Ram Surat Ram (Maurya), J. - (1.) HEARD Sri Ashok Kumar Singh for the petitioners and Sri Manoj Kumar Pandey for the contesting respondents. The writ petition has been filed against the order of Deputy Director of Consolidation dated 29.11.2014 by which the revision filed by respondent -3 was allowed and the order of the Consolidation Officer dated 22.5.2014 setting aside the order dated 17.2.1993 and restoring the case to its original number has been set aside.
(2.) RESPONDENT -3 filed objection under section 9 of U.P. Consolidation of Holdings Act, 1953(hereinafter referred to as "the Act") for mutation of his name over the land in dispute. It has been stated by respondent -3 that Leeley pre -decessor of the petitioners had executed a sale -deed dated 21.11.1973 in his favour. The objection was contested by Leeley. He denied the execution of the sale deed. However, in order to prove due execution of the sale -deed respondent -3 examined Vegraj, marginal witness of the sale deed, who proved its execution. The Consolidation Officer by order dated 17.2.1993 allowed the objection of respondent -3 and directed for recording his name over the land in dispute on the basis of the sale -deed dated 21.11.1973. Thereafter, it is alleged that Leeley died on 14.4.1998. It appears that the order of the Consolidation Officer was not given effect to at that time as such subsequently an application under Rule 109 -A of U.P. Consolidation of Holdings Rules, 1954 was filed by respondent -3 in the year 2007 which was allowed by the Consolidation Officer by order dated 12.12.2007 and on its basis amaldaramad was incorporated on 26.12.2007. Thereafter, the petitioners -1 to 3 filed restoration application in the cases under section 9 of the Act as well as in the case under Rule 109 -A of U.P. Consolidation of Holdings Rules, 1954. The restoration applications were heard by the Consolidation Officer, who by order dated 22.5.2014 condoned the delay in filing the restoration application and set aside the order dated 17.2.1993 and case was restored to its original number. The aforesaid order was challenged by respondent -3 in the revision, which has been allowed by the Deputy Director of Consolidation by the impugned order dated 29.11.2014. The Deputy Director of Consolidation by the impugned order found that after contest the Consolidation Officer framed issues, recorded evidence of the parties and thereafter he passed the order dated 17.2.1993 on merit. Thus, the order cannot be treated as an ex parte order. He further found that Leeley was contesting the matter. Leeley survived after passing the order and died on 14.4.1998 but during his lifetime he did not challenge the order of the Consolidation Officer as such after such a long time the petitioners have no right to challenge the order. On this finding the revision was allowed and the order of the Consolidation Officer dated 22.5.2014 was set aside and the order dated 17.2.1993 has been maintained. The Counsel for the petitioners submits that Smt. Atari, petitioner -4, was one of the heirs of Leeley and her name was also mutated over the land in dispute but she was not impleaded as a party in the revision. The revision was liable to be dismissed for non -joinder of necessary party. He further submits that the Consolidation Officer has recorded a categorical finding that from the perusal of the order sheet shows that proceeding before the Consolidation Officer was not regular inasmuch as the order has been passed on 17.2.1993, however, in the order -sheet dated 15.2.1993 it has been mentioned that the Presiding Officer was out of station. Thus the judgment dated 17.2.1993 was highly suspicious judgment. He further submits that the order was secured behind the back of the petitioner, which is alleged to have been passed on 17.2.1993 but no proceeding on its basis has been taken by respondent -3 for getting his name mutated over the land in dispute for such a long time and it is only in the year 2007 an application under Rule 109 -A of U.P. Consolidation of Holdings Rules, 1954 was filed which was allowed without issuing any notice to the petitioners. In such circumstances, respondent -3, who has fabricated the sale -deed made all efforts to avoid the petitioners as well as Leeley from opportunity of being heard and the order being an ex parte order the Consolidation Officer was satisfied and therefore, he recalled the order dated 17.2.1993. The discretion exercised by the Consolidation Officer does not suffer from any illegality and the Deputy Director of Consolidation has illegally interfered in the discretion of the Consolidation Officer. He further submits that in any case the order restoring the case is an interlocutory order and the revision against it was not maintainable and was liable to be dismissed.
(3.) I have considered the arguments of the Counsel for the parties and examined the record.;