SIBGHAT ULLAH KHAN,J. - (1.) THIS writ petition was heard alongwith Consolidation No. 839 of 1981 Girdhari Vs. D.D.C. & Others. On 5.8.2013 following order was passed on the order sheet : "Heard Sri Pankaj Gupa, learned counsel for the petitioner and Sri M.A. Khan, learned counsel for contesting respondent in the first writ petition. In the second connected writ petition, no one has appeared for petitioner. In the said case, even substitution of Tihuli respondent No. 2 (petitioner of first writ petition) has not taken place. Accordingly, second writ petition is dismissed in default. Judgment reserved." Gopal was common ancestor of petitioner and opposite parties 3 to 5. He had following three sons. I.Jagannath, II.Ayodhya, III.Kashi, Pedigree of each son is given below: Jagannath I I I Kaulesar Vindeshwari I I Tihuli I I I (petitioner) Nigghi (O.P. No. 5) Badri Salik I I I I Dwarika Vanarashi Bansh Raj Ayodhya Kashi I I Banwari (O.P. No. 3) Nagai (O.P. No. 4)
(2.) IN the basic year when consolidation started in the area in question, Khata No.75 containing agricultural land in dispute was recorded in the name of original petitioner and Girdhari and Nagai opposite party no. 2 and 4 and some other persons. Objections were filed by Banwari S/O Ayodhya original opposite party no. 3 claiming co-tenancy. Original petitioner also filed objections claiming exclusive right over the khata in dispute. C.O. decided the matter on 20.7.1970 holding that each branch of the three sons of Gopal had one-third share against which order three appeals were filed one by petitioner, one by Girdhari and one by Nigdhi ( or Nigghi original opposite party no. 5). Appeals of petitioner and respondent no. 2 were dismissed and appeal of original opposite party no. 5 was allowed. S.O.C. gave 1/3rd share each to opposite party no. 3 and opposite party no. 4 and 1/6th share each to petitioner and opposite party no. 5 through order dated 4.2.1971. Thereafter, two revisions, Revision No. 563/1180/1008 Girdhari Vs. Tihuli and others and Revision No. 564/1179/1007 Tihuli Vs. Banwari and Others, were filed, one by the petitioner and other by Girdhari (Opposite party no. 2). Petitioner's revision was allowed by the D.D.C. through order dated 11.6.1971 and petitioner was declared to be the sole tenure holder and his name was directed to be recorded as such. Revision of Girdhari was dismissed. Against the said judgment writ petition was filed in this Court being Writ petition No. 1411 of 1971 by Girdhari. The only contesting respondent in the said writ petition was Tihuli, the original petitioner of this writ petition. The said writ petition was allowed on 2.7.1979 and D.D.C. was directed to re-consider the matter. It was noticed in the said judgment that Tihuli had made some admission regarding co-tenancy rights of Girdhari petitioner of the said writ petition. It was also noticed in the said judgment that learned counsel for Tihuli contended that the admission was obtained by mis-representation. The matter was remanded to consider as to whether admission made by Tihuli was obtained by misrepresentation, fraud, etc. or not. Banwari, original opposite party No.3 in this writ petition, had also filed Writ Petition No.1309 of 1971 against the same judgment of the D.D.C. That writ petition was disposed of by the following order on the same date i.e. 1979: "This writ petition is also directed against the order which has been quashed in Writ Petition No.1411 of 1971. The order passed in Writ Petition No.1411 of 1971 will govern this case also." File of Writ Petition No.1309 of 1971 is not traceable. Photostat copy of certified copy of the above order (attested to be true copy by the Section Officer on 03.08.1979) has been placed on record of this writ petition by the learned counsel.
(3.) IN para-9 of this writ petition, it has been stated that against judgment of D.D.C. dated 11.06.1971, two writ petitions were filed, one by Banwari and Nagai and other by Girdhari and both the writ petitions were allowed and case was remanded to the D.D.C. Relevant portion of remand order by this court dated 02.07.1979 is quoted below: "Mr. Hargur Charan learned counsel for the opposite parties have submitted that since the allegation in the counter affidavit is that the admission was obtained by mis- representation of fact it is not binding upon him. The argument of Mr. Hargur Charan may or may not be correct but it was the duty of the Deputy Director to have applied his mind to the admission contained in annexure 1. While considering the admission contained in the said document it was open to the Deputy Director to have come to the finding that the admission was obtained by fraud or by misrepresentation of fact. In the absence of this finding the admission has to be taken into consideration. After having perused the order of the Deputy Director of Consolidation annexure 4 it appears that he has not considered the case from this point of view. In my opinion the order passed by the Deputy Director of consolidation cannot be sustained as he has not taken into consideration the legal effect of the admission made by Tihuli contained in annexure 1 to the writ petition. For the reasons stated above the writ petition is allowed. The order passed by the Deputy Director Consolidation dated 11.6.71 is set aside by the issue of a writ of certiorari under article 226 of the Constitution of India. A writ of mandamus is issued to the opposite pary no. 1 to register the revision application nos. 563 and 564 at their original numbers and decide them in the light of the observations made in this order." ;