- (1.) Leave granted.
(2.) This appeals are directed against the judgment and final order dated 19th of November, 2004 of the High Court of Uttaranchal at Nainital in W.P.Nos. 1231 (M/S), 1083(M/S) and 1084(M/S) of 2004 whereby, the High Court had dismissed the writ petitions and affirmed the order dated 20th of October, 2004 passed by the Deputy Director of Consolidation (in short D.D.C.), Udham Singh Nagar.
(3.) The relevant facts, which would assist us in appreciating the controversy involved are narrated in a nutshell, which are as follows: Mohan Singh, Bhan Singh and Ram Singh jointly purchased an area of 302 Bighas in the village of Jagannathpur, Tehsil Kashipur, and District Udham Singh Nagar (hereinafter referred to as the property in dispute ), out of which the share of Mohan Singh was recorded as 101 Bighas. Thereafter, all these persons together with three other persons, namely, Saudagar Singh, Sohan Singh and Atma Singh acquired 1486 Bighas and 6 Biswas by a lease deed executed by Zaminder Radhey Shayam in their favour. In the said deed, share of Mohan Singh was specified as 464 Bighas. Therefore, in total, Mohan Singh claimed his share in the property in dispute as 565 Bighas in respect of the aforesaid lands. Various objections and counter objections were filed by other co-sharers disputing the claim of Mohan Singh. In the Khatauni of 1359 F, the names of 14 persons were recorded as tenure holders. The tenure holders moved an application in the year 1959 before the Sub-Divisional Officer, stating therein that 17 tenure holders divided the property in dispute in 1951 and from that time, they were in possession according to their division, but their names had not been recorded in the revenue records according to their divisions and possession. It was alleged that they prayed for correction of their names in the revenue records according to amicable arrangement. The Sub-Divisional Officer allowed their application, but in spite of that, it was claimed that their names were not entered in the relevant revenue records. Thereafter, correction proceedings started in the concerned village and the matter came up before the Asstt. Recording Officer, and Mohan Singh (the father of the appellants) filed an application on 11th of January, 1963 before the Asstt. Recording Officer to give effect to the order passed by the Sub- Divisional Officer on the basis of the amicable arrangement arrived at between the parties. The Assistant Recording Officer passed an order directing to make entries in accordance with the order of the Sub- Divisional Officer. In spite of that, according to the appellants, the revenue records were not corrected and the property in dispute was kept as separate Khatas in the name of different tenure holders. Thereafter, Ram Singh and others also filed an application before the Consolidation Officer praying that the Khatas be divided in pursuance of the order passed by the Sub-Divisional Officer. Mohan Singh, however, alleged that the present entries in the revenue record must be maintained. It was the claim of Mohan Singh that he was ignorant about the order of the Sub-Divisional Officer, which was passed on the basis of the alleged amicable arrangement entered into by the parties and also claimed ignorance about the application which was alleged to have been filed by him before the Assistant Recording Officer, thus refuting the claim of the Respondents that he was a party to the proceedings before the Assistant Recording Officer. The Consolidation Officer allowed the claim of Mohan Singh to the effect that his total share in the aforesaid land was 564 Bighas, but he directed that since Mohan Singh had co-opted his son, nephews, brothers, and widow of his brother as co-tenants in his share, his share was reduced. The appellants thereafter filed two appeals against the order of the Consolidation Officer. The appeal filed by the appellants was dismissed by the Settlement Officer (Consolidation), whereas the appeal filed by Hari Singh and others was allowed. The Settlement Officer (Consolidation) while allowing the appeal of Hari Singh and others had set aside the order of the Consolidation Officer and directed that the entries in the record of rights may be prepared in accordance with the order of the Sub-Divisional Officer dated 31st of August, 1959. The appellants thereafter had filed two revision petitions against the order of the Settlement Officer (Consolidation) and both the said petitions were rejected by the DDC on 7th of July, 1975. Mohan Singh, the father of the appellants then challenged the aforesaid orders before the High Court of Allahabad by way of Writ Petition No. 7625 of 1975. While disposing of the writ petition setting aside the order of DDC and remanding the case back to DDC, the High Court made the following observations: This effect is apparent from the order of the Settlement Officer (Consolidation) which has been affirmed by the DDC, that the order of the Consolidation Officer has been set aside and without recording his own finding on the point indicated above, he has directed to implement the order of the Sub-Divisional Officer on 31.8.1959. This, on the face of it, is illegal. The order passed in a mutation proceeding has no evidentiary value in Court or Authority, deciding the title of the partition merit. It was necessary for the Settlement Officer (Consolidation) and the DDC to consider and decide the case on merit and to pass the specific order. The orders of the Settlement Officer (Consolidation) and the DDC and manifestly erroneous in law and are not liable to be maintained. Although the order of the Settlement Officer (Consolidation) is also illegal, but the justice will be met if the case is decided by the Director of Consolidation has the jurisdiction to consider the case of the parties on the facts as well as law. ;