RAM SURAT RAM, J. - (1.) Heard Sri Prabhakar Singh for the petitioner and Sri Rakesh Pathak for respondent-3.
(2.) The writ petition has been filed against the order of Consolidation Officer dated 9.9.2015 recalling the order dated 22.12.2003 dismissing the objection in default and the order of Deputy Director of Consolidation dated 2.7.2016 dismissing the revision of the petitioner filed against the aforesaid order.
(3.) The dispute between the parties was in respect of plot no. 633 and 705 of village Thekma, pargana Bela Daulatabad, tehsil Lalganj, Distt. Azamgarh. In basic consolidation record the land in dispute was recorded in khata no. 347 in the name of Triloki Rai, father of the petitioner. Bajrangi and others filed an objection under Section 9 of the Act claiming their right over the aforesaid plots by way of adverse possession. It is stated that the dispute between the parties was compromised before the Assistant Consolidation Officer by order dated 13.12.1970. Smt. Indrawati Devi filed a revision against the order dated 13.12.1970 on 11.4.1984 along with delay condonation application. Smt. Indrawati Devi was deriving her title on the basis of gift deed executed by Triloki, the recorded tenure holder. The revision was allowed by Deputy Director of Consolidation by order dated 22.2.1999 and the order of Assistant Consolidation Officer dated 13.12.1970 was set aside and the matter was remanded to the Consolidation Officer for deciding the dispute on merit after taking the evidence of the parties. The order of Deputy Director of Consolidation dated 22.2.1999 was challenged in Writ B No. 10449 of 1999 which was dismissed by this Court by order dated 27.3.1999. It is alleged that in pursuance of the remand order of Deputy Director of Consolidation, the proceeding before the Consolidation Officer was started since 5.2.1999. A perusal of the order sheet of Consolidation Officer filed as Annexure-SA-2 shows that on 19.7.2000 and 1.11.2002, in the order sheet it was noted that both the parties were present along with their counsels. However the case was dismissed in default on 22.12.2003 in the absence of parties. Thereafter Prabhat , respondent-3 alone filed an application for recalling the order dated 22.12.2003 along with delay condonation application on 15.11.2014. In the recall application, it has been stated that after passing the order of Deputy Director of Consolidation, notice was not issued by the Consolidation Officer to the parties as such he could never know about the proceeding before the Consolidation Officer. It is only in the reference proceeding, when he had to file writ petition in which Smt. Indrawati Devi and her heirs Lokesh Kumar and others filed counter affidavit then on the basis of information received through counter affidavit, inquiry was made by him then he came to know about the order dated 22.12.2003 in the year 2014 and recall application was filed on 15.11.2014. The petitioner contested the recall application and filed his objection. In the objection it has been stated that Triloki Rai died on 25.11.2005 and Smt. Indrawati Devi died on 15.1.2014 and in spite of knowledge about the death of the aforesaid persons, Prabhat Kumar Rai did not take any step for substituting the heirs of deceased persons. The recall application is virtually against dead persons and is liable to be dismissed. It has also been mentioned that the recall application be dismissed on this preliminary objection itself. The Consolidation Officer by the impugned order dated 9.9.2015 found that as the order dated 22.12.2003 is passed in the absence of parties as such it is liable to be recalled. On this finding he condoned the delay and recalled the order dated 22.12.2003. The petitioner challenged the aforesaid order in revision which has been dismissed by the Deputy Director of Consolidation. Hence this writ petition has been filed.;