- (1.) R. H. Zaidi, J. Heard learned counsel for the petitioners, Sri R. K. Chaube, Ad-vocat for the contesting respondent Nos. 3 and 4 as well as the learned standing coun sel.
(2.) PRESENT petition arises out of the proceedings under Sections 34/40 of the U. P. Land Re6enue Act, for short the Act, and is directed against the orders passed by the respondent Nos. 1 and 2. The brief facts of the case giving rise to the present petition are that petitioner No. 2, Desh Deep Banerji filed application under Section 34/40 of the Act claiming the mutation of his name in the revenue papers over the land in dispute on the basis of a will dated 3-2-1997, alleged to have been ex ecuted by Smt. Sundari. It was claimed by the petitioner No. 2 that Original Suit No. 1578 of 1982 was filed by him for cancella tion of the gift-deed executed by Smt. Sun dari in favour of Smt. Majari Christofer, which was decreed and his claim on the basis of the aforesaid will was upheld by the Civil Court, therefore, his name was liable to the recorded in the revenue papers on the land in dispute. The application filed by the petitioner No. 2 was registered as Case No. 1547 of 1984, which was contested by Smt. Majari Christofer, who filed her objection pleading that the decree passed by the Munsif's court dated 21-1-1986 was reversed in Civil Appeal No. 204 of 1984, therefore, the application filed by the petitioner No. 2 was liable to be rejected. During the pendency of the said proceedings Smt. Majari Christofer died on 24-5-1986. On her death Maklin Deepak, respondent No. 3 applied for mutation of his name on the land in dispute in the revenue papers on the basis of the will dated 15- 4-1981, alleged to have been executed in his favour by Smt. Majari Christofer. The said case was registered as Case No. 1363 of 1986. Petitioners who happened to be the mother and son opposed and objected to the application filed by Maklin Deepak, plead ing that he had no relationship with Smt. Majari Cristopher.
(3.) SINCE in both the aforesaid cases the subject-matter of dispute and the parties were the same, therefore, they were con solidated by the order of the Tehsildar dated 17-3-1987. After following the procedure prescribed under the law, affording oppor tunity to the parties to lead evidence and hearing them, the applications filed by the petitioners were rejected by the Tehsildar vide his order dated 6-8- 1988. It was held that on the basis of the decree passed by the Munsiff court the name of the petitioner No. 2 could not be mutated in the revenue papers as the said decree was already reversed by the appellate court and there was no interim order granted by the High Court in the second appeal filed against the decree passed by the appellate court. The application and the claim of the petitioner No. 1 Smt. Queeni Banerji were rejected on the ground that she being uncle's daughter (Chacheri Bahan) was not one of the heirs and successors of the deceased Majari Christofer. By the same order the name of the respondent No. 3, Maklin Deepak was ordered to be recorded in the revenue papers in place of the deceased Smt. Majari Christofer on the basis of the registered will executed in his favour by Smt. Majari Chris tofer. The petitioner No. 1 challenged the validity of the order dated 6-8-1988 before the appellate court under Section 210 of the Act. However, the appeal filed by her was dismissed by the appellate court vide order dated 7-7-1990. It appears that before the decision of the aforesaid appeal, two applications dated 6-8-1988 and 16-8- 1988 were filed by the petitioner Nos. 1 and 2, respectively, under Section 201 of the Act claiming that the order dated 6-8-1988 was exparte. The Tehsildar after hearing the parties dismissed both the restoration applications filed by the petitioners vide his order dated 6-3-1991. Aggrieved by the judgment and order dated 6-3-1991 petitioners filed two appeals before the Sub-Divisional Officer under Section 210 of the Act, which were registered as Appeal Nos. 166 and 167 of 1991. Said appeals were allowed by the Sub-divisional Officer vide his order dated 4-7-1992, and without setting aside the order dated 6-3-1991, the order dated 6-8-1988 was set aside, and the case was remanded to the Tehsildar for decision afresh.;