S.R.Misra - (1.) THESE two writ petitions No. 15433 of 1985 and 15529 of 1985 arise out of a common order passed in two revisions giving rise to time two writ petitions. The controversy is one and the same and common question of law and fasts are involved and as such Writ Petition No. 15433 of 1985 is treated to be the leading case and the judgment of this writ petition may be placed on the file of Writ Petition No. 15529 of 1985 and governed that case as well.
(2.) BY means of these two writ petitions the petitioners challenge the order of the Deputy Director of Consolidation dated 23-8-1985 filed as Annexure '5' to the writ petition. Brief facts, giving rise to the present petitions, are that the dispute relates to Khata Nos, 36 and 131 situate in village Dasauli, Pargana Muttaur, district Fatehpur. Opposite parties filed an objection under section 9-A (2) of U. P. Consolidation of Holdings Act (hereinafter referred to as the Act) claiming co-tenancy rights in the land in dispute. Petitioner contested the claim and raised an objection regarding the maintainability of the objection with a plea that the objection is barred under section 49 of the Act. According to petitioners contesting respondents have filed an objection in the previous consolidation proceedings and they have lost the case and the proceedings became final, as such their filing of the objection in the present consolidation proceedings, their claim is barrel under section 49 of the Act. Other pleas were also taken. Consolidation Officer took the view that the claim of the respondents is barred under section 49 of the Act. Aggrieved by the said order, contesting respondents filed an appeal before the Settlement Officer of Consolidation. The said appeal was allowed holding that section 49 of the Act is not attracted.
(3.) AGGRIEVED by the order of (the Settlement Officer of Consolidation, petitioners preferred revision before the Deputy Director of Consolidation. The Deputy Director of Consolidation dismissed the revision. AGGRIEVED by the said order petitioners have approached this Court under Article 226 of the Constitution. Having heard Sri H.O.E. Srivastava, learned counsel for the petitioners and Sri Satrughan Singh, learned counsel for the respondents. According to petitioners the view of the Deputy Director of Consolidation regarding the bar of section 49 of the Act is erroneous on the face of it. He has not recorded any finding that whether1 earlier proceedings were in respect of title of of mutation and in the absence of a positive finding, the plea of the petitioners that there has already been a final decision in the earlier consolidation proceedings which has attained finality, the question of remand or consideration of the dispute of the parties on merits, does not arise but the Deputy Director of Consolidation hay taken a view regarding the interpretation of section 49 of the Act which is in the teeth of the provisions of the U. P. Consolidation of Holdings Act. If before the final completion of proceedings under the old U. P. Consolidation of Holdings Act, the village was again notified for consolidation, then different consequences may accrue but since the Deputy Director of Consolidation has failed to record finding on this crucial question, his order cannot be sustained although the counsel for the respondents has argued before this Court that it is only an order of remand and no interference is called for against such an order. In the normal course the submission made on behalf of the respondents is worth consideration but the question arises when the Consolidation Officer came to the conclusion that the bar of section 49 of the Act is attracted, then unless Settlement Officer of Consolidation or Deputy Director of Consolidation records finding that whether the earlier proceedings were finalised and those proceedings were in respect of title or the proceedings have not finalised and those proceedings were not In respect of title but of summary nature after recording finding one way or the other on this crucial question then alone only the proceedings may fail or continue but in the absence of a positive finding, the order of the Deputy Director of Consolidation, cannot be sustained.;