RAM SURAT RAM, J. - (1.) HEARD Sri A.P. Tewari, for the petitioners and Sri R.C. Singh, for the contesting respondents.
(2.) THE writ petition has been filed against the order of Deputy Director of Consolidation dated 12.11.1999 passed in proceeding under Section 12 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).
(3.) THE dispute relates to chak 198 of village Lakshmipur, tappa Rajdhani, pargana Haweli, district Gorakhpur, which was carved out in the name of Dinesh Kumar Pandey (respondent -7). On the basis of four sale deeds dated 07.06.1994 and 12.07.1994 executed by Dinesh Kumar Pandey in favour of Smt. Kusum Pandey, Km. Shalini Pandey, Dhiresh Kumar and Deependra Kumar (respondents -2 to 5), the applications (registered as Case Nos. 268, 269, 270 and 271) under Section 12 of the Act, were filed for mutation of the names of transferees. Assistant Consolidation Officer, by order dated 19.11.1994 decided the cases in terms of compromise and directed for mutation of the names of the transferees over the chak in dispute. The petitioners filed an appeal (registered as Appeal No. 2847) from the aforesaid orders. Settlement Officer Consolidation by order dated 11.08.1999, allowed the appeals and remanded the cases to Consolidation Officer to decide afresh, after giving opportunity of evidence/ hearing to the parties. Smt. Kusum Pandey and others (respondents -2 to 5) filed a revision (registered as Revision No. 2881 of 1999) from the aforesaid order, which was allowed by Deputy Director of Consolidation, by order dated 12.11.1999 and order of Settlement Officer Consolidation dated 11.08.1999 was set aside and orders of Assistant Consolidation Officer, dated 19.11.1994 were affirmed. Hence this writ petition has been filed. The counsel for the petitioners submitted that Dinesh Kumar Padney (respondent -7) was big zamindar having agricultural land in several villages. Entire property in the name of respondents -7 was ancestral khudkast. The petitioners and respondents -6 and 7 formed a joint Hindu family. Dinesh Kumar Pandey executed a registered family settlement dated 01.07.1970 by which he divided the ancestral joint family property amongst the petitioners and respondents -6 and 7. In spite of family settlement, the name of respondent -7 continued in the revenue record. In consolidation also same entry was maintained. Taking advantage of the name in revenue record, respondent -7 executed four sale deeds dated 07.06.1994 and 12.07.1994 in favour of Smt. Kusum Pandey, Km. Shalini Pandey, Dhiresh Kumar and Deependra Kumar (respondents -2 to 5), for which he had no right. On the basis of sale deeds, names of respondents -2 to 5 were recorded over the land in dispute. The petitioners were owners and had their share in the land in dispute. They were aggrieved persons from the orders of Assistant Consolation Officer. As the orders were passed without giving any opportunity of hearing as such the appeal filed by the petitioners were allowed and the matter has been remanded to Consolidation Officer to try the cases and decide on merit. Deputy Director of Consolidation has illegally interfered with the remand order, on the ground that mutation proceeding is not a title proceeding and the petitioner had not filed any objection on the basis of alleged family settlement under Section 9 of the Act as such they had no right to contest the proceeding under Section 12 of Act. So long as the name of the father/grand father of the petitioners were recorded they had no grievances but as soon as the property in dispute was sold to third persons and third persons applied for mutation of their names over the property, which otherwise in the share of the petitioners, then they were entitled to contest it as mutation proceedings under Section 12 of the Act has effect of title proceeding and will bar right for ever. The order of respondent -1 is illegal and liable to be set aside.;