NARESH CHANDRA Vs. DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) Heard Sri Pradeep Kumar Rai, learned counsel, assisted by Sri Rahul Nandan Pandey, learned Counsel for the petitioner, Sri P.K. Jain, learned Senior Counsel assisted by Sri Himanshu Singh, learned Counsel for respondent No. 4 and Sri Ashutosh Kumar Rai, learned Additional Chief Standing Counsel for the State respondent.

(2.) Brief facts of the case are that one Baru was the tenure holder of Chak Nos. 1283 and 2160 situated at village Gangeru, Pargana- Kandhla, Tahsil-Kairana, District Muzaffar Nagar, now District Shamli. Baru had expired on 24/5/1994. A registered will deed dtd. 1/3/1974 had alleged to be executed in favour of three sons of her daughter, namely, Smt. Santosh Sharma-respondent No. 4. Respondent No. 4-Smt. Santosh Sharma-daughter of late Baru filed an objection under Sec. 12 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as U.P.C.H. Act) for recording her name in place of late Baru as sole legal heir which was registered as Case No. 162. In the aforementioned case, under Sec. 12 of U.P.C.H. Act, an order was passed on 17/2/2006 by Assistant Consolidation Officer on the basis of compromise for recording the name of respondent No. 4-Smt. Santosh Sharma in place of late Baru. Village in question was notified under Sec. -52 of U.P.C.H. Act in the year 2009. Against the order dtd. 17/2/2006 passed by Assistant Consolidation Officer, petitioner filed an appeal under Sec. 11 (1) of U.P.C.H. Act and Settlement Officer of Consolidation vide order dtd. 13/12/2012 granted benefit of Sec. 5 of Limitation Act, allowed the appeal setting aside the order passed by Assistant Consolidation Officer dtd. 17/2/2006 and remanded the matter before Consolidation Officer to decide the proceeding under Sec. 12 of U.P.C.H. Act afresh. Against the appeal order dtd. 13/12/2012 a revision under Sec. 48 of U.P.C.H. Act was filed on behalf of respondent No. 4 before Deputy Director of Consolidation, who vide order dtd. 14/5/2013 allowed the revision, set aside the appellate order dtd. 13/12/2012 and maintained the order of Assistant Consolidation Officer dtd. 17/2/2006. Hence, this writ petition for the following relief :

(3.) Learned counsel for the petitioner submitted that proceeding under Sec. 12 of U.P.C.H. Act was initiated without impleading the petitioner as party, as such order passed on the basis of compromise for recording the name of respondent No. 4-Smt. Santosh Sharma in place of late Baru is wholly illegal. He submitted that Baru had exe-cuted a will deed on 1/3/1974 in favour of three male children of her sole daugh-ter, namely Smt. Santosh Sharma-respondent No. 4, as such, name of re-spondent No. 4-Smt. Santosh Sharma cannot be recorded over the plot in question. He submitted that on the basis of the alleged compromise dtd. 17/2/2006, an order was passed the same date i.e. 17/2/2006 by Assistant Consoli-dation Officer to record the name of re-spondent No. 4-Smt. Santosh Sharma in place of late Baru. He submitted that Respondent No. 4 has not disclosed the fact about the registered will deed dtd. 1/3/1974 before Assistant Consolidation Officer, which was in her custody. He further submitted that Settlement Offi-cer of Consolidation has rightly exercised the appellate jurisdiction in setting aside the order passed by Assistant Consolidation Officer after granting benefit of Sec. 5 of Limitation Act, as well as remanded the matter before consolidation officer to decide the proceed-ing under Sec. 12 of U.P.C.H. Act. He submitted that against the remand order passed in appeal, revision has been filed by respondent No. 4-Smt. Santosh Sharma, which has been allowed in arbitrary manner by which, an order of Assistant Consolidation Officer for recording the name of responder No. 4 was maintained. He submitted that impugned order should be set aside and in pursuance of the appellate order, the Consolidation Officer should decide the entire dispute under Sec. 12 of U.P.C.H,. Act afresh on merit.