Court No.2 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No.81 of 2001 (Old No.25637 of 2000) Amar Singh & others. ………. Petitioners Versus Deputy Director of Consolidation Udham Singh Nagar and others. ……….. Respondents ……………….. Sri Shyam Mohan Advocate holding brief of Sri Akhilesh Kalra, learned counsel for the petitioners. Sri H.M.Raturi, learned Standing Counsel for the respondent Nos.1 to 3. Sri K.N.Joshi, learned counsel for the respondent Nos. 4 to 9. Date: Aug. 26,2008. Hon’ble P.C.Verma,J. This petition is directed challenging the judgment and orders dated 14.01.1991, 13.06.1991 and 26.02.2000 passed by respondent Nos. 3, 2 & 1 respectively, contained in Annexure Nos. X, Y Z to the writ petition. 2. The facts, in brief, are that the dispute relates between the parties to plot No.97/1 measuring 13 Bigha 11 Bishwa situate at Village-Saijna, Pargana Rudrapur, Tehsil Kichha, District-Nainital. After publication of notification under Section 4 of the Consolidation of Holdings Act, 1953, the consolidation authorities prepared basic year Khatauni. In the basic year Khatauni the land in dispute was recorded in the name of petitioners. The predecessor-in-interest of the 2 respondent Nos. 4 to 9, namely, Mool Chand filed objection under Section 9 for expulsion of the name of the petitioners from the land in dispute and to record his name in place of the petitioner. The objections were filed on the ground, inter alia, that the land in dispute was the co-bhumidhari of the objector and his real nephews, namely, Roshan Lal and Thakur Das which was inherited from their father. Roshan Lal and Thakur Das died issueless and the land of the share of Roshan Lal and Thakur Das was recorded in the name of their respective wives, namely, Smt.Nanni and Smt.Ram Murti and co- tenure holder alongwith the objector. Smt.Ram Murti after some time of death of Thakur Das re-married with one Munna Lal son of Chunni Lal and since then is living with Munna Lal as his wife and also gave birth to two children. After her re-marriage, Smt.Ram Murti has no right over the land and now the objector is the tenure holder of the land of the share of Smt.Ram Murti. 3. The petitioners contested the objections filed by respondent Nos. 4 to 9 on the ground that the land in dispute was acquired by Nanni, Ram Murti and Mool Chand jointly after death of Roshan Lal and Thakur Das and the land in dispute was not acquired by Roshan Lal or Thakur Das. Suit for partition wherein the right of Smt.Ram Murti had already been declared and her share was partitioned which is the land in dispute and that the present objection filed by the respondent Nos. 4 to 9 is barred on the principles of res judicata on the basis of the decree dated 24.12.1989 passed in Suit No.22/48 of 1970-71. In any case Smt.Ram Murti continuously 3 remained in possession over the land in dispute and has acquired right over the same by adverse possession. 4. The Consolidation Officer by his judgment dated 14.1.1991 allowed the objection filed by the respondent Nos. 4 to 9 and recorded the findings of fact that Smt.Ram Murti had re-married and has no right or title in the Khata in dispute and the petitioners claiming themselves vendees from Smt.Ram Murti are also not entitled to any right, title and interest of the same. Against the said order of Consolidation Officer dated 14.1.1991 the petitioners filed appeal being Appeal No.577, under Sec.11 (1) of Consolidation of Holdings Act before the Settlement Officer, Consolidation. The Settlement Officer of Consolidation dismissed the appeal on 13.06.1991 on the ground that the findings recorded by the Consolidation Officer are finding of fact and do not suffer from any error of law. 5. Being aggrieved by the said judgment and order dated 13.06.1991 in appeal, the petitioners filed revision being Revision No.52/100 of 1996-97. The Deputy Director of Consolidation/respondent No.1 also dismissed the revision filed by the petitioners vide judgment and order dated 26.02.2000 and affirmed the orders passed by the courts below. Aggrieved with the said impugned orders, the petitioners have come up with this petition. 6. I have heard the learned counsel for the parties at length and perused the impugned orders. 7. It has come in the findings recorded by the courts below that in the exparte proceedings the 4 petitioners got their names mutated surreptitiously behind the back of the respondents against which late Mool Chand i.e. father of respondent Nos. 4 to 9 filed objection under Section 9 of U.P. Consolidation and Holdings Act. The courts below have also recorded finding that Smt.Ram Murti Devi obtained partition decree as the widow of late Sri Thakur Das while she had lost right, title and interest as she had remarried herself with Munna Lal, the father of petitioners and, therefore, the alleged decree stood nullified by her act of re- marriage. The petitioners obtained the decree in partition suit by concealment and fraud and it was quite open for the respondents to challenge the partition decree before the consolidation authorities. It has been proved by the evidence that the petitioners are the sons of Smt.Ram Murti Devi from Munna Lal as late Thakur Das died before the birth of petitioners. The fact of re-marriage is proved by all the documents. The finding has also been recorded by the courts below that Smt.Ram Murti Devi had left the family of respondents and started residing with Munna Lal. Therefore, there was no question of any adverse possession. All the courts below by recording concurrent finding held that Smt.Ram Murti Devi lost all the rights, title and interest in the disputed Khatas on being re-marriage with Munna Lal. 8. The learned counsel for the petitioners placed reliance to the following case laws:- (1) Mool Chand and others versus Dy. Director of Consolidation and others, reported in 1995 Revenue Decisions (Supreme Court) Page 490. 5 (2) Smt.Indrapati versus Deputy Director of Consolidation and others, reported in AIR 1980 Allahabad, Page 186. 9. In the facts and circumstances of the case, no authority relied by the learned counsel for the petitioners is attracted in this case. 10. In view of above, I find that all the courts below have committed no mistake or error in holding that the petitioners have failed to prove their possession or title in the disputed land in any way. The impugned orders do not call for any interference of this Court. 11. The writ petition has no force and is dismissed. No order as to costs. (P.C.Verma,J.) 26.08.2008 P.Singh