A.P.Sahi - (1.) THIS petition has been preferred questioning of the order dated 27.1.2009 passed by the Deputy Director of Consolidation, Ghaziabad whereby he has set aside the order of the Settlement Officer Consolidation and has restored the order of the Consolidation Officer under which the petitioner was found to be entitled to retain only 1/45 share of the holding in dispute.
(2.) I have heard Shri Subhas Chandra Yadav holding brief of Malti Sharma and Sri A. K. Sachan, learned counsel for the contesting respondent Nos. 3, 4 and 5. After the matter was heard learned counsel for the respondents submitted that in view of the order that is proposed to be passed there is no necessity to file any counter-affidavit and the aforesaid stand has also been taken by the learned standing counsel on behalf of the respondent Nos. 1 and 2. In view of this the matter is being disposed of finally under the rules of the Court. The contention advanced is that Khacheru the tenure holder died. He had five sons namely the petitioner, the respondent Nos. 3, 4 and 5 and late Shri Malkhan Singh. Malkhan Singh is stated to have died leaving behind Subhas as his heir. The aforesaid pedigree is not disputed by the parties. The dispute arose when an alleged Will was set up by the contesting respondents and on the basis whereof it was urged that a family settlement was also arrived between the parties. The petitioner Sukhveer has allegedly surrendered his 1/5th share and had compromised the matter by agreeing to retain only 1/45 share of the property in dispute. It is urged that the said compromise before the Consolidation Officer took place in terms of the alleged family settlement dated 28.11.1988 and the Consolidation Officer, who had proceeded to hear the matter, ultimately disposed of the matter vide order dated 28.12.1988 whereby the respective shares of all the sons had been defined and the petitioner was allowed to retain only 1/45 share of the said holding.
(3.) LEARNED counsel for the petitioner contends that as a matter of fact no such partition had taken place and neither the petitioner had entered into any compromise nor had he put his thumb impression on the memo. Sri P. K. Gupta, advocate had no authority to verify the said compromise on his behalf. It is further submitted that the name of the petitioner continued to be recorded in C. H. Form 23. The order passed by the Consolidation Officer never saw the light of the day by way of any endorsement on any revenue records. In view of this the petitioner, for this entire long period, never came to know about the said compromise, which was entirely forged and fabricated. The appeal was filed in the year 2008 after a lapse of almost 20 years alongwith an application under Section 5 of the Limitation Act alleging that the order dated 20.12.1988, passed by the Consolidation Officer was a result of fraud and misrepresentation and there has been no such settlement on the basis whereof the rights are being claimed by the contesting respondents. The Settlement Officer Consolidation upon having concluded that the petitioner had not entered into compromise granted the benefit of delay to the petitioner and after condoning the same proceeded on merits holding that the petitioners share was 1/5 in the property. Against the order of the Settlement Officer Consolidation dated 15.10.2008 the contesting respondents preferred a revision, which has been followed giving rise to the present petition.;