ASHOK BHUSHAN, J. - (1.) HEARD Sri Mukhtar Alam, learned Counsel for the petitioner and Sri Atul Dayal, learned Counsel appearing for the caveator.
(2.) BY this writ petition the petitioner has prayed for quashing the order dated 29.11.2007, passed by the Deputy Director of Consolidation by which the revision filed by the contesting respondents against the order of Settlement Officer, Con­solidation was allowed and the matter was remanded to the Consolidation Officer to take a decision after giving opportunity to the petitioner to lead evidence. Brief facts of the case necessary to be noted for deciding the issues raised in the writ petition are; the dispute relates to Khata No. 401-B and 402. The Assistant Consolidation Officer made a reference with regard to Khata No. 401 -B regarding partition and recording the name of the heirs of deceased Asrar Ahmad. Objection by Yaseen Begam was also submitted claiming co-tenancy right in Khata No. 401 Ba. In Khata No. 402, a report was submitted by the Assistant Consolidation Officer regarding share of the parties and the claim of cotenancy right by Tahsin Begum and Yasin Begum. The Consolidation Officer on 21.1.2004 in the absence of the parties, decided the cases and dismissed all the objections on the ground of non-prosecution and maintained the basic year entry. Yasin Begum filed restoration application on 28.1.2004. On 2.11.2004, Consolidation Officer passed an order that earlier order was passed in the absence of the par­ties hence, it is in the interest of justice that the case be restored and parties be given opportunity. Before the Consolidation Officer, the case was proceeding for evidence of Abrar Ahmad. Several dates were fixed for evidence of Abrar Ahmad. Two appeals were filed by Abrar Ahmad against the order dated 2.11.2004, passed by the Consolidation Officer, praying therein that he was not given opportunity to object the restoration application. Another order under challenge was order dated 28.1.2005, by which the Consolidation Officer directed for evidence of Abrar Ahmad. Petitioner's case before the Settlement Officer, Consolidation was that both the orders be set aside. The Settlement Officer, Consolidation by order dated 2.2.2006 allowed both the appeals of Abrar Ahmad and held that on the restoration applica­tion no opportunity was given hence, procedure adopted by the Consolidation Officer was incorrect. Settlement Officer, Consolidation further noticed that the disputed plots situate in the town area hence, they are out of consolidation. The Settlement Officer, Consolidation held that consolidation Courts have no jurisdic­tion to pass orders. Against the order of Settlement Officer, Consolidation, a revision was filed by respondent Anwar Ahmad which has been allowed by the Deputy Director of Consolidation vide the impugned order.
(3.) LEARNED Counsel for the petitioner challenging the impugned order made two submissions. The first submission of the learned Counsel for the petitioner is that the land in dispute being included in the town area, the provisions of U.P. Consolidation of Holdings Act, 1953 are not applicable hence, the Consolidation Officer has no jurisdiction to adjudicate over the plots in question. It has further been submitted that a report has been submitted by Consolidation Officer and Assistant Consolidation Officer to the effect that plot No. 1027 is situated in the town area and some part of it is Parti and on some part of it, foundation has been dug for Abadi. He further submits that with regard to Abadi land, the Consolidation Officer has no jurisdiction. Reliance has been placed on judgments in the cases. of Triloki Nath v. Ram Gopal and others, 1974 R.D. 5; Ram Manorath and others v. Surya Pal and others, 2007 (102) RD 593; Randhir Singh and others v. Deputy Director of Consolidation and others, 1997 RD 346; Prabhu Nath v. Deputy Direc­tor of Consolidation and others, 2003 (95) RD 611; Kumar Lohar and others v. Ram Dhandra Dubey and others, 1982 All. L.J. 1129 and AchcheyLan and others v. Assistant Director of Consolidation, Gorakhpur and others, 1996(14) LCD 194.;