IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1529 (M/S) of 2009 Ali Hasan …..…Petitioner. Versus State of Uttarakhand and others. …………Respondents. Hon’ble Alok Singh, J. Heard Mr. Sharad Sharma, Sr. Advocate assisted by Mr. J.S. Bisht, learned counsel for the petitioner. In the present writ petition, petitioner is assailing the order dated 19.03.2009 passed by Deputy Director of Consolidation / Additional collector, Hardwar in revision no. 191 of 2006-07 as well as order dated 30.05.2006 passed by Consolidation Officer in case no. 83/2262/315/788. Brief facts giving rise to the present petition are that after death of Maqsood (deceased) petitioner preferred application under section 9 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as Act) before Consolidation Officer, Roorkee seeking declaration / mutation on the basis of unregistered WILL. Initially declaration was made in favour of the present petitioner vide order dated 11.03.1999 on the basis of alleged WILL of Maqsood (deceased). Murtaja – respondent no. 2 herein preferred a restoration application claiming himself to be son of Maqsood (deceased) against the order dated 11.03.1999. However, restoration application was rejected by the Consolidation Officer vide order dated 30.03.1999. 2 Thereafter, Rashid claiming to be brother and legal hair of Maqsood deceased moved application for restoration application against the order dated 11.03.1999 which was allowed vide order dated 24.08.2000. Petitioner filed revision No. 13 of 2000 before Deputy Director of Consolidation against the order dated 24.08.2000, which was dismissed on 10.11.2000. After the recalling of exparty mutation in favour of petitioner herein vide order dated 24.08.2000. Rashid also filed application for mutation on 05.05.2006, which was numbered as 83/2262/315/788. Present petitioner filed an application before Consolidation Officer saying since the application of restoration setting aside the order dated 11.03.1999 moved by Murtaza was dismissed vide order dated 31.03.1999 hence, application of Rashid is barred by principle of constructive res judicata hence mutation order dated 11.03.2009 in passed in favour of the petitioner must be maintained. Learned Consolidation Officer vide impugned order dated 30.05.2006 rejected the application of the petitioner and observed that application is not barred by principle of res judicata and application of Rashid is very well maintainable. Application of Rashid for mutation was registered as different case and mutation / declaration was made ex parte in favour of the Rashid vide order dated 21.05.2007. On 09.07.2007 Murtaza filed restoration application to recall ex parte order dated 21.05.2007 on the ground he was not impleaded and heard in the application of Rashid seeking declaration / mutation over the land of Muqsood (deceased). Petitioner also filed restoration application 3 against the order dated 21.05.2007. Both the applications, i.e. application of petitioner as well as of Murtaza were allowed vide order dated 25.09.2007. Feeling aggrieved by the order dated 25.09.2007 by which order in favour of the Rashid dated 21.05.2007 was recalled, Rashid filed revision no. 185 / 2007-08, which was dismissed on 19.03.2009. The net result of allowing the restoration applications of Murtaza and petitioner against the order dated 21.05.2007 would be proceedings of mutation / declaration commenced on the application of Rashid stands revived. Since order dated 11.03.1999 making declaration in favour of the petitioner was also recalled on the application of Rashid vide order dated 24.08.2000, Meaning thereby both the mutation cases i.e. one on the application of petitioner and other on the application of Rashid shall be heard and decided a fresh. Mr. Sharad Sharma, Sr. Advocate assisted by Mr. J. S. Bisht, states that application moved by the Rashid is barred by principles of Constructive Resjudicata in view of rejection of recall applicaton of Murtaza. This court finds that since Rashid was not party in the application moved by Murtaza seeking recall of the order dated 11.03.1999 hence, order passed on Murtaza restoration application shall not attract bar of constructive res judicata against application of Rashid. In the peculiar facts and circumstances where petitioner as well as both the respondents are claiming rights over the property of Maqsood (deceased) it would be proper and in the interest of justice that both the 4 applications moved by the petitioner and Rashid should be consolidated and shall be heard de novo after giving full opportunity of leading evidence and hearing to both the parties. It is also made clear that Murtaza alleged son of Maqsood can also move his mutation application which shall also be heard together. Learned Consolidation Officer shall not be influenced by any observation made by any Court in the previous applications for Recall/Restoration, appeal or revisions derived therefrom. For the foregoing reasons, writ petition is dismissed in limine. No cost. (Alok Singh, J.) 29.10.2009 SKS