RAJDEI Vs. DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) S. N. Srivastava, J. This is a unique case in which dispute is between husband and wife. Ram Belas Opp. Party No. 3 was recorded tenure holder. It is said that some compromise was entered into between husband and wife and by an order dated 8-11-1997 passed by Consolidation Officer, application under Section 5 of Indian Limitation Act in filing objection was allowed and name of Opp. Party No. 3 was directed to be expugned as Bhumidhar and instead, the name of his wife Rajdei, petitioner was directed to be recorded. From a perusal of the affidavit filed alongwith application for condonation of delay as well as the grounds of appeal, the allegations of Opp. Party No. 3 are that out of the wedlock of the petitioner and respondent No. 3, no issue was born as she was residing in her Maika (father's house) One Budhi Ram Singh, the real brother of the petitioner who is an employee in Consolidation department, maneouvred for time barred objection the compromise and lastly the order dated 8-11-1997 and subsequently got sale deed executed through petitioner Rajdei in favour of his sons. Sale deed dated 10-6-2000 was executed in favour of Jagdish son of Ram Awadh by the Opp. Party No. 3, who went to Tahsil on 26th May, 2003, in connection with Khatauni where he came to know about mutation in favour of Rajdei. The Opp. Party No. 3 assailed dated 8-11-1997 on the basis of compromise on the ground of fraud at the instance of Budhi Ram real brother of the petitioner and also denied being party to any such compromise and has alleged to have gained knowledge of the compromise on 27-5-2003 whereupon the filed application 31st May, 2003. Appeal alongwith application under Section 5 of the Indian Limitation Act supported with an affidavit is pending. The objection of the petitioner to the application under Section 5 of the Limitation Act is also pending. The petitioner prayed that question of maintainability of appeal be decided first. By order dated 20th Nov. 2003, the appellate authority directed that the matter may be heard on merits and that the question of maintainability of appeal shall also be decided at the time of disposal of appeal. Revision preferred by the petitioner was dismissed and parties were directed to appear before the Settlement Officer Consolidation.

(2.) THE learned Counsel for the petitioner urged that the question of limitation relates tot he question of maintainability of appeal and this should have been decided first before entering into the merits. In connection with this proposition, he relied upon decision of the Apex Court in Gagandeep Pratishthan Pvt. Ltd. & Ors. v. M/s. Mechano and Anr. , AIR 2002 SC 204, and Bhagwat & Ors. v. Director of Consolidation & Ors. , 1990 RD 162. In Gagandeep's case, jurisdiction of the High Court was questioned in making the impugned orders at the threshold without deciding the question of delay in filing the appeal as well as the objections as to the maintainability of the appeal. In that case, the trial Court had not still decided the application for condonation of delay and yet it passed the interim order because of urgency and due to impending vacation of the Court it could not finally decide the question. In the ultimate analysis, the Apex Court observed as under: "in view of the peculiar facts of this case without going into the merits of the contentions raised by the Counsel for the appellants, we think it is just and fair that we should not at this point of time interfere with the impugned order though the High Court could have avoided passing such orders in proceedings where the maintainability itself was being seriously question. Be that as it may, we at this stage think it appropriate that the High Court should consider the question of condonation of delay and the objection of the appellants herein regard to maintainability of the appeal first, before proceeding with the appeal any further. We also think it to be just and proper that any further interim orders if necessary, in the appeal before the High Court in regard to the suit property should be made only after deciding the question of delay and maintainability of the appeal and the order already made should be confined to the appointment of a Receiver and filing of his report only meaning thereby that the impugned order be confined to the appointment of receiver for the purpose of filing his report as directed by the Court and nothing beyond that, at this stage. "

(3.) YET another aspect drawing attention of the Court is whether the order thereby declining the request to hear the appeal first on the question of maintainability by reason of being time-barred, pertained purely to procedure of the Court and whether was fraught with the consequence of prejudicing the interest of the petitioner ? From a bare perusal of the impugned order, it is eloquent that it has the trapping of an interlocutory order inasmuch as the order does not decide any point to the prejudice to the petitioner not is it fraught with the consequence of harming the petitioner or resulting in serious prejudices. It merely postpones the hearing on the question of maintainbiltiy of the appeal to the final hearing of the appeal on merit. By all reckoning, to first on the question of maintainability of appeal or to postpone the hearing to final hearing of the appeal on merits is purely a question relating to the procedure of Court. Hon. Apex Court was also seized of such question in a matter relating to Contempt of Courts Act in Barada Kanta Mishra v. Orissa High Court, AIR 1976 SC 1206. In this case, the appellant had challenged the order made under Contempt of Courts Act, 1971 and the Supreme Court dismissed the criminal observing as under: "it is an interlocutory order pertaining purely to the procedure of the Court. All that the order in question says is that all the points arising in the case including the one of maintainability of the proceedings would be heard together and it rejected Mr. B. Mishra's prayer for hearing the case piecemeal, that is, first with regard to the question of maintainability. Accordingly we dismiss the appeal. "