Ram Surat Ram (Maurya), J. - (1.) HEARD Sri C.S. Agnihotri holding brief of Sri Ashok Gupta for the petitioners. The writ petition has been filed against the order dated 20.11.2014 passed in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "the Act").
(2.) THE dispute related to co -tenancy between the predecessor of petitioners on one side and predecessor of respondent -3 on the other side. In basic consolidation record the name of predecessor of the petitioners was recorded over the land in dispute. The predecessor of respondent -3 filed an objection under section 9 of the Act, claiming co -tenancy right over the land in dispute. It is alleged that before the Assistant Consolidation Officer the parties entered into a compromise and accordingly, the order dated 3.7.1987 was passed on its basis. However, the petitioner filed an appeal before the Settlement Officer, Consolidation along with a delay condonation application on 20.7.2009 and denied entering into the compromise. The Settlement Officer, Consolidation after hearing the parties by order dated 8.8.2012 condoned the delay in filing the appeal and fixed a date for hearing the arguments in appeal. Respondent -3 challenged the order dated 8.8.2012 in revision before the Deputy Director of Consolidation. The Deputy Director of Consolidation in the impugned order dated 20.11.2014 held that it is highly improbable that in spite of separate chaks were carved out in the name of predecessor of respondent -3 and CH Form 23 was prepared in his name, the petitioners could not know about the order of Assistant Consolidation Officer. He further found that the compromise before the Assistant Consolidation Officer would amount to illegal transfer and consolidation authorities may invoke the power under section 11 -C of the Act and pass a suitable order in this respect. On this finding he set aside the order of condonation of delay and remanded the matter to the Settlement Officer, Consolidation to obtain an expert report in respect of thumb impression of Raghuveer and Bholi made on the compromise and then he should decide the delay condonation application afresh in accordance with law. Hence this writ petition has been filed.
(3.) THE Counsel for the petitioners submits that the Deputy Director of Consolidation himself recorded the finding that CH Form 23 was prepared in the year 1987 as such there was no ground for condoning inordinate delay. After this finding there remains nothing for consideration of the Settlement Officer, Consolidation and even if the compromise is found to be forged he was bound by the finding recorded by the Deputy Director of Consolidation. He further submits that co -tenancy is required to be established from the inception and co -tenancy cannot be created unless there is positive evidence. Thus, there will be no illegal transfer. The direction given by the Deputy Director of Consolidation that the consolidation authorities may pass a suitable order exercising powers under section 11 -C of the Act is wholly illegal and without jurisdiction. It is nobody's case that there was illegal transfer. In case compromise is found to be fake then the order passed by the Assistant Consolidation Officer will be set aside and the objection will be heard on merit and in case the compromise is found to be genuine the appeal of predecessor of the petitioners will be dismissed.;