- (1.) HEARD Shri B.L.Mishra, learned counsel for the petitioners and Shri B.R.Singh, learned counsel appearing for the respondents and have perused the record.
(2.) THE facts of the case as culled from the pleadings available on record are that the land in dispute was recorded in the name of the predecessor-in-interest of the petitioners, Arjun in the basic year khatauni. On commencement of the consolidation operations by issuance of Notification under Section 4(2) of the U.P.Consolidation of Holdings Act (hereinafter to be referred as " Act" ), objections were filed by the respondents under Section 9 of the Act claiming their right over the land in dispute. The case under Section 9-A (2) of the Act was allegedly decided by the Consolidation Officer by means of order dated 11.11.1979. Against the aforesaid order dated 11.11.1979 passed by the Consolidation Officer, Gonda deciding the case on the basis of the alleged compromise, an appeal was preferred by the petitioners before the Assistant Settlement Officer Consolidation, Gonda. Taking therein various grounds, the petitioners assailed the order dated 11.11.1979 passed by the Consolidation Officer, Gonda. The appeal filed by the petitioners was delayed. It has been submitted by the learned counsel for the petitioners that the petitioners had never entered into compromise with the respondents and also that the petitioners did not have any information about the order dated 11.11.1979 passed on the basis of the alleged compromise by the Consolidation Officer, Gonda. The appeal was allowed by the Assistant Settlement Officer, Consolidation vide his order dated 23.11.2005 whereby while condoning the delay in filing the appeal, the case was remanded to the court of the Consolidation Officer, Gonda with a direction to give appropriate opportunity of leading evidence and hearing to both the parties and decide the matter on merits. The appellate court has set aside the dated 11.11.1979 passed by the Consolidation Officer, Gonda. Feeling aggrieved by the aforesaid order 23.11.2005 passed by the Assistant Settlement Officer, Consolidation, Gonda, the respondents preferred a revision petition before the Deputy Director of Consolidation under Section 48 of the Act which was allowed by means of order dated 17.02.2006 whereby, the appellate order dated 23.11.2005 was set aside and the matter was remanded back to the appellate court for hearing the matter afresh. It is the aforesaid order dated 17.02.2006 passed by the Deputy Director of Consolidation, Gonda which has been challenged by means of the instant writ petition. Learned counsel for the petitioners, Shri B.L.Mishra has submitted that the alleged compromise on the basis of which the Consolidation Officer, Gonda passed the order dated 11.11.1979, on the face of it, is forged, that the same was not signed by all the parties in the case before the Consolidation Officer, Gonda and that the parties and their signatures/thumb impressions were not verified as required under law. He further states that a perusal of the compromise, which has been annexed as Annexure no.2 to the writ petition, itself shows that the order, on the basis of the said compromise, was not transcribed on a separate order sheet , neither was it transcribed on the running order sheet of the trial court. He further stated that the appellate court in it's order dated 30.11.2005 has elaborately discussed the issue and has rightly set aside the order passed by the Consolidation Officer, Gonda. He further stated that the order dated 11.11.1979 passed by the Consolidation Officer was passed on a Holiday (11.11.1979, being Sunday).
(3.) LEARNED counsel for the petitioners, Shri B.L.Mishra has further argued that the appeal was allowed by the appellate court condoning the delay in preferring the same and since the matter was remanded to the Consolidation Officer, Gonda to decide the same on merits, there was no illegality in the order of the appellate court which would have called for any interference by the learned Deputy Director of Consolidation. He has also stated that the finding recorded by the Deputy Director of Consolidation in his order that the appellate court had decided the appeal on merit without condoning the delay is factually wrong and the fact that the appeal was decided on merit while the delay in preferring the appeal was condoned, can be gathered from a bare perusal of the order dated 30.11.2005 passed by the appellate court. Learned counsel for the petitioners has also stated that any order condoning the delay in filing appeal could not have been interferred with by the revisional court in exercise of its revisonal jurisdiction under Section 48 of the Act. In support of his contention, Shri B.L.Mishra, learned counsel for the petitioners has placed reliance on the cases of Chikhuri Versus Joint Director of Consolidation and others reported in 2006(101) RD 69, Abdul Karim Versus Deputy Director Consolidation, Basti and others reported in 2003(94) RD 186, Mulajim and others Versus Deputy Director of Consolidation, Deoria and others, reported in 2001(92) RD 596, N.Balakrishnan Versus M.Krishnamurthy reported in 1998 (89) RD 607 (SC) and State of Bihar and others Versus Kameshwar Prasad Singh and another with other connected Civil Appeals reported in (2000) 9 SCC 94.;