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2015 DIGILAW 316 (ALL)

Anand Kumar v. D. D. C.

2015-02-18

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT : Ram Surat Ram (Maurya), J. Heard counsel for the petitioner and Dr. Madhu Tandon, for the contesting respondents. 2. The writ petition has been filed against the orders of Deputy Director of Consolidation dated 03.01.1995, dismissing the revision in default and 16.03.2011, dismissing the restoration application of the petitioner, in title proceedings under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the 'Act'). 3. The dispute between the parties is in respect of the land of basic consolidation year khata 54-Aa and 54-Ba, which were recorded in the name of Bhoop Narain (now represented by the contesting respondents). Udai Narain (now represented by the petitioner) filed an objection under Section 9 of the Act, claiming co-tenancy in the land in dispute, on the ground that the land in dispute was ancestral property and were jointly inherited by Bhoop Narain and Udai, Narain, who were real brothers. The name of Bhoop Narain was recorded in representative capacity. Bhoop Narain contested the case on the ground that ancestral properties had already been partitioned, before date of vesting. Land in dispute was given in the share of Bhoop Narain, while Udai Narain had already sold his properties, after partition. 4. Consolidation Officer, by order dated 25.04.1988, allowed the objection of Udai Narain. Bhoop Narain filed an appeal from the order of Consolidation Officer, which was allowed by Settlement Officer Consolidation by order dated 28.04.1993. Udai Narain filed a revision (registered as Revision No. 98) against the aforesaid order. The revision was dismissed in default by order dated 03.01.1995. 5. The petitioner filed a restoration application on 23.12.2000 along with delay condonation application, for recall of the order dated 03.01.1995. In the affidavit filed in support of the restoration application, it has been stated that Udai Narain died in January 1995 as such he could not attend the revision on 03.01.1995 and the revision was dismissed in default. The petitioner, who is only son of Udai Narain, had no knowledge of the pendency of the revision as such he could not file restoration application, within time. It is only, when Bhoop Narain and other started proceeding under Rule 109-A of the Rules, then on inquiry, he could know that revision filed by his father was dismissed in default. Then he filed the restoration application. 6. It is only, when Bhoop Narain and other started proceeding under Rule 109-A of the Rules, then on inquiry, he could know that revision filed by his father was dismissed in default. Then he filed the restoration application. 6. The contesting respondents contested the restoration application and had stated that the petitioner himself was doing pairavee, in the revision, on behalf of his father, which was proved from the fact that order sheet dated 17.02.1994, 19.05.1994, 07.07.1994 and 28.09.1994 were signed by the petitioner. He also moved stay application under his signatures on 17.02.1994, 25.07.1994 and 20.09.1994, in the revision. False allegations had been made that he had no knowledge of the revision filed by his father. Delay in filing restoration application was not liable to be condoned. The restoration application was heard by Deputy Director of Consolidation, who by order dated 16.03.2011, held that the petitioner was taking adjournments time to time, which showed that he was not interested in disposal of the revision. Delay of about five years was not liable to be condoned. On these findings, he dismissed restoration application. Hence these writ petition have been filed. 7. I have considered the arguments of the counsel for the parties and examined the record. The petitioner has given reasons for default and condonation of delay that Udai Narain died in January 1995 as such he could not attend the revision on 03.01.1995 and it was dismissed in default. The petitioner, who is only son of Udai Narain, had no knowledge of the pendency of the revision as such he could not file restoration application, within time. It is only, when Bhoop Narain and other started proceeding under Rule 109-A of the Rules, then on inquiry, he could know that revision filed by his father was dismissed in default. The contesting respondents contested the restoration application on the ground that the petitioner himself was doing pairavee, in the revision, on behalf of his father, which was proved from the fact that order sheet dated 17.02.1994, 19.05.1994, 07.07.1994 and 28.09.1994 were signed by the petitioner. He also moved stay application under his signatures on 17.02.1994, 25.07.1994 and 20.09.1994. Thus death of Udai Narain in January 1995 was not denied. He also moved stay application under his signatures on 17.02.1994, 25.07.1994 and 20.09.1994. Thus death of Udai Narain in January 1995 was not denied. Deputy Director of Consolidation did not advert to the allegations and counter allegations made by the parties and dismissed the restoration application on the ground that in the revision, adjournments were taken by the revisionist, which showed that he was not interested in final decision in revision on merit. This was wholly irrelevant consideration. It has been well settled that previous conduct of the parties or previous adjournments granted by the Court finding sufficient cause, are irrelevant consideration for deciding the restoration application. Deputy Director of Consolidation has illegally failed to record a findings in respect of reason for default and condonation of delay and rejected restoration application on irrelevant consideration. 8. In the result, the writ petition succeeds and is partly allowed. The order of Deputy Director of Consolidation dated 16.03.2011 is set aside. The matter is remanded to Deputy Director of Consolidation for deciding the restoration application afresh, after hearing the parties. The parties will appear before the Deputy Director of Consolidation on 16.03.2015. On that day Deputy Director of Consolidation will fix a date with the consent of the parties for hearing the restoration application and decide it in accordance with law, after hearing the parties, expeditiously, preferably within a period of four months. Petition partly allowed.