S.K. Singh, J. - (1.)By means of the present writ petition, petitioners have prayed for issuance of the writ in the nature of certiorari quashing the judgment and order passed by Jt. Director of Consolidation, Mujaffarnagar/respondent No. 1, dated 14.8.2002 (Annexure-15 to the writ petition).
(2.)For the purposes of deciding this petition, the fact in briefs can be summarised thus : "Basic year record happens to be in the name of Sumer, who has two sons, viz., Sukhbir and Rahtu. Assistant Consolidation Officer passed orders on 22.2.1981, 16.6.1981 and 22.5.1982 after recording statement of Smt. Premo Devi who happens to be wife of Sukhbir, Rahtu Singh, the brother, Gram Pradhan and members of the Consolidation Committee by which he directed for recording name of Rahtu, the son of Sumer and Vijai Pal, the grandson of Sumer on the premises that Sumer had died and Sukhbir had dis-appeared and have no trace. It is said that in the year 1983, Sukhbir filed some objection under Section 9A (2) of U. P. C. H. Act with a prayer that he is alive and his name may be recorded in place of his minor son Vijai Pal. It is claimed that on 30.12.1983 respondent No. 2 filed an application for withdrawal/ dismissal of objection which was duly identified by Sri Brij Bhushan Lal Sharma, advocate upon which on the same day, his application was allowed and objection under Section 9A (2) was dismissed. Thereafter in C. H. Form No. 45, name of Vijai Pal continued. On unfortunate death of Vijai Pal in the year 1986, name of petitioner No, 1, i.e., mother of Vijai Pal and the wife of respondent No. 2 was directed to be mutated who in its turn by two registered sale deeds, dated 21.8.1995 and 23.8.1995 transferred the right to the petitioner Nos. 2 to 4 who happens to be son of Rahtu brother of Sukhbir in whose favour mutation was effected by order dated 5.12.1995. Respondent No. 2 appears to have filed seven appeals on 1.8.1995, i.e., after about 14 years of the order of Assistant Consolidation Officer which was passed in the year 1981. It was stated in the appeal that respondent No. 2 appellant is alive and orders against his interest were obtained by playing fraud. Objections were filed on behalf of the petitioner to the maintainability of the appeal and also to the application for condonation of delay. Settlement Officer, Consolidation by its order dated 15.4.1999 (Annexure-11 to the writ petition) dismissed the appeal on the ground that appellant has not been able to satisfy on the question of delay and thus appeals being barred by time have been dismissed. Against the judgment of the Settlement Officer, Consolidation respondent No. 2 filed revision which has been decided by the Joint Director of Consolidation by its judgment dated 14.8.2002 which has been challenged in this petition.
(3.)Learned counsel for the petitioner submits that respondent No. 2 disappeared for so many years along with one Smt. Krishna Devi wife of Tirkha and he remained untraceable for more than 9 years and, therefore, on the belief of his civil death, name of the legal heir was rightly ordered to be mutated. It is further argued that on own showing of the respondent No. 2, he surfaced in the year 1983 and filed objection under Section 9A (2) of U.P.C.H. Act but thereafter he himself got it withdrawn and, therefore, filing of the appeal in the year 1995 after about 14 years have no justification in respect to claim of the respondent No. 2 and that was rightly rejected by the Settlement Officer, Consolidation as barred by time but the Joint Director of Consolidation in illegal manner has allowed the revision on the merits and has directed entry to be made in favour of respondent No. 2, it is argued that the exercise by the respondent No. 1 by deciding the matter on merits is totally without jurisdiction as he has no jurisdiction to decide the revision on merits in absence of any pleadings, evidence and trial in the matter before the lower authority. It is further submitted that withdrawal of the objection by the respondent No. 2 in the year 1983 was on the basis of family arrangement which cannot be permitted to be challenged after such a long time and therefore, Settlement Officer, Consolidation has rightly dismissed the objection of the respondent No. 2. In support of the submission that if the appeal has been dismissed on the ground of limitation the revision cannot be allowed on merits reliance has been placed on decision given in case of Tirath v. Joint Director of Consolidation, 1985 RD 276.