# Gokaran Nath & Ors v. Dy. Director of Consolidation Bahraich & Ors - **Citation:** (2022) 1 ILRA 1200 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2022-01-17 - **Case number:** Writ B No. 863 of 2014 - **Bench:** Mrs. Sangeeta Chandra - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gokaran-nath-ors-v-dy-director-of-consolidation-bahraich-ors-48100 - **Pages:** 25 ## Headnote A. Civil Law - U.P. Consolidation of Holding Rules, 1954 Rule 25-A - Disposal of cases relating to claim of land - In deciding disputes on the basis of conciliation in terms of section 9-A(1), the Assistant Consolidation Officer or the Consolidation Officer before whom the compromise is placed, should verify from the Village Level Consolidation Committee about the compromise filed by the parties and also avoid proceeding against any party to the compromise ex parte (Para 59) B. Civil Law - U.P. Consolidation of Holdings Act, 1954 - Constitution of India, Article 226 of India - Scope of Interference in the orders passed by the Consolidation Authorities - writ Court may interfere in the orders passed by the Consolidation Authorities if such orders suffer from perversity, if they fail to appreciate correctly the facts placed on record before them or if orders are patently arbitrary or if they do not interpret the law correctly or apply the law incorrectly (Para 59) Petitioners specifically pleaded before the Appellate Court and the Revisional Court that their names were not mentioned in the compromise that was filed before the Consolidation Officer, their signatures were not appended to the so called compromise - Assistant Consolidation Officer/Consolidation did not verify from the Village Level Consolidation Committee about the compromise filed by the parties - judgments cited by the Appellants were mentioned but not considered by the Settlement Officer (Consolidation) in his order - Revisional Court being the last Court of facts was duty bound to peruse the records and verify the compromise - It only observed that notice had been duly served of the compromise by the Consolidation Officer and therefore it could not be said that his order was passed in violation of principles of natural justice - Deputy Director Consolidation without adverting to the burden of proof being discharged first by the claimants and without any documentary evidence on 1 All. Gokaran Nath & Ors. Vs. Dy. Director of Consolidation Bahraich & Ors. 1201 record, held that the property in dispute was ancestral - DDC has recorded pleas in detail in his order, but has dealt with them in a cursory manner - findings given by the DDC erroneous - order of the DDC set aside - matter is remanded to the DDC to consider afresh (Para 59) Disposed off. (E-5) List of Cases cited : ## Text _Characters 0–39,876 of 87,379. This is a partial read: ask again with offset=39876 for what follows._ 1200 INDIAN LAW REPORTS ALLAHABAD SERIES 15. Considering the provisions of the act and law laid down by this court as well as the reasons mentioned above, the impugned revisional order dated 9.9.2016 passed by respondent no. 1 in Revision No. 558 of U.P.C.H. Act cannot be sustained and is liable to be set aside. There is no need to remand the matter back for fresh consideration as by the order of Settlement Officer Consolidation, respondent no. 2 - Abdul Gaffar and chak holder no. 100 - Mohd. Ikbal were effected and chak holder no. 100 has not challenged the appellate order in revision, as such order dated 20.6.2015 is liable to be maintained so that petitioner's original roadside plot may not be effected. 16. The writ petition succeeds and is allowed. The revisional order dated 9.9.2016 passed by respondent No-1 in Revision No. 558 is quashed and appellate order dated 29.6.2015 passed in Appeal No.442 is maintained. No orders as to costs. ---------- (2022)01ILR A1200 ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 17.01.2022 BEFORE THE HON'BLE MRS. SANGEETA CHANDRA, J. Writ B No. 863 of 2014 with Writ B No. 248 of 2015 Gokaran Nath & Ors. ...Petitioners Versus Dy. Director of Consolidation Bahraich & Ors. ...Respondents Counsel for the Petitioners: R.N. Gupta, B.L. Mishra, Bajrangi Lal Mishra, Sunil Kumar Singh, Vijai Bahadur Verma Counsel for the Respondents: C.S.C., Sanjay Tripathi, Virendra Singh A. Civil Law - U.P. Consolidation of Holding Rules, 1954 Rule 25-A - Disposal of cases relating to claim of land - In deciding disputes on the basis of conciliation in terms of section 9-A(1), the Assistant Consolidation Officer or the Consolidation Officer before whom the compromise is placed, should verify from the Village Level Consolidation Committee about the compromise filed by the parties and also avoid proceeding against any party to the compromise ex parte (Para 59) B. Civil Law - U.P. Consolidation of Holdings Act, 1954 - Constitution of India, Article 226 of India - Scope of Interference in the orders passed by the Consolidation Authorities - writ Court may interfere in the orders passed by the Consolidation Authorities if such orders suffer from perversity, if they fail to appreciate correctly the facts placed on record before them or if orders are patently arbitrary or if they do not interpret the law correctly or apply the law incorrectly (Para 59) Petitioners specifically pleaded before the Appellate Court and the Revisional Court that their names were not mentioned in the compromise that was filed before the Consolidation Officer, their signatures were not appended to the so called compromise - Assistant Consolidation Officer/Consolidation did not verify from the Village Level Consolidation Committee about the compromise filed by the parties - judgments cited by the Appellants were mentioned but not considered by the Settlement Officer (Consolidation) in his order - Revisional Court being the last Court of facts was duty bound to peruse the records and verify the compromise - It only observed that notice had been duly served of the compromise by the Consolidation Officer and therefore it could not be said that his order was passed in violation of principles of natural justice - Deputy Director Consolidation without adverting to the burden of proof being discharged first by the claimants and without any documentary evidence on 1 All. Gokaran Nath & Ors. Vs. Dy. Director of Consolidation Bahraich & Ors. 1201 record, held that the property in dispute was ancestral - DDC has recorded pleas in detail in his order, but has dealt with them in a cursory manner - findings given by the DDC erroneous - order of the DDC set aside - matter is remanded to the DDC to consider afresh (Para 59) Disposed off. (E-5) List of Cases cited : 1. Dharmraj Vs DDC Pratapgarh 1987 RD 107 2.Ramnaresh Vs DDC & ors. 1978 RD 118; 3.Paras Nath Vs Mazir ul Hasan 1974 Revenue Cases 615 4.Shivnath Vs Deputy Director of Consolidation 1983 RD 107 5.Radheshyam Vs DDC & ors. 1981 RD page 21 6.Paras Nath Singh & ors. Vs DDC & ors. 7.Radha Mohan Dutt Vs Abad Ali Biswas AIR 1931 Allahabad 294 8.Kalu Vs Deputy Director of Consolidation Pratapgarh 1983(1) LCD page 189 9.Tahir Vs DDC 1988(6) LCD 486 10.Smt. Shakuntala Kapoor & anr. Vs VII Addl. Session Judge Meerut 19 93(11) LCD447 11.Admin General of West Bengal Vs Collector Varanasi 1988(2) SCC 150 12.State of Andhra Pradesh v I Chandra Shekhar (73) Reddy 1998(7) SCC 141 13.Prithipal Singh & anr. Vs Amrik Singh & ors. 2013(9) SCC 576 (Delivered by Hon'ble Mrs. Sangeeta Chandra, J.) 1. These are the two writ petitions filed by Gokaran Nath (now substituted) along with heirs of Ayodhya Prasad his brother, against orders passed by the Consolidation Authorities on objections filed by the Predecessor in interest of the respondent nos. 4 to 8 on Section 9A(2) objections and on application under Rule 109 of the Rules framed under the Consolidation of Holding Act (hereinafter referred to as "the Act"). The facts in both the writ petitions are common stated in the writ petitions that land of Khata Nos.26, 27, 106 and 107 are situated in village Nibia Raibhoja, Tehsil Naanpara district Bahraich. The Land of Khata number 26 was recorded solely in the name of Gokaran Nath where as land of Khata number 27 was jointly recorded in the name of Gokarannath and Anand Swaroop the father of opposite party number 2 to 8 with one half share each Land of Khata number 106 was recorded jointly in the name of Gokarannath along with his three brothers all sons of Raghunandan Prasad, with one fourth share of each and land of Khata number 107 was recorded jointly in the name of Gokarannath and his three brothers sons of Raghunandan Prasad and Anand Swarup grandson of Mahadev Prasad To the tune of one fifth share each In the basic year Khatauni. 2. During consolidation operations objections were filed under the section 9A2 by Anand Swaroop and the Assistant Consolidation Officer passed orders on 2212 1986 and on 23.12.986 on the basis of conciliation directing that land of Khata number 27 and all other Khatas be recorded in the name of Gokaran Nath and his three brothers, sons of Raghunandan Prasad, and also in the name of Anand Swaroop Grandson of Mahadeo Prasad. Land of all Khatas except Khata number 26 were treated as ancestral land and Gokaran Nath 1202 INDIAN LAW REPORTS ALLAHABAD SERIES and his three brothers and Anand Swaroop were all given 1/5 share in each of the Khatas. The order dated 22 December 1986 and 23 December 1986 passed by the ACO under section 9A2 was implemented in the records and Chak of the parties were carved out under section 21 of the Act. The extract of CH form 23 has been filed as Annexure 6 to the petition. 3. After the death of Anand Swarup his legal heirs the opposite parties number 4 to 8 filed a time barred appeal against the orders dated 22 December 1986 and 23 December 1986. It has been stated that without any notice or summons being served upon the petitioner number one and other respondents to the appeal, the Appeal was allowed and the matter remanded exparte on 28 February 1990. After remand of the case On 5.1.1991 an order was passed by the Consolidation Officer that in spite of publication in the Gazette the defendant Gokarannath was not present and the case would proceed ex-parte against him and fixed the date of 22 January 1991 for hearing. 4. On 28.09.1991 a forged compromise was filed on behalf of the opposite party number 4 to 8 through their advocate Shri Ram Narayan Mishra. One Dushyant Kumar Mishra advocate who was the Junior of Shri Ram Narayan Mishra filed power in the name of Ayodhya Prasad and Mahavir Prasad, sons of Raghunandan, but neither Ayodhya Prasad nor Mahavir Prasad had ever engaged him. On the basis of such compromise the Consolidation Officer assumed that the land in question was the ancestral property of the petitioners and the respondents acquired by their common ancestor Vikramjeet Tiwari And determined the share of opposite party number 4 to 8 as one fourth share each and the share of the petitioners as One eighth each. Aggrieved by such order which was passed behind the back of the petitioner Number 1 and his brothers; and on coming to know of the order dated 22 February 1992.the petitioners filed appeals. 5. It has been submitted that neither Gokarannath or nor any of his brothers signed the compromise. No compliance was made of rule 25 A of the Rules of 1954. The application under Rule 109 A2 of the rules Was made only in August 2008 and after deriving knowledge of order passed for implementation/ Amaldaramad on 30 August 2008 the petitioners filed a time barred appeal under section 11 (1) of the Act along with an application for condonation of delay on 15 October 2008. Initially an interim order was passed staying the operation and implementation of the ex-parte order dated 22 February 1992 till further orders and directed the parties to maintain status quo. However the appeal was dismissed by the SOC on 15 April 2013. Against such order the petitioners filed a revision under section 48 before the DDC. Initially an interim was granted on 17 July 2013 staying the operation of the order dated 15 April 2013. Later on the revision was dismissed on 11 November 2014. 6. It has been submitted that the Deputy Director of Consolidation Is the last Court of facts and it should have at least examined the correctness, illegality or the irregularity in the order but no such attempt was made by the DDC. A copy of ZA form 61, prepared under rule 214 of the UPZALR rules Has been filed as Annexure 10 to the writ petition. If the land in dispute was held to be ancestral the shares had to be divided per stirpes. The opposite parties however could not plead or prove the land 1 All. Gokaran Nath & Ors. Vs. Dy. Director of Consolidation Bahraich & Ors. 1203 in dispute to be ancestral property by producing any document to show that title having been derived on the basis of inheritance. 7. It has been mentioned in Paragraph19 of the writ petition that the share agreed upon in conciliation proceedings before the Assistant Consolidation Officer are still operative between the petitioners and respondents The compromise that was filed before the Consolidation Officer after remand in appeal is not signed by the petitioner number 1 and Kashi Prasad. The validity of the alleged compromise had not been adjudicated nor decided by the Appellate Court or the Revisional Court although the same was challenged in appeal by raising a specific ground that Ayodhya Prasad and his brothers had not engaged any person by the name of Dushyant Kumar advocate to appear on their behalf. The order dated 22 February 1992 was not implemented For a long time therefore a doubt should have arisen regarding its genuineness. Consolidation Officer wrongly observed that notice of the appeal and of the remand of the matter to his Court had both been given to the petitioners though regd post. Petitioners have also Stated that the land in question has already been sold off by the opposite parties number 4 to 8 and third-party interest have been created despite there being an interim order passed in appeal and a similar interim order being passed in revision and interim order passed by this Court on 4.12.2014. 8. The writ petition was filed by Gokaran Nath Tiwari along with sons and heirs of Ayodhya Prasad Tiwari. The petitioner no. 1 died during the pendency of the petition and has been substituted by his sons and legal heirs namely Manoj Kumar Tiwari, Prem for Tiwari and Rajiv Kumar Tiwari. The opposite party number 7 has died during the pendency of the petition and is substituted by his heirs incorporated in July 2021. 9. In the counter affidavit filed on behalf of opposite parties number 4 to 8. It has been stated that the Consolidation Officer had only found one Khata that is, Khata number 26 separately recorded in the name of Gokarannath and therefore had separated such Khata from the claim made by the opposite parties. It has also been argued that the original order passed by the assistant Consolidation Officer on 23 December 1986 was passed on the basis of a forged and fabricated compromise and it was also wrongly implemented and therefore on coming to know the same it was Challenged in appeal. Kashi Prasad filed a reply in this Appeal on 9.5.1988. After hearing the counsel for both the parties the appeals were allowed on 28 February 1990, and the matter was remanded to the Court of Consolidation Officer. Kashi Prasad Tiwari had full knowledge of the matter being heard on its merits by the Consolidation Officer again. He had also sent an application/letter Dated 6 November 1990 along with a copy of his reply in the appeal dated 9 May 1988 but he did not appear before the Court of Consolidation Officer to verify the contents of his application and therefore it was rightly ignored by the Consolidation Officer. In so far as Gokaran Nath is concerned, he was issued notice through registered post and also through publication but he refused to appear and therefore cannot now say that no opportunity of hearing was given to him. It has also been stated that Gokaran Nath lived in Kasba Naanpara and the land in dispute was 1204 INDIAN LAW REPORTS ALLAHABAD SERIES situated within ten kilometers of his house And was being cultivated by him throughout. He cannot say that he had no notice. Before the Consolidation Officer compromise was filed on 28 September 1991. Since no objection was filed to the said compromise by the petitioners, it was rightly accepted on 22 February 1992. The property in question was the self acquired property of Vikramjeet Tiwari and after his death the property in question came in the name of Shri Mahadeva Prasad and Raghunandan Prasad because his three other sons had died issueless during his lifetime. After the death of Mahadeva Prasad his son Saraswati Prasad and thereafter his grandson Anand Swaroop Tiwari inherited the share of Mahadev Prasad which was half of the Property of Vikramjeet Tiwari. After the death of Anand Swaroop Tiwari his four sons, that is, the respondent nos. 4 to 8, inherited the property with one eighth share each. Similarly when Raghunandan Prasad died his Half share was divided amongst his four sons Mahavir Prasad, Kashi Prasad , Ayodhya Prasad and Gokaran Nath Tiwari. They inherited one eighth share each of Property of Vikram Jeet Tiwari. It has also been Stated in the counter affidavit that the compromise was duly entered into by all the parties to the dispute and it was duly verified by the advocates engaged by them respectively. With regard to delay in filing the application for Amaldaramad, it has been stated in the counter affidavit that the application under rule 109 was filed on 14 June 1993 and not after 16 years. Notice was issued by the Consolidation Officer on the said application but none appeared, except counsel engaged by Gokaran Nath Tiwari. No objection was filed by Gokaran Nath Tiwari against the application but only time was prayed for deferring its disposal.The delay in disposal of such application was caused due to nonavailability of no objection from the chief revenue officer Bahraich. The order passed by the Consolidation Officer, The SOC And The DDC has been defended on the ground that they had rightly treated the property to have been acquired from joint family funds by common ancestor Vikramjeet Tiwari and therefore it was divided per stirpes as per the undisputed Pedigree. The petitioners had failed to provide any evidence either before the appellate Court or the Revisional Court that the property in question was acquired by them separately and as such the same should not be treated as common ancestral property. 10. In the rejoinder affidavit filed by the petitioners it has been reiterated that the name of Anand Swaroop the father of opposite party number 4 to8 was recorded only over land of Khata number 27 jointly along with petitioner number 1, and over Khata number 107 along with petitioner number 1 and his three brothers. The Consolidation Officer had noted that the name of Anand Swaroop was not recorded in Khata number 26 Nor in Khata number 106. It has also been Stated that the objections to the basic year Khatauni Was made by Anand Swaroop and therefore Anand Swaroop should have filed evidence that the property in dispute was earned by Vikramjeet Tiwari through joint family funds. On the alleged compromise neither the signatures of Ayodhya Prasad nor that of Mahavir Prasad were present. They never appeared before the Court of Consolidation Officer for verification. Gokarannath and Kashi Prasad were not made parties to the compromise. Their names are absent from the memo of the compromise that was filed as Annexure to the writ petition and this fact has not been 1 All. Gokaran Nath & Ors. Vs. Dy. Director of Consolidation Bahraich & Ors. 1205 disputed in the counter affidavit filed by the respondents It was also Stated in the rejoinder affidavit that on 4.12.2014 this Court has been pleased to stay the operation of the order dated 11 November 2014 and directed the parties to maintain status quo on the spot as It existed on that day. However despite such orders having been passed, the opposite parties number 4 to 8 had sold the land in question to several persons on various dates , copies of three such sale deeds have been filed as Annexures to The rejoinder affidavit. 11. An application for impleadment of subsequent purchasers as opposite parties number 11,12 and 13 was also filed in August 2015 on which notices were issued. Service was deemed sufficient and impleadment allowed on 30 July 2021. A supplementary affidavit has been filed by the petitioners wherein details of old Khata numbers and new Khata numbers have been given. It has been stated that old Khata number 4 (new Khata No.26) was recorded in the name of Gokarannath alone. Old Khata number 54, (new Khata number 27) was recorded in the name of Raghunandan Prasad and Saraswati Prasad son of Mahadev Prasad, and therefore half share in such Khata was rightly given by the assistant Consolidation Officer. Old Khata number 24 and old Khata number 125 were joined together and given new Khata number 106 , which was recorded only in the name of Gokarannath and his three brothers ,sons of Raghunandan Prasad, and therefore no share could have been given to Anand Swaroop or to the respondent number 4 to 8 in such Khata number 106. Old Khata number 25 and 124 were combined to make new Khata number 107 , in which the name of Raghunandan Prasad and Anand Swaroop were recorded. Gokarannath and his three brothers became entitled to half share of Raghunandan Prasad over such land. Anand Swaroop used to give Land revenue for only 1/5 portion of such Khata number 107 , as is evident from extract of the Khatauni and ZA form number 61D. Copies of the relevant extract of the Khatauni And the form number 61 have been filed as an Annexure to the supplementary affidavit. 12. A Reply to such supplementary affidavit has been filed by the opposite parties number 4 to 8 in November 2017 wherein they have denied its contents reiterated that no such documentary evidence was produced before the consolidation authorities that the property in question was not the joint property of the entire family and had been acquired separately by the petitioners. A substitution application was filed in January 2018 which has been allowed after issuance of notice by this Court, in September 2018 substituting the petitioner number 1 and the opposite party number 7 by the legal heirs and dependents. An Affidavit has been filed by the petitioners placing on record the The fact that at least four sale deeds Have been made out in favour of different persons by the respondent number 4 to 8 And their legal heirs during the pendency of the writ petition and the currency of the interim order passed by this Court on 4.12.2014. 13. Learned counsel for the petitioners during the course of arguments has pointed out from Z.A. Form-61 filed as Annexure No.10 and mention in the pleadings in Paragrap-16 that the Petitioner 1206 INDIAN LAW REPORTS ALLAHABAD SERIES no.1 Gokaran Nath was recorded as the sole tenure holder of Khata Nos.26 & 27, and with his brothers namely Mahaveer Prasad, Kashi Prasad and Ayodhya Prasad in Khata No.106, whereas Anand Swaroop from whom the Opposite party nos.4 to 8 derived title was mentioned as co-sharer only in Khata No.107 only since prior to 1360 Fasli. 14. The objections were filed under Section 9A(2) by the predecessor in interest of the Opposite party no.4 to 8 i.e. Anand Swaroop belonging to the branch of Saraswati and Mahadev praying for share in such Khatas which belonged to the branch of Raghunandan and were recorded in the name of the Petitioner no.1 and his three brothers Mahaveer Prasad, Kashi Prasad and Ayodhya Prasad, therefore the burden lay upon them to prove that the Khatas that they were disputing were ancestral property and hence liable to be partitioned into two branches i.e. of Raghunandan and Mahadev sons of Vikram Tiwari. No such proof was ever produced before the Consolidation Officer. Before the Consolidation Officer only a compromise was relied upon which compromise has been filed as Annexure-7 to the petition which shows that it has not been signed by Gokaran Nath, the Petitioner No.1. On the basis of such compromise dated 28.09.1991 the Consolidation Officer passed an order on 20.02.1992. The predecessor in interest of Opposite party nos.4 to 8 kept quiet after passing of the order dated 20.02.1992 and did not file any application under Rule 109 for its endorsement on the Revenue Records till 2008. When such application was filed in 2008 the petitioners were issued notice and they filed objections through their counsel requesting the Consolidation Officer not to proceed further in the matter as they wished to file an Appeal against the order dated 20.02.1992. The Consolidation Officer, however passed the order under Rule 109 A Sub clause 2, the petitioners approached the Settlement Officer (Consolidation) by filing two Appeals one Appeal was filed against the order dated 22.02.1992 and the other Appeal was filed against the order dated 30.08.2008 passed under Rule 109 (A) 2. Both the Appeals were clubbed and heard together by the Settlement Officer (Consolidation). The Settlement Officer (Consolidation) dismissed the Appeals both on merits and on delay. Although the Settlement Officer (Consolidation) in his order has observed that Gokaran Nath had not agreed to the compromise which was made the basis of the order passed by the Consolidation Officer. He nevertheless directed even Khata Nos.26 and 27 besides Khata No.107 and Khata No.106, to be ancestral property and therefore liable to be partitioned in accordance with the joint Hindu Family Custom. As per the joint Hindu Family Custom the ancestral property was to be divided per stripes between the branches of Raghunandan and Mahadev sons of Vikram Tiwari. The petitioners filed a Revision which Revision has also been rejected by the Deputy Director of Consolidation, Despite the petitioners pleadings before the Deputy Director of Consolidation that the proceedings were vitiated on account of fraud and misrepresentation resorted to by the opposite party nos.4 to 8. 15. Shri Sanjay Tripathi, appeared for the Opposite party nos.4 to 8. He has argued that the petitioners relied upon a compromise filed before the Assistant Consolidation Officer but were disputing the compromise filed before the Consolidation Officer. Even the 1 All. Gokaran Nath & Ors. Vs. Dy. Director of Consolidation Bahraich & Ors. 1207 compromise filed before the Assistant Consolidation Officer on which the initial order of the Assistant Consolidation Officer was passed on 22.12.1986 had directed the partition of the property between the two branches equally. The Appeal was filed against the Assistant Consolidation Officer's order dated 22.12.1986 and the Settlement Officer (Consolidation) remanded the matter to the Consolidation Officer to decide on merits observing that there was no compromise between the parties, and it was the contested case, therefore it should be decided on merits. The order of the Settlement Officer (Consolidation) was never challenged by the petitioners. However, when the matter was remanded to the Consolidation Officer even though they had knowledge that the case was pending before the Consolidation Officer, they failed to appear despite publication of notice in the Newspaper. Before the Consolidation Officer, the petitioners were disputing the claim made by the predecessor in interest of Opposite party nos.4 to 8 that the property in question was ancestral property, but at no such application was filed before the Consolidation Officer by the petitioners for giving evidence to show that the property in question was a self acquired. The Consolidation Officer and thereafter even the Settlement Officer (Consolidation) in Appeal, rightly presumed that being the property of Vikram Tiwari and having devolved upon his two sons, the property was ancestral and therefore directed for its division which orders should not be interfered with lightly as findings of fact have been recorded by three learned Courts below. 16. It has also been argued that if the petitioners failed to produce any evidence before the Consolidation Courts, the Consolidation Courts had no option, but to rely upon the family pedigree which the petitioners also did not dispute, and pass the orders impugned. It has also been argued that the opportunity was not denied by the Consolidation Officers. Notice was issued and thereafter publication in the Newspapers was also made and the petitioner no.1 lived in the same village and was cultivating the land in question, therefore, it cannot be said that he had no knowledge of the proceedings pending before the Consolidation Officer, more so when the Settlement Officer (Consolidation) had remanded the Appeal filed against the order of the Assistant Consolidation Officer after hearing both the parties. Learned counsel for the respondents also argued that the original Khata was in the name of their great grand father Mahadev, and thereafter the name of Saraswati and Anand Swaroop were recorded also on the Khatauni, therefore his sons being legal heirs cannot be denied the share in the ancestral property. 17. Shri Sanjay Tripathi, learned counsel appearing on behalf of the contesting-respondent has pointed out that the Hon'ble Supreme Court as well as this Court in its several judgments has observed that findings of fact recorded by the Consolidation Authorities should not ordinarily be interfered with in writ jurisdiction. The exceptions that have been passed on relate to misrepresentation and fraud depriving of opportunity, perversity and misrepresentation of law, failure to exercise jurisdiction and Acting in excess of jurisdiction by the lower Courts. The case of the petitioners is not covered in any of these exceptions and therefore this Court in writ jurisdiction should not 1208 INDIAN LAW REPORTS ALLAHABAD SERIES reappraise the evidence before learned consolidation authorities. On the facts of the matter, Shri Sanjay Tripathi states that it was not as if the Consolidation Officer was hearing the matter for the first time and then passed the impugned order. It so happened that C.O. had earlier passed order which was challenged in appeal and the appeal partly allowed and the matter remanded to him by an order dated 28.02.1990. It is apparent from the perusal of the order dated 28.02.1990 that all the parties were heard. It was not open for the petitioner to stay away from the hearing before the Consolidation Officer on remand of the case. It has also been stated that the documents that have been filed along with writ petition and supplementary affidavit filed therein are such documents which have not been produced before the Consolidation Officer and they cannot be looked into now as it would allow the petitioners to improve upon the case set-up before the Consolidation Authorities. It has also been argued that co-sharers praying for partition have to prove their own case. The onus of proof lies upon each of them with regard to the share claimed by them. More so when the family pedigree/ sijra has not been disputed between the parties. The petitioners did not produce any evidence before the Consolidation Authorities to prove that the entries in the khatauni was not found to be wrongly made then it would be followed by all the Courts. Learned counsel for the respondents has cited judgments of the Hon'ble Supreme Court and of this Court to say that where there is no denial of the opportunity and no misrepresentation, the jurisdiction of the writ Court in consolidation cases is very limited and should be exercised with caution and circumspection. 18. Shri Vijay Bahadur Verma has in rejoinder submitted that the judgment of all the learned Courts below has not considered the fact that the compromise was ex-parte. The case can be decided exparte but a compromise cannot be acted upon if it is ex-parte. 19. In rejoinder, Shri Vijay Bahadur Verma also submitted that the pleadings in the Appeal and the Revision are specific in so far as at least two Khatas are concerned, one of them being recorded solely in the name of the Petitioner no.1 and the second Khata recorded in the name of the Petitioner no.1 alongwith his three brothers. There is no mention of the branch of Saraswati on these Khatas, and the Annexures that have been relied upon by the petitioners have not been disputed. Only a bald denial in the counter affidavit would not help the respondents. 20. Shri Vijay Bahadur Verma, further argued that paragraph 16 of the writ petition specifically says that till date the Khatauni mentions names of the petitioners. True photocopies along with type copies of Z.A. Form No.16 kha along with extracts of khatauni of petitioner no.1 and his three brothers Mahavir Prasad, Kashi Prasad and Ayodhya Prasad along with that of Anand Swaroop the predecessor in interest of the respondent have been filed as Annexure no.10 to the writ petition. 21. It has also been argued that the consolidation authorities wrongly assumed that the property belonged to Vikramjit Tiwari, the common ancestor of all the parties, however, there was no evidence on record that the property in dispute was ever recorded in the khatauni in the name of 1 All. Gokaran Nath & Ors. Vs. Dy. Director of Consolidation Bahraich & Ors. 1209 either Vikramjit Tiwari or Raghunandan and Mahadev, his two sons. 22. Learned counsel for the petitioner also says that the compromise that was filed before the Consolidation Officer had left out plot no.26 which is new number of old plot no.4. He has pointed out that old plot no.24 and 125 were converted into new plot no.106, old plot no.25 and 124 were converted into new plot no. 107, old plot no. 4 was converted into new plot no.26 and old plot no.54 was converted into new plot no.27. 23. In old plot no.54 (new number 27) half share of Saraswati Prasad is admitted (ancestor of the opposite parties). The compromise was defective because while giving half share of plot no.27 to the ancestor of the opposite party, Saraswati Prasad, it also gave half share of other three plots that belonged solely to either the petitioner or his three brothers and where there was no share of the Mahadev and Saraswati. In plot number 106 the names of the opposite parties or their predecessor in interest were never recorded whereas they were recorded in plot no.107 as co-sharers. 24. Learned counsel for the petitioner has also pointed out that the petitioners had filed two appeals, one against the order passed by the Consolidation Officer under Section 9 A (2) of the Act and the other against the order passed under Rule 109 (A). Both appeals were rejected and thereafter two revisions were filed which revisions have also been rejected which have led to filing of these two writ petitions. 25. It has been argued by the learned counsel for the petitioner that the order passed by the Consolidation Officer was an ex-parte order and, therefore, at least during the appeal and revision the petitioner should have been heard properly. 26. It has also been argued that the question of shares with regard to co-tenure holder is a question of law and cannot be decided on the basis of compromise. It should only be decided on the basis of pleadings and evidence produced by both the parties. 27. Learned counsel for the petitioner has pointed out from the copy of the compromise filed before the Consolidation Officer that there are no signatures of the petitioner on them, hence, it is not binding on them. With regard to the specific query made by the Court about current status of the property in question, Shri Vijay Bahadur Verma, learned counsel has submitted that during the pendency of the appeal there was an interim order passed by the S.O.C. which lapsed when the appeal was rejected. In the petitioner's revision there was also interim order granted by the Deputy Director of Consolidation which came to an end on the rejection of the revision. When the writ petition was filed, this Court on the first day of hearing on 04.12.2020 had directed the parties to maintain status-quo and had also stayed the order passed by the DDC dated 11.11.2014 till the next date of listing. Ignoring the interim order granted during the appeal and revision and thereafter by this Court, the opposite parties have sold all the land in question and, therefore, application for impleadment was filed before this Court on which notice were issued and service found sufficient by this Court. Impleadment application was allowed. The subsequent 1210 INDIAN LAW REPORTS ALLAHABAD SERIES purchasers have not put in appearance before this Court but Section 52 of the Transfer of Property Act would apply and since the transfer was during the pendency of the litigation before the appellate Court revision Court and High Court, it should be treated as null and void. 28. This Court has perused the order dated 22 February 1992 passed by the Consolidation Officer in Case No.398 to 401, and finds that the Consolidation Officer First recorded that except for Gokarannath and Kashinath, sons of Raghunandan Prasad, all other parties in litigation with respect to Khatas Nos.26, 27, 106, 107 had submitted a compromise dated 28.09.1991. Gokaran Nath had been sent notice through registered post and substituted notice through Gazette publication was also resorted to but he failed to appear. Kashi Prasad Tiwari sent a letter on 06.11.1990 along with a copy of reply submitted on 9.5.1988 in Appeal before the SOC, but Kashi Prasad Tiwari did not appear nor did he file any response to the notice sent to him therefore his letter dated 06.11.1990 was not being taken into consideration. In the compromise dated 28.09.1991 the 4 Khata in dispute were shown to be ancestral property. However Khata No.26 was shown to be recorded in the name of Gokarannath alone and the parties to the litigation had not showed any evidence that said Khata No.26 was in fact ancestral property. The Consolidation Officer observed that for co-tenancy rights to be claimed on property acquired before the U.P. Zamindari Abolition and Land Reforms Act, the Provisions of U.P. Tenancy Act were applicable but after U.P. Zamindari Abolition and Land Reforms Act came into being, to claim co-tenure ship in a particular piece of land, there was no provision, hence, in so far as Khata No.26 was concerned the compromise dated 28.09.1991 could not be made applicable. Only with respect to Khatas Nos.27, 106 and 107, the compromise dated 28.09.1991 would govern the shares of the parties, thus the compromise in respect to Khata Nos.27, 106 and 107 would become part of the order. The Consolidation Officer also observed that the rest of the lands on which the compromise dated 28.09.1991 had been accepted, were covered by the imposition of Ceiling on Land Holdings Act, and therefore the file be sent to the Chief Revenue Officer for his comments before the order dated 22.02.1992 can be made applicable. 29. Two Appeals were filed by Gokaran Nath and others against the order dated 22.02.1992 and order dated 30.08.2008 passed on an application under Rule 109 A(2). Both the Appeals were taken up together by the Appellate Authority. This Court has gone through the order passed by the SOC. The SOC dealt with the facts of the case regarding compromise being submitted in the Court of Consolidation Officer with respect to Khata in question describing them as ancestral property. The Consolidation Officer after hearing the parties had declared Khata No.26 to remain in the sole possession and ownership of Gokarannath whereas other khatas were to be divided per stripes. The appellant had argued that the Consolidation Officer had proceeded exparte and pass the order relying upon the compromise which compromise had been done fraudulently. In the basic year Khatauni, Khata No.26 was recorded in the sole name of Gokaran Nath. Khata No.27 was recorded in the name of Gokaran Nath Son of Raghunandan along with Anand Swaroop son of Saraswati. Khata No.106 1 All. Gokaran Nath & Ors. Vs. Dy. Director of Consolidation Bahraich & Ors. 1211 was recorded in the name of Mahavir Prasad, Kashi Prasad, Ayodhya Prasad and And Gokarannath all sons of Raghunandan. Khata No.107 was recorded in the name of Mahavir Prasad, Kashi Prasad, Ayodhya Prasad And Gokarannath sons of Raghunandan and Anand Swaroop son of Saraswati in the basic year Khatauni. The Assistant Consolidation Officer on basis of conciliation passed an orders on 22.12.1986 and 23.12.1986 declaring 1/5 share in all Khatas leaving out Khata No.26. The said order was also implemented. The Chaks were also carved out. Later on, an Appeal was filed which was accepted on 28.02.1990 and the matter remanded back to the Consolidation Officer to decide afresh as it was a contested case. 30. It was argued before the SOC that after remand Order was passed by the SOC, the case file did not reach the Court of the Consolidation Officer and the order dated 22.02.1992 was passed without going through the records only on the basis of an ex-parte agreement. A Gazette Publication dated 23.07.1990 was said to have been done but knowledge could not be derived by the appellants And the matter proceeded ex-parte and on the basis of a forged compromise dated 28.9.1991 the order dated 22.02.1992 , was passed. The respondents filed an application for implementation of the order on 14.06.1993 and thereafter sat quietly. On 10.10.2006 another application for implementation (Amaldaramad) was filed but no implementation was done. Ajay Kumar, the respondent filed mutation application again which was taken into account and the order 30.08.2008 was passed under rule 109 A(2). Only on implementation of the order dated 30.08.2008 knowledge could be derived by the appellants. Consequently the Appeal was filed with delay. 31. With regard to the merits of the case, it had been observed by the SOC that Kashi Prasad was Posted as Inspector General in PAC and his son was living in America. Mahavir Prasad was Income Tax Commissioner. These two parties had not appeared in the case. The Appeal was heard in their absence.