Binod Kumar Roy, J.@mdashThe petitioner prays to quash the appellate order dated 651985 passed by the Settlement Officer (Consolidation), Gorakhpur in Appeal No. 511 (as contained in Annexure 1) and the revisional order, dated 2311986 passed by the Deputy Director of Consolidation, Gorakhpur, rejecting her Revision No. 1200/25 (copy appended as Annexure II).
2. Mr. M.D. Misra, learned counsel appearing on behalf of the petitioner submitted that the land which has been allotted to respondent No. 3 formed part of the land within the boundary walls of the petitioner.
3. Mr. P.K. Misra, learned counsel appearing on behalf of respondent, on the other hand, contended that the claim of the petitioner is incorrect, inasmuch as no such wall exists in relation to the land which had been allotted in his chak. Besides, the consolidation authorities have also found that the wall in question was constructed after commencement of the consolidation proceedings without obtaining necessary permission from the
4. Mr. Misra, in reply submitted that there is inherent fallacy in the argument of the learned counsel of respondent No. 3, inasmuch as that in the first breath he stated that there is no such wall bus in the next breath he submitted that boundary wall has been constructed after commencement of the consolidation proceedings. He further submits that there was no material before the consolidation authorities to record a positive finding that the wall in question was constructed after the commencement of the consolidation proceedings.
5. In my view justice requires remittance of this case to ascertain as to whether there was a boundary wall before commencement of the consolidation proceedings encircling the land which has been allotted in the Chak of respondent No. 3 as a finding was required to have been recorded on the basis of positive evidence adduced by the parties. If it is a fact that the land, which has been allotted in the chak of respondent No. 3, was really encircled by a boundary wall of the petitioner in that event it should not have been so allotted. It goes without saying that if the boundary wall has been constructed after the commencement of the consolidation proceedings and without obtaining necessary permission in that event the petitioner will not be entitled to any equity.
6. In the result, this writ petition succeeds in part. The revisional order is set aside and Revision No. 1200/85 is remitted back to Respondent No. 1, who will decide the issue afresh, if necessary .after making a local inspection by him or getting the same done through some responsible officer with notice to the parties.
7. In the peculiar facts and circumstances I make no order as to cost.
8. Let a writ of certiorari issue accordingly.
