- (1.) S. K. Singh, J. Heard Sri R. S. Misra and Sri Gaur, learned Advocate in support of this writ petition and Sri Srivastava. learned Advocate who appeared for respondent No. 4. Service on respondent No. 5 is by refusal.
(2.) PLEADINGS are complete. Writ petition is of the year 1994, listed peremptorily, as submitted, is being heard and is being decided. Writ petition arises out of the proceedings under section 9-A (2) of U. P. Consolidation of Holdings Act. The dispute is in respect to Plot No. 639/2 and 633/31 which were recorded in the basic year in the name of Kanhaiya and Jeewa Ram. Kanhaiya is no more and he is represented through respondent No. 5 and Jeewa Ram respondent No. 4 here. The dispute came to be in existence at the start of the consolidation proceedings about rights in respect to the land in dispute which is said to have been claimed by the petitioner side on the basis of adverse possession as submitted by the respondent side which prima facie appears from the record also. Be as it may, matter travelled up to this Court in special appeal in relation to the technical aspect and it is ultimately matter came to be revived before the Consolidation Officer for its decision on merits, in accordance with law. Consolidation Officer has rejected the objection on the merits in respect to the claim of the petitioner by order dated 27. 3. 1985. Appeal was filed by the petitioner. In appeal amendment was sought in the memo of appeal adding certain grounds to dislodge claim of the respondent side. Besides amendment in the memo of appeal a detailed application was given giving complete details in support of the amended plea so sought by way of memo of appeal. That application is dated 10. 9. 1987. Settlement Officer Consolidation rejected that application by order dated 31. 5. 1988 upon which petitioner challenged that order by filing revision which was ultimately allowed by the Deputy Director of Consolidation by its judgment dated 24. 2. 1990. After allowing the revision permitting/approving the amendment in the memo of appeal, matter was again placed before the Settlement Officer Consolidation. It is to be noted here that no challenge was made against the order of the Deputy Director of Consolidation dated 24. 2. 1990. When the appeal before appellate authority revived petitioner side filed bulk of documents which are numbered as 1 to 14 as mentioned in the appellate order. It is mentioned in the appellate order that no document whatsoever in rebuttal was filed by the respondent side. On consideration of the matter appellate authority dismissed the appeal by its judgment dated 23. 2. 1993, and thereafter, revision filed by petitioner was also dismissed by order dated 26. 7. 1994 and thus to challenge the aforesaid orders this writ petition. Submission of the learned Counsel for the petitioner is that the appellate authority after judgment of the Deputy Director of Consolidation dated 24. 2. 1990 permitting/approving the amendment in the memo of appeal was required to consider and give finding either way on the merits of the amended grounds but the appellate authority although has made observation that there appears to be some mistake in the map etc. which appears from the document so filed but as sufficiently long time has already passed if the matter is kept pending on that score and that will not be in the interest of respondents, proposed to dismiss the appeal, which on the facts cannot be said to be justified. Submission is that detailed facts were given before the appellate authority by means of amendment by which it was brought to the notice of the Court supported by document that area of petitioner's land/plot i. e. Plot No. 633/23 has been wrongly spitted into further sub plots and the area of the petitioner's land has been wrongly included in the land of the respondent and therefore, this being the crucial aspect although it was not taken at the first instance when the consolidation proceedings started but as technicalities in the consolidation proceedings is not to come in the way it was obligatory on the part of the appellate authority to have considered this aspect and to have given finding either in favour or against the petitioner specially when this amendment was permitted/approved by the Deputy Director of Consolidation. Submission is that on account of non consideration of the aforesaid aspects petitioner has suffered prejudice and in fact appellate authority can also be held to be not justified in not accepting the verdict of the Deputy Director of Consolidation which can be also said to be judicial impropriety. Submission is that Deputy Director of Consolidation also having noticed all these things refused to consider this aspect although he was exercising co-ordinate jurisdiction in respect to earlier order passed by his predecessor and thus on these facts matter needs to be remitted to the appellate authority for taking fresh decision keeping in mind details/facts which have been brought on record by means of amendment after entertaining whatever objection which may be from the respondent side in respect to the claim of the petitioner.
(3.) IN response to the aforesaid, Sri Srivastava, learned Advocate submits that amendment so sought/allowed by the Deputy Director of Consolidation was admittedly only in respect to the ground of appeal and that cannot take the place of amendment in the pleading so as to enable the petitioner to get this consideration on the merits. It was then submitted that appellate authority was only required to consider the merits and legality/illegality in the judgment of the Consolidation Officer irrespective of the amendment so allowed by the Deputy Director of Consolidation. Lastly, it has been submitted that the evidence which has been filed by the petitioner side after judgment of the Deputy Director of Consolidation dated 24. 2. 1990 being against the pleading was not required to be taken into consideration and thus if on these facts, appellate authority and the revisional Court have dismissed the appeal and revision then no exception can be taken to it. Submission is that on the facts after such long time on the ground so taken if revival of the appeal is permitted then that will not be in the ends of justice and the respondent side is to suffer serious prejudice and therefore, writ petition merits dismissal. In view of the aforesaid, this Court is to decide the claim of parties.;