JUDGMENT Hon’ble Mrs. Poonam Srivastav, J.—Heard Sri R.B. Singhal, Senior Advocate, assisted by Sri Aditya Bhushan Singhal, counsels for the petitioners, Sri M.D. Singh Sekhar, Senior Advocate, assisted by Sri Satyawan Shahi Advocate on behalf of respondent Nos. 8 and 9, Sri I.N. Singh Advocate on behalf of respondent Nos. 4, 6 and 7 and Sri Anuj Kumar Advocate on behalf of respondent Nos. 10 and 11. 2. Counter and rejoinder affidavits have been exchanged and as agreed between counsels for parties this writ petition is finally heard. 3. The instant writ petition is preferred challenging the orders dated 31.1.1996 passed by the Consolidation Officer, Annexure-6 to the writ petition, 28.2.2003 passed by the Settlement Officer Consolidation, Annexure-8 to the writ petition and 9.6.2004 passed by the Deputy Director of Consolidation, Annexure-10 to the writ petition. 4. The land in dispute was recorded in the name of Gaon Sabha of village Mohammadpur Gurjar in the basic year. Undisputed fact is that name of Anis Shah and Bashir were recorded as Bhumidhar but it appears that there was some order passed on 27.6.1963 by Tehsildar expunging name of Anis Shah and Bashir and name of Gaon Sabha of village Mohammadpur Gurjar was recorded. On perusal of report of the Assistant Consolidation Officer dated 19.3.1986 Annexure-1 to the writ petition, it transpires that report was submitted detailing therein that Khatauni of 1374 Fasli shows that by an order of Tehsildar under Section 186 of U.P.Z.A. & L.R. Act (hereinafter referred to as the Act) in case No. 46/27-6-66, names of Ali Shah and Bashir have been struck of and name of Gram Samaj was entered. This report was submitted on an objection of contesting respondents who filed their objections when the village was notified under Section 9 of the Act. Respondent Yaseen Khan preferred an objection on 5.3.1986 before the Consolidation Officer, Dankaur claiming himself to be descendant of Anis Shah and Bashir. He stated in his objection that he is not aware that how and when the name of Gaon Sabha was entered and the order dated 27.6.1963 is nowhere in existence, to the best of his knowledge. The Consolidation Officer dismissed the objection of Yaseen Khan vide order dated 10.11.1986, Annexure-3 to the writ petition. Reliance was placed by the Consolidation Officer on the order dated 27.6.1963 which was the basis of change of entries in the revenue records. The Consolidation Officer dismissed the objection of Yaseen Khan vide order dated 10.11.1986, Annexure-3 to the writ petition. Reliance was placed by the Consolidation Officer on the order dated 27.6.1963 which was the basis of change of entries in the revenue records. It appears that an application was given by Yaseen Khan to summon record but the Consolidation Officer adopted an adverse view because though the application was allowed, he made no effort to summon the record. Aggrieved by order dated 10.11.1986, contesting respondents preferred an appeal on 7.3.1987. However, village was denotified under Section 52 of the Act on 21.2.1987. 5. Submission of learned counsel is that since village stood denotified, the appeal could not be heard. During pendency of appeal before the Settlement Officer Consolidation. It appears that Land Management Committee passed a resolution whereby the disputed land was allotted to the petitioner vide order dated 20.7.1994. The S.D.M. approved allotment on 30.8.1994 and patta was issued in favour of the petitioners on 21.9.1994. Mutation was allowed and name of the petitioners came to be recorded in Khatauni on 21.10.1994. All these procedures were carried out during pendency of appeal in which Gaon Sabha was also arrayed as a party. 6. Notices were issued to the opposite parties but they failed to appear. The appeal was heard ex parte. However, the Settlement Officer Consolidation was of the view that the Tehsildar has no jurisdiction to pass order under Section 186 of the Act. The appeal was allowed and matter was remanded to the Consolidation Officer to decide objection in the light of observations made in the appeal. The appellate order was passed on 28.7.1995. After the matter was remanded to the Consolidation Officer, he heard the parties at length and framed following issues : (i) Whether Yaseen Khan, Shakoor Khan, Iliyas, Israil, Mustaq are descendants and heirs of Amir Shah and Bashir Ali deceased? (ii) Whether principles of resjudicata will be applicable to the present case? (iii) Whether the disputed land belongs to Gaon Sabha? 7. All the three issues were decided together. (ii) Whether principles of resjudicata will be applicable to the present case? (iii) Whether the disputed land belongs to Gaon Sabha? 7. All the three issues were decided together. The Consolidation Officer after taking into consideration all the facts and circumstances was of the view that endorsement on Khatauni whereby name of original owners were expunged and name of Gaon Sabha was entered, apparently appears to be fictitious and forged since the order dated 27.6.1963 allegedly passed by the Tehsildar has not seen light of the day. Besides, the Tehsildar has no jurisdiction to pass an order under Section 186 of the Act. 8. The Consolidation Officer while allowing objection of the respondents had made an observation that it appears that if at all an order was passed on 27.6.1963, it was under Section 186 of the Act whereas it is once again beyond jurisdiction of the Tehsildar and it is nobody’s case that the respondents had ever abandoned their claim in favour of Gaon Sabha. No procedure of abandonment was ever gone into. Besides, admittedly no notice was given either to the contesting respondents or their ancestors at any point of time. The Consolidation Officer vide order dated 31.1.1996 allowed the objections and directed that name of Gaon Sabha be deleted from the revenue records. 9. The present petitioners who were allotted Patta by Gaon Sabha during pendency of appeal, preferred revision against the order of the Settlement Officer Consolidation which was dismissed and orders of the Consolidation Officer as well as that of the Settlement Officer Consolidation were upheld vide order dated 9.6.2004. All the three orders are impugned in the instant writ petition. It is also brought to my notice by counsel for the petitioners that respondent No. 4 Yaseen Khan executed a sale deed in favour of Virendra and Dharmendra Kumar respondents II set. 10. Sri M.D. Singh Sekhar, Senior Advocate assisted by Sri Satyawan Shahi Advocate disputed each and every arguments of Sri R.B. Singhal. The thrust of the argument of counsel for the respondents is that the contesting respondents are heirs of Amir Shah and Bashir. This fact has also been admitted by Sri Anuj Kumar Advocate appearing on behalf of Land Management Committee village Mohammadpur Gurjar and Gaon Sabha of the same village that the contesting respondents are successors and descendants of Amir Shah and Bashir Ali. This fact has also been admitted by Sri Anuj Kumar Advocate appearing on behalf of Land Management Committee village Mohammadpur Gurjar and Gaon Sabha of the same village that the contesting respondents are successors and descendants of Amir Shah and Bashir Ali. Thus it is an undisputed fact that contesting respondents are heirs of recorded tenure holder. 11. Sri R.B. Singhal has placed a counter-affidavit filed by Sri R.K. Katiyar, Consolidation Officer Tehsil Sadar, District Gautam Budh Nagar stating that he is looking after pairvi on behalf of respondents. It is relevant to mention here that a copy of the said counter-affidavit was neither served to Sri M.D. Singh Sekhar, counsel appearing for the contesting respondents nor Standing Counsel is aware of such an affidavit said to have been prepared and filed by Sri V.K. Singh who was previously counsel for Gaon Sabha. This counter-affidavit is also not on record. Besides, this counter-affidavit has been filed by the Consolidation Officer which appears to be an uncalled for exercise since counter-affidavit has already been filed by Land Management Committee and Pradhan of the concerned village. Therefore I am not inclined to look into this affidavit. Most important fact to ignore this affidavit is that it is also not on record of the Court’s file and no entry in the office, registry or anywhere else. 12. Learned counsel has stressed on his argument that since the land in question belongs to contesting respondents and they were Bhumidhar with transferable rights, therefore, the Tehsildar was not authorized to pass an order to record the name of Gaon Sabha. Only basis for expunging name of contesting respondents is an order dated 27.6.1963 which is untraceable, no one has seen the order save an endorsement in Khatauni. If Gaon Sabha claims its right on the basis of order of the Tehsildar then onus was on the Gaon Sabha itself to bring the said order on record or to substantiate its case otherwise. Merely saying that there is an order dated 27.6.1963 will not absolve Gaon Sabha from its responsibility to prove the facts. Besides, it is also surprising that during pendency of appeal, the disputed land was allotted to a third party, who have preferred this writ petition. Merely saying that there is an order dated 27.6.1963 will not absolve Gaon Sabha from its responsibility to prove the facts. Besides, it is also surprising that during pendency of appeal, the disputed land was allotted to a third party, who have preferred this writ petition. The petitioners can claim only through Gaon Sabha since the claim of Gaon Sabha has been negated consecutively by three Courts, they have no locus to contest the matter. It cannot allot the land which does not belong to the Gaon Sabha itself. In the counter-affidavit filed on behalf of respondent Nos. 10 and 11, there is a specific assertion in paragraph 12 which is quoted below : “12. That thus the entire locus and right of the petitioners was based upon the right accrued to them by virtue of lease deed over land in dispute for which the litigation was pending before the competent Court of law and was to be abide by the orders passed by the said competent Courts and since now the competent Courts of law have decided the controversy to the extent that the name of the Gaon Sabha, Mohammadpur Gurjar was wrongly entered on the basis of illegal order dated 27.6.1963 passed by the then Tehsildar whereas its real owner and tenure holder are respondent Nos. 4 to 7 being successors of Amir Shah and Bashir Ali hence since the Gaon Sabha, Mohammadpur lost its right hence the petitioners have also no right over the property in dispute at all and thus in view of the aforesaid, the matters may be adjudicated before this Hon’ble Court so the justice may be done between the parties.” 13. Last argument of Sri Singhal that the objection preferred by the contesting respondents is belated one. I do not think that there is any substance in this argument as well since time that is being calculated, is from the date 27.6.1963 on which the order was allegedly passed by the Tehsildar whereas the said order is nowhere on record. No effort has been made by contesting respondents to substantiate that there was an order passed under Section 186 of the Act or there was any such record where entry of the order was made but for Khatauni. No effort has been made by contesting respondents to substantiate that there was an order passed under Section 186 of the Act or there was any such record where entry of the order was made but for Khatauni. Sri Singhal has tried to impress on the fact that since the village was denotified therefore, the Settlement Officer Consolidation and Deputy Director of Consolidation had no jurisdiction to decide the appeal. In support of this argument, Shri Singhal has placed several decisions; Ram Adhar Singh v. Ramroop Singh and others, AIR 1968 SC 714 ; Kapil Dev v. Deputy Director of Consolidation, Faizabad and others, 1996 RD 403; Hari Ram v. D.D.C., Azamgarh and others, 1989 RD, 281 and Raghavamma and another v. Chenchamma and another, AIR 1964 SC 136 . The submission is that after denotification the consolidation authorities were devoid of jurisdiction and could not entertain an appeal or revision. 14. I have gone through decisions cited above. It has no applicability since sub Section (2) of Section 52 of the Act which was inserted by U.P. Act No. 8 of 1963, does not prohibit continuation of proceeding pending under this Act on the date of issue of notification under sub Section (1) of Section 52. This is an exception to sub Section (1) of Section 52 and fiction of the deeming clause, pending cases before the consolidation authorities are to be decided as if notification under Section 52(1) had not taken place. Even after the notification an appeal or revision is maintainable after the delay is condoned. There is no question of delay in the present case since the appeal was pending on the date of notification and Section 52 does not take away vested right of appeal which is continuation of the proceedings pending under the Act. The Apex Court in the case of Surajmal v. Ram Singh, AIR 1986 SC 1889 considered Section 52(2) of the Act. It will be deemed that the consolidation operations have not been closed in respect of those cases which are continuing, therefore, I am not in agreement with the submissions of counsel for the petitioners. 15. I have considered the arguments of respective counsel, citations relied upon by parties and judgments of the Court below. It will be deemed that the consolidation operations have not been closed in respect of those cases which are continuing, therefore, I am not in agreement with the submissions of counsel for the petitioners. 15. I have considered the arguments of respective counsel, citations relied upon by parties and judgments of the Court below. It is apparent that three authorities have unanimously expressed their doubt about the order dated 27.6.1963 allegedly passed by the Tehsildar, firstly because the order is nowhere on record, not even a copy of the said order could be produced by Gaon Sabha or the petitioners. Revenue records were altered only on the basis of an order which appears to be not in existence. Suspicion expressed by Courts below is well founded and this Court can not enter into an investigation regarding existence of the said order which is the foundation of the petitioner’s case. Besides, I can not loose sight of the fact that contest between Gaon Sabha and respondents were going on. There was no occasion to allot the land in favour of the petitioners when Gaon Sabha had full knowledge about pendency of the appeal. Gaon Sabha itself had not perfected its right and, therefore, it could not allot to a third person. The petitioners who are claiming their rights through Gaon Sabha can not get any benefit whatsoever when Gaon Sabha itself was not able to substantiate its claim. The alleged order dated 27.6.1963 is said to have been passed under Section 186 of U.P.Z.A. & L.R. Act. Since it is the Gaon Sabha who claims that such an order was passed, it had to substantiate that there was an abandonment on the part of its original owners. In fact contesting respondents are direct descendants of Amir Shah and Bashir. This has not been disputed by the petitioners or Gaon Sabha, therefore, it is yet another circumstance that the petitioners claim is without any basis. The counter-affidavit filed on behalf of Gaon Sabha village Mohammadpur Gurjar and Land Management Committee of the same village has in fact admitted the respondent’s assertions unequivocally. I am inclined to read the counter-affidavit filed by their counsel Sri Anuj Kumar. The counter-affidavit filed on behalf of Gaon Sabha village Mohammadpur Gurjar and Land Management Committee of the same village has in fact admitted the respondent’s assertions unequivocally. I am inclined to read the counter-affidavit filed by their counsel Sri Anuj Kumar. So far affidavit filed by the Consolidation Officer, Gautam Budh Nagar, it is a document which is not available anywhere but for the counsel appearing on behalf of petitioners and, therefore, I am of the view that instead of scrutinizing or analyzing said counter-affidavit or holding an enquiry it is best liable to be ignored. 16. In view of what has been stated above, the petitioners have no claim whatsoever to the disputed land and respondents are liable to be recorded as rightful claimants. The writ petition has no merit. It is accordingly dismissed. ————