B. Dikshit, J. - (1.) This writ petition has been filed challenging an order dated 5.1.1993 passed by Deputy Director of Consolidation Unnao whereby he partly allowed the revision filed by opposite parties Sitaram and others and Section 48 of U.P. Consolidation of Holdings Act (in short 'Act'). The Deputy Director of Consolidation, while partly allowing revision set aside the order passed by Settlement Officer Consolidation to determine the legality of compromise entered into between the parties and the share after providing opportunity of hearing and leading evidence. He further directed Settlement Officer Consolidation that while passing order he has to discuss the evidence on record.
(2.) The facts relevant to determine present controversy are that the Assistant Consolidation Officer settled dispute between parties on the basis of a compromise dated 11.9.1990. The Assistant Consolidation Officer passed an order in terms of compromise on that very day on which compromise was filed. It determined that the share of Sitaram, Ghanshyam, Rampal, Mahendrapal, Govind Singh, Radheyshyam, Om Pal Singh, Ravindra Singh as 1/8 each in Khata No. 79 of village Garhwal Pargana Tehsil arid district Bijnor except plot No. 128/3 area 0.044 acres of that Khata on which Mahendra Pal Singh was also recorded in possession over plot number of 128/3 area 0.044 acres of Khata No. 79. He directed that the entry of possession of Mahendra Pal Singh be expunged. Against the order of Assistant Consolidation Officer, an appeal was preferred under Section 11 of the Act by Sitaram Singh, Ghanshyam Singh, Ram Pal Singh, Mahendra Pal Singh, who are opposite parties in this petition. They claimed that the share of parties was not to be determined according to compromise but whatever share works out under law for which parties are entitled in accordance with law. They claimed that the parties are not bound by compromise and, therefore, as each petitioner has ⅛th share in plots number 61, 62 and 63 while in rest of the plots of said khata petitioners have no share, the shares are to be determined accordingly Sitaram and other opposite parties on that basis claimed before Settlement Officer Consolidation, in respect of said rest plots, that only they are entitled with 1/4 share each. The appeal was heard by an Assistant Settlement Officer Consolidation who dismissed the appeal by order dated 10.9.1990 and upheld the share for which compromise was entered into between the parties. He further held that compromise was written by Assistant Consolidation Officer and was duly signed by all the co-tenure-holder after fully understanding its effects. Being dissatisfied by the order passed in appeal whereby the appeal was dismissed, opposite parties Sitarama, Ghanshyam Mahendra Pal Singh and Ram Pal Singh preferred revision under Section 48 of the Act. They also filed C.H. Form No. 5 of Khata No. 79 in dispute, the extract of Khatauni 1383-F-1388-F of Khata No. 45 plot Nos. 63-A, 63-B, 61 and 62 shoving entries in their favour, photocopies of extract of Khatauni 1383-1388-F and the affidavit of Pradhan Gaon Sabha as evidence in revision to support their case. The petitioner also filed affidavit of Netram son of Nihal being a member of consolidation committee in opposition to the evidence filed by Sitaram etc. Nihal in his affidavit stated that compromise was entered into between the parties. The Deputy Director of Consolidation by order dated 5.1.1993 partly allowed the revision and held that parties entered into compromise before Assistant Consolidation Officer but the same could have been accepted by the Consolidation Authorities only after having the evidence of Assistant Consolidation Officer which is not on the record, being not recorded. He also held that the evidence, which was led before the Settlement Officer Consolidation, has not been considered by Assistant Settlement Officer, who dismissed the appeal without discussing the evidence. Beside recording findings mentioned above, the Deputy Director of Consolidation concluded that it stood proved that compromise is not legal and the parties legal right has not been taken into consideration by Assistant Settlement Officer Consolidation. The Deputy Director of Consolidation finally ordered remand of the case to Settlement Officer Consolidation directing him to consider legality of compromise and share of parties after providing opportunity to parties for leading evidence, keeping in view the legal rights of parties, and to pass orders after considering evidence on record and hearing the parties.
(3.) Learned counsel for petitioner contends that parties entered into compromise which was accepted by Assistant Consolidation Officer who recorded the same and has even been upheld in appeal by Assistant Settlement Officer Consolidation, and therefore, it was not open for the Deputy Director of Consolidation to set aside such a compromise by declaring it illegal. According to learned counsel, the Deputy Director of Consolidation could not have directed the Settlement Officer Consolidation in respect of compromise in question, which was perfectly valid, to hear and decide it afresh after providing opportunity for leading evidence to parties and then re-considering the validity of the compromise on merits.;