MOHD VAKIL Vs. DEPUTY DIRECTOR OF CONSOLIDATION AND

JUDGEMENT

(1.) MOHD. Vakil has filed this petition under Art 226 of the Constitution praying for quashing of the order dated 29-7-1971 passed by the Deputy Director of Consolidation. Briefly stating in this case the dispute between the petitioner and opp. party No. 4 Afzal Husain relates to Khatas Nos. 18, 22 & 38. In the basic year the petitioner and MOHD. Sami were recorded over the disputed Khata No. 18. Objections were filed by opp. party No. 5 Smt. Kariinunnisa claiming half share in the disputed Khata being widow of MOHD. Sami. Another set of objection was filed by Afzal Husain claiming that the property had been jointly acquired by him along with MOHD. Vakil and MOHD. Sami. In the cirumstances he claimed that he was entitled to be recorded to the extent of 1/3rd share over the disputed Khatas. The dispute came up for consideration before the Consolidation Officer who vide his order dated 30-6-70 rejected the claim of opposite party No. 4 Afzal Husain. The claim of opp. party No. 5 Smt. Karimunnisa was accepted. It may be mentioned that in the instant writ petition no grievance has been set out with respect to Smt. Karimunnisa and, therefore, it is not necessary to consider her case. The main grievance has been centred round to the grant of share in favour of opposite party No. 4 Afzal Husain. Feeling aggrieved by the order passed by the Consolidation Officer, Afzal Husain went up in appeal and the Asstt. Settlement Officer (Consolidation) by his order dated 17-12-1970 dismissed the appeal. This order is Annexure 4. Opposite party No. 4 Afzal Husain thereafter did not file any revision. However, revisions were filed by the other parties and the Deputy Director of Consolidation while disposing of the revisions preferred by the other parties proceeded to consider the case of opposite party No. 4 Afzal Husain and granted him 1/3rd shareholding that the property in dispute was ancestral and as such being of the family of common ancestor he was entitled to a share and as such he granted 1/3rd share in Khata No. 18 and 1/9th share each in Khatas Nos. 22 & 38, respectively. This is how the matter has now been brought before this Court by MOHD. Vakil impugning the order passed by the Deputy Director of Consolidation. The petition has been resisted on behalf of opposite party No. 4 and a counter affidavit has also been filed. It is asserted that the order passed by the Deputy Director of Consolidation is legal, just and proper and calls for no interference by this Court in exercise of power under Art. 226 of the Constitution. I have heard the learned counsel for the petitioner and Sri Hargur Charan Srivastava for opp. party No. 4. The sole contention advanced by the learned counsel for the petitioner is that opp. party No. 4 not having filed any revision he would be presumed to have acquiesced to the orders passed by the Consolidation Officer and the Asstt. Settlement Officer (Consolidation) rejecting his claim. The question, therefore, posed for consideration by the learned counsel for the petitioner is whether it is open to the Deputy Director of Consolidation in exercise of power under Sec. 48 of the U. P. Consolidation of Holdings Act (hereinafter to be referred to as the Act) to exercise suo motu power even though the party has not preferred a revision and proceed to consider his case. It may be mentioned at the very outset that nothing transpires from the order passed by the Deputy Director of Consolidation that he proceeded to exercise powers suo motu in the instant case after receiving the record of the case. Therefore, it is only to be considered whether while disposing of the revision preferred by the private parties the Deputy Director of Consolidation was competent to consider the case of opp. party No. 4. It is well-settled that a person who does not challenge the order would be deemed to have acquiesced to the order and in the circumstances so far as his rights are concerned that Chapter stands closed and cannot be reopened howsoever, wide powers may be provided by a particular provision of the Act. In the instant case it may further be observed that it was not the case of opp. party No. 4 Afzal Husain that he was entitled to a share in the disputed Khatas by reason of fact that he belonged to the family and that the disputed Khatas were ancestral in nature. What was claimed by opp. party No. 4 was that he was a joint tenure-holder along with the people recorded over the disputed Khatas as it was jointly acquired and as such he was entitled to a share in the property. The Deputy Director of Consolidation in the circumstances undoubtedly proceeded to carve out a case which was beyond the pleadings of the parties and in that view of the matter also it cannot be sustained. The order, therefore, in my opinion suffers from an error apparent on the face of the record and deserves to be struck down so far as it relates to granting of share in favour of opp. party No. 4 Afzal Husain. No infirmity has been argued with respect to rest of the order passed by the Deputy Director of Consolidation and that part of the order, therefore, is maintained. The Deputy Director of Consolidation in my opinion has now only to decide the shares in the disputed Khatas with respect to the petitioner and opp. party No. 5 Smt. Karimunnisa alone. In view of the observations made above the writ petition succeeds and is allowed to the extent observed above. The order passed by the Deputy Director of Consolidation so far as it relates to opp. party No. 4 Afzal Husain is quashed. The order so far as it relates to opp. party No. 5 is maintained. Therefore, in the light of observations made above the Deputy Director of Consolidation will restore the revision preferred by opp. party No. 5 and proceed to allocate the shares in the light of observations made above. Let mandamus issue accordingly. I however, make no order as to costs.