NARVDESHWAR Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Heard Mr. Satya Priya Mishra, learned counsel for the petitioners, Mr. Amish Kumar Srivastava, learned counsel for the respondent Nos. 4 and 5 and Mr. Tarun Gaur, learned Standing Counsel for the State respondents.

(2.) With the consent of learned counsel for the parties, the instant petition is being heard finally without inviting counter affidavit.

(3.) Brief facts of the case are that plot No. 273 of khata No. 393 situated in Village Fulwariya, TappaKhuthan, Pargana Haweli, Tahsil Sadar, DistrictGorakhpur was recorded in the name of Shyamraji wife of Jagesar as bhumidhar with transferable right. After death of aforementioned Shyamraji, name of her daughter Smt. Rampati was recorded on the basis of Pa.Ka.11. In the basic year of Consolidation Officer, name of Rampati was recorded over the plot in question. Rampati was married to Sri Ram Raksha Tiwari. Smt. Rampati Devi expired on 13/10/1996, accordingly, name of her only son Narvedeshwar Tripathi was ordered to be recorded in place of Smt. Rampati Devi vide order dtd. 6/5/1999 in Case No. 602, under Sec. 12 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "U.P.C.H. Act"). Narvdeshwar Tripathi had executed a saledeed in favour of petitioner Nos. 2 to 5 (Rajesh Kumar and Others) on 30/7/1999. In the proceeding under Sec. 12 of U.P.C.H. Act, name of petitioner Nos. 2 to 5 was ordered to be recorded by the Consolidation Officer vide order dtd. 1/11/2018 in respect to the plot in question. The order dtd. 6/5/1999 was set aside in appeal vide order dtd. 5/7/1999 and matter was remanded back before Consolidation Officer, Jhungiya for fresh decision. Consolidation Officer vide order dtd. 9/7/2015 again restored the earlier order dtd. 6/5/1999. Consolidation Officer vide order dtd. 23/6/2001 in Case No. 259, under Sec. 12 of U.P.C.H. Act rejected the claim of the petitioner Nos. 2 to 5. Father of respondent Nos. 4 and 5 (Laxman Singh) filed an objection under Sec. 9A (2) of U.P.C.H. Act in respect to the plot in question for recording his name as cotenure holder of 3/4th share which was registered as Case No. 937 before Consolidation Officer. In the aforementioned case, an application for amendment was filed by the father of respondent Nos. 4 and 5 claiming exclusive right in the plot in dispute. The aforementioned case was dismissed on 28/1/1994, accordingly, father of respondent Nos. 4 and 5 have filed a restoration application dtd. 7/5/1997 to recall the order dtd. 28/1/1994 passed in the proceeding under Sec. 9A (2) of U.P.C.H. Act. During pendency of the aforementioned restoration proceeding a compromise was alleged to be take place between Laxman Singh and Rampati Devi, accordingly, Consolidation Officer, Jhugiya, Gorakhpur passed an order dtd. 6/6/1997 setting aside the earlier order dtd. 28/1/1994 and decided the proceeding under Sec. 9A (2) of U.P.C.H. Act on the basis of compromise entered into between the parties. Petitioner No. 1 filed a restoration application dtd. 8/4/2015 against the order dtd. 6/6/1997 along with the prayer for condonation of delay. Consolidation Officer, Deewan Bazaar, Gorakhpur vide order dtd. 6/6/2015 set aside the order dtd. 6/6/1997 and restored the proceeding of Case No. 237 to its original number for decision on merit. The aforementioned proceeding under Sec. 9A (2) of U.P.C.H. Act was dismissed for non prosecution vide order dtd. 14/7/2016 passed by Consolidation Officer, Deewan Bazaar, Gorakhpur. Respondent Nos. 4 and 5, accordingly, filed a restoration application on 15/6/2019 for recalling the orders dtd. 6/6/2015 and 14/7/2016 along with the prayer for condonation of delay. Consolidation Officer, Deewan Bazaar, Gorakhpur vide order dtd. 8/3/2021 passed an order allowing the restoration application in part filed by respondent Nos. 4 and 5 setting aside the orders dtd. 6/6/2015 as well as 14/7/2016 and fixed the case for evidence of the parties in respect to the proceeding under Sec. 9A (2) of U.P.C.H. Act. Against the order dtd. 8/3/2021, respondent Nos. 4 and 5 filed an appeal under Sec. 11 (1) of U.P.C.H. Act before the Settlement Officer of Consolidation, Gorakhpur, which was heard and dismissed vide order dtd. 19/5/2022. Against the order dtd. 19/5/2022 passed by Settlement Officer of Consolidation as well as 8/3/2021 passed by Consolidation Officer, revision under Sec. 48 of U.P.C.H. Act was filed by respondent Nos. 4 and 5 before Deputy Director of Consolidation which was registered as Revision No. 202254053100001442 and another Revision No. 202254053100002002 was filed against the order dtd. 9/7/2015 in Case No. 158, under Sec. 12 of U.P.C.H. Act. The aforementioned revisions have been decided under the impugned order dtd. 4/1/2024 setting aside the order of Settlement Officer of Consolidation dtd. 19/5/2022, order of the Consolidation Officer, Jhugiya, Gorakhpur dtd. 9/7/2015 as well as order of the Consolidation Officer, Deewan Bazaar, Gorakhpur dtd. 8/3/2021 and the case has been remanded back before Consolidation Officer, Deewan Bazaar, Gorakhpur to decide the restoration application filed against the order dtd. 6/6/2015 also afresh within a period of four months, hence this writ petition on behalf of the petitioners for the following relief: