Janardan Sahai, J. - (1.) It is stated in the writ petition that the petitioner No. 1 was allotted two chaks and the petitioner No. 2 was allotted three chaks. It appears that before the Settlement Officer Consolidation an appeal was filed by the respondent No. 2 Avadh Narain. The appeal was belated by five years and a prayer was made for condoning the delay. The Settlement Officer Consolidation by an order dated 27.4.1982 found that sufficient explanation for the delay was not given and therefore dismissed the appeal on the ground of limitation. Aggrieved the respondent No. 2 Avadh Narain preferred a revision. The copy of the memo of revision before the Deputy Director of Consolidation has been filed along with the counter affidavit. It indicates that the revision was directed only against the order of the Settlement Officer Consolidation. The Deputy Director of Consolidation by the impugned order dated 29.6.1983 has allowed the revision of the respondent No. 2. Aggrieved the petitioners have filed the present writ petition.
(2.) It is submitted by the petitioners' Counsel that the revision was directed only against the order of the Settlement Officer Consolidation dismissing the appeal-on the ground of limitation, and that the revision was not directed against the order of the Consolidation Officer. The submission of the petitioner's Counsel is that the Deputy Director of Consolidation without finding the order of the Settlement Officer Consolidation to be erroneous has decided the revision on merits, which he could not do. On merits too it is submitted that the order of tire Deputy Director of Consolidation cannot be sustained. The case of the petitioners is that the plot No. 367 was the original number of the petitioner No. 1 and of the respondent No. 2 Avadh Narain and that in the title proceedings it was held by the Deputy Director of Consolidation that half portion of the said plot measuring 18 decimals to the northern side belongs to the respondent No. 2 and the southern side to the petitioner. The petitioner's grievance is that the Deputy Director of Consolidation has allotted the southern side of plot No. 367 belonging to the petitioner also to the respondent No. 2. The petitioner's grievance also is that plot No. 368 is the original number of the petitioner No. 2 and by the side of plot No. 368 there is the house of the petitioner No. 2 and the Deputy Director of Consolidation has erred in taking out plot No. 368 from the chak of the petitioner No. 2 and in allotting it to the respondent No. 2.
(3.) Counsel for the respondents Sri Sankatha Rai assisted by Sri Pradip Rai made two submissions on the point of maintainability. First that even if the Deputy Director of Consolidation has not given any specific finding regarding the condonation of delay the delay would be deemed to have been condoned by him when he entered into the merits of the case. On this point he relied upon a decision in M.B. Shah v. B.N. Agarwal, AIR 2002 SC 451. This decision has no application to the present case. It is not in dispute that the revision, which was filed by respondent No. 2 was within time against the order of the Settlement Officer Consolidation. It was the appeal before the Settlement Officer Consolidation, which had been dismissed on the ground of limitation. It is also submitted that the record of the case was before the Deputy Director of Consolidation and he could, therefore, decide the case on merits. In support reliance is placed upon the Full Bench decision of this Court in Ramkant Singh v. Deputy Director of Consolidation, AIR 1975 Alld. 126. In that case the question referred was whether after the record is called for under section 48 the Deputy Director of Consolidation can dismiss the revision for non-impleadment of a necessary party in the memorandum of revision or he can decide the case after hearing the party not impleaded. It was held that after the record has been examined the Deputy Director of Consolidation can exercise the revisional jurisdiction suo moto and take appropriate decision after hearing the affected parties. The Full Bench further holds that if the revision application is not defective the exercise of the revisional jurisdiction shall be at the instance of the parties and not sou moto. In the present case the revision was not defective. The exercise of jurisdiction was therefore at the instance of the petitioner and not suo moto. The Deputy Director of Consolidation was therefore required to examine the correctness of the order of the Settlement Officer Consolidation dismissing the appeal on the ground of limitation, which was the order challenged and not the merits of the chak allotment. Counsel for the petitioners relied upon a decision of this Court in Bashir Ahmad Khan v. Deputy Director of Consolidation, Ghazipur and others, 2005 (98) RD 378 in which this Court in similar circumstance has taken the view that the proper course for the Deputy Director of Consolidation in a revision against an order of the Settlement Officer Consolidation dismissing the appeal on the question of limitation is to examine the correctness of that order. It appears from the facts and circumstances of this case too the proper course to be adopted by the Deputy Director of Consolidation was to examine the correctness of the order of the Settlement Officer Consolidation, which he failed to do. As regards the merits also find that the order of the Deputy Director of Consolidation cannot be sustained. The contention of the learned Counsel for the petitioners is that the loss, which would be occasioned to the petitioners by the modification in the chaks made by the Deputy Director of Consolidation has not been considered. Reliance is placed upon the averments made in paragraph 6 of the writ petition in which it is stated that there is a house of the petitioner No. 2 adjoining plot No. 368. If it be true that the petitioner No. 2 does have his house-adjoining plot No. 368 it would be a circumstance in favour of the petitioner No. 2 for allotment of a chak near his abadi. No opinion, however, is being expressed by this Court upon this point as it is proposed to remand the case to the Deputy Director of Consolidation for fresh decision.;