No. 10-COURT’S ORDER WHETHER THE CASE IS OR NOT APPROVED FOR REPORTING [Chapter VIII, Rule 32(2)(b)] Description of Case WPMS No. 868 of 2001 (Old CMWP No. 49774 of 1999) Ali Hasan son of Abdul Latif (deceased) substituted by his legal heirs Tarsem and another. Versus The Deputy Director of Consolidation Haridwar and others. A.F.R. (Approved for Reporting) Not Approved for Reporting ( B.S. Verma, J. ) Initials of Judge. Date 18-11-2008 THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 868 of 2001. (Old CMWP No. 49774 of 1999) Ali Hasan son of Abdul Latif (deceased) substituted by his legal heirs Tarsem and another. … Petitioners. Vs. The Deputy Director of Consolidation Haridwar and others. …Respondents. Sri Alok Singh, Senior Advocate, with Sri Gajendra Tripathi, learned counsel for the petitioners. Sri Sudhir Kumar, Brief Holder for the State for the respondents Nos. 1, 2 and 3. Sri Ajay Veer Pundir, learned counsel for the respondent nos. 4 and 5. Date November 18, 2008. P.C.: Hon’ble B.S. Verma, J. Heard Sri Alok Singh, Senior Advocate, with Sri Gajendra Tripathi, learned counsel for the petitioners and Sri Ajay Veer Pundir, learned counsel for the respondent nos. 4 and 5. By means of this writ petition, the petitioners have sought a writ of certiorari quashing the judgment and order dated 12-11-1999 passed by the respondent no. 1 (Annexure No. 5 to the writ petition) whereby the revision of the respondent no. 4 and 5 was partly allowed by the Deputy Director of Consolidation, Saharanpur, Camp Haridwar (for short the D.D.C.) and he also ordered that the names of respondent nos. 4 and 5 be recorded as co-tenure holder along with Sri Ali Hasan except plot No. 67/4 and 119 of Khata No. 11 of village Mahal Jadid Mustahkam. Briefly stated, the facts giving rise to the present writ petition are that the father of deceased petitioner Ali Hasan, namely late Abdul Latif, was occupancy tenant and he was also recorded in 1359 Falsi as occupancy tenant in the revenue records and he had acquired Adhivasi rights thereon, later on Sirdari rights by way of amendment and subsequently by operation of law Bhumidhari rights without paying ten times of land revenue. The respondent nos. 4 and 5 filed objection before the Consolidation Officer under Section 9A of the U.P. Consolidation of Holdings Act (for short the Act) on the ground that the petitioners as well as respondent no. 4 and 5 are co-tenure holders and the land in dispute is ancestral land. According the respondent nos. 4 and 5, the land belonged to one Mr. Lahiya and after the death of Lahiya, Bahadur and Natthu inherited the land. Thereafter, the share of Bahadur was inherited by Shahjada and after the death of Shahjada, Abdul Latif (father of deceased petitioner Ali Hasan) and Mazhar Hasan, father of respondent nos. 4 and 5 inherited the same. In reply, it was started by the petitioners’ father late Ali Hasan in para 7 of his objection before the Consolidation Officer that prior to the Zamindari Abolition, the land was in exclusive possession of Abdul Latif and Zamindar was one Nisar Ahmad. The land had never been recorded in the name of Shahzada and Natthu and after the death of Abdul Latif, the petitioner Ali Hasan (now deceased) inherited the land in disputed by succession and respondent nos. 4 and 5 or their father had no concern with the land. The land was not recorded in the revenue record prior to enforcement of Zamindari Abolition and Land Reforms Act in the name of ancestor of respondent nos. 4 and 5. After hearing the petitioner as well as respondent nos. 4 and 5, the learned Consolidation Officer on the basis of evidence has rejected the objection of respondent nos. 4 and 5 vide judgment and order dated 5-5-1995. Aggrieved by the order passed by Consolidation Officer, the respondent nos. 4 and 5 preferred an appeal under Section 11(1) of the Act before the Settlement Officer Consolidation Haridwar (for short S.O.C) on the same grounds, which were takenby the respondents in their objection before the Consolidation Officer. After hearing both the parties, the S.O.C. gave a categorical finding that the land was recorded in the name of Abdul Latif in 1359 Fasli as occupancy tenant and lateron after coming into force of the U.P.Z.A. and L.R. Act, Abdul Latif became Sirdar. Respondent nos. 4 and 5 have miserably failed to prove that the land was ancestral land belonged to Mazhar Hasan or his father Sahzada or his father Bahadur. It has been further held that the entry in the revenue record, unless rebutted, be presumed genuine as per Section 44 of the U.P. Land Revenue Act and the appeal was dismissed vide order dated 4-3-1998. Further aggrieved by the order of the S.O.C., respondent nos. 4 and 5 preferred a revision before the D.D.C. Learned D.D.C. after hearing both the parties, partly allowed the revision on the ground that the land was ancestral land and exclusive possession of late Abdul Latif has no relevance and he ordered to record the names of respondent nos. 4 and 5 in some land, as has been mentioned in the order impugned as co-tenure holders following the concept of joint family. Having heard learned counsel for the parties and having perused the averments made in the writ petition as well as the counter affidavit along with its annexures as also having gone through the impugned judgment, I find that the only controversy to be decided in the present writ petition is whether the concept of joint family property would be attracted in the present case or not. Learned counsel for the petitioner has vehemently argued that the concept of joint family can only be made applicable in the case of Hindu Undivided Family where the land is recorded in 1359 Fasli as Sir or Khudkast in the name of Karta of the family. This concept cannot be made applicable in case of Muslims and particularly in a case where the land belonged to a Zamindar and some persons are in occupation of the land prior of the date of vesting. Learned counsel appearing for the respondent nos. 4 and 5 has contended that the land was in joint possession of the parties prior to the date of vesting. But only the name of Abdul Latif was recorded in representative capacity. It is not disputed that the parties are Muslims and it is also not disputed that the name of Abdul Latif was recorded in 1359 Fasli as occupancy tenant and Zamindar was Nisar Ahmad. These facts were not controverted by the respondents. The only objections of the respondent nos. 4 and 5 before the Consolidation Officer was that the land was joint land prior to the date of vesting. The respondent nos. 4 and 5 have also filed some document to prove the pedigree, which was relied upon by the revisional court for the purpose. The pedigree is not disputed in the case at hand. The question to be examined is whether the names of respondent nos. 4 and 5 can be recorded as co-tenure holders following the concept of Hindu Undivided Family in the case of Muslims. It is well settled law that the concept of joint family property can be made applicable only in the case of Hindus and it is also well settled that Hindus inherit the share in Sir of Khudkast land. If any person was born prior to the date of vesting, then only he can acquire the land by birth and can get the share if the name of Karta of the family was recorded in the representative capacity of the family. Learned D.D.C. has committed a manifest error of law by following and applying the concept of joint family property in the present case, where both the parties are Muslims and recorded the name of respondent nos. 4 and 5 along with the petitioner without any basis. It is made clear that there was a categorical finding of the Consolidation Officer as well as S.O.C. that the name of Abdul Latif was recorded in 1359 Fasli as occupancy tenant and Zamindar was Nasir Ahmad. It is also not disputed that the land is not a Sir or Khudkast of Abdul Latif and his ancestors. It would suffice to mention that as per law of succession after the date of vesting, the tenure holders would succeed the land as per provisions of U.P. Zamindari Abolition and Land Reforms Act irrespective of their religion. For the reasons and discussions in the foregoing paragraphs, the writ petition is liable to be allowed. The impugned order passed by the D.D.C. in revision is liable to be set aside. The writ petition is allowed. The impugned order dated 12-11-1999 passed by the D.D.C. is set aside and the order dated 5- 5- 1995 passed by the Consolidation Officer and order dated 4-3-1998 passed by the S.O.C. are maintained costs easy. (B.S. Verma, J.) RCP