Shitla Pd.Srivastava, J. - (1.) This writ petition, under Article 226 of the Constitution of India, has been filed by the petitioner for setting aside the proceedings taken in persuance of the order passed by the Assistant Settlement Officer Consolidation dated 27.8.1976. The second relief claimed by the petitioner is for a writ of mandamus directing the respondents to give finality of the order passed by the Consolidation Officer dated 3.12.1973.
(2.) The facts, in brief, for the purpose of the present writ petition, are that Ram Bharosey, Ram Lal and Lalli were three real brothers, in the basic year khatauni, the name of Ram Bharosey was entered. Shiv Prasad, the present petitioner, filed an objection under Section 9 of the U. P. Consolidation of Holdings Act claiming co-tenancy right and half share in the property in dispute. Ram Bharosey denied the share of the petitioner. It appears that an agreement was arrived at between the parties in the year 1963 in respect of village Barsar. The property in dispute is situate in village Soran. A compromise was filed before the Consolidation Officer on 28.11.1973 in which the share of the petitioner and his brother Ram Das was acknowledged 1/4 in the both the khatas. It is stated that subsequently on an understanding between the brother of Ram Das and the petitioner, it was decided that only the petitioner will have share in the entire khata. On 3.12.1973 another compromise was filed in which 1/4 share was given to the petitioner and 1/4 share was given to Ram Bharosey. This compromise was signed by the petitioner and one Sri Rajendra Prasad Rawat on behalf of Ram Bharosey. The Consolidation Officer passed an order on the basis of the compromise dated 3.12.1973 declaring 1/4 share of the petitioner. It is stated that after two years of the order of the Consolidation Officer sons of Ram Bharosey, who are respondent Nos. 4 and 5 in the petition, filed an appeal before the Settlement Officer Consolidation against the judgment dated 3.12.1973 along with Section 5 application. In application under Section 5, they took the ground that their father Ram Bharosey had not signed the compromise; he had no knowledge of it and he died ; the respondents had no knowledge of the second compromise and when they came to know they have filed an appeal along with an application under Section 5. The petitioner could not appear before the Court of the Settlement Officer Consolidation and on 27.8.1976 Section 5 application was allowed. The petitioner filed revision against the order dated 27.8.1976 and also filed an application to recall the ex parte order before the Settlement Officer Consolidation. It is stated that the application was rejected and the petitioner has challenged that order also. The Dy. Director of Consolidation dismissed the revision on 2.4.1979. The petitioner has challenged the legality of the order passed by the Dy. Director of Consolidation dated 2.4.1979 in this writ petition.
(3.) The grounds of attack are that application under Section 5 was illegally allowed because when the compromise was arrived at between the parties and order was passed during the life-time of Ram Bharosey and he did not challenge the order, then his sons had no authority to challenge the order in appeal along with Section 5 application. His further contention is that the cause shown for condonation of delay was not sufficient as an appeal was filed after a lapse of two years. The second ground was that his father died without knowledge of the second compromise and when his sons came to know they filed an appeal. This ground was not sufficient. The third ground of attack is that when the compromise was filed by Sri Rajendra Prasad Rawat who was counsel for Ram Bharosey and this compromise incorporated the same terms and conditions and the share which was accepted by Ram Bharosey on 27.11.1973 which was signed by him then the second compromise even if not signed by Ram Bharosey cannot be said to be a compromise not in accordance with law. Learned counsel for the petitioner has urged that when the petitioner wanted to cross examine Sri Rajendra Prasad Rawat Advocate, before the Assistant Settlement Officer Consolidation opportunity was not given to him to do the same.;