Ram Surat Ram (Maurya), J. - (1.) HEARD Sri O.P. Pandey, for the petitioners and Sri R.C. Singh, for the respondents. The writ petition has been filed against the orders of Assistant Settlement Officer Consolidation (respondents) dated 15.6.2012, condoning the delay in filing the appeal, from the order of Consolidation Officer dated 4.5.1976, by respondents -3 to 9 (hereinafter referred to as the respondents) and Deputy Director of Consolidation (respondent -1) dated 10.7.2013, dismissing the revision of the petitioners, against the aforesaid order, in the title proceedings under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).
(2.) THE respondents filed a time barred appeal (registered as Appeal No. 507/542) under section 11 of the Act, from the order of Consolidation Officer dated 4.5.1976, passed in Case No. 434, under section 9 -A of the Act, alongwith delay condonation application. In the memorandum of the appeal, delay condonation application and the affidavit filed in support of it, it has been stated by the respondents that notices had not been served upon them. The service of the notice had been allegedly affected by pasting it, on the doors of the respondents but they had no knowledge of it and the order of Consolidation Officer dated 4.5.1976 was an ex parte order. On 1.12.1995, the petitioners, tried to take possession over the land in dispute, then they got inspected the records on 2.12.1995 and came to know about the order dated 4.5.1976; 3.12.1995 was Sunday as such the appeal was filed on 4.12.1995. The petitioners filed objection and counter -affidavit in the delay condonation application, in which they denied the allegations made in the affidavit. They have stated that notices were, received to the parties; Brahm Deo, who was karta of the joint family was doing pairavee, on behalf of the all the parties; Brahm Deo appeared before the Consolidation Officer on the date fixed in the notice and got his statement recorded before the Consolidation Officer and consented for partition of the shares of the parties in khata in dispute, as mentioned in CH Form -5. His statement was recorded by the Presiding Officer and signed by him on which Brahma Deo had put his thumb -impression. Accordingly, the respondents had knowledge of the order from very beginning. The appeal was mala fide filed with the delay of 19 years 7 months. The delay in filing the appeal was not liable to be condoned. The delay condonation application was heard by Assistant Settlement Officer Consolidation (respondent -2), who by order dated 15.6.2012 found that although it has been stated that statement of Brahm Deo was recorded by the Consolidation Officer but in the order dated 4.5.1976, the statement was not mentioned and the order has been passed without framing issues; Such an order, comes in the category of 'marginal order' and not liable to be accepted under the law. The notices attached in the record shows that notices had been served through pasting it on the doors and were not served personally. On these findings delay in filing of the appeal has been condoned and a date was fixed for arguments in the appeal, The petitioners filed a revision (registered as Revision No. 699) from the aforesaid order. The revision was heard by Deputy Director of Consolidation (respondent -1) who by his order dated 10.7.2013 held that as by the impugned order, delay in filing of the appeal has been condoned and a date has been fixed for arguments in the appeal. In deciding the delay condonation application, liberal view is required to be taken as such the Assistant Settlement Officer Consolidation has not committed any illegality in condoning the delay. There is a dispute between the parties, in respect of their share which is required to be decided according to the law. On these findings the revision was dismissed by the order dated 10.7.2013. Hence this writ petition has been filed.
(3.) THE Counsel for the petitioner submitted that the dispute with regard to share of the recorded tenure -holders in khata -132, was raised during partal and the respective shares of the co -sharers, as claimed during partal, was noted in CH Form -4 at serial No. 158, under Rule 19 of the U.P. Consolidation of Holdings Rules, 1954 (hereinafter referred to as the Rules). Thereafter, the notice in CH Form -5 has been issued to the tenure -holders, according to the provisions of Rule 25(c), in which dispute regarding share of the co -sharers was mentioned. The parties did not appear before Assistant Consolidation Officer, on the date fixed, as such conciliation was not done by him. Assistant Consolidation Officer, therefore, referred the dispute to the Consolidation Officer for decision on merit and notices were issued to the parties fixing 4.5.1976, under Rule 25 -A (2) of the Rules. The notices could not be served personally as such the process server affected the service of the notices by pasting it on the doors of the parties, in presence of two witnesses, Kailash and Hari Singh who had signed the duplicate of the notice. Brahm Deo, who was karta of the joint family was doing pairavee, on behalf of all the co -sharers as such he appeared before the Consolidation Officer on the date fixed in the notice and his statement was recorded by Consolidation Officer, which contained his thumb -impression and was signed by the Presiding Officer. On the basis of consent given by Brahm Deo, the order dated 4.5.1976 was passed. He submitted that Rule 58(2) provides one of the mode for service by pasting the notices on the doors in presence of two witnesses as such notices were served according to the provisions of law. In any case, the parties came to know about the proceedings and appeared before Consolidation Officer and statement of Brahm Deo was recorded. On the basis of order of Consolidation Officer dated 4.5.1976, the share of the parties was given effect to in the Revised Annual Register, CH Form -11. Thereafter on its basis CH Form -23 was prepared and chaks of all the co -sharers were prepared separately. Thus all the respondents had knowledge of the order from very beginning. At least, Brahm Deo had knowledge of the order from very beginning. Inordinate delay of about 21 years was not liable to be condoned. There was no cause, what to say "sufficient cause" for condonation of delay. The delay has been illegally condoned without examining the record and considering the objections of the petitioners in the counter -affidavit. Respondent -1 has illegally dismissed the revision as not maintainable, although the question of limitation is a question of jurisdiction and the order condoning the delay cannot be termed as an interlocutory order. He placed reliance on the judgment of this Court in State of U.P. v. Dhampur Sugar Mills Ltd., : 2013 (120) RD 23 in which it has been held that law of limitation harshly affects a party and it has to be applied with all its rigour, delay can only be condoned on the sufficient cause' being shown and not on a mercy ground.;