Janardan Sahai, J. - (1.) Mahadeo Singh and Kalika Singh were brothers. The petitioners Bhanu Pratap Singh, Sarvesh Kumar Singh and Nirvesh Kumar Singh in Writ Petition No. 31102 of 2000 are descendants of Mahadeo Singh. The contesting respondent Nos. 2 and 3 Shiv Charan Singh and Moti Lal Singh are sons of Kalika Singh. The respondent No. 4 Smt. Saraswati Devi is the widow of Mahadeo Singh. The case of Bhanu Pratap Singh and others is that chak No. 64 was partitioned for 1/3rd share each of Mahadeo Singh, Kalika Singh and Smt. Saraswati Devi by order of the Consolidation Officer dated 25.5.1970 in Case No. 6698 but the said order was not given effect to and it was only on a reference prepared on the application of Mahadeo Singh that an order dated 8.1.1973 in Case No. 1639 was passed by the Consolidation Officer, Allahabad, giving effect to the order dated 25.5.1970, aforesaid. Shiv Charan Singh and Moti Lal Singh filed revision against the order dated 8.1.1973 after about 19 years against the order dated 8.1.1973 in Case No. 1629. The revision was filed with an application under Section 5 of the Limitation Act for condoning the delay. In the affidavit of Shiv Charan Singh it is stated that the order dated 8.1.1973 is farzi. The Deputy Director of Consolidation by his order dated 7.12.1999 allowed the revision of Shiv Charan Singh on the ground that the order dated 8.1.1973 was passed under Section 42A of U. P. Consolidation of Holdings Act whereunder only a clerical mistake could have been corrected whereas by that order only 2 plots out of 8 plots were partitioned for which the Consolidation Officer had not jurisdiction. During the pendency of the revision Mahadeo Singh died. The petitioner's case is that the order of Deputy Director of Consolidation dated 7.12.1999 was an ex parte one as no orders for substituting the heirs of Mahadeo Singh were passed nor notice was given to them. An application was filed by the petitioners for setting aside the order dated 7.12.1999 and praying that orders be passed on the substitution application which had been filed by Shiv Charan Singh and others. The Deputy Director of Consolidation by order dated 21.6.2000 rejected this application on the ground that he had no power of review, The orders dated 7.12.1999 and 21.6.2000 of the Deputy Director of Consolidation are challenged in Writ Petition No. 31102 of 2000 filed by Bhanu Pratap Singh and others. The order dated 7,12.1999 has been challenged by Srnt. Saraswati Devi in Writ Petition No. 31100 of 2000. As common questions of fact and law are involved, both the petitions are being disposed of by this order.
(2.) I have heard Shri Sankatha Rai, learned counsel for the petitioners Bhanu Pratap Singh and others in Writ Petition No. 31102 of 2000 and for Smt. Saraswati Devi in Writ Petition No. 31100 of 2000 and Shri Swaraj Prakash, learned counsel for contesting respondents Shiv Charan Singh and Moti Lal Singh in both the writ petitions.
(3.) Three submissions have been made by Shri Sankatha Rai, learned counsel for petitioners. One that no orders were passed on the application under Section 5 of the Limitation Act and the Deputy Director of Consolidation had no jurisdiction to decide the revision on merits without condoning the delay. Second, that although an application was filed by Shiv Charan Singh and Moti Lal Singh for substituting Bhanu Pratap Singh and others in place of deceased Mahadeo Singh, no orders were passed on that application nor Bhanu Pratap Singh and others had any notice and the order in the revision was ex parte and against a dead person, Mahadeo Singh. Third, that the application for setting aside the order of Deputy Director of Consolidation was really a restoration application and not an application in review and was, therefore, maintainable.;