RAM AGYA AND ORS. Vs. DASHRATH AND ORS.

JUDGEMENT

(1.) HEARD Sri Chandrabhan Gupta for the petitioners and Sri Sanjay Shukla for the respondents. The writ petition has been filed against the order of Deputy Director of Consolidation dated 6.4.2015 by which the revision has been allowed and the order of Settlement Officer, Consolidation dated 10.12.2008 was set aside and the matter has been remanded to Settlement Officer, Consolidation to decide the appeal on merits after hearing the parties.

(2.) A dispute was raised after the death of Nagai and Neenak sons of Fakir. Dashrath respondent -1 filed an objection claiming himself to be son of Nagai as heir of Nagai as well as heir of Neenak. Two objections have been filed by Hari Lal son of Baran in respect of plot Nos. 738/1 and 738/2 and khata No. 101, It has been stated by Hari Lal son of Baran that Fakir was having four sons, namely, Harakha, Baran, Nagai and Neenak. Nagai and Neenak died issueless and their share was inherited by him. Another objection was filed in respect of plot Nos. 78/1 and 78/2. These two plots were recorded as matrook in basic consolidation year and it was claimed that these plots were recorded in the name of Fakir in 1362 fasli and they were still in possession. Therefore, matrook entry be deleted. Ramagya and Sita Ram also filed an objection claiming themselves to be heirs of Nagai and Neenak. All the objections were consolidated and the Consolidation Officer by two separate orders dated 25.5.2005 directed for deleting matrook entry in respect of plot No. 738/1 and 738/2 and directed for recording the names of Nagai alias Nanai son of Fakir and Dashrath, on the basis of the will executed in his favour. In respect of khata No. 101 it has been found that Dashrath was having 3/4 share and Sukhdev son of Suraj was having 1/4 share. From the orders of the Consolidation Officer five appeals were filed before the Settlement Officer, Consolidation. Two appeals were filed by State of U.P., two appeals were filed by Ramagya and Sita Ram and one appeal was filed by Hari Lal. All the appeals were consolidated and decided by the Settlement Officer, Consolidation by order dated 10.12.2008. The Settlement Officer, Consolidation found that parties have adduced some additional evidence before him. In such circumstances the appellants be given opportunity to prove their case. On this finding the orders of the Consolidation Officer were set aside and the matter was remanded to Consolidation Officer to give opportunity to the parties for evidence and to decide the case afresh. Dashrath filed a revision against the aforesaid order. The revision was heard by the Deputy Director of Consolidation, who by order dated 6.4.2015 found that sometimes Dashrath had denoted himself as son of Nagai and sometimes had denoted himself as son of Chauthi. In Writ Petition No. 43390 of 2013 by order dated 20.9.2013 it was found that he was the son of Nagai. In such circumstances the appellate Court had already admitted the additional evidence, ought to have decided the appeals on merit instead of remanding the case to the Consolidation Officer for fresh trial as such the revision was allowed and the order of Settlement Officer, Consolidation dated 10.12.2008 was set aside and the matter was remanded to the Settlement Officer, Consolidation to decide the appeals after hearing the parties. Hence this writ petition has been filed.

(3.) THE Counsel for the respondents on the other hand submits that even if Dashrath is not able to prove his parentage then also there is a registered Will executed by Nagai in his favour and due execution of the Will was proved before the Consolidation Officer. The Consolidation Officer after framing of issues had given full opportunity to the parties to adduce evidence. Otherwise also the evidence, which was filed before the appellate Court was admitted by the Settlement Officer, Consolidation and in such circumstances, no fresh trial was needed and the remand of the case was unnecessary which will only prolong the litigation. The trial has been concluded and no fresh trial can be ordered. In such circumstances the Deputy Director of Consolidation has allowed the revision and directed the Settlement Officer, Consolidation to decide the appeals on merit. So far as the dispute in respect of khatas is concerned, it is still pending and the petitioners will have hill opportunity to agitate their grievance in appeal.