Living together does not imply joint ownership of property; independent possession negates jointness.

JUDGMENT

Manish Kumar, J.

Heard learned counsel for the petitioner and Sri. Balram Yadav, learned counsel for the Respondent No.2 and Sri. Hemant Kumar Pandey, learned Additional Chief Standing Counsel for the State.

2. The present writ petition has been preferred for quashing of the revisional order dated 9.2.1982 passed by Respondent No.1- Deputy Director of Consolidation, Faizabad under Section 48 of the the Uttar Pradesh Consolidation and Holdings Act, 1953 (hereinafter referred to as 'the Act, 1953').

3. Learned counsel for the petitioner has submitted that the dispute is with regard to Khata No.85 Situated at Village Faridpur. The said property was acquired by the grand-father of the petitioner Late Lautan on the fresh settlement in his favour on Khata No.85 and the sole name of grand-father of the petitioner is recorded in the revenue record since the fasli year 1331.

4. It is further submitted that at the time of consolidation proceedings the Respondent Nos. 2, 3 and 4 (after their demise during the pendency of the present writ petitioner theirs legal heirs have already been substituted so they may be addressed as respondents) had filed an objection under Section 9A(2) of the Act, 1953 claiming co-tenancy in Khata No.85 situated at Village Faridpur. The said claim of the respondents were rejected by the Consolidation Officer by its order dated 11.01.1973. Against the said order passed by the Consolidation Officer the respondents preferred an appeal before the Settlement Officer (Consolidation) under Section 11(1) of the Act, 1953, which was also dismissed by judgement / order dated 23.08.1973. Against the said judgement, the respondents preferred a revision under Section 48 of the Act, 1953 before the Deputy Director of Consolidation, Faizabad, which was allowed by the Respondent No.1, against which the present writ petition has been filed.

5. Learned counsel for the petitioner has further submitted that the revisional order has been passed treating the aforesaid land in dispute as joint holding on the basis of the fact that Late Lautan and Naresh the brother of respondents were residing together at the time of acquisition of land in dispute, merely on the basis of living together and given co-tenancy rights to the Respondent No.2 by the Revisional Court in the most arbitrary manner.

6. On the other hand Sri. Balram Yadav, learned counsel for Respondent No.2 has submitted that the property was initially recorded in the name of Sheo Tahal / Shiv Lal since 1301 fasli and after his demise it was devolved in favour of his one son Suraj Bali out of other three sons in 1328 fasli and after his demise it was devolved upon Late Lautan and entered his name since 1331 fasli i.e. grand-father of the present petitioner.

7. It is further submitted that the petitioner in his statement had accepted that the property of Village - Jalludinpur was devolved upon Respondent No.2 i.e. Late Bhikhari and others and the property of Faridpur the Bhikhari was given 1/4th share.

8. It is further submitted that once the joint living of the petitioner and Respondent No.2 together has been proved then there is no other option except to declare that the property was acquired when the ancestors of the petitioner and respondents were living together by the learned Revisional Court.

9. After hearing learned counsel for the parties and going through the record of the case, the dispute in the present writ petition is with regard to Khata No.85 situated at Village - Faridpur. The petitioner is claiming his right on the basis of succession as the property was acquired by the grand-father of the petitioner i.e. Late Lautan after the fresh settlement, the said fact would be seen from the finding given in the impugned Revisional order that the said property was acquired when Late Lautan at the time when Naresh, the brothers of Respondent No.2 were living together and since 1331 fasli entry was in the name of late Lautan alone and prior to that in 1328 fasli it