IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4929 of 2002 GORA DEVI wife of Baban Rai @ Nata Rai, resident of village- Chilahari, P.O.- Chilahari, P.S. Dumraon, District- Buxar. Versus 1. THE STATE OF BIHAR 2. The Director Consolidation, Bihar, Patna 3(i). Ravindra Singh son of Late Lallu Singh 3(ii). Phulkumari Devi 3(iii). Mostt. Nayan Kumari Devi 3(iv). Kamlendu Devi, all daughters of Late Lallu Singh 4(i). Smt. Gangotara Devi wife of Late Parmhans Singh 4(ii). Birendra Singh 4(iii). Surendra Singh 4(iv). Bijendra Singh 4(v). Yogendra Singh, all sons of Late Parmhans Singh 5. Deputy Singh son of Late Ram Swaroop Singh 6. Dinanath Singh 7. Dineshwar Singh 8. Maheshwar Singh, all sons of Late Radha Mohan Singh, respondets 3 to 8 are resident of village- Bararhi, P.S.- Dinara, District- Rohtas. 9. Assistant Director, Consolidation, Rohtas. ----------- For the petitioner : Mr. Dineshwar Mishra, Advocate Mr. Surendra Mishra, Advocate For the State : Mr. Alok Kumar Rahi, A.C. to S.C. 12 For the private respondents : Mr. V.Nath, Advocate Mr. Satish Kumar, Advocate Mr. Waliur Rahman, Advcoate **** 14 02.03.2009 Heard learned counsels for the petitioner, State and the respondents. A supplementary counter affidavit has been filed on behalf of the substituted heirs of the deceased respondent no.4. Petitioner challenges the order dated 29.10.2001 (Annexure-4) in Revision Case No. 239 of 1999 passed by the respondent no.2, whereby the appellate order dated 20th October 1997 (Annexure-3) in - 2 - Consolidation Appeal No. 621 of 1991-92 passed by the Assistant Director Consolidation has been set aside. It is submitted on behalf of the petitioner that the Director Consolidation while exercising the revisional power has set aside the order passed by the Assistant Director Consolidation, as referred to the above, on the wrong premise that the deed of gift executed on 03.04.1968 was very shortly cancelled by the donor was not taken into consideration by the appellate Court is incorrect as on perusal of the appellate order dated 20th October, 1997 (Annexure-3), it would appear that the Assistant Director Consolidation had considered the deed of gift as well as its cancellation, and as such, it is not correct to say that the appellate authority did not consider the effect of cancellation. Learned counsel for the respondents, on the other hand, not withstanding the consideration of the deed of cancellation submits that the Assistant Director Consolidation had passed the order as contained in Annexure-3 in absence of the legal representatives of the original respondent, Radha Mohan Singh, who died during the pendency of the appeal No. 621 of 1991-92. As such, the order passed by the appellate Court was not sustainable in law, and as such, the same was rightly set aside. - 3 - Learned counsel appearing for the petitioner, in reply, is not in position to refute the submission that the appeal was disposed of without adding the legal representative of the original respondent Radha Mohan Singh, who died during the pendency of the appeal. After having considered the rival submission of the parties and on perusal of their respective pleadings as well as the orders dated 29.10.2001 & 20.1.1997, as contained in Annexures- 4 & 3 respectively, it appears that the petitioner is basing his claim on the Gift deed no. 1896 dated 3rd April, 1968 in respect of the land in question, whereas the respondents are resisting the claim on the basis of the cancellation of Gift deed through deed no. 2702 dated 29th April, 1968, the fact needed detailed consideration. Besides the above, a fact which is not in dispute between the parties that the heirs of the original respondent Radha Mohan Singh who died during the pendency of the appeal before the Assistant Director Consolidation, were not brought on record and without hearing them the appeal was disposed of. As such, I am of the opinion that the order passed by the Director Consolidation, as contained in Annexure-4 on this aspect of the matter that the appeal could not have been disposed of in their absence, can not be faulted. However, after having found by the revisional Court that the appeal - 4 - was disposed of without hearing the legal representatives of the said Radha Mohan Singh, he ought to have remanded the matter back to the appellate Court for passing a fresh order after hearing the parties concerned. In this view of the matter, the order dated 29.10.2001 passed by the Director Consolidation, as contained in Annexure-4 is modified to the above extent that the matter be remanded back to the appellate authority namely, the Assistant Director of Consolidation, Rohtas for passing a fresh order in accordance with law in Appeal No. 621 of 1991-92 after hearing both the parties, who will be at liberty to raise all contention/pleas in support of their respective claim. The appeal shall be disposed of expeditiously preferably within a period of six months on receipt/production of the certified copy of the present order. The writ application is disposed of with the above observations/directions. It is, however, made clear that this Court has not expressed any opinion on the merits of the matter and the entire merit of the case shall remain open to be considered by the appellate authority as raised by the parties in accordance with law. mcverma (Shailesh Kumar Sinha,J.)