The court established that property was self-acquired, not ancestral, and rejected claims of adverse possession and family settlement due to lack of evidence.

JUDGMENT :

Jaspreet Singh, J.

1. Heard Shri U.S.Sahai, learned counsel for the petitioners, Shri Mohd. Kashif Rafi and Shri Prakash Verma, learned counsel appearing on behalf of heirs of deceased respondent no.5 and Shri Pankaj Srivastava learned counsel for respondent no.7.

2. This judgement will decide Writ Petition No.4405 of 1985 ( Agya Ram and another Vs. Assistant Director Consolidation and others ) and connected Writ-B No.3396 of 1987 ( Chhotey Lal and another Vs. Assistant Director of Consolidation and others ).

3. Since both the writ petitions assail the common order passed by the Settlement Officer of Consolidation and the Deputy Director of Consolidation and involve common facts and questions of law, hence both the petitions have been clubbed and are being decided by this common judgement. Since the petitions are pending since 1985 and 1987 and few of the parties have expired and their legal heirs have been brought on record, however for the sake of convenience, the court shall be referring to the parties as they were originally impleaded before the consolidation courts.

4. The dispute relates to Khata No.5 which is a bhumidhari Khata and Khata No.41 which is a Sirdari Khata, situated in village Pipra Ekdanga, Pargana and Tehsil Utraula, District Gonda.

5. Upon commencement of consolidation operations in the village in question, the names of Agya Ram, Parag and Smt. Chhitna was recorded. Half share was shown of Smt. Chhitna whereas Agya Ram and Parag had 1/4th share therein.

6. Smt. Yashodra filed her objections under Section 9 (A-2) of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the "Act of 1953") claiming co-tenancy right alongwith her sister Smt. Chhitna. The petitioners Agya Ram and Parag also filed their objections stating therein that they together had 2/3rd share in both the Khata Nos.5 and 41 which was incorrectly shown as half share with Chhitna whereas she only had 1/3rd share therein. This was claimed on the basis of a compromise said to have been entered between the parties in mutation proceedings before the court of Tehsildar on 28.2.1959.

7. Another set of objections was filed by Awadh Ram claiming co-tenancy rights but the same was turned down and thereafter he did not pursue his claim any further and for the said reason, the main contest remained between Smt. Chhitna, Smt. Yashodra and Parag and Agya Ram.

8. Before the Consolidation Officer, the case as set up by the petitioners namely Agya Ram and Parag was that the disputed Khatas in question were procured/ created by Hardwar and Har Krishan who were real brothers. It was further stated that a family settlement was arrived at between the parties and as a consequence 2/3rd share came in the hands of Parag and Agya Ram together whereas 1/3rd share was that of Smt. Chhitna. It was further stated that since Hardwar was the elder brother, hence his name was recorded and after his death, the name of his wife Smt. Pran Dei was recorded. After the death of Pran Dei, in the mutation proceedings, before the Tehsildar, a settlement/ compromise was arrived at wherein Smt. Chhitna had acknowledge and accepted the share of Parag and Agya Ram together having 2/3rd whereas Smt. Chhitna would have 1/3rd. Thus, it was stated that the entry in the base year Khatauni noticing half share of Chhitna was incorrect and Smt. Chhitna though had filed her separate objections they were not tenable as Smt. Chhitna in pursuance of the compromise entered before the Tehsildar was estopped from taking a contrary plea nor she could challenge the 2/3rd share of the petitioners.

9. Awadh Ram who had filed his set of objections claimed that the property in question was created by the common ancestor Matai who was survived by his four sons namely Hardwar, Har Krishan, Hardutt and Har Prasad. It was further stated that Hardwar was the eldest and hence his name was duly recorded in representative capacity. However, the family continued to remain joint and as such upon