RADHEY SHYAM Vs. KAMLA SHANKER

JUDGEMENT

(1.) S. N. Srivastava, J. The dispute in the instant petition revolves round the lands bearing Plot Nos. 2580, 2238 and 2199 admeasuring 2 acres, 3. 0 acres and 0. 10 acres respectively situated in village Kasidahan, Taluka Korh, Pargana Bhadohi, Tahsil Gyanpur District Bhadohi (Sant Ravi Das Nagar) and facts constitutive of the grievances of the petitioner are that a patta had been executed by Maharaja Kashi Naresh in the year 1943 in respect of the aforesaid land in favour of petitioner's father and when the consolidation operation commenced to run in the village, father of the petitioner filed objection under Section 9 of the U. P. Consolidation of Holdings Act thereby staking claim of sirdari rights over the plots in question. The objection came to be decided by means of the judgment dated 22-3-1966 in which the father of the petitioner was held to bear sirdari rights. It would appear from the record that the respondents were not arrayed in the aforestated proceeding under Section 9 of the C. H. Act preferred an appeal against the orders dated 22-3-1966 passed by Consolidation Officer after an efflux of more than 19 years on the premises inter alia that part of the land was constituent of their Abadi and was in their possession. The present petitioner resisted claim by filing counter-affidavit and it would appear that the petitioner sought hearing of the case on the point of maintainability and delay and also prayed that only thereafter the appellate Court could proceed and decide the appeal on merit. The plea of the petitioner did not find favour with the Settlement officer consolidation who passed an order dated 6-12- 1997, the essence of which is that since the matter related to the claim that it was property of Gaon Sabha and instead of hearing the matter on question of maintainability alone, the entire appeal has to be decided on merit including consideration on the point of delay. The revision filed against the order of the Settlement Officer Consolidation too met the fate of dismissal. It is these two orders, which aggrieved the petitioner who has canvassed their validity by means of the present petition.

(2.) HEARD Sri Namvar Singh learned Counsel for the petitioner, Sri G. P. Yadav, learned Counsel appearing for the contesting opposite party No. 9, Sri Anuj Kumar, learned Counsel representing the Gaon Sabha and the standing Counsel.

(3.) IN the peculiar facts and circumstances of the case when appeal has been preferred after an efflux of more than 19 years, and also having regard to the fact that they were not parties to the proceeding under Section 9-A of the Act before the Consolidation Officer and that respondents were/are claiming their title in the Gaon Sabha and not any bhumidhari or sirdari rights, the question that needs to be considered and decided by the appellate Court is whether the contesting respondent is aggrieved party or prejudicially affected by the orders of the Consolidation Officer under Section 9 of the U. P. Consolidation of Holdings Act. All such questions relate to maintainability of the appeal and have to be decided first by the appellate Court before proceeding which requires consideration is whether the appellant had prayed for leave of the Court to file appeal. If any such prayer has been canvassed, the appellate Court then is enjoined to clinch the question whether leave should be granted and appeal should be permitted to be filed. IN the conspectus of the above discussion, I am of the view that the question of maintainability of appeal has to be dealt with and decided first by the appellate Court and in case, the appellate Court converges to the view that appeal is maintainable only then it could proceed further to decide the appeal on points involving merits.