S.N.Srivastava, J. - (1.) Impugned order in the instant petition is the order passed by the Consolidation Officer rejecting application under section 5 in filing objection under section 9 of the U.P. Consolidation of Holdings Act. The revision preferred against the said order was dismissed and aggrieved the petitioner has preferred the instant petition.
(2.) The learned Counsel for the petitioners submitted that the application under section 5 of the Limitation Act attended with accompanying affidavit was filed seeking condonation of delay which was erroneously rejected on the assumption that the father of the petitioners had knowledge of the consolidation proceedings without regard being had to the fact that was specifically averred in the affidavit in support the application under section 5 of the Limitation Act that the petitioners were residing at Bombay and they gained awareness of the proceeding only after the death of his father namely, Bharat Singh and thereafter they lost no time and filed objection with utmost promptitude. It is further submitted by the learned Counsel that the averments in the affidavit have not been controverted.
(3.) In the instant case, it appears that the petitioners staked claim to the extent of 1/6th share in the land in dispute on the basis of family pedigree and also the co-tenancy rights in the land acquired in jointness. The factum of petitioners' residing at Bombay and that the averments made in the affidavit in support of the Application under section 5 of the Limitation Act remained un-controverted have not been taken into reckoning by the Consolidation Officer who proceeded to dismiss the application on the misconceived assumption that since father of the petitioners had awareness of consolidation proceeding during his life time, the petitioners were not entitled to be extended the benefit of section 9 of the U.P. C.H. Act at this belated stage. The Deputy Director Consolidation also fell into error in dismissing the revision and lending affirmance to the order of the Consolidation Officer. It brooks no dispute nor it has been repudiated that the petitioners were at the relevant time residing at Bombay. There is nothing on record to vouch for the fact that the petitioners were made aware of the consolidation proceeding by their deceased father or that they ever dabbled in the proceeding in any manner. Ln my considered view, the delay has been cogently explained by the learned Counsel for the petitioners and the causes assigned appear to me to be plausible and in the circumstances, the assumption that the petitioners were aware by reason of the fact that their deceased father had knowledge of the consolidation proceeding has not rational basis and does not commend to me for acceptance. In consequence, the finding recorded by the Consolidation Officer on the question of sufficiency of cause suffers from the vice of error apparent on the face of the record. The other contention pressed into service that the objection under section 9 of the U.P. Consolidation of Holdings Act was preferred before the Consolidation Officer and not before the Asstt. Consolidation Officer who is the competent authority to deal with the matter, is hardly relevant to force consideration and decision of the Court. I would confine myself to saying that the impressiveness of the interest of justice requires that the matter should not be allowed any further procrastination which would not redress the dispute but lead to more vicious accentuation between the parties.;