R.M. Sahai, J.
1. The two questions canvassed on behalf of the petitioners is the legality of setting aside of an order, although ex parte, by the Deputy Director Consolidation, OD grounds, which, on the finding did not make out sufficient cause for the absence of the opposite parties on the date of hearing. And infirmity in the order, thereafter, passed on merits without adverting to the material evidence on record consisting of oral evidence etc. on adverse possession, the plea on which the claim by the opposite party was founded before the Consolidation Officer.
2. To substantiate the first argument reliance was placed on Section 201 of U. P. Land Revenue Act which by Legislative incorporation applies to proceedings under U. P. Consolidation of Holding Act. Its applicability to proceedings in revision under Section 48 of the Act is no more in doubt (see 1969 All WR (HC) 592, Ram Charan v. Deputy Director Consolidation). Section 201 of the U. P. Land Revenue Act reads as under:
'S. 201 -- No appeal shall lie from an order passed under Section 200 ex parte or by default. But in all such cases, if the party against whom judgment has been given appears either in person or by agent (if a plaintiff, within fifteen days from the date of such order, and if a defendant, within fifteen days after such order has been communicated to him, or after any process for enforcing the judgment has been executed or at any earlier period), and shows good cause for his non-appearance, and satisfies the officer making the order that there has been a failure of justice, such officer may, upon such terms as to costs or otherwise as he thinks proper, revive the case and alter or rescind the order according to the justice of the case:
Provided that no such order shall be reversed or altered without previously summoning the party in whose favour judgment has been given to appear and be heard in support of it'.
Good cause for non-appearance coupled with failure of justice confer jurisdiction on the authority to recall an order passed in absence of the party on an application filed within 15 days of the communication of the order. But in absence of good cause even failure of justice by itself does not furnish any ground for setting aside of the order. The word 'and' is significant. In the context in which it has been used it cannot be read as 'or'.
3. The Deputy Director Consolidation while disposing of application for setting aside ex parte order recorded following findings:--
'The restoration applications are within time for having been filed on the 15th day of the order. The allegations set forth in the applications do not apparently appear to be correct for their absence on 16-2-72 but since the order is an ex parte one and these applications are in time I do not get involved in attaching any importance in the allegations .......... set aside the order dated16-2-72 ....... I allow these applications.'
The order is in the teeth of provisions contained in Section 201 of the U. P. Land Revenue Act.
4. Even otherwise the basic concept of setting aside an ex parte order is associated with absence of the defaulting party on the date of hearing either due to lack of knowledge or failure to appear for sufficient cause. In this case the Deputy Director Consolidation recorded the finding, on absence, against the opposite party and restored the case only on the ground that the opposite party was not heard. In doing so he exceeded his jurisdiction as he appeared to have set aside theorder on compassionate ground which is] alien to a court of law.
5. The order restoring the revision was thus against the law, yet, it set aside an order, passed, without hearing the opposite party. But as it is conducive and more amenable to sense of justice that the ight of parties should be decided after hearing I refrain from quashing the order. It is well settled that notwithstanding the right of getting an illegal or without jurisdiction order quashed the remedy is discretionary. (AIR 1966 SC 828, Venkateshwara Rao v. Govt. of Andhra Pradesh and 1957 All LJ 193 : (AIR 1957 All 276) Pooran Singh v. Addl Commr., Agra.
6. The vulnerability of the order passed, thereafter on merits has been successfully exposed on two counts -- the faulty approach on 'Sajhi' and misunderstanding of the scope of Section 210 of U. P. Z. A. Act. The opposite parties were objectors before the Consolidation Officer, against the basic year entry of Bhumidhar in favour of petitioner and based their claim solely on adverse possession. On the other hand petitioners apart from basing their title on ancestral tenancy and possession have tried to knock out the entire case of the opposite parties by producing Sajhinama executed by them at different point of time and thus claiming the nature of possession to be permissive at its inception.
7. The Sajhinama was rejected, mainly, on the legal notion that the recorded tenant (petitioner) must also take part in cultivation. Both the Settlement Officer Consolidation and Deputy Director Consolidation held that participation of cultivation was necessary. The word 'Sajhi' has not been defined in the Z. A, Act or Rampur Tenancy Act (the land is situated in an area where Rampur Tenancy Act applied). 'Sajhi' cultivation is very common in villages and is undertaken both due to convenience or compulsion for example lack of resources, absence from the village, inability to cultivate due to minority, disability etc. of the recorded tenant. The one provides the land, the other labour and material. And the consideration is the sharing of produce grown on land. Para A-72 of the Land Records Manual lays down the circumstances in which a person cultivating the land of the recorded tenant shall be shown as Sajhi in remarks column of the khasra. It reads as under:
'A-72. If the recorded tenureholder has permitted any person to share in cultivation of his holding or any part thereof as a partner or Sajhi, the name of the sharer shall be shown in the remarks columns of the khasra together with the word Sajhi'. Even a partner is to be shown in the khasra as Sajhi. To participate means to share in by common action. The common action is availability of land of one and labour of other. Participation in cultivation is not the same thing as joint cultivation. The view, therefore, that as the petitioners did not cultivate along with opposite parties the latter cannot be Sajhi is not sustainable in law.
8. Having rejected the 'Sajhinama' the Deputy Director of Consolidation inferred that possession of the opposite parties was adverse. In a claim for adverse possession the title is not disputed. Its extinction is alleged. The burden to establish possession contrary to law and without the consent of the landholder (petitioner) was on the opposite parties. There were questions of fact which could be decided on evidence and not as a matter of law on facts found an inference of adverse possession and consequential extinction and acquisition of right may be drawn. In case of Balwant v. Deputy Director Consolidation (1975 All LJ 278) : (AIR 197S All E95) (FB) the majority took the view that limitation for suit under S, 209 begins to run from the date of demand for possession. It was a case of mortgage which automatically came to an end on the date of vesting and yet the possession was held to be permissive. For becoming adverse a demand was necessary. Applying the same principle, on the findings recorded, the possession did not become without consent of the landholder merely because they failed to establish participation in cultivation as Sajhi. The point of time when the opposite parties entered into possession whether they occupied the land with consent or without the consent of the landholder, if it was with consent when it became without consent, is it a ease of taking or retaining possession, were questions which the authorities were required to decide on evidence on record. This they have failed to do. In the circumstances the judgment given by fee Deputy Director Consolidation is rendered erroneous.
9. The judgment is also bad as the Deputy Director of Consolidation has not referred to oral evidence led on behalf of the parties. The question of adverse possession could not have been effectively decided without referring to the oral evidence adduced by the parties. The decision by the Deputy Director without referring to oral evidence is bad in law (see 1974 Unreported RevenueCases 615 -- Paras Nath v. Wajirul Hasan. (DB).
10. As the Deputy Director is being directed to decide the revision afresh it is not necessary to decide whether the opposite parties were in fact 'Sajhi' or not.'
11. For the reasons stated above this petition is allowed. The order dated 29th March 1972 passed by the respondent No. 1 is quashed. He is further directed to decide the revision afresh.
12. The parties shall bear their own costs