The burden of proof in claims of co-tenancy rests on the claimant, and insufficient evidence can result in the rejection of such claims.

JUDGMENT :

(Saurabh Shyam Shamshery, J.)

1. Heard Sri Kedar Nath Mishra, learned counsel for petitioner and Sri Sharad Chand Singh, learned A.C.S.C. for State.

2. The dispute is related to plot No.85 being area of 00.35 and 86 being area of 1.36 of Khata Khatauni No.42 situated in village Manga Kodar Tappa Nagva Tikar Pargana Silhat, Tehsil Sadar, District Deoria.

3. In basic year, when consolidation proceeding commenced, the name of petitioner was recorded as a tenant holder.

4. The opposite party No.3 has filed objection before the Consolidation Officer claiming co-tenancy rights to the extent of half share and also for partition by separation of chaks. It was claimed by original opposite party No.3-(Chhedi son of Khedu) and that Khedu was son of Phagu, however petitioner has disputed that Khedu and Puranwasi were not brother. Puranwasi was only son of Phagu.

5. In initial round, objection filed by respondents were rejected by the Consolidation Officer. The appeal thereof was partly allowed and Deputy Director of Consolidation by order dated 21.2.1972 remitted the case to Consolidation Officer to decide afresh.

6. In second round of litigation, the Consolidation Officer has considered documentary and oral evidence fresh and rejected the case of original respondent No.3-(Chhedi) by order dated 26.05.1975 and relevant part thereof is reproduced hereinafter:-

7. The original respondent No.3 thereafter filed an appeal which was allowed in part. The claim of contesting respondent was rejected qua to Khata Nos. 1, 2 and 790, however, his claim of co-tenancy in Khata Nos. 85 and 86 was allowed by declaring that respondent No.3 was son of Khedu and grand son of Phagu. It was held that respondent No.3 was brother of original petitioner. The relevant part thereof is reproduced hereinafter :-

8. In the aforesaid circumstances, both parties referred revision petitions, however, both petitions were rejected by order dated 18.03.1976 and relevant part thereof is mentioned hereinafter :

(Emphasis Supplied)

9. Learned counsel for petitioner has submitted that the Consolidation Officer while considering the evidence led on issues framed, returned a specific finding and rejected the claim of contesting respondent as well as held that contesting respondent No.3 was not a part of petitioner’s family.

10. Learned counsel further submitted that number of documents were placed before Consolidation Officer in support of his claim which are part of order passed by him and that Consolidation Officer has rightly placed reliance on ‘Kutumb Register’, wherein contesting respondent’s name was not recorded and that for almost three decades, original respondent never tried to take any step to record his name in revenue records.

11. Learned counsel further submitted that Appellate Authority in a very cursory manner has shifted the entire burden on petitioner to prove that contesting respondent No.3 was not his brother. The original petitioner have discharged initial burden and it was on respondent No.3 to prove that he is part of pedigree of petitioner.

12. Learned counsel further submitted that Revisional Authority has committed same error. Both authorities have committed further error that on said evidence, claim of original petitioner was considered on three khatas but on same set of evidence they have erroneously accepted claim of contesting respondent and wrongly held contesting respondent to be co-tenant on Khata Nos. 85 and 86.

13. Since no one has entered appearance on behalf of respondents, therefore, Sri Sharad Chand Singh, learned A.C.S.C. for State has assisted the Court.

14. In pre