The main legal point established in the judgment is the interpretation of the effect of a preliminary decree for partition and the issue of survivorship in the case of the death of a co-owner.

JUDGMENT :

V. Ramasubramanian, J.

1. This appeal arises out of the dismissal of a writ petition challenging the outcome of the proceedings under Section 9-A(2) of the U.P. Consolidation of Holdings Act, 1953.

2. We have heard the learned counsel for the respective parties.

3. Since the litigation in which the parties are involved, is nearly a century old, it may be necessary to begin the narration with a genealogy tree of the family. The common ancestor of both the parties was one Gajadhar Misra. He had three sons by name Sita Ram, Ramesar and Jagesar. Sita Ram died issueless. Ramesar had a son by name Bhagauti. This Bhagauti had two sons by name Jangi and Triloki.

4. Jagesar had three sons by name Basdeo, Sarju and Shabhu. Each of them had his own lineage.

5. The genealogy tree of the family is as follows:-

6. In the year 1928, Bhagauti filed a suit for partition, in suit No.934 of 1928. When an objection to the jurisdiction of the Court was raised, the plaint was returned for presentation to the proper Court. Accordingly, it was presented to the Additional Civil Court and numbered as Suit No.119 of 1929.

7. By consent of parties, the dispute was referred to arbitration by elders and the arbitration award about the manner of partition was accepted and the suit decreed in terms of the award.

8. It appears that Sita Ram as well as Ramesar, two of the three sons of Gajadhar Misra died after the decree. The exact dates of death of Sita Ram and Ramesar are not indicated. However, it was claimed by one group that Ramesar pre-deceased Sita Ram and that, therefore, Sita Ram’s 1/3rd share went to Jagesar by way of survivorship, making the share of Jagesar as 2/3rd.

9. But Bhagauti, son of Ramesar filed a suit in Suit No.331 of 1944 claiming that the decree passed in the suit of the year 1929 was collusive and not binding. But the said suit was dismissed by the trial Court by a Judgment dated 21.01.1946. The dismissal was confirmed by the First Appellate Court.

10. It appears that mutation in the revenue records took place in 1952 and thereafter objections were filed apparently by both parties under Section 9 of the U.P. Consolidation of Holdings Act, 1953. The rival contentions revolved around the validity of the partition decree passed in Suit No.119 of 1929 and the dismissal of the subsequent suit of the year 1944. One branch of the family claimed that the partition decree was never given effect to and that the land continued to be in their possession.

11. The Consolidation officer passed an Order dated 04.05.1973, holding that the share of Ramesar got separated in the partition that took place in 1929 and that the shares of Jagesar and Sita Ram were held jointly and that therefore, upon the death of Sita Ram without any issues, his share would have gone to Jagesar. As a consequence, the consolidation Officer held that Jangi & Triloki, the children of Bhagauti, who was the son of Ramesar will get only 1/3rd share and the children of Jagesar will get 2/3rd share.

12. Both the branches filed appeals. The appeal of the persons representing the branch of Jagesar was confined to a self acquired property, even in which the other branch was allotted 1/3rd share.

13. The Assistant Settlement Officer dismissed the appeal filed by the members of the branch of Jagesar.

14. The above order led to the filing of two revision petitions by the branch of Jagesar and another revision petition by the branch of Ramesar.

15. The Deputy Director of Consolidation allowed the revision petition filed by the branch of Ramesar and dismissed the revision petitions filed by the branch of Jagesar. This was on the ground that the preliminary decree for partition granted in the suit of the year 1929 was never given effect to. It was also held that there was no evidence to show who among the two namely, Sita Ram and Ramesar died first. The revisional Authority therefore held that both the branches of Ramesar and Jagesar are entitled to half share each.

16. Aggrieved by the order of