- (1.) THIS writ petition arises out of a dispute in relation to 1/3rd share claimed by the petitioner in the holding on the ground that the respondent no. 2-Raghuvanshi and the deceased respondent no. 3-Ram Sewak are real brothers and as such the said share should have been allocated to the petitioner. Instead, the petitioner was given only 3 Biswas of land whereas the respondents no. 2 and 3 were allotted an area of 18 Biswas, 1 Biswansi each. The contesting respondent no. 2 claimed that this share was allotted on the basis of a reconciliation and as such there is no error in the allocation of shares. The order on the basis of an alleged conciliation was passed by the Assistant Consolidation Officer against which an appeal came to be filed by the petitioner contending that no such compromise had been entered into and as such the said order deserves to be set aside.
(2.) BEFORE the appellate authority, the deceased respondent no. 3 appeared and admitted 1/3rd share of the petitioner and also admitted that no such compromise had taken place and accordingly the order dated 21st of January, 1978 was set aside on 21.08.1990 with a direction that the Consolidation Officer, Baberu shall now proceed to decide the dispute in accordance with law. A restoration application was filed by the respondent no. 2 against the said order which was rejected on 15.02.1993. Only, the respondent no. 2 went up in revision against the same. The deceased respondent no. 3 did not contest the appellate order. BEFORE the Deputy Director of Consolidation, the matter was proceeded and again on the basis of a subsequent alleged compromise dated 03.08.1996, the revision was allowed in favour of the respondent no. 2. The petitioner moved a restoration application on 7th of June, 2003 alleging that he had not been served with any notice nor he had any intimation about the pendency of the revision and the compromise dated 03.08.1996 before the Deputy Director of Consolidation is also forged. It was also alleged that he had not engaged any counsel and that the proceedings are totally ex-parte to him. A copy of the restoration application is annexure 5 and the affidavit in support thereof is annexure 6. The same was decided by the respondent no. 1-Deputy Director of Consolidation whereafter he recorded that the order passed by the then Deputy Director of Consolidation on 03.08.1996 does not require any interference as earlier also a compromise had been entered into before the Assistant Consolidation Officer and that the compromise is duly verified. It was also observed by the Deputy Director of Consolidation that the restoration is time barred and the restoration application was accordingly rejected upholding the order dated 03.08.1996. Sri Rishikesh Tripathi, learned counsel for the petitioner submits that the Deputy Director of Consolidation has not adverted to any of the allegations made in the restoration application namely that no such compromise had been entered into on 03.08.1996 and that it is forged and secondly that no counsel had been engaged by the petitioner before the Deputy Director of Consolidation and lastly that there was no notice or service of any summons on the petitioner prior to the passing of the impugned order. Replying to the said submissions, Sri R.K. Pandey, learned counsel for the respondent no. 2 submits that the issue relating to compromise cannot be gone into, inasmuch as, it had been verified by the learned counsel and no evidence was led to the contrary by the petitioner so as to dislodge the conclusion drawn by the Deputy Director of Consolidation in the impugned order dated 07.03.2005. Having perused the impugned order as well as the pleadings on record, there is a categorical statement of fact by the petitioner that no notices or summons were served on the petitioner nor had he entered into compromise nor he had not engaged any counsel to verify the said compromise before the Deputy Director of Consolidation. There are no findings by the Deputy Director of Consolidation on all three counts and, therefore, in my opinion, the impugned order is vitiated. Apart from this, the counter affidavit of the respondent no. 2 nowhere indicates as to how the notice and summons were served on the petitioner. In the absence of any such proof the inference that can be drawn is that the order dated 31st of August, 1996 had proceeded ex-parte to the petitioner. The Deputy Director of Consolidation therefore committed a manifest error by rejecting the restoration application without recording any finding on the said contention. Accordingly, the order dated 7th of March, 2005 as well as the order dated 3rd of August, 1996 are unsustainable and are hereby quashed.
(3.) THE Deputy Director of Consolidation shall now proceed to decide the claim on merits after hearing the parties against the appellate orders dated 21.08.1990 and 15.02.1993 respectively within a period of three months from the date of certified copy of this order before him. THE writ petition is allowed.;