AMRESHWAR PRATAP SAHI, J. - (1.) HEARD Sri Subhash Kumar, learned counsel for the petitioner, learned Standing Counsel for the respondent nos. 2 and 3, Sri Manoj Kumar Yadav for the respondent no. 4 and Sri Tiwari holding brief of Sri S.K. Patel for the opposite party no. 1 who has filed a caveat.
(2.) AFTER the matter was heard at length, on the basis of the facts already brought on record, learned counsel for the respondent no. 1 submits that the matter can be disposed of finally at this stage itself without waiting for any further affidavits, inasmuch as, the details are already contained in the orders which require consideration on the strength of the submissions raised. Learned Standing Counsel and the learned counsel for the Gaon Sabha also contend that the matter can be disposed of finally at this stage itself and no further affidavits are required to be filed on behalf of the respondents. The facts giving rise to this case are a bit complicated in the sense that this is the third generation which is fighting this litigation and the contesting respondent no. 1 is a vendee from the vendees of the original tenure holder. The petitioner is the grand -son of one Ganesh. Ganesh had contested his title and prayed for its restoration when the village was under consolidation operations by filing an objection under Section 9 of the U.P. Consolidation of Holdings Act, 1953. The said objection was allowed and attained finality vide order dated 7.12.1983 copy whereof has been filed as Annexure 1 to the writ petition. A perusal thereof indicates that the necessity arose for filing the said objection as one Girdhari was entered as a tenure holder against the disputed holding on the basis of an allotment under a lease. The petitioner's grand -father Ganesh had contested the matter on the ground that the entry of the lease -holder's name was wrong, inasmuch as, the holding in question was neither Gaon Sabha Property nor had it vested in the State in ceiling proceedings, and therefore, the same could not have been allotted to Girdhari. To the contrary, title was claimed by Ganesh on the basis of litigation which was set up as a defence in the proceedings before the Consolidation Officer. After having assessed the entire claim, the Consolidation Officer came to the conclusion that the land could not have been subjected to any allotment and therefore the name of Girdhari had been wrongly entered. Consequently, it was directed that the name of Girdhari shall stand expunged and the holding shall stand restored in the name of Ganesh and other co -tenure -holders. This order dated 7.12.1983 of the Consolidation Officer is the foundation of the claim of the petitioner who is the grandson of late Ganesh.
(3.) THE said order appears to have been followed by a development which has given rise to the present controversy, namely, an exchange under Section 161 of the U.P. Z.A. and L.R. Act, 1950, between the Gaon Sabha and one Prem Chand. The land which was directed to be recorded in the name of Ganesh under the order of the Consolidation Officer dated 7.12.1983 continued to be recorded in the name of the Gaon Sabha even after the said decision and taking advantage of this position, Prem Chand entered into a transaction of exchange which was allowed by the competent authority vide order dated 26th April, 1990. This appears to have been transacted without noticing the order in favour of Ganesh dated 7.12.1983 and without notice to him. Thus the same holding which was claimed as part of the holding of Ganesh became subject matter of exchange between Gaon Sabha and Prem Chand. Prem Chand is said to have executed a sale deed in favour of one Salma who in turn executed a sale deed in favour of respondent no. 1 in the present writ petition. The Gaon Sabha appears to have filed an application for recall of the order dated 26.4.1990 on 30.5.1997. After hearing the learned counsel for the Gaon Sabha the said order of exchange in favour of Prem Chand came to be recalled on 22.9.2009. In between, it appears that one Nanda Pradhan had also filed a restoration application for recall of the same order dated 26.4.1990 and the said application was rejected on 16.6.1998 and an appeal was filed before the learned Additional Commissioner by Nanda Pradhan which was dismissed on 30.6.2000. ;