- (1.) KRISHNA Murari, J. Heard Sri K. R. Sirohi learned Counsel for the petitioner and Sri Gulab Chandra appearing for the respondent No. 4.
(2.) THE dispute in the present writ petition relates to plot No. 500. During consolidation proceedings the objection filed by respondent No. 4 and his brother, Rajveer Singh claiming co-tenancy right was dismissed by the Consolidation Officer. THE appeal was well as revision filed by them was also rejected. THE Deputy Director of Consolidation, while dismissing the revision vide order dated 26-7-1971, remanded the case back to Consolidation Officer to consider their claim on the basis of adverse possession with respect to plot No. 114/1, 477 and 500. After remand the Consolidation Officer vide order dated 13-11-1972 dismissed their claim with regard to plot Nos. 447 and 114/1. However, with regard to plot No. 500 the contesting respondent No. 4 was declared to have perfected Sirdari rights on the basis of adverse possession. Against the said order of Consolidation Officer two appeals were filed; one by respondent No. 4 and his brother Rajveer Singh rejecting their claim with regard to plot No. 114/1, 447 and the other by the petitioner allowing the claim of respondent No. 4 on plot No. 500. THE Settlement Officer Consolidation consolidated both the appeals and dismissed them vide judgment dated 21-9-1973. Again two revisions were filed which were dismissed by the Deputy Director of Consolidation by a common order dated 11-7-1974. Feeling aggrieved only the petitioner has approached this Court by way of filing instant writ petition. THE respondent No. 4 and his brother Rajveer Singh having succumbed to the order of consolidation authorities the same has become final against them, in so far as plot Nos. 114/1 and 447 are concerned. Now the dispute in the present writ petition is confirmed only to plot No. 500. The first submission advanced by the learned Counsel for the petitioner is that there was no justification for the order of remand passed in the first instance by the Deputy Director of Consolidation, since there was no plea of adverse possession taken by respondent No. 4 in the objection. He submitted that respondent No. 4 having failed to establish his right of co-tenancy, the order of Consolidation Officer and Sellement Officer Consolidation dismissing the objection should have been affirmed by the Deputy Director of Consolidation and there was no occasion to remand the case back to Consolidation Officer for a retrial after permitting the parties to produce fresh evidence with regard to adverse possession. It has next been contended that there was material contradiction in the statement of respondent No. 4 and the witnesses adduced on his behalf, recorded before Consolidation Officer, prior to and after remand pertaining to adverse possession which has been wrongly overlooked. It has next been contended that entries in clause-9 which form the basis of finding in favour of respondent No. 4 were not made in accordance with the procedure prescribed by Revenue Court Manual and as such could not have been relied upon by the consolidation authorities. In reply, it has been urged on behalf of respondent that remand order dated 26-7-1971 passed by Deputy Director of Consolidation was not challenged by the petitioner and the same became final and the petitioner is barred by principle of res-judicata from challenging the validity of the said order in the present proceedings. It has further been contended that after remand the answering respondent produced the evidence to establish his adverse possession on the basis of which his claim has rightly been allowed and there is no illegality in the orders passed by consolidation authorities.
(3.) I have considered the contention advanced on behalf of rival parties and carefully perused the record. A perusal of the objection filed as Annexure-1 to the writ petition goes to show that answering respondent claimed co-tenancy rights on the ground that Khata was joint and they were in joint cultivatory possession. There is no pleading at all with regard to adverse possession. Even in his statement made prior to remand (filed as Annexure-3 to the writ petition) there is no reference of his being in open continuous and hostile possession. On the contrary he admitted joint cultivation and stated that any one used to cultivate any plot.;