Ram Surat Ram, J. - (1.) HEARD Sri A.P. Tiwari for the petitioners and Sri Tripathi B.G. Bhai along with Sri V.K. Dubey for the contesting respondent. The writ petition has been filed against the order of Deputy Director of Consolidation dated 26.7.2004 passed in the title proceeding under UP Consolidation of Holdings Act allowing the revision of respondent -2 and the order dated 19.1.2015 dismissing the recall/restoration application filed against the aforesaid order.
(2.) THE dispute between the parties is in respect of land recorded in basic consolidation khata Nos. 210 and 212. In basic consolidation record names of the petitioners were recorded over the land in dispute. Respondent -2 filed an objection under section 9 of the Act claiming his right over the land in dispute. The case was tried by the Consolidation Officer who by the order dated 6.6.1984 held that the petitioners are the land holders of the land in dispute accordingly he was directed for recording their name over the land in dispute. Respondents filed an appeal against the aforesaid order. The appeal was heard by the Assistant Settlement Officer Consolidation who by the order dated 16.5.1987 dismissed the appeal of the respondent -2. Thereafter respondent -2 challenged the aforesaid order in revision. It is alleged that in spite of service of notice, the petitioners did not appear before the Deputy Director of Consolidation and Deputy Director of Consolidation heard the revision ex parte who by his judgment dated 26.7.2004 held that as the land in dispute was sir holding of respondent -2 who was minor in 1359 -F as such according to the provisions of section 21(h) of U.P. Act No. 1 of 1951, the petitioners acquired asami right over the land in dispute. The provisions of section 20 will not be applicable as at that time respondent -2 was minor and protection provided under section 157 to the minor will be applicable in the matter, accordingly the petitioners have not acquired occupancy/sirdari right over the land in dispute. On this finding the revision was allowed and the order of Consolidation Officer and Assistant Settlement Officer Consolidation were set aside and the name of respondent -2 was directed to be mutated in the revenue record. The petitioners filed a recall application against the aforesaid order which was dismissed by the Deputy Director of Consolidation by order dated 19.1.2015 holding that the notice had been served upon the petitioners but in spite of service of notice they did not appear before the Deputy Director of Consolidation and there was no ground for recalling the order dated 26.7.2004. Hence this writ petition has been filed. The contention of the petitioners that although in khewat name of respondent -2 was recorded as minor but in khatauni 1359 -F name of respondent -2 was not recorded as minor. Respondent -2 in his affidavits filed before the Consolidation Officer gave two contradictory ages inasmuch as in one affidavit he mentioned his age as 26 years while in another affidavit he mentioned his age as 36 years. The affidavits were filed on 13.9.1977 and accordingly in view of contradiction the Assistant Settlement Officer Consolidation has ignored the affidavits and preferred to rely the khatauni entry and accordingly it was held that respondent -2 was not minor in 1359 -F. However the Deputy Director of Consolidation has illegally failed to take notice of the findings recorded by the Assistant Settlement Officer Consolidation and he also ignored the affidavits of respondent -2 which have been filed before the Consolidation Officer. The findings recorded by the Deputy Director of Consolidation is illegal. He further submits that provisions of section 157 of UP Act No. 1 of 1951 is not applicable in the matter in such circumstances the petitioners have took his occupation in 1359 -F accordingly they were treated as recorded occupant within the meaning of section 20 of the Act otherwise also compensation roll has been prepared in the name of respondent -2 and that is conclusive of the matter and it was not open for the Deputy Director of Consolidation to record a contrary finding in this respect.
(3.) I have considered the arguments of the Counsel for the parties and examined the record. A perusal of the judgment shows that khewat as well as khatauni 1359 -F was filed before the Consolidation Officer in which the land in dispute was recorded as sir holding in the name of respondent -2 and names of the petitioners were recorded in columns 17 and 20 of the khatauni which is the column for tenant of sir. In such circumstances, it is proved that respondent -2 was born in 1359 -F as his name was recorded in the khewat as well as in khatauni.;