- (1.) This writ petition is directed against the order dated 7.3.1998 passed by Deputy Director Consolidation by which the said authority set aside the order dated 19.3.1994 and remanded the matter to Settlement Officer Consolidation for deciding the appeal afresh after affording opportunity of adducing evidence and of hearing. Learned Counsel for the petitioner urged that in view of finding recorded by the Consolidation officer that the sale deed is not proved by way of adducing any evidence besides being void ab initio the same having been executed without permission from Settlement Officer Consolidation considering that Opp. parties are claiming possession on the basis of sale deed executed by the husband of the petitioner, no right could accrue as according to her no permission was sought and the question of remand of the matter to decide the question of possession and acquisition of any rights on the basis of such possession does not arise. It is further urged that the remand is wholly uncalled for as in either case the Opp. parties will not acquire any right under any provision of law. On the other hand, learned Counsel for the Opp. parties contended that the suit filed for cancellation of sale deed culminated in dismissal. He further contended that Opp. parties would acquire rights on the basis of adverse possession. He further contended that in case sale deed is declared void, he would acquire right on the basis of adverse possession. He also contended that the order of remand was rightly passed as Settlement officer consolidation has not decided question of possession of the parties while dismissing the appeal and in view of the above, he claimed that the remand order was rightly passed. In rejoinder affidavit, learned Counsel for the petitioner urged that the suit was dismissed for being presented before the appropriate court and therefore, by any reckoning, there was no adjudication of the dispute on merits. He further urged that the petitioners had throughout been in actual physical possession but the same was illegally taken in proceeding under Section 145 Cr.P.C. in which the Sub Divisional Magistrate held the Opp. Parties in possession and dismissed the application of the petitioner vide his order dated 21.4.1965 although the fact remains that several other proceedings are also going on between the parties and therefore, he urged, the Opp. parties cannot acquire any right on the basis of adverse possession. He further urged that the possession claimed on the basis of sale deed may at the most be permissive possession and once sale deed is held to be void no valid title could be bestowed on the respondents on the basis of such document any therefore the possession with the permission of owner cannot confer better rights and he cannot claim any rights by adverse possession.
(2.) I have heard learned Counsel for the parties and perused the materials on record as also the case laws cited across the bar.
(3.) The dispute in the instant case revolves round plot Nos. 691, 692, 693, 694, 695,696 admeasuring 4 bigha 5 biswa and 17 Biswansi. In the basic year, respondents figured in tee revenue record as Bhumidhar of the land in dispute. It is alleged that on 16.8.1961, the husband of the petitioner executed sale deed in favour of contesting Opp. parties in respect of the plots in question. Subsequently, it transpired to Consolidation order vide his order dated 3.9.67 that permission mandated under Section 5(c)(2) of the U.P. Consolidation of Holdings Act was not obtained from the Settlement Officer Consolidation and in consequence rejected the mutation application of the Opp. parties. Thereafter the matter was taken to Settlement Officer Consolidation in appeal, which was dismissed by him on the premises that he had no jurisdiction. A suit under Section 229B of the U.P.Z.A. & L.R. Act was instituted by the Opp. parties which culminated in being decreed on 22.2.69. the appeal preferred against the decision was dismissed but review was allowed and the matter was remitted to addl. Commissioner for decision afresh. The matter was taken in challenge in second appeal and thereafter writ petition No. 416 of 3.977 was preferred. During pendency of the matter, consolidation proceedings commenced a second time. Objection under Section 9 of the U.P. Consolidation of Holdings Act was preferred by the petitioner on the premises that names of petitioners were rightly entered and she (petitioner) be declared Bhumidhar of the plots in question. The contesting Opp. parties contested the matter on the ground that he was a transferee from the husband of the petitioner and further in case sale deed is declared to be invalid, he would perfect title on the ground of adverse possession. The Consolidation Officer by means of order dated 4.6.1986, allowed the objection of the petitioner holding in substance that sale deed relied upon by the Opp. parties could not confer any right or title in favour of Opp. parties attending with further finding that the sale deed was not proved by the respondents but while adjudicating on issues 1 and 6, the authority held that the respondents had perfected their right and title by adverse possession by reason of application of Section 210 of the U.P.Z.A. & L.R. Act. An appeal was preferred against the said decision, which culminated in being allowed, and the petitioner was declared Bhumidhar of the land in dispute. By the impugned order, the matter was remanded to the appellate court to decide the appeal afresh after affording opportunity of adducing evidence on the question of possession and also whether any right and title over the property had accrued to the res jondents by reason of being in possession otherwise than in accordance with law.;