KHAGESHWAR Vs. HOSHRAM AND OTHERS

JUDGEMENT

(1.) JUDGEMENT The appellant is Khageshwar and respondent No. 1 is his brother, Hoshram. During the consolidation proceedings a statement mentioned in S. 8 of the Consolidation of Holdings Act was prepared. The dispute between the appellant and the respondent is about certain land which is claimed by the appellant as owned jointly by him and the respondent and is claimed by the respondent as owned exclusively by him. It is not known what entries were made in the statement prepared under S. 8 but no objection was made under S. 9 by the appellant or the respondent against whatever entry was made in it. After hearing objections from other parties about other land the statement was revised as required by S. 10(2) and was published as required by S. 11-R. In the revised record the entry was of "Hoshram alias Khageshwar". The entry was obviously wrong; "Hoshram" was not the alias of Khageshwar, being his brothers name. Khageshwar had an alias but it was "Kharag" and not "Hoshram."

(2.) THE order, pending in appeal before the Settlement Officer, was undoubtedly passed on the application made under S. 42-A. It is not disputed that no appeal lies from an order passed under S. 42-A. Therefore, the appeal filed by the respondent was incompetent. It is also not disputed that the appeal that lies to a Settlement Officer from a Consolidation Officers order is from an order passed under S. 10 on an objection made under S. 9. Here the order was not passed on an objection by the appellant and was not an order under S. 10. As a matter of fact, the stage for an objection under S. 9 had passed; there could be no objection under S. 9 after the publication of the revised statement under S. 11-B. Therefore, the appeal was not competent and prohibition ought to have been issued. The matter was not at the discretion of our learned Brother; if he found that no appeal lay from the order, he was bound to prohibit the Settlement Officer from proceeding with the appeal. In no circumstances could an order without jurisdiction be allowed to be passed; nothing is to be gained by it.