, Sankalp dated
04.10.1989, the application for Lambardar
in favour of Vidyadhar dated 25.03.1949,
copy of the order dated 19.04.1950 passed
by the Sub Divisional Officer in regard to
Lambardar and Khudkasht of 1359 Fasli
etc.

11. After considering the pleadings
of
the
parties
and
evidence,
the
Consolidation Officer has recorded that
the land in dispute is of Muhals of Badri
Prasad and Lakshman Prasad. The name of
Vidyadhar as Khudkasht is recorded in
1356 fasli and 1359 fasli for the last 11
years and after abolition of Zamindari it
has been recorded as Bhumidhar in his
name. Vidyadhar was lambardar and as
per Khewat 1359 fasli, the land in dispute
was of Zamindar and in accordance with
the Khewat 1359 fasli all the three
brothers have equal shares in the said land.
The father and brothers had executed
power of attorney in favour of Vidyadhar,
from which it is apparent that since
Vidyadhar used to live at home and his
two brothers were living out therefore he
used to look after the Zamindari and
manage the cultivation. Accordingly, his
name was recorded in the revenue records
as Khudkasht and subsequently his name
was solely recorded as Bhumidhar. It has
been proved by the application of his
brothers and the order passed by the Sub
Divisional officer that Vidyadhar was
appointed Lambardar after the consent of
the brothers of the Vidyadhar, from which
it is apparent that there was a joint consent
of all the three brothers. It is settled
proposition of law that if there was a Joint
Hindu family and the name of one of the
family member was recorded out of all the
Khewatdars,all will have equal share.
Vidyadhar in his lifetime had filed
objection but he had not taken a plea of
'ouster' of his two brothers. Though he had
stated that he is solely in possession of the
property as Khudkasht. Subsequently after
his death his sons i.e. petitioners had filed
objections claiming that it was self
acquired and recorded as Khudkasht in the
name of their father. Therefore the other
brothers of Vidyadhar have no right in the
said property. If the separation would have
taken place, then Vidyadhar would not
have been appointed as Lambardar which
is
apparent
from
the
order
dated
19.04.1950
and
application
dated
29.03.1949. Vidyadhar also would have
got partition done on the basis of Khewat,
if he had no intention to give the shares to
his brothers.

12. On the basis of above, learned
Consolidation Officer has recorded a
finding that Vidyadhar used to manage the
cultivation from the time of Zamindari on
behalf of all brothers and his sole
possession was not against his brothers but
it was on behalf of all the brothers and
therefore his name was also recorded as
Khudkasht on behalf of all.

13. On due consideration of
pleadings and evidence, as discussed by
the learned Consolidation Officer, this
Court does not find any illegality or error
in the findings recorded by the learned
Consolidation Officer because nothing
could be pointed out against the aforesaid
findings except that since the land in
dispute was recorded in the name of
Vidyadhar as Khudkasht in the 1356 fasli
166 INDIAN LAW REPORTS ALLAHABAD SERIES
and 1359 fasli therefore it could not have
been divided. Submission may be correct
but if the name of the father of the
petitioners was recorded on the ancestral
property on behalf of all and others have
also given him power of attorney and got
him appointed as Lambardar to manage
the property, it cannot be said that since it
was recorded as Khudkasht in the name of
father of the petitioners therefore the other
brothers have no right and it cannot be
divided.

14. The Hon'ble Apex Court in the
case of Kailash Rai versus Jai Jai
Ram(supra) considered the issue of
Khudkasht in the light of provisions of
Section 18 of the U.P. Zamindari Abolition
and Reforms Act, 1950 and held that if the
plea of ouster has not been set up then in
law the possession of the co-sharer is both
on his behalf as well as on behalf of all
other co-sharers,unless ouster is pleaded
and established and if one co-sharer is in
possession of the land the other co-sharers
must be in constructive possession of the
land. The relevant paragraphs no.7 to 10
are extracted below:-

"7. This will be the convenient
stage to refer to the, material provisions of
the Abolition Act. Section 3 defines the
various expressions. In clause 26, it is
provided that certain other expressions
referred to therein, including khudkasht
and sir, shall have the, meaning assigned
to them in the United Provinces Tenancy
Act, 1939 (hereinafter referred to as the
Tenancy Act). Section 3(9) of the Tenancy
Act defines khudkasht as "land other than
sir culti- vated by a landlard, and underproprietor or a permanent tenure-holder
as such either himself or by servants or by
hired labour". Sir is defined in section 6
occurring in chapter 11 of the Tenancy
Act. Section 4 of the Abolition Act provides
for vesting of estates. from a date to be
specified by notification. Section 18(1) of
the Abolition Act, which is relevant for our
purpose, runs as follows :-

"18. Settlement of certain lands
with intermediaries or cultivators as
bhumidhars- (1) subject to the provisions
of sections 10,15,16and 17, all lands-(a) in
possession of or held or deemed to be held
by an intermediary as sir, khudkasht or an
intermediary's grove,

(b) held as a grove by, or in the
personal cultivation of a permanent lessee
in Avadh.

(c), held by a fixed-rate tenant or
a rentfree grantee as such, or

(d) held as such by-

(i)
an
occupany
tenant,
Possessing the right to

(ii) a hereditary tenant, transfer
the holding by

(iii) a tenant on patta sale.

dawami or istaim rari referred to
in section 17.

(e) held by a grove holder, on the
date immediately preceding the date of
vesting shall be deemed to be settled by the
State Government with such intermediary,
lessee, tenant, grantee or grove-holder, as
the case may be, who shall, subject to the
provisions of this Act, be entitled to take or
retain possession as bhumidhar thereof."

8. There is no controversy that
the date of vesting is July 1 1952 and the
date immediately preceding the date of
vesting is 30-6-1952. Under section 18 (1)
(a), broadly speaking, it will be seen, all
lands in possession of, or held, or deemed
to be held by an intermediary as sir,
khudkasht or an intermediary's grove on
30-61952, shall be deemed to be settled by
the
State
Government
with
such
intermediary. The said intermediary is
entitled to take or retain possession as
4 All. Keshav Dayal & Ors. Vs. Addl. Collector
167
bhumidar subject to the provisions of the
Abolition Act. In order to claim rights
under clause (a), it is necessary that the
lands should be, (1) in possession of an
inter- mediary as khudkanst or sir or (2)
held by an intermediary as khudkasht or
sir or (3) deemed to be held by an
intermediary as khudkasht or sir. If any
one of these alternatives is established,
clause (a), will stand attracted. Khudkasht,
as we have already pointed out, means
land, other than sir cultivated a landlord
'either by himself or by servants or by
hired labour.

9. The question is whether the
appellant can be considered to be in
"possession' of the lands as khudkasht or
whether it can be considered that the lands
are "held or deemed to be held by him" as
khudkasht. The finding sent by the District
Court is no doubt prima-facie against the
appellant. But we cannot ignore the decree
that has been obtained by him in suit No.
918 of 1945 and the further fact that he is
working out the said decree by asking for
partition in the present proceedings.
According
to
the
High
Court,
as
possession is with the defendants, the
plaintiff-appellant cannot get any relief.

10. It should be remembered that
the District Court has recorded a definite
finding that the defendants have not set up
any plea of ouster. This finding, so far as
we would see, has not been disturbed by
the High Court. The decree in suit No. 918
of 1945 clearly recognises the right of the
appellant as a co-sharer along with the
defendants. In law the possession of one
co-sharer is possession both on his behalf
as well as on behalf of all the other cosharers, unless ouster is pleaded and
established. In this case, as pointed out by
us earlier, the finding is that the
defendants have not raised the plea of
ouster. There is no indication in the
Abolition Act or the Tenancy Act that
bhumidari rights are not intended to be
conferred on all the co-sharers or coproprietors, who are entitled to the properties,
though only some of them may be in actual
cultivation. One can very well visualise a
family consisting of father and two sons, both
of whom are minors. Normally, the cultivation
will be done only by the father. Does it mean
that when the father is found to be cultivating
the land on 30-6-1952, he alone is entitled to
the bhumidhari rights in the land and that his
two minor sons are not entitled to any such
rights ? In our opinion, the normal principal
that possession by one co-sharer is possession
for all has to be, applied. Further, even when
one co-sharer is in possession of the land, the
other co- sharers must be considered to be in
constructive possession of the land. The
expression 'possession' in clause (a), in our
opinion, takes in not only actual physical
possession, but also constructive possession
that a person has in law. If so, when the
defendants were in possession of the lands and
when no plea of ouster had been raised or
established, such possession is also on behalf
of the plaintiff- appellant. Under such
circumstances, the lands can be considered to
be the possession of the appellant or, at any
rate, in his constructive possession."

15. The Hon'ble Apex Court, in the
aforesaid case, further considered the
contingencies
namely
lands
held
as
Khudkasht or lands deemed to be held as
Khudkasht and held that 'held' means
'lawfully held' and 'held' must have a
meaning
different
from
personal
cultivation. The relevant paragraphs 11
and 12 are extracted below:-

"11. Clause (a), as we have
pointed
out,
takes
in
two
other
contingencies also, namely, lands held as
khudkasht or lands deemed to be held as
168 INDIAN LAW REPORTS ALLAHABAD SERIES
khudkasht. Even assuming that, in view of
the finding of the District Court, the
defendants are in possession and on that
basis the plaintiff cannot be considered to
be also in possession, nevertheless, the
lands in question can be considered to be
held or deemed to be held by the appellant
also. The expression 'held' occurs in
section 9 of the Abolition Act. In
interpreting the said expression, this court
in Budhan Singh & Anr. v. Nab Bux & Anr.
(1) has held that it means 'lawfully held'.
This court has further observed that-

"According to Webster's New
Twentieth Century Dictionary the word
'held' is technically understood to mean to
possess by legal title. Therefore by
interpreting the word 'held' as 'lawfully
held' there was no addition of any word to
the section. According to the words ofs. 9
and in the context of the scheme of the Act
It is, proper to construe the 'word 'held' in
the section as 'lawfully held'."

12.
Mr.
Bagga,
however,
contended that the expression 'held' in
clause (a) denotes actual possession. As
the finding on that point is against the
appellant, the lands cannot be considered
to be 'held' by him. We are not inclined to
accept this contention. In clause (b) occurs
the words 'held' as a grow by'. If the
expression 'held' occurring in clause (a)
means actual possession, then the same
meaning must be given to the same word
occurring in clause (b) also. But it will be
seen that in the latter part of clause (b),
the legislature has used the expression
'personal cultivation with reference to
Avadh, whereas it has not used any such
expression in the first part of clause (b).
Therefore, the expression 'held' must have
a
meaning
different
from
personal
cultivation. In our opinion, the expression
'held' can only be taken to connote the
existence of a right or title in a person.
The appellant's right and title as holder of
the lands has been declared and settled in
suit No. 918 of 1945. It can also be held
that the lands can be considered to be
'deemed to be held' by the appellant. The
expression 'deemed to be held' has been
used by the legislature to treat persons like
the appellant bhumidhars by creating a
fiction."

16. The Hon'ble Apex Court, in the
aforesaid case, has also considered the
case of Rama kant Singh versus Deputy
Director
of
Consolidation
and
others(supra) of this Court relied by
learned counsel for the petitioners and
found that the said decision has been
passed without considering the various
aspects referred by Hon'ble Apex Court
which are in regard to Section 18(1) of the
U.P.
Zamindari Abolition
and
Land
Reforms Act and has not agreed by the
view taken by the High Court. The
relevant paragraph no.14 is extracted
below:-

"14. It is now necessary to
consider the decision of the Allahabad
High Court in Rama kant Singh versus
Deputy Director of Consolidation and
others(supra) following which the present
decision under appeal has been rendered.
It is no doubt true that the said decision
does support the respondents in the sense
that it holds that only that co- proprietor
who is in cultivatory possession, becomes
khudkasht holder and that possession over
proprietary rights by itself does not confer
khudkasht
holder's
rights.
The
said
decision, we find, has laid undue emphasis
on cultivatory possession, which alone will
attract clause (a) of section 18(1). There is
no consideration in the said decision of the
various aspects referred to by us and we
are not inclined to agree with the view
4 All. Keshav Dayal & Ors. Vs. Addl. Collector
169
taken by the High Court in the said
decision."

17. It has also not been disputed by
learned counsel for the petitioners that
Lambardar as defined in Section 3(3) of
the Land Revenue Act means a co-sharer
of a Mahal appointed under this Act to
represent all or any of the co-sharers in
that Mahal. The power of a Lambardar as
contained in Section 245 of the U.P.
Tenancy Act is primarily to collect rents
and other dues and to settle and eject
tenants to enhance rents and to manage the
estate with a view to the common benefit.
The
appointment
of
father
of
the
petitioners as Lambardar with the consent
of his brothers has not been disputed by
the petitioners. Therefore it is in fact
admitted that he was a co-sharer but the
dispute has only been raised because his
name was recorded as Khudkasht on
behalf of all.

18. In view of above, the judgment
cited by learned counsel for the petitioners
in the case of Rama Kant Singh versus
Deputy Director of Consolidation and
others(supra) does not hold a good law
and is not applicable on the facts and
circumstances of the present case.

19. The other judgment cited by
learned counsel for the petitioners in the
case of Dharam Prakash versus Deputy
Director of Consolidation(supra) is also
of no assistance to the case of the
petitioners rather it is against because in
the said case it has been held that the
proprietor who cultivates by that act
acquires Khudkasht rights in relation to
that plot. But once a proprietor becomes a
Khudkasht holder of a given plot and then
he dies, the entire body of his heirs at that
time
would
together
become
the
Khudkasht holder. His Khudkasht rights
will devolve on the heir whosoever he may
be. If the Khudkasht holder dies leaving
two sons both of them would become
Khudkasht holders of that plot. Thereafter
one of the two cultivators may alone
cultivate the land, but nonethless both of
them will remain the Khudkasht holders
unless the 'ouster' of one of them is
pleaded and established.

20. In view of above this Court is of
the considered opinion that merely by
recording a land as Khudkasht in the name
of one co-tenure holder it cannot be held
that it cannot be divided among co-sharers
unless it is proved that it was not ancestral
and his self acquired as Khudkasht and a
plea of 'ouster' is set up and established.

21. In the present case it has been
proved from the pleadings and evidence
that the land in dispute was acquired by
Durga Prasad and the petitioners have
neither set up nor established the plea of
'ouster'. Therefore all the sons of Durga
Prasad
have
equal
share
and
the
Consolidation Officer has rightly directed
to record the names of opposite party nos.4
to 7 as co-tenure holders and determined
their shares accordingly.

22. The appeal filed by the
petitioners was duly considered and
rejected
by
the
Settlement
Officer
Consolidation.
Similarly
the
Deputy
Director of Consolidation in the revision
found that the name of Vidyadhar was
recorded on behalf of all and rejected the
revision. This Court does not find any
illegality or error in the findings recorded
by the learned Consolidation Officer,
Settlement Officer Consolidation and the
Deputy Director of Consolidation which
are based on cogent evidence and correct
170 INDIAN LAW REPORTS ALLAHABAD SERIES
appreciation
of
evidence
and
law.
Therefore the present writ petition is
misconceived and lacks merit.

23. The writ-petition is, accordingly,
dismissed.

24. No order as to costs.
----------
(2020)02ILR A170

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.1.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ B No. 14851 of 1984

Ganga Prasad ...Petitioner
Versus
D.D.C. Agra & Ors. ...Respondents

Counsel for the Petitioner:
Sri S.D. Pathak, Sri Anil Kumar Aditya, Sri
Hemant Sharma

Counsel for the Respondents:
Sri N.B. Nigam

A.
U.P C&H Act-challenging
order-allowing
revision-disturbing
petitioner's
chak-excluding
0.79 acres-used as sahan-for ingress & egresswithout
considering-evidences
on
record-no
reasons recorded-for differing with the Courts
below-failed to reappraise-reasons given by C.O &
S.O.C-cannot pass judgements as court of original
jurisdiction-Petition-succeeds-allowed in part.

Held, the D.D.C, while deciding a revision
cannot write his judgment like that of a court
exercising original jurisdiction. He has to write
his judgments in the fashion of a court of
revision. The powers of the DDC, in view of the
third proviso to sec 48 of the Act, have been
immensely enlarged retrospectively w.e.f 1980,
that would apply in this case. Post amendment,
the DDC, exercises a most non conservative
kind of revisional jurisdiction where he is a
court entitled to decide all questions of fact and
law, like a court of regular appeal. But that
notwithstanding, the obligation of a revisional
court to exercise jurisdictionin the manner a
court f revision is supposed to do, cannot be
said to be done away with. As a revisional
court, the DDC is obliged to reappraise the
reasoning of the C.O and SOC, and then
reverse, affirm or modify the orders impugned
before him. He cannot write his judgment in
the fashion of a third court of original
jurisdiction, after the CO and SOC have dealt
with the matter as authorities of original and
Appellate
Jurisdiction.
This
court
finds
impugned order to be flawed. Writ succeeds
and is allowed in part.

Writ Petition partly allowed. (E-8)

List of cases cited: -

1. Gulab Chand & Ors vs DDC & ors 2019 (6) ADJ 857

2. Haridas & ors vs DDC & Anr 2005 SCC online
All 2263; 2005 (98) RD 593
(Delivered by Hon'ble J.J. Munir, J.)

Order on Civil Misc. Intervening
Application No.2 of 2019

1. This is an application on behalf of
one Suresh Chandra Rawat, who has
sought to intervene in these proceedings.
The applicant could be heard under
Chapter XXII Rule 5-A of the Rules of
Court without formal impleadment as a
party. However, when the case was called
on, no one appeared on behalf of the
applicant who is represented by Sri Anil
Kumar Aditya, Advocate.

2. This application is, accordingly, rejected.

Order on the Writ Petition

3. This writ petition has been filed
challenging an order of the Deputy