RAMA NAND Vs. DY. DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) Heard the counsel for the petitioners.

(2.) The facts of the case are that Vishwanath was the common ancestor of the respondents and of the vendor of the petitioners. Vishwanath had two sons, namely, Mahadeo and Giriraj. Giriraj had two sons, namely, Ramhit and Pardeshi. The respondent nos. 3 to 6 are the sons of Ramhit and respondent no. 2 is the son of Pardeshi. Sunra was the wife of Mahadeo. Mahadeo had one son, namely, Khedu. Sumari was the wife of Khedu. Sumari is the vendor of the petitioners. It is alleged by the respondents that Giriraj died in 1952, Mahadeo died in 1955, Sunra died in 1977 and Khedu died in 1952. The plea of the respondents in the proceedings from which the present writ petition arises is that Khedu had died before Mahadeo and his mother Sunra. However, no observation made in the present order shall be considered as a finding on the date of death of either of the aforesaid persons.

(3.) Case Nos. 342, 346, 710, 711 and 712 regarding Khata Nos. 16, 25, 44, 65, 82 and 83 which included the plots in village Parsia Shukla and Parsia Rawat were registered under Section 9-A(2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') before the Consolidation Officer wherein the predecessors of the respondents and Sunra, i.e., the widow of Mahadeo denied any share to Sumari in the disputed khatas. However, the Consolidation Officer vide his order dated 31.5.1974 held that Sumari had share in the disputed khatas being the widow of Khedu and determined her share accordingly. It has been alleged by the respondents in the proceedings before the consolidation courts from which the present writ petition arises that against the order dated 31.5.1974 passed by the Consolidation Officer, the predecessors of the respondents filed Appeal No. 21 under Section 11(1) of the Act, 1953 before the Settlement Officer of Consolidation and the Settlement Officer of Consolidation vide his order dated 16.9.1977 directed the Consolidation Officer to re-construct the records relating to the case and to decide the matter afresh after taking evidence from the parties. Subsequently, Sumari Devi executed a sale deed dated 10.3.1978 regarding her share in the disputed khatas in favour of the petitioners. It appears that no action was taken by the Consolidation Officer in pursuance to the order dated 16.9.1977 passed by the Settlement Officer of Consolidation. Subsequently, the respondents filed another objection dated 20.4.1987 under Section 9-A(2) of the Act, 1953 registering Case Nos. 8 to 10 of 1978 before the Consolidation Officer. The petitioners also filed an application under Section 12 of the Act, 1953 praying for mutation of their name in the consolidation records in place of Sumari as a result of the sale deed dated 10.3.1978 and on the said application, Case No. 106 was registered before the Consolidation Officer. The Consolidation Officer vide his order dated 17.2.1992 dismissed Case Nos. 8 to 10 of 1978 instituted by the respondents but allowed Case No. 106 instituted by the petitioners. The Consolidation Officer vide his order dated 17.2.1992 dismissed Case Nos. 8 to 10 instituted by the respondents on the ground that the respondents had not filed any evidence to show that any appeal was filed against the order dated 31.5.1974 previously passed by the Consolidation Officer and as the previous objection filed by the predecessors of the respondents denying the share of Sumari Devi in the disputed khatas had already been rejected by the Consolidation Officer vide his order dated 31.5.1974, therefore, the second objection at the behest of the respondents was not maintainable. Further, through his order dated 17.2.1992, the Consolidation Officer refused to condone the delay in filing the objection. Against the order dated 17.2.1992 passed by the Consolidation Officer rejecting the objection filed by the respondents under Section 9-A(2) of the Act, 1953, the respondents filed Appeal No. 628 under Section 11 of the Act, 1953 which was also dismissed by the Settlement Officer of Consolidation vide his order dated 21.2.1997. In paragraph no. 5 of the memorandum of appeal, which has been annexed as Annexure No. 6 to the writ petition, the respondents had referred to the order dated 16.9.1977 passed by the Settlement Officer of Consolidation but in his order dated 21.2.1997, the Settlement Officer of Consolidation did not record any finding regarding the proceedings in the alleged Appeal No. 21 filed by the respondents or the order dated 16.9.1977 passed by the Settlement Officer of Consolidation in the said appeal. Aggrieved, the respondents filed Revision Nos. 282/365 of 2012-13, 283/366 of 2012-13 and 284/367 of 2012-13 against the order dated 21.2.1997 passed by the Settlement Officer of Consolidation as well as against the order dated 17.2.1992 passed by the Consolidation Officer and orders passed by the Settlement Officer of Consolidation granting permission to Sumari Devi to execute a sale deed in favour of the petitioners. The Deputy Director of Consolidation vide his order dated 26.9.2013 allowed the revisions filed by the respondents and set-aside the orders dated 17.2.1992 passed by the Consolidation Officer and 21.2.1997 passed by the Settlement Officer of Consolidation as well as the order dated 27.1.1978 passed by the Settlement Officer of Consolidation whereby the Settlement Officer of Consolidation had granted permission to Sumari Devi for executing the sale deed in favour of the petitioners and through his aforesaid order dated 26.9.2013, the Deputy Director of Consolidation has remanded back the matter to the Consolidation Officer to pass fresh orders on the objections filed by the respondents after giving the parties an opportunity of hearing and an opportunity to produce their evidence. Through his order dated 26.9.2013, the Deputy Director of Consolidation has allowed the revisions filed by the respondents on the ground that the order dated 31.5.1974 had been set-aside by order dated 16.9.1977 passed by the Settlement Officer of Consolidation in Appeal No. 21 and further the execution of the sale deed dated 10.3.1978 had also been challenged by the respondents and a criminal case had been registered against the petitioners under Section 419 of the Indian Penal Code. It was held by the Deputy Director of Consolidation that in the aforesaid circumstances, it was a fit case where the delay in filing the objection should have been condoned and the matter should have been decided on merits after giving the parties an opportunity to produce their evidence. The order dated 26.9.2013 passed by the Deputy Director of Consolidation has been challenged in the present writ petition.