KUNWAR Vs. D. D. C.

JUDGEMENT

(1.) Heard Mr. H. P. Mishra, learned counsel for the petitioners and Mr. Madhusudan Dixit, learned counsel for contesting respondent Nos.5 and 6.

(2.) Brief facts of the case are that in the Basic year of the Consolidation operation, Chandra Shekhar and Laxmi Shanker sons of Ram Dularey were recorded over plot of Khata Nos.5 and 13 situated in village-Shivpur, Pargana-Hathgaon, District- Fatehpur while Ram Kishore son of Ram Dularey and Vidya Sagar sons of Brij Kishore were recorded over Khata No.13. On 18/2/1975 Ram Kishore and Vidya Sagar transferred their interest in the land of Khata No.13 to petitioners by means of a registered sale deed. Chandra Shekhar and Laxmi Shanker also transferred their interest in favour of the petitioners by means of the registered sale deed dtd. 3/2/1975. An objection under Sec. 12 of U.P.C.H. Act was filed by petitioners to record their names on the basis of sale deed, the Assistant Consolidation Officer by his order dtd. 22/4/1975 ordered to record the names of petitioners on the basis of sale deed. Respondent No.4 Vidya Sagar filed an objection under Sec. 9A(2) of U.P.C.H, Act claiming right in the disputed plot but Consolidation Officer by his order dtd. 25/1/1979 held that order dtd. 22/4/1975 passed by Assistant Consolidation Officer is binding on the parties and he could not sit in appeal over the order of Assistant Consolidation Officer passed under Sec. 12 of U.P.C.H. Act accordingly, objection filed by respondent No.4 under Sec. 9A(2) of U.P.C.H,. Act was rejected. An appeal under Sec. 11 of U.P.C.H. Act was filed by respondent Nos.5 and 6 before Settlement Officer of Consolidation, the appeal was allowed vide order dtd. 5/12/1979 and matter was remanded before Consolidation Officer for fresh decision of objection on merit. Although, no appeal was filed by respondent No.4 against the order of Consolidation Officer dtd. 25/1/1979. Against the appellate order dtd. 5/12/1979 revision under Sec. 48 of U.P.C.H,. Act was filed by petitioners, Deputy Director of Consolidation by order dtd. 18/3/1982 dismissed the revision filed by petitioners as well as exercising the power under Sec. 48 of U.P.C.H. Act order dtd. 22/4/1975 passed under Sec. 12 of U.P.C.H.Act was set aside being without jurisdiction. Hence this writ petition.

(3.) Counsel for the petitioners submitted that one order under Sec. 12 of U.P.C.H,. Act has been passed in favour of petitioners and the order has attained finality then objection under Sec. 9A(2) of U.P.C.H. Act filed by respondent No.4 cannot be entertained as order passed under Sec. 12 of U.P.C.H. Act between the parties will operate as res judicata in the proceedings under Sec. 9A (2) of U.P.C.H. Act. He further submitted that order dtd. 22/4/1975 passed in the proceedings under Sec. 12 of U.P.C.H,. was not challenged in Appeal or revision as such the same cannot be set aside in the present proceedings under Sec. 9A (2) of U.P.C.H,. Act exercising suo motu power under Sec. 48 of U.P.C.H. Act accordingly counsel for the petitioners submitted that impugned revisional order dtd. 18/3/1982 passed by revisional Court and order dtd. 5/12/1979 passed by appellate Court be set side. On the other hand, counsel for the respondent Nos.5 and 6 has submitted that order passed in the proceeding under Sec. 12 will not operate as res judicata in the title proceedings under Sec. 9 A(2) of U.P.C.H,. Act. He placed provisions of Ss. 9A, 11-A and 12 of U.P.C.H. Act which are as follows:.......