Salil Kumar Rai, J. - (1.) Heard Shri Arun Kumar, counsel for the petitioners and Shri Loknath Shukla, Advocate holding brief of Shri Jitan Tiwari, counsel for respondent Nos. 2 and 3 as well as learned Standing Counsel representing respondent No. 1.
(2.) During the consolidation proceedings held in the village under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953'), Chak No. 86 was allotted to one Pheku and Gopal sons of Dhajju Tiwari. Subsequently, Pheku died, and therefore, his name was deleted from the records and Gopal was recorded as sole tenure holder of the aforesaid Chak vide order dated 25.12.1975 passed by the Assistant Consolidation Officer in Case No. 270. An order dated 17.10.1977 was passed by the Settlement Officer of Consolidation permitting Gopal to transfer the said Chak. Three applications were filed under Section 12 of the Act, 1953 praying that the names of the applicants be recorded in the revenue records in place of Gopal. The first application was filed by respondent Nos. 2 and 3 on 1.11.1977 inter alia claiming that Gopal had executed a sale-deed dated 19.10.1977 transferring the disputed property in their favour, and therefore, it was prayed that the applicants be recorded as tenure holder of the disputed property in place of Gopal. On the aforesaid application, Case No. 3 was registered in the Court of Consolidation Officer. The second application was filed by the petitioners on 8.11.2017 alleging that Gopal had executed a sale-deed dated 18.10.1977 transferring the disputed property in their favour and therefore, it was prayed that the applicants be recorded as tenure holder of the disputed property in place of Gopal. On the aforesaid application of the petitioners, Case No. 47 was registered in the Court of Consolidation Officer. The third application was filed by Jitendra Nath Tiwari alleging that before his death Gopal had executed a Will dated 19.10.1977 bequeathing the disputed property to the applicant. On the aforesaid application, Case No. 48 was registered in the Court of Consolidation Officer. It has come on record that Gopal died on 21.11.1977, and therefore in Case No. 48 it was prayed that the name of the applicant be recorded in place of Gopal by virtue of the Will dated 19.10.1977. The concerned Consolidation Officer vide his order dated 18.12.1995 allowed Case No. 3 and directed that the name of Gopal be deleted from revenue records and names of respondent Nos. 2 and 3 be recorded in the same as Bhumidhar on the basis of sale-deed dated 19.10.1977. Against the order dated 18.12.1995 passed by the Consolidation Officer, the petitioners filed an Appeal before the Settlement Officer of Consolidation (hereinafter referred to as, 'S.O.C.'), which was registered as Appeal No. 896/1135. The aforesaid appeal was initially dismissed in default vide order dated 19.8.1998. A restoration application dated 23.9.1998 was filed by the petitioners praying that the order dated 19.8.1998 be recalled and appeal be restored to its original number and be heard and decided on merits. The S.O.C. vide his order dated 11.10.2002 allowed the restoration application and recalled his order dared 19.8.1998 restoring the appeal to its original number. Subsequently, vide judgement and order dated 16.9.2003, the S.O.C. allowed Appeal No. 896/1135 instituted by the petitioners and directed that the names of respondent Nos. 2 and 3 be deleted from the revenue records relating to the disputed plot and the names of the petitioners be recorded in the same as Bhumidhar on the basis of sale-deed dated 18.10.1977. The order dated 16.9.2003 was modified by the S.O.C. vide his order dated 22.11.2003 wherein the S.O.C. directed that the name of Gopal and other persons be deleted from the revenue records relating to the disputed plot and in their place the names of petitioners be recorded on the basis of sale-deed dated 18.10.1977.
(3.) From a reading of the judgement dated 16.9.2003, it is evident that respondent Nos. 2 and 3 were not heard in the Appeal. Against the order dated 16.9.2003, as modified vide order dated 22.11.2003 respondent Nos. 2 and 3 filed a Revision under Section 48 of the Act, 1953, which was registered as Revision No. 246/255. The respondent No. 1 vide his order dated 8.10.2009 has allowed the said revision and has remanded back the matter to the S.O.C. to pass fresh order after giving an opportunity of hearing to the respondent Nos. 2 and 3. The order dated 8.10.2009 has been challenged in the present writ petition.;