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6. It has been submitted by learned counsel for the petitioners that during the pendency of the Appeal, Smt. Raj Dei died and was substituted by her two sons i.e. petitioner nos.1 and 2.

7. In the order dated 09.02.2001 passed by the Settlement Officer (Consolidation), it was held that Jagannath was the sole tenant of the land in dispute. On his death, the land devolved upon his widow Bachauna and on the death of Smt. Bachauna, her daughter Raj Dei was entitled to be recorded as sole tenant of the land in dispute.

27. Apparently, the argument raised in the written submissions by the counsel for the petitioner is correct. However, this Court having perused the order impugned has found that this writ petition can be allowed on another more plausible ground.

28. A perusal of the plaint filed before the court of Munsif Gonda (Annexure-4 to the Writ Petition) shows that the sons of Ganesh had filed the said suit praying for a Declaratory Decree in their favour as Sirdars of the land in question and in the alternative, if it could not be proved that the land in question was the joint Sirdari holding of the plaintiffs and the defendant, then the plaintiffs be held to have perfected their right as having adverse possession over all the land in question since long. The details of 91 plots of land ad-measuring a total of 13.23 acres of land had been given in the said plaint. The grounds for the relief claimed before the civil court are the same as have been mentioned in the counter affidavit filed by the respondents i.e. earlier the land in question was the Sirdari of Chhitai which devolved upon his two sons Ganesh and Jagannath. At first, the name of Ganesh alone was recorded in the revenue records but later on after his death and his sons, the plaintiffs, being minor, the land came to be recorded in the name of Jagannath. The land in question however still remained in the joint possession of all the members of the joint family. After the death of Jagannath, his widow Bachauna came to be wrongly recorded as Sirdar of land in question and gaining knowledge of such wrong recording of name of Bachauna alone as Sirdar of the land in question, the suit had been filed for declaration.

33. It is evident from the order impugned dated 20.05.2002 that the Deputy Director of Consolidation first considered the pedigree as indicated in the Revisions filed by respondent nos.2 to 5. It had been submitted before him that Khata no.93 was recorded since the very beginning i.e. since 1345 Fasli in the name of Chhitai, the common ancestor under Category III. Later on, it came to be recorded in the name of Jagannath under Category II. After the death of Jagannath, which occurred before the U.P. Z.A. & L.R. Act came into operation, the Category II entry was made in the name of his widow Smt. Bachauna. Smt. Bachauna was reported to have made out a registered Will deed on 30.04.1948 in favour of respondent nos.2 to 5 and later on she executed a Will deed on 04.01.1952 in favour of her grandson Jag Ram- the petitioner no.1 with respect to the same property. However, such Will deeds, did not give any right to either the respondents or to the petitioner no.1 as they had been made out by Smt. Bachauna as the Sirdar of khata no.93. No rights could devolve on the basis of such Will deeds which were executed without any entitlement in the testator to do so.

37. However, the Deputy Director of Consolidation found that only on the basis of the compromise decree half share could not have been given to Jagannath and to his legal heirs i.e. Mst. Bachauna, Raj Dei, Jag Ram and Ram Dev thereafter. If the compromise decree dated 07.01.1954 was to be followed in its entirety, the land would have devolved on the sons of Ganesh i.e. Nageshwar, Ram Samujh and others as it was Sirdari land, and could not have been passed on by Mst. Bachauna to her daughter i.e. Smt. Raj Dei, the mother of the two petitioners herein. It was observed by the Deputy Director of Consolidation that the Consolidation Officer having found that the name of Mst. Bachauna continued to exist on the khatauni even after the compromise decree was passed on 07.01.1954 should have examined the question of declaration of ownership of Sirdari land. If the compromise decree of Munsif, Gonda dated 07.01.1954 was to be followed, then the decree had provided for the land in question to remain in the name of Mst. Bachauna only till her death, and to thereafter devolve upon the sons of Ganesh i.e. Nageshwar, Ram Samujh and others, the predecessors of respondent nos. 2 to 5. The Deputy Director of Consolidation also found that the Settlement Officer (Consolidation) fell into the same error when he altogether ignored the decree dated 07.01.1954 and even when there was no challenge to the same, Settlement Officer (Consolidation) had observed it to be apparently obtained fraudulently.