- (1.) HEARD Sri Sahab Tiwari for the petitioner and Sri Pradeep Kumar Rai for the contesting respondent.
(2.) THE writ petition has been filed against the order of Deputy Director of Consolidation dated 11.02.2013, arising out of proceedings under Section 9 -C of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). The dispute between the parties was in respect of their shares in the land of khatas 280 and 281 of village Surhurpur, tahsil Mohammadabad Gohna, district Mau. Assistant Consolidation Officer, by order dated 25.03.1998, determined the shares of three brothers namely Ram Sumer (now represented by respondent -4) as 1/3, Ram Swaroop (now died issue less) as 1/3 and Chaturbhuj (the petitioner) as 1/3, in the khatas in dispute, excluding the plots which were chak out. Mahendra Kumar (respondent -4) filed an appeal from the aforesaid order, on 10.12.2008, in which, he has claimed that plot no. 295/2 which was chak out, be allotted exclusively in his share. It may be mentioned that Chaturbhuj was residing out side the village and on coming to know about the consolidation proceedings, he filed an objection under Section 9 of the Act, stating that his share in plots which were chak out was 1/2. In respect of the land of khata 281, it has been stated that as Ram Sumer had executed a sale deed of the land from his share, as such, in this khata, the share of Chaturbhuj was 0.805 hectare and share of Mahendra Kumar was 0.268 hectare (excluding the land sold by Ram Sumer). The appeal was heard by Settlement Officer, Consolidation with out any notice to the petitioner. Settlement Officer, Consolidation by order dated 23.04.2010, held that as respondent -4 had prayed for kurra -wise partition of the plots which were chak out, as such, there was a dispute in respect of the partition of the land between the parties and the dispute was required to be decided by the Consolidation Officer, after taking evidence of the parties. As such, he set aside the order of Assistant Consolidation Officer dated 25.03.1998 and remanded the matter to the Consolidation Officer for fresh decision, in respect of the share of the parties, after giving opportunity of evidence. Mahendra Kumar filed a revision (registered as Revision no. 570/2012 -13) from the aforesaid order, which was heard by Deputy Director of Consolidation, who by order dated 11.02.2013 allowed the revision and set aside the order of Settlement Officer Consolidation dated 23.04.2010, so far as it had set aside the order of Assistant Consolidation Officer. On the one hand he has reinstated the order of Assistant Consolidation Officer but at the same time upheld the order, so far as, the matter was remanded to Consolidation Officer. Hence, this writ petition has been filed.
(3.) THE counsel for the petitioner submits that Ram Sumer has already executed a sale deed of the land of his share in khata 281, as such, his claim regarding 1/3 share in this khata, was illegal. He further submits that on the one hand Mahendra Kumar is claiming 1/3 share in the entire khata, but at the same time, he was claiming exclusive right over plot 295/2. As such, the dispute between the parties was in respect of the share in the land in dispute and the objection filed by the petitioner was pending before the Consolidation Officer. Settlement Officer Consolidation has rightly set aside the order of Assistant Consolidation Officer and remanded the matter to Consolidation Officer for deciding the dispute relating to the share of the parties on merit after taking evidence, but Deputy Director of Consolidation has illegally reinstated the order of Assistant Consolidation Officer. The order of Deputy Director of Consolidation is illegal and is liable to be set aside.;