Ram Surat Ram (Maurya), J. - (1.) HEARD Sri Anand Kumar for the petitioners. The writ petition has been filed against the orders of Consolidation Officer dated 13.3.1991, Settlement Officer, Consolidation dated 8.8.2007 and Deputy Director of Consolidation dated 24.9.2013 passed in the proceeding under section 9A of U.P. Consolidation of Holdings Act.
(2.) THE dispute is in respect of plot No. 3874 of village Deeh, pargana -Isauli, tehsil - Musafirkhana, district -Sultanpur. In basic consolidation record the land in dispute was recorded in khata No. 1134 in the name of Somai S/o Devai. During partal Sitaram S/o Devai raised a claim of co -tenancy over the land in dispute accordingly the dispute was noted in CH Form 4. It appears that the matter could not be compromised before the Assistant Consolidation Officer, accordingly, it was referred to Consolidation Officer. The Consolidation Officer in the order dated 13.3.1991 found that Somai in his oral statement admitted Sitaram was the co -sharer of the land in dispute accordingly he by order dated 13.3.1991 directed for recording the name of Sitaram as co -tenure holder along with Somai in khata No. 1134 aforesaid. Babu Lal and Kallu, the petitioners filed an appeal (registered as Appeal No. 825/2006) from the order of Consolidation Officer dated 13.3.1991 on 23.10.1992 along with delay condonation application. The appeal remained pending for a long time. The appeal was heard by the Settlement Officer, Consolidation who by order dated 8.8.2007 found that the order of Consolidation Officer has been passed on the basis of oral admission made by Somai in his statement as such the order of Consolidation Officer does not suffer from any illegality. On this finding the appeal was dismissed. The petitioners filed a revision against the aforesaid order (registered as Revision No. 1160). The revision was heard by Deputy Director of Consolidation. Before the Deputy Director of Consolidation, Sitaram alleged that Somai admitted his claim of his co -tenancy as he was the real brothers of Somai and Somai died on 5.10.1999 and during his life time of Somai has never challenged the order of Consolidation Officer. During life time of Somai, his sons had filed an appeal who have no locus standi to file an appeal. In support of the allegations, Sitaram also filed the papers relating the mutation filed by the petitioners and their mother before the Assistant Consolidation Officer. In this application and affidavit date of death of Somai was mentioned as 5.10.1999. The petitioners could not adduce any evidence in rebuttal of these documents. The Deputy Director of Consolidation after hearing the parties, by the order dated 24.9.2013 found that from the mutation application as well as affidavit filed in support of mutation application date of death of Somai was proved to be 5.10.1999. He further draws an inference in respect of the death of Somai in the year 1999 on the ground that in the mutation application Smt. Raghuraji was shown as one of the heirs of Somai who according to the amendment made under section 171 of U.P. Act No. 1 of 1951 in the year 1998, widow was also made an heir of the tenure holder. In case of date of death of Somai would have been in the year 1991 then the widow must not be his heir. On this basis also inference has been drawn that date of death of Somai was mentioned in the mutation application was 5.10.1999 and not 8.10.1992 as alleged by the petitioners. Accordingly, the appeal filed by the petitioners during life time of Somai against the order of Consolidation Officer was not maintainable. In such circumstances, the revision was dismissed.
(3.) THE Counsel for the petitioners submits that it is for the first time before the Deputy Director of Consolidation, the dispute relating to date of death of Somai was raised. The Deputy Director of Consolidation ought to have framed an issue as provided under Rule 26(2) of U.P. Consolidation of Holdings Rules. However, without framing any issue and without trial he has decided the dispute between the parties in respect of date of death of Somai. The order of Deputy Director of Consolidation is illegal and liable to be set aside.;