- (1.) KRISHNA Murari, J. Heard Sri K. R. Sirohi, learned Counsel for the petitioner. Though the case has been taken up in revised list, no one has appeared on behalf of contesting respondents.
(2.) THE dispute in the present writ petition is confined only to plot Nos. 219, 222 and 226 of khata No. 59. In the basic year the said khata was recorded in the name of respondent No. 5. During the consolidation operation two sets of objection were filed, one by the petitions and another by respondent No. 4. It was pleaded by respondent No. 4 in his objection that out of total area of the aforesaid three plots in dispute an area of 6-1-10 was purchased by him in an auction sale in execution of a decree against one Bhavani Singh and the remaining area of 3-8-10 was purchased by the petitioner as such the name of respondent No. 5 is liable to be expunged and his name is liable to be recorded over an area of 6-1-10 of the said three plots in dispute. The petitioner in his objection pleaded that he is entitled to be recorded over the entire area of three disputed plots as the respondent No. 4 was Benami purchaser on his behalf and the entire sale consideration was paid by him. In the alternative it was pleaded that he has perfected rights by adverse possession over the area of the three disputed plots purchased by respondent No. 4 in auction sale as he is in continuous, exclusive open and hostile possession over the same for the last more than 12 years.
(3.) THE Consolidation Officer vide order dated 27-3-1973 held that the name of respondent No. 5 is wrongly recorded over the plots in dispute. He however, disbelieved the case set up by the petitioner about Benami transaction but accepted the plea of adverse possession. After considering the entire evidence brought on record a categorical finding was recorded by Consolidation Officer that the petitioner is in exclusive open and hostile possession since 1370 fasli. On the basis of aforesaid finding the objection of respondent No. 4 was dismissed and that of the petitioner was allowed. Feeling aggrieved respondent Nos. 4 and 5 both filed appeal. THE Settlement Officer Consolidation vide judgment dated 12-7-1973 dismissed the appeal filed by the respondent No. 5. He however, allowed the appeal filed by respondent No. 4 on the ground that since suit under Section 229-B read with Section 176 of the U. P. Z. A. and L. R. Act was filed by respondent No. 4 in 1966 (which abated due to consolidation operation) as such petitioner did not perfect rights by adverse possession. He further half that plots in dispute are joint property of the petitioner as well as respondent No. 4. THE appellate order was challenged by respondent Nos. 4 and 5 both, before Deputy Director of Consolidation in revision. THE Deputy Director of Consolidation vide impugned judgment dated 8-4-1976 dismissed both the revisions. He however, modified the judgment of Settlement Officer Consolidation and held that the petitioner and respondent No. 4 to be exclusive Bhumidhar of the area purchased by them in the auction sale and as specified in their separate sale certificates. Aggrieved petitioner approached this Court by means of this writ petition. It has been urged by the learned Counsel for the petitioner that as no suit for ejectment as provided by Section 210 of U. P. Z. A. and L. R. Act was filed by the respondent No. 4 within prescribed period of limitation, the limitation would not stand arrested by mere filing a suit for declaration and partition and the contrary view taken by Settlement Officer Consolidation and Deputy Director of Consolidation is illegal and erroneous and cannot be sustained.;