- (1.) S. P. Srivastava, J. Heard Sri V. M. Sahai, learned counsel for the petitioner and Sri S. K. Singh, jarned counsel representing the contesting respondent Musai.
(2.) LEARNED counsel for the parties have jointly stated that both these writ petitions may be disposed of finally. Considering the facts and circumstances of the case these writ petitions are being disposed of at this very stage under the second proviso to Rue 2 (1) of Chapter XXII of the Rules of the Court. The facts, shorn of details and necessary for the disposal of these cases lie in a narrow compass. In the proceedings under the U. P. Consolidation of Holdings Act subsequent to the stage of the allotment of Chaks in favour of the petitioner and the contesting respondent Musai an application dated 2-3-84 was filed before the Deputy Director, Consolidation by the petitioner seeking an adjustment in the Chak No. 505 allotted to the petitioner and the Chak allotted to Musai. This application was sent for disposal before the Consolidation officer in accordance with law. On this application the 'consolidator submitted a report dated 14-5-84 to the Assistant Consolidation Officer proposing anx adjustment chart as prayed for which affected the Chak allotted to Musai. Under the adjustment chart an area of 14 decimal was proposed to be taken put from the Chak of Musai and included in the Chak of Basant Lal and Brij Lal. The adjustment chart indicates that in lieu of 14 decimal area which was to be taken out from the Chak of Musai, he was proposed allotment of an area of 31 decimal. The parties did not appear before the Assistant Consolidation Officer who by his order dated 16-5-84 sent the file of the case along with the report of the Assistant Consolidation Officer and the adjustment chart indicating the proposed alteration in the Chaks for appropriate orders before the Consolidation Officer. Thereafter the Consolidation Officer made a reference under Section 48 (3) of the U. P. Consolidation of Holdings Act to the Deputy Director, Consolidation vide his order dated 25-5-84. In the aforesaid order the Consolidation Officer referred to the order of the Deputy Director, Consolidation dated 21-3-84 sending the application filed by the petitioner for appropriate orders to the Consolidation Officer. In the referring order the Consolidation Officer pointed out that the affected parties had been heard in the matter. He recommended for accepting the reference whereunder the Chaks of the petitioner and Musai were proposed to be altered. The Consolidation Officer also indicated in his order that all the affected parties were present before him and had expressed their willingness to accept the proposed adjustment in token whereof they had affixed their signatures/thumb-impression on the adjustment chart. In this referring order the Consolidation officer fixed 25-5-84 for the appearance of the parties before the Deputy Director of Consolidation in the matter. The photostat copy of the referring order shows that besides the signatures of Brij Lal and Basant Lal appended thereto the thumb-impression purporting to be of Musai is also affixed. Mahavir an other Chak-holder whose Chak was to be affected under the proposed amendments also appears to have appended his signatures on the referring order. A perusal of the photostat copy of the adjustment chart also indicates that Mahavir, Brij Lal and Basant Lal had appended their signatures thereon and the purported thumb-impression of Musai is also affixed on it.
(3.) AS has already been noticed above the Consolidation Officer had affixed 25-5-84 for appearance of the parties in the matter before the Deputy Director of Consolidation. It appears that the matter regarding the consideration of the reference was taken up by the Deputy Director of Consolidation on 28-5-84. On this date he passed an order accepting the reference with the proposed adjustments. The contesting-respondent Musai thereafter filed an application on 19-12-89 seeking recall of the order passed by the Deputy Director of Consolidation on 28-5-84 alleging that the said order had been passed ex pane. He prayed that the delay in filing the application be condoned and after recalling the order dated 28-5-84 the matter may be heard on merits. In his affidavit filed in support of the application, apart from various allegations the contesting respondent asserted that he had come to know of the order dated 28-5-84 for the first time on 18-12-89. It was also indicated that he was a literate person and his alleged thumb-impression appearing on the referring order as well as the adjustment chart was fictitious. He further asserted that the entire proceedings were farzi and also denied his presence before the Consolidation Officer. The petitioners filed objection against the application seeking recall of the order dated 28-5-84 denying the claim of the contesting respondent. It was asserted that the application was barred by time and Musai had full knowledge of the entire proceedings and had in fact appeared as reported by the Consolidation Officer and had further expressed his willingness to accept the adjustments as proposed in token whereof he had affixed his thumb-impression not only on the referring order but also on the adjustment chart as well. Various other assertions were made in the objection which was supported by a counter- affidavit.;