A recorded tenant's consent is essential for an unrecorded co-tenant to acquire Bhumidhari rights; absence of such consent invalidates claims to ownership.

JUDGMENT

Saurabh Shyam Shamshery, J.

Heard Sri. Sanjai Kumar Pandey, learned counsel for the petitioner and Sri. Sabhapathi Tiwari, learned counsel for the respondents.

2. During consolidation proceedings a dispute arose relating to Khata Nos.68, 69, 108 and 110 of land situated in Village Siyaon Nankar. In the basic year Khata No.68 was recorded jointly in the name of Ram Tahal (father of original respondent Nos.2, 3 and 4) son of Bisheswar and Ram Lal (original petitioner) son of Dinai. Khata Nos.69 and 110 was recorded exclusively in the name of Ram Lal (original petitioner) son of Dinai whereas Khata No.108 was recorded in the name of Ram Tahal son of Bisheswar.

3. During consolidation, original petitioner Ram Lal filed an objection that land in dispute was acquired jointly by Bisheswar, Nageswar and Kalpu, who were brothers and sons of Parsu but Bisheswar being eldest of them and also being head of family, therefore, only his name was got recorded in the revenue record, whereas all were in cultivatory possession of land in dispute.

4. It is not much in dispute that out of three brothers, firstly Nageswar died issue-less, Bisheswar died thereafter and then widow of Nageswar died and lastly Kalpu died. The original petitioner is daughter's son of Kalpu. Kalpu and Bisheswar both deposited ten times of rental for their 1/3rd and 2/3rd share respectively for Bhumidhari Sanad on 16.02.1950. On 18.05.1950, Bhumidhari Sanads were issued to both Kalpu and Bisheswar for their respective shares. On 17.04.1954, Kalpu has executed a registered gift deed in favour of his daughter's son Ram Lal, the original petitioner. Thereafter, on 27.09.1955, after death of Kalpu, name of Ram Lal was mutated under order of Naib Tehsildar.

5. During consolidation, Ram Tahal, father of the respondent nos.2 to

4, filed objections claiming his exclusive right and title over land in dispute that his father Bisheswar has acquired property in dispute exclusively and that he was recorded originally but later on other parties in collusion with Lekhpal and Patwari got their names recorded fictitiously. Original petitioner has also filed objections.

6. Before consolidation proceedings, there were litigation between the parties. The suit was decreed, however, during pendency of appeal thereof, since consolidation proceedings commenced, therefore, appeal was abated.

7. The Consolidation Officer, by order dated 31.3.1971, has rejected objections of father of respondent Nos.2 to 4 as well as objections of original petitioner and directed to expunge the name of original petitioner from Khata Nos. 68, 69 and 110.The relevant part thereof is mentioned herein after:-

"2. The name of Ram Lal is expunged from Khata No.68.

3. The name of Ram Lal be expunged from Khatas 69 and 110 and the name of Ram Tahal be entered instead."

8. The original petitioner being aggrieved by above referred order preferred an appeal, which was allowed in part by order dated 13.07.1971. It was directed that in Khata Nos.68 and 69, the original petitioner had 1/3rd share and Ram Tahal had 2/3rd share. It was further directed that Khata No.110 shall be continued in the name of Ram Lal whereas Khata No.108 shall be continued in the name of Ram Tahal. Relevant part of order is mentioned hereinafter:-

"" I have heard the learned counsel for the parties and have also gone through the connected records on file. My findings are as under.

There is no document on file to show that Nagesar was son of Parsu. There is also no document to show that Smt. Bhamani was widow of Nagesar. There is also no evidence which could prove that Nagesar was co-tenure holder of the Khatas in dispute. The extract of Khatauni for 1324 F is on the file. The plots in dispute are record in the name of bisesar s/o Bersu with 5 years period of cultivation. The extract or Khatauni for 1348 is on the record. The plots in dispute recorded in the name of Bisesar alone with 4 years period of cultivation. The extract of Khatauni for 135