Manoj Kumar Gupta, J. - (1.) Heard learned counsel for the petitioners and learned counsel appearing on behalf of respondent nos. 4 and 5. Pleadings have been exchanged between the parties and with their consent, this writ petition is being decided finally.
(2.) The undisputed fact is that the land in dispute was recorded in the name of Data Ram. After his death in the year 1994, respondent nos. 4 and 5 claiming themselves to be the cousin brothers of the deceased tenure holder Data Ram, filed an application for mutation of their name in his place under Section 12 of the U.P. Consolidation of Holdings Act, 1953. They claimed that Data Ram died issueless and they had inherited the property. The application filed by the respondent nos. 4 and 5 was allowed by the Assistant Consolidation Officer, Bareilly by order dated 17.12.1996. According to the petitioners, Data Ram had not died issuless, but was survived by his two sons, the petitioners herein and his widow. At the time of the death of Data Ram, according to the petitioners, they were 7 and 5 years of age. The fourth and fifth respondents, thus succeeded in getting their name mutated by misrepresenting that Data Ram had died issueless. The petitioners on coming to know of the order dated 17.12.1996, filed an appeal before the second respondent along with an application for condoning the delay. The appeal was opposed by the respondent nos. 4 and 5 by contending that in the past, the petitioners had filed an appeal which was dismissed in default on 7.7.2001 and consequently, the appeal was not maintainable. The second respondent by order dated 18.12.2010 dismissed the appeal holding it to be incompetent in view of the earlier appeal of the petitioners being dismissed in default.
(3.) Although, according to the petitioners, the earlier appeal which came to be dismissed in default on 7.7.2001, was never filed by the petitioners but by some imposter and for which reason it was only respondent nos. 4 and 5 who had knowledge of the said proceedings. However, in view of the order dated 18.12.2010, by which their appeal was dismissed as not maintainable but it was observed that the parties should get the earlier appeal restored, they were advised to file an application seeking recall of the order dated 7.7.2001. Accordingly, an application for such purpose, was filed by the petitioners, which was allowed by the Settlement Officer, Consolidation by order dated 21.1.2011 and the appeal was restored to its original number.;