- (1.) SUDHIR Narain, J. The petitioner has challenged the order of the Assistant Settlement Officer (Consolidation), dated 3. 9. 1990 whereby he condoned the delay in filing the appeal by respondents No. 4 and 5 and the order of Deputy Director of Consolidation Banda, dated 7. 1. 1992, affirming the said order in revision.
(2.) THE facts in brief are that plot No. 588 area 1 bigha 9 biswas situate in village Palhari, Tehsil and district Banda, was recorded in the name of the petitioner and Puchuva in the basic year Khatauni. Smt Parvati, mother of opposite parties 4 and 5 was entered in class IX as trespasser. Smt. Parvati filed an objection under Section 9-A of U. P. Consolidation of Holdings Act on the allegation that she had become sirdar by virtue of adverse possession. THE petitioner filed an ap plication for cross-examination of wit nesses. THE application was rejected by the Consolidation Officer on 3. 9. 1977. THE petitioner filed revision against the said order. THE revision was allowed by the Deputy Director of Consolidation vide order dated 8. 10. 1985 and remanded the case to the Consolidation Officer, Banda to decide the case in accordance with law. After remand the notices were sent to respondents No. 4 and 5 as by the time Smt. Parvati Devi had died and respon dents No. 4 and 5 were substituted. THE notices were also published in the newspaper. As respondents No. 4 and 5 did not appear, the Consolidation Officer proceeded ex parte and dismissed the objection on 30. 7. 1986 which was filed by Smt Parvati Devi, mother of respondents No. 4 and 5. After the order was passed on 30. 7. 1986 the petitioner filed an applica tion for compliance of the order. The Assistant Consolidation Officer Banda submitted a report under Rule 109 of U. P. Consolidation of Holdings Rules for compliance of the order. This report was accepted by the Consolidation Officer vide his order dated 12. 2. 1988. Respondents filed appeal No. 3017 under Rule 109 (c) of the Rules framed under the U. P. Consolidation of Holdings Act before the Settlement Officer (Consolida tion) Banda on 6. 8. 1988. Against the order dated 30. 7. 1986 and 12. 2. 1988 they filed an application under Section 5 of the Limitation Act to condone the delay in filing the appeal. The application was accompanied with affidavit of Rajendra Kumar, respondent no. 4 on the allegation that they had no knowledge of the proceedings before the consolidation Of ficer after the remand of the case by the Deputy Director of Consolidation on 8. 10. 1985. The petitioner filed a counter affidavit controverting the facts stated by respondents. Respondents also filed a separate appeal under section 11 (1) of U. P. Consolidation of Holdings Act against the order dated 30-7-1986. The application was allowed by order dated 3-9-1990. The revision against the said order was dismissed by respon dent No. 1 on 7-1-1992. The petitioner has challenged these orders in the present writ petition.
(3.) I have heard Sri R. R. Shivhare, learned counsel for the petitioner and Sri S. D. Pathak, learned counsel for the respondents. Learned counsel for the petitioner urged that the respondents were served with notice by registered post as well as the publication and their allegation that they had knowledge of the consolidation proceedings after the case was remanded by the Deputy Director of Consolidation, was totally false. The Assistant Consolida tion Officer has not recorded any specific finding with regard to the service of notice on the respondents after the remand of the case by the Deputy Director of Consolidation on 8. 10. 1985. He has, how ever, held that the grounds for condoning the delay in filing the appeal on 12. 12. 1988. and the facts stated by the respondents were concocted and the respondents had full knowledge regarding the proceedings when they filed appeal under Rule 109 on 16-8-1988. He, however, took the view that in the interest of justice the delay should be condoned so that the rights of the parties may be finally decided other wise the respondents will be debarred from agitating the rights in any Court under Section 49 of U. P. Consolidation of Holdings Act. The Deputy Director of Consolidation has affirmed the order on the ground that the delay has been con doned by the Settlement Officer (Con solidation) which was the matter within his discretion and the order does not require any interference in revision.;