A.P.SAHI, J. - (1.) THIS petition has been preferred by Chhavi Nath, Laldhar, ana Jawahir all real brothers and sons of Late Raja Ram and petitioner No. 4 - Smt. Piyari Devi, widow of Jagdhar, who was also the real brother of petitioner Nos. 1 to 3.
(2.) THE challenge is to the order of the Deputy Director of Consolidation dated 28.11.2008 (Annexure-7 to the writ petition) primarily on the ground that the Deputy Director of Consolidation has completely over looked the factum of the order having been passed on 17.4.1996 under an invalid compromise and further that the Consolidation Officer had proceeded to pass the order in a hurried manner when he was due to retire on 31.7.1996. It has been further urged that the said order was ante dated and the manipulation was set right by the Settlement Officer Consolidation in Appeal vide order dated 26.3.1997. The Deputy Director of Consolidation, without considering the aforesaid facts In correct perspective, has reversed the order on erroneous assumptions of law and fact. Sri M.N. Singh, learned counsel for the petitioner, has urged that the dispute which pertains to 5 plots of Khata, No. 162, were recorded in the basic year in the name of the petitioner or their predecessors-in-interest. The contesting respondents or their predecessors-in-interest were recorded as class 9 tenure-holders and, as such, 2 sets of objections were filed; one on behalf of the petitioners with a prayer to expunge the name of the contesting respondents and the other 8 on behalf of the contesting respondents to declare them as Bhumidhars in place of the petitioners. The preclude to this objection, as is evident on record, indicates that earlier a dispute had been raised in respect of the said claim of the respondent on the basis of adverse possession, in respect whereof a judgment was passed by the learned Addl. Commissioner, Varanasi, on 17.4.1973. The aforesaid judgment, finds mention in the impugned order as well, and it has been also made the basis of finding recorded by the Consolidation Officer to the effect, that the same would operate as res-judicata and, therefore, the petitioners would be estopped from raising any objections in respect of their title on the plots in question.
(3.) A supplementary-affidavit has been filed on behalf of the petitioners and alongwith the supplementary-affidavit, an order passed in Second Appeal by the Board of Revenue dated 18.12.1991 has been annexed to demonstrate that the said order dated 17.4.1973 had not become final and that the same had been carried in appeal, and then in Second Appeal by Raja Ram, the father of the petitioner Nos. 1 to 3 and father-in-law of petitioner No. 4. During the pendency of the said Second Appeal before the Board, consolidation operations intervened and a Notification was brought to the notice of the Board, whereupon the said proceedings were abated under Section 5 (2) of the Consolidation of Land Holdings Act, 1953. Thereafter, the objections were filed and contested on merits with regard to which the Consolidation Officer proceeded to hear the parties.;