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Gyan Singh & Another v. D.D.C. & Others - WRIT - B No. 43677 of 2005 [2007] RD-AH 544 (10 January 2007)


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Civil Misc. Writ Petition No. 43677 of 2005

Gyan Singh and another


Deputy Director of Consolidation, Baghpat and others                                                                                


Hon'ble Krishna Murari, J.

Heard Sri A. K. Rai, learned counsel for petitioners.

Dispute relates to Khata No. 674 which was recorded in the name of one Rajwanti. On her death, petitioners moved an application under Section 12 of the U. P. Consolidation of Holdings Act for mutation of their names claiming to be the heirs of deceased. Another objection was filed by contesting respondents no. 3 to 5 for mutation of their names claiming to be daughters of deceased. Consolidation Officer vide order dated 29.10.1992 allowed the application filed by petitioners and directed their names to be recorded in placed of deceased Rajwanti. Thereafter, an application to recall the said order was filed by contesting respondents on the ground that it was passed exparte behind their back. Consolidation Officer vide order dated 15.7.1999 allowed the restoration application and set aside the order dated 29.10.1992 and restored the proceedings to its original number. Petitioners went up in revision. Deputy Director of Consolidation vide order dated 16.3.2005 dismissed the same. Aggrieved, petitioners have approached this Court.

It has been urged by learned counsel for petitioner that Consolidation Officer has wrongly allowed the restoration application without condoning the delay and deciding the question of limitation and Deputy Director of Consolidation has also committed illegality in not considering the said aspect of the matter.

I have heard the arguments advanced by learned counsel for petitioners and perused the record.

Admittedly, contesting respondents are the daughters of deceased. Recall application was filed by them on the ground that they are married and living with their husband in different villages and were assured by petitioners that they will do pairavi on their behalf for mutation of their names on the basis of 'Will' executed by their mother Smt. Rajwanti. However, taking advantage of the faith reposed in them, they got their own names mutated.   Consolidation Officer finding that order dated 29.10.1992 was passed without any notice or opportunity of hearing to contesting respondents and thus recalled the same. Revisional court confirmed the finding recorded by Consolidation Officer that order which was recalled was exparte

It is well settled that endeavour of the court should be to adjudicate dispute between the parties on merits rather than on mere technicalities. In the present case, there was no occasion for contesting respondents, who are daughters of deceased, to prove their case on the basis of 'Will' said to have been executed in their favour. Dispute is yet to be adjudicated on merits and petitioners will have full opportunity to contest the case set up by contesting respondents and establish their own claim of inheritance, if any, and in this view of the matter, no loss can be said to be suffered by them on account of re-opening of the proceedings.

In view of the aforesaid discussions, I find no good ground to interfere with the orders impugned in writ petition.  

Lastly, it was contended by learned counsel for petitioners that after the order dated 29.10.1992 was passed by Consolidation Officer, they were put in possession and are continuing and are likely to be dispossessed.

Considering the facts and circumstances, it is open to the petitioners to move proper application before the Consolidation Officer where proceedings have started after remand for passing suitable order to protect their interest with regard to possession, if any. In case, any such application is moved by petitioner, Consolidation Officer shall decide the same in accordance with law.

Subject to the aforesaid observations, writ petition is dismissed in limine.



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