R.H. Zaidi, J. - (1.) BY means of this petition filed under Article 226 of the Constitution of India, petitioner (Shabbir Ahmad since deceased, Parvez Ahmad his son) prays for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 27.5.1975 passed by the Deputy Director of Consolidation, Azamgarh, allowing the revision filed by Siraj, father of respondent Nos. 3 and 4, in the proceedings under Section 12 of the U. P. Consolidation of Holdings Act (for short "the Act").
(2.) THE relevant facts of the case giving rise to the present petition, in brief, are that the dispute relates to Khata No. 3 of village Bhiti, Khata No. 12 of village Pardaha and Khata No. 4 of village Shahadatpur, Tehsil Mohammadabad Gohna, district Azamgarh. (hereinafter referred to as "the land in dispute"). In the basic year, land in dispute was recorded in the name of Abdul Halim s/o Abdul Aziz (since deceased). As Abdul Halim was dead and villages where the land in dispute are situated, were under the operation of the Act, the petitioner Shabbir Ahmad filed an application under Section 12 of the Act for mutation of his name and the names of Nisar and Siraj, two other sons of late Abdul Halim and brothers of the petitioner, as they were only heirs and successors of the deceased. To the application filed by the petitioner Siraj, father of respondent Nos. 3 and 4 filed an objection claiming that Khata No. 3 of village Bhiti was joint of him and Nlsar while two other Khatas, i.e., Khata No. 12 of the village Pardaha and Khata No. 4 of village Shahadatpur, referred to above, were owned exclusively by him on the basis of a Will dated 1.2.1969 alleged to have been executed by the deceased Abdul Halim in their favour. It may be noted that before the proceedings under Section 12 of the Act, the contesting respondents applied for mutation of their names on the basis of the aforesaid Will under Section 33/39 of the U. P. Land Revenue Act ; but as they have failed to prove the genuineness of the said Will, the same was held to be a forged document and the names of all the three sons of Abdul Halim were directed to be recorded by the Revenue Court. Even the revision filed against the order passed by the Revenue Court was dismissed by the Commissioner on 15.3.1973. The Consolidation Officer on the basis of the pleadings of the parties, framed two issues which were as follows : (1) Whether Siraj. Nisar and Shabbir are the heirs and successors of Abdul Halim deceased of the Khatas in dispute? (2) Whether on the basis of Will alleged to have been executed by Abdul Halim, the land in dispute devolved only upon Nisar and Siraj? Parties in support of their cases produced evidence oral and documentary. After going through the evidence on record, the Consolidation Officer recorded findings on both the issues in favour of the petitioner and against the contesting respondents. It was held that the evidence produced by the contesting respondents was self -contradictory. The Will in question was not a genuine document but a forged document prepared after the death of Abdul Halim. The land in dispute consisted of sirdari and bhumidhari land. In respect of sirdari land no Will could be executed. Having recorded the said findings, the names of all the three sons were directed to be mutated by the Consolidation Officer in place of Abdul Halim in the revenue papers over the land in dispute by his judgment and order dated 8.8.1970. Challenging the validity of the said order, three appeals were filed by Siraj, which were allowed and the case was remanded to the Consolidation Officer for decision afresh on 25.8. 1971. The Consolidation Officer again heard the parties and after perusing the entire evidence which formed part of the record, held that the Will in question was a forged document. The same was prepared after the death of Abdul Halim. There could be executed no Will with respect to sirdari land. Having recorded the said findings, the Consolidation Officer dismissed the objection of Siraj and directed the names of three sons of Abdul Halim to be recorded over the land in dispute vide order dated 8.1.1973. Challenging the validity of the order of the Consolidation Officer, Nisar Ahmad again filed appeal before the Settlement Officer, Consolidation. The Settlement Officer. Consolidation after hearing the parties and perusing the material on record affirmed the findings recorded by the Consolidation Officer and dismissed the appeal by his judgment and order dated 4.3.1975. Aggrieved by the said order. Siraj filed a revision before the Deputy Director of Consolidation. The Deputy Director of Consolidation, without reversing the findings recorded by the Settlement Officer, Consolidation In accordance with law, particularly, regarding execution of the Will In respect of sirdari land, allowed the revision by his judgment and order dated 27.5.1975. Hence, the present petition.
(3.) THE writ petition was admitted on 31.7.1975 and notices were directed to be issued to respondent Nos. 1 to 3. In the meanwhile, the petitioner and some of the respondents have died whose heirs were substituted. The contesting respondents evaded service of the notice issued by this Court. Consequently, the petitioner was permitted to serve the said respondents by substituted service. The notices issued by this Court were, under the orders of this Court, published in the newspapers and ultimately the service upon the contesting respondents was held sufficient. Inspite of service of notices upon the contesting respondents, none appeared on their behalf at the time of hearing. It may be noted that initially Mr. B. L. Yadav, Advocate, as he then was, put In his appearance and also filed counter -affidavit on behalf of the respondents in reply whereof a rejoinder -affidavit was also filed by the petitioner controverting and denying the facts stated in the counter -affidavit ; but after he was elevated to the Bench of this Court, no body put in appearance inspite of service of notice to engage another counsel upon the respondents.;