This belated petition has been filed praying for quashing the order dated 26.08.2010 and the order dated 28.11.2006 passed by the respondent nos. 1 and 2 respectively whereby the authorities have allowed the restoration application filed by the respondent no. 3 on the ground that the same is necessary in order to examine the claim of the respondents which had been ignored by the ex-parte order dated 28.01.1998.
The background of the case is that two orders were passed on 19.09.1980 by the Consolidation Officer and the Assistant Consolidation Officer against which a highly time barred appeal was filed by the petitioner after 17 years that came to be allowed on 28.01.1998. The name of the petitioner was directed to be entered in place of Sobarati son of Pittar on the basis of a Will and accordingly, the shares of the successors to the holding were allotted. The pedigree, on the basis whereof such claim is made, is reproduced hereinunder:
Bhirgu Pittar Chinagi Sobarati Vakil Kitab Ali Jaleel Sabiyana (Wife) Munsaf Ameen Nisha (Daughter) The respondent no. 3-Nisha filed a restoration application in the said appeal contending that the appeal was highly time barred and it was filed concealing material facts and without issuing any summon or notice to the heirs including the respondent no. 3, the appeal had incorrectly been allowed. The respondent no. 3 claimed that she had a Will in her favour dated 30.12.1993 executed by Pittar, father of Sobarati and Vakil, and that during mutation proceedings before the Tehsildar her name had already been mutated on 09.12.1998. She claimed that she had no knowledge of the appellate order and, therefore, she filed the restoration application on 28.12.1998 praying for setting aside the order dated 28.01.1998. The Settlement Officer Consolidation allowed the said restoration application and set aside the order dated 28.01.1998 calling upon the parties to lead their evidence in the matter.
The petitioner filed a revision assailing the said order contending that there was no ground made out for interference. The revision has been dismissed upholding the order of the Settlement Officer Consolidation.
Sri O.P. Pandey, learned counsel for the petitioner submits that no deliberate delay had been committed in filing the restoration application and the delay is sought to be explained in paragraphs 28 and 29 of the writ petition for taking a lenient view in the matter.
The petition has been heard on merits as well and this Court finds that there is no error in the impugned orders as the case has been restored for doing substantial justice between the parties allowing them to lead their evidence .
Sri Pandey submits that this leniency ought not to have been shown as the claim of the respondent no. 3 was on the basis of a forged entry of the year 1980 said to have been executed by Sobarati son of Pittar. Sri Pandey further submits that the mother of the respondent no. 3, Sabiyana wife of Vakil did not question the correctness of the order dated 28.01.1998. Pittar was not the recorded tenure holder and, therefore, any entry of the year 1980 by the consolidation authorities is forged.
The aforesaid submissions are on the merits of the claim and it is for this reason also that the matter requires to be contested on merits. The order dated 28.01.1998 is absolutely ex-parte and as to whether the respondent no. 3 is entitled to succeed under the Will from Pittar or not has to be adjudicated. The two competing Wills and the claim of the respondent no. 3 and the petitioner, therefore, have to be adjudicated on merits and as such the Settlement Officer Consolidation did not commit any error in restoring the appeal. It is also well known that the rights of the parties once decided during consolidation operations are final and debar a person from raising any future claim before any court of law in view of the provisions of Section 49 of the Uttar Pradesh Consolidation of Holdings Act, 1953, therefore, the petitioner who had succeeded in getting an order before 17 years without service of notice to any other heir, ought to have proceeded only after bringing the heirs on record and putting them to notice. This having not been done, the appeal which was filed by the petitioner after 17 years has rightly been restored to its original number for being contested on merits. There is no reason to interfere with the impugned order.
The writ petition lacks merit and is accordingly dismissed.
Dt. 18.01.2012 Akv