RADHEY SHYAM Vs. DEPUTY DIRECTOR OF CONSOLIDATION BAREILLY

JUDGEMENT

(1.) THE dispute in the instant petition arose in the year 1989 and curtain fell upon the matter in the year 1992 by a decision of Consolidation Officer. The parties then in the array seemed to have, acquiesced to the determination by the consolidation authorities inasmuch as the matter was not taken in challenge any further but the old dispute which stood buried was reopened by Sunil Kumar designation from Raja Ram by means of restoration application in the year 2002.

(2.) THE dispute in the instant case revolves round the land situated in villages Piparia Ehatmal, Guladia and Satuiya Patti in District Bareilly owned by one Ram Lal. Ram Lal died and his widow namely, Sundar Devi inherited the property after her death. Subsequently, she also breathed her last. On publication of record under Section 9 of the U.P. Consolidation of Holdings Act, the dispute cropped up in the form of two sets of objection one filed by Raja Ram, husband of daughter's daughter of Ram Lal which had its basis on gift deed executed by Smt. Sunder Devi widow of Ram Lal in relation to land situated in some of the villages and in so far as land in village Satuiya Patti is concerned, he claimed rights on the basis of inheritance and another by Radhey Shyam on the basis of inheritance being son of the sister of Ram Lal deceased. The Consolidation Officer by means of order dated 25 -7 -1989, pronounced decision declaring Bhumidhari rights of Raja Ram and Radhey Shyam in the land situated in village Piparia Ehtamal to the extent of one half and also declaring that Radhey Shyam was the only heir of land of Ram Lal situated in village Satuiya Patti and in so far as land situated in village Guldaiya was concerned, the Consolidation Officer declared Bhumidhari rights to the extent of 2/3 in favour of Radhey Shyam and 1/3rd in favour of Raja Ram. From a perusal of the record, it transpires that one Omkar, son of Raja Ram took the matter in appeal before the Settlement Officer Consolidation which culminated in being dismissed for default on 12 -2 -1992 and thereafter, it would further appear from the record, no restoration application was preferred by Omkar. One Sunil Kumar (contesting Opp. Party in the instant case) son of Omkar filed a restoration application on 29 -7 -2000 for recall of the order dated 12 -2 -1992 after a lapse of approximately 10 years. The said application was allowed by the Settlement Officer Consolidation and in revision before the Deputy Director of Consolidation the order passed by the Settlement Officer Consolidation was maintained and in consequence, revision was dismissed. It is in the backdrop of the above facts, that the present petition under Article 226 has come to be instituted.

(3.) LEARNED Counsel for the petitioner canvassed that unless good cause intertwined with failure of justice is established the Settlement Officer, Consolidation would seem to be wholly incompetent to pass the impugned order. He further pointed out that notwithstanding finding of the Settlement Officer, Consolidation thereby disbelieving the case of contesting Opp. Party that Omkar died in the year 1992 and also holding that he as a matter of fact died in the year 1998, the order restoring the appeal is nothing but an instance of permitting abuse of the process of the Court. He further canvassed that even otherwise, it would not result in failure of justice nor any useful purpose is going to be served because of the fact that Raja Ram, grandfather of contesting Opp. Parties could not inherit the property of Smt. Sundar Devi/Ram Lal under Section 171 of the U.P.Z.A. and L.R. Act. Per contra, Sri V.K. Rai, appearing for the contesting Opp. Parties tried to prop up the impugned order on the ground that parties would have fuller opportunity to adduce evidence and opportunity of hearing on merits.