Jiledar vs State Of U.P. And 14 Others
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Allahabad High Court

Jiledar vs State Of U.P. And 14 Others on 7 March, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:33402
 
Court No. - 50
 

 
Case :- WRIT - B No. - 477 of 2025
 

 
Petitioner :- Jiledar
 
Respondent :- State Of U.P. And 14 Others
 
Counsel for Petitioner :- Aditya Yadav,Avinash Kumar Yadav,Shivam Yadav
 
Counsel for Respondent :- Bhupendra Kumar Tripathi,C.S.C.,Ruchi Mishra
 

 
Hon'ble Chandra Kumar Rai,J.
 

1. Vakalatnama filed on behalf of respondent no.5 is taken on record.

2. Heard Mr. V.K. Singh, learned Senior Counsel assisted by Mr. Shivam Yadav, learned counsel for the petitioner, Mr. Rajesh Yadav as well as Ms. Ruchi Mishra, learned counsels for respondent no.4 and 5, Mr. Bhupendra Kumar Tripathi, learned counsel for respondent- Gaon Sabha and learned Standing Counsel for the State respondents.

3. With the consent of learned counsel for the parties, the instant petition is being heard finally without inviting counter affidavit.

4. The instant petition has been filed for the following relief:-

"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 6.1.2025 passed by Board of Revenue, Lucknow in case No. Rev/929/2024/ Jaunpur and the order dated 5.3.2024 passed by Additional Commissioner (Judicial)-I, Varanasi Division, Varanasi in case No. 308 of 2023 (Amlesh Vs. Faujdar and others);

(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to affirm the division of property as per the final order dated 23.9.2022 passed by Sub Divisional Magistrate."

5. On 6.3.2025, following order was passed by this Court:-

" 1. Heard Mr. V.K. Singh, learned Senior Counsel for the petitioner and Mr. Rajesh Yadav and Ms. Ruchi Mishra, learned counsels for private respondent no.4.

2. Learned Senior Counsel for the petitioner submitted that time barred appeal under Section 207 of the U.P. Revenue Code, 2006 filed by private respondents has been allowed without passing any order for condonation of delay in filing appeal setting aside the order of the Trial Court and remitted the matter back before the Trial Court for consideration of kurra. He further submitted that final decree prepared in the partition suit has not been challenged by the private respondents nor the same has been set aside, as such, the order passed by Additional Commissioner cannot be sustained in the eye of law. He submitted that in revision, petitioner has taken specific ground that no separate application under Section 5 of Limitation Act has been filed by the private respondents in appeal nor any order for condonation of delay has been passed by the Additional Commissioner, as such, the order passed in appeal remanding the matter before the Trial Court is wholly illegal in view of the ratio of law laid down by Division Bench of this Court in the case reported in 2022 (155) R.D.309, Ram Prakash Vs. Deputy Director of Consolidation and Others.

3. Mr. Rajesh Yadav, learned counsel for private respondent no.4 submitted that matter be adjourned for tomorrow to enable him to obtain instruction as to whether delay in filing of appeal was condoned or not.

4. Put up this matter as fresh on 7.3.2025 at 12:00 P.M.

5. Learned Senior Counsel for the petitioner also submitted that the matter is fixed for 7.3.2025 before the Trial Court in pursuance of the remand order passed by Additional Commissioner in appeal.

6. In view of the aforementioned fact the petitioner can file necessary application before the Trial Court to adjourn the proceeding for reasonable period."

6. Mr. Rajesh Yadav, learned counsel for respondent no.4 submitted that separate application for condonation of delay was filed in appeal under Section 207 of U.P. Revenue Code, 2006 and no objection was filed to the delay condonation matter, as such, it will be presumed that delay in filing the appeal was condoned and the appeal was accordingly decided on merit setting aside the order of Trial Court and remitting the matter back before the Trial Court to decide the proceeding afresh. He submitted that in view of finding recorded by appellate Court, no interference is required against the impugned orders.

7. Learned Senior Counsel for the petitioner submitted that petitioner has taken specific ground in the ground of revision that delay in filing the appeal has not been condoned in proper manner but Board of Revenue has not considered the same and dismissed the revision filed by petitioner. He further submitted that in ground No. 19, objection has been taken that appeal was filed only against the order dated 23.9.2022 but no appeal has been filed against the final decree dated 6.10.2022, as such, the appeal filed by contesting respondents was not maintainable.

8. I have considered the arguments advanced by learned counsel for the parties and perused the records.

9. There is no dispute about the fact that appeal filed by contesting respondents under Section 207 of U.P. Revenue Code, 2006 was barred by limitation but no specific order has been passed by Additional Commissioner while allowing the appeal setting aside the order of Sub Divisional Officer and remitting the matter back before the Sub Divisional Officer.

10. The Division Bench of this Court in the case reported in 2022 (155) R.D.309, Ram Prakash Vs. Deputy Director of Consolidation and Others has held that if the proceeding is barred by limitation then the limitation question should be decided first and thereafter the merit can be examined however both the matter can be heard and disposed of on the same day. Paragraph Nos. 19, 20, 21, 22 and 23 of the judgment rendered in Ram Prakash (Supra) will be relevant which are as follows:-

"19. We are not going into the issue as to whether an order passed by appellate authority on an application seeking condonation of delay is an interim order or final as the same has not been referred for consideration by the Division Bench. Different situations may arise in an appeal filed along with application seeking condonation of delay. Firstly, the application for seeking condonation of delay may be dismissed. As a consequence thereof, the appeal will also fail. Another situation may be that application seeking condonation of delay is allowed and thereafter the appeal may either be accepted or rejected.

20. If any statute provides certain period for filing of appeal, an appeal filed beyond the time limit will certainly be not entertained. If the provisions of 1963 Act are applicable and party is entitled to seek condonation of delay in filing appeal, an application has to be filed specifying the grounds on which delay in filing the appeal is sought to be condoned. It is only after that the application is allowed, the appeal can be entertained and heard on merits. Before that the appeal cannot be taken up and considered on merits.

21. As far as the issue regarding hearing of the application seeking condonation of delay and the appeal simultaneously is concerned, in our view, firstly the application has to be considered. Only thereafter, the appeal can be considered on merits but there is nothing in law which requires hearing of appeal on merits to be postponed mandatorily after acceptance of the application seeking condonation of delay. Both can be taken up on the same day. However, the appeal has to be heard on merits only after the application seeking condonation of delay has been accepted.

22. In view of the aforesaid discussion, we answer the question referred to the Division Bench that an application seeking condonation of delay has to be decided first before the appeal is taken up for hearing on merits. However, it can be on the same day and there is no requirement of adjourning the hearing of appeal on merits after acceptance of the application seeking condonation of delay.

23. Let the matter be listed before learned Single Judge as per roster for further proceedings in the case."

11. It is also material to mention that no appeal was filed against the final decree dated 6.8.2022, as such, the appeal filed by contesting respondents was also defective.

12. Considering the entire facts and circumstances of the case, the impugned judgement/ order passed by Board of Revenue dated 6.1.2025 passed by respondent no.2, Board of Revenue, U.P. at Lucknow and 5.3.2024 passed by respondent no.16, Additional Commissioner Judicial 1st Varanasi Division Varanasi are liable to be set aside and the same are hereby set aside.

13. The writ petition stands allowed and matter is remitted back before the no.16, Additional Commissioner Judicial 1st Varanasi Division Varanasi to register the appeal on its original number and decide the same in the light of the ratio of law laid down by this Court in Ram Prakash (Supra) that is delay condonation matter shall be decided first and the merit of the appeal shall be examined after disposal of delay condonation matter. The contesting respondents is given liberty to amend his appeal in accordance with law challenging the final decree also passed in the suit. Respondent no.16, Additional Commissioner Judicial 1st Varanasi shall decide the aforementioned appeal after affording opportunity of hearing to both parties expeditiously preferably within period of three months from the date of production of certified copy of this order.

Order Date :- 7.3.2025

Vandana Y.