# Ram Prakash v. Deputy Director of Consolidation, Hardoi & Ors

- **Citation:** (2022) 2 ILRA 259
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-03
- **Case number:** Consolidation No. 6574 of 2016
- **Bench:** Rajesh Bindal, C.J. Pritinker Diwaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-prakash-v-deputy-director-of-consolidation-hardoi-ors-48112
- **Pages:** 6

## Headnote

(A) Civil Law - Delay Condonation - U.P.
Consolidation of Holdings Act, 1953, S. 11,
S. 53B - Limitation Act, 1963, S. 5 - Delay
in filing Appeal - If an appeal is filed
beyond the time limit, 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 - firstly
delay condonation application has to be
considered - It is only after that the
260 INDIAN LAW REPORTS ALLAHABAD SERIES
application is allowed, the appeal can be
entertained and heard on merits - Before
that the appeal cannot be taken up and
considered on merits - However both can
be taken up & heard on the same day -
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

Reference Answered. (E-5)

List of cases cited :-

## Text

2 All. Ram Prakash Vs. Deputy Director of Consolidation, Hardoi & Ors.
259
law of adverse possession contemplates
that there is not only continuity of
possession as against the true owner but
also that such person had full knowledge
that the person in possession was claiming
a title and possession hostile to the true
owner. If a person comes in possession of
the land of another person, he cannot
establish his title by adverse possession
unless it is further proved by him that the
tenure holder had knowledge of such
adverse possession."

21. Even on facts, it is found that
entries in subsequent Fasli years i.e. 1368,
1369, 1370, 1371 and 1372 appear to be
forged inasmuch as in Khatauni of 1368
Fasli, there is PA-10 mentioned, in which
Plot Nos.294 and 295 are mentioned, while
in Khataunis of 1369, 1370, 1371 and 1372
Faslis, there is PA-10, wherein Plot
Nos.294, 295 and 296 are mentioned, but
thumb impression was found in 1370 Fasli
without showing name of the noticed
person. In 1371 Fasli thumb impression
was found on same footage and no thumb
impression or signature are found in 1372
Fasli. Thus, no notice of PA-10 in
accordance with law was given to the
recorded tenure holder before recording the
name of opposite party no.2 in Column-9.
The rent and canal dues receipts, which are
in the name of the petitioners, can not be
relied on and, it can not be said that
opposite party no.2 was in possession of
the land in question as the rent receipts
were in the name of the original tenure
holder and, as per the original tenure
holder, they got lost, for which he had
lodged an FIR.

22. In view thereof, I am of the view
that the Assistant Director of Consolidation
was not correct in setting aside the
concurrent findings of fact recorded by the
two authorities below regarding entries of
opposite party no.2 and, therefore, the order
passed by the Assistant Director of
Consolidation is not tenable in law and is
liable to be set aside.

23. Writ petition is accordingly
allowed and the impugned order dated
29.1.1991 passed by the Assistant Director
of Consolidation, Faizabad (Now Ayodhya
Ji) is hereby set aside. Consequences to
follow.
----------
(2022)02ILR A259
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.02.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE PRITINKER DIWAKER, J.

Consolidation No. 6574 of 2016

Ram Prakash ...Petitioner
Versus
Deputy Director of Consolidation, Hardoi &
Ors. ...Respondents

Counsel for the Petitioner:
Mr.
Prabhakar
Vardhan
Chaudhary,
Advocate

Counsel for the Respondents:
Mr. Manjive Shukla, Addl. Chief Standing
Counsel

(A) Civil Law - Delay Condonation - U.P.
Consolidation of Holdings Act, 1953, S. 11,
S. 53B - Limitation Act, 1963, S. 5 - Delay
in filing Appeal - If an appeal is filed
beyond the time limit, 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 - firstly
delay condonation application has to be
considered - It is only after that the
260 INDIAN LAW REPORTS ALLAHABAD SERIES
application is allowed, the appeal can be
entertained and heard on merits - Before
that the appeal cannot be taken up and
considered on merits - However both can
be taken up & heard on the same day -
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

Reference Answered. (E-5)

List of cases cited :-

1. Dev Narain Singh Vs Dy. Director of
Consolidation, Sultanpur & ors Consolidation No.
604 of 2014 dt 5.9.2014

2. Girja Shanker & ors Vs Deputy Director of
Consolidation & ors. 1996 RD 465

3. Ramesh Chandra Sankla Vs Vikram Cement
(2008) 14 SCC 58

4. Bhagwat & ors. Vs Deputy Director of
Consolidation & ors. (1990) RD 162,

5. Parbhu & anr. Vs Deputy Director of
Consolidation, Ghazipur & ors. (2013) 1 ADJ 554

6. Jais Lal Vs Deputy Director of Consolidation,
Jaunpur & anr. (2014) 1 ADJ 248

7.Budh Sagar & ors. Vs Jai Prakash & ors.
(2013) 1 ADJ 381

(Delivered by Hon'ble Rajesh Bindal, C.J.)

1. On a reference made by learned
Single Judge for consideration of the issue,
as extracted below, the matter has been
placed before the Division Bench:

"If an order has been challenged
before the consolidation authority is barred
by the period of limitation as provided under
the statute (in the present case before the
appellate
authority/Settlement
Officer
Consolidation -1, Hardoi) along with an
application for condonation of delay then in
that circumstances whether the application
for condonation of delay under Section 5 of
the Limitation Act should be decided first or
the same can been decided along with merit
of the case?"

2. The issue was referred to Larger
Bench for the reason that there are two
divergent views given by Single Benches of
this Court in Consolidation No. 604 of 2014
(Dev Narain Singh Vs. Dy. Director of
Consolidation,
Sultanpur
&
others)
decided on September 5, 2014 and Girja
Shanker and others Vs. Deputy Director of
Consolidation and others 1996 RD 465.

3. In Dev Narain Singh's case (supra)
the view expressed by learned Single Judge
of this Court was that it is not mandatory for
the appellate authority to decide the
application for condonation of delay first and
then hear the appeal on merits. On the other
hand, in Girja Shanker's case (supra), a
single Judge of this Court opined that an
order
passed
by
appellate
authority
condoning the delay in filing the appeal is not
an interlocutory order, hence, revision under
Section 48 of U.P. Consolidation of Holdings
Act, 1953 (hereinafter referred to as "1953
Act") is maintainable against that order. It
was, thus, observed that it is mandatory for
the appellate authority to decide the
application seeking condonation of delay first
and then fix a later date to hear the appeal on
merits, so as not to deprive the party
aggrieved, if any, of his right to avail the
remedy admissible to him against the order
passed on the application filed under Section
5 of the Limitation Act, 1963 (hereinafter
referred to as "1963 Act").

4. Learned counsel for the petitioner
submitted that Section 11 of 1953 Act
provides for filing of appeals against the
2 All. Ram Prakash Vs. Deputy Director of Consolidation, Hardoi & Ors.
261
order passed by Assistant Consolidation
Officer or the Consolidation Officer. The
period prescribed for filing the appeal is 21
days from the date of the order. Sub-section
(2) thereof provides that Settlement Officer
(Consolidation) hearing an appeal under
Sub-section (1) shall be deemed to be a
Court. Section 53-B of the 1953 Act was
referred to submit that Section 5 of the
1963 Act is applicable for applications,
appeals, revisions and other proceedings
under the 1953 Act. Reference is also made
to Section 48 of the 1953 Act to submit that
the Director Consolidation may call for and
examine the records of any case decided or
proceedings taken by the subordinate
authority for the purpose of satisfying
himself as to the regularity of the
proceedings.

5. The argument raised by learned
counsel for the petitioner is that if any
appeal is filed after the period prescribed in
Section 11 of the 1953 Act along with an
application seeking condonation of delay,
the application seeking condonation of delay
has to be decided first and, thereafter, the
appeal has to be adjourned for hearing on
merits. It cannot be simultaneous. If a party
is aggrieved by an order passed by appellate
authority
on
an
application
seeking
condonation of delay, he may be able to
avail of his remedy during the interregnum
period. Such a process has to be followed as
no one should be deprived of his right of
appeal available to him against an order
passed by appellate authority on the
application seeking condonation of delay.
An order passed by appellate authority under
Section 5 of 1963 Act is a final order and
cannot be considered to be an interim order,
hence, revisable.

6. Learned counsel for the State
submitted that a bare reading of the
provisions of the 1953 Act specially
Section 11 read with Section 53-B thereof
shows that an appeal is to be filed within
certain specified time, however, in case,
delayed, an application under Section 5 of
the 1963 Act can be filed seeking
condonation of delay. There is no quarrel
with the proposition of law that an
application seeking condonation of delay in
any proceedings has to be decided first and
it is only thereafter that the main appeal can
be heard. Prior to that it is not an appeal in
the eyes of law. If any such application is
filed the same has to be decided first and in
case the delay is condoned, there is no bar
on the appellate authority to take up and
decide the appeal on merits on the same
day. An order passed by appellate authority
on an application filed under Section 5 of
1963 Act cannot be said to be revisable as
such. Keeping in view the nature of
proceedings, it may be final order if
considered in the light of the fact that the
application for condonation of delay if
rejected, the appeal will also go. However,
in case only the application is allowed and
appeal is heard on merits, order cannot be
said to be final as far as the proceedings of
the case are
concerned. He further
submitted that in the proceedings under the
1953 Act, there is no need even to file a
separate application seeking condonation of
delay as even prayer can be made in the
memo of appeal seeking condonation of
delay.

7. He further submitted that there is
limited application of the C.P.C. in the
proceedings under the Act. He also referred
to a judgment of Supreme Court in
Ramesh Chandra Sankla Vs. Vikram
Cement (2008) 14 SCC 58, observing that
Court should decide all the issues and not
merely a preliminary one. This procedure
will check the delay in the course of justice.
262 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Heard learned counsels for the
parties and perused the paper book.

SCHEME OF THE ACT:

9. For appreciating the issues referred
by
the
learned
Single
Judge
for
consideration by Larger Bench, it would be
appropriate to refer the relevant provisions
of the 1953 Act:

"11. Appeals.- (1) Any party to
the
proceedings
under
Section
9-A,
aggrieved by an order of the Assistant
Consolidation Officer or the Consolidation
Officer under that section, may, within 21
days of the date of the order, file an appeal
before
the
Settlement
Officer,
Consolidation, who shall, after affording
opportunity of being heard to the parties
concerned, give his decision thereon which,
except as otherwise provided by or under
this Act, shall be final and not be
questioned in any Court of law.
(2) The Settlement Officer, Consolidation,
hearing an appeal under sub-section (1)
shall be deemed to be a Court of competent
jurisdiction, anything to the contrary
contained in any law for the time being in
force notwithstanding.

x x x x

48. Revision and reference.- (1)
The Director of Consolidation may call for
and examine the record of any case decided
or proceedings taken by any subordinate
authority for the purpose of satisfying
himself as to the regularity of the
proceedings; or as to the correctness,
legality or propriety of any order other than
an interlocutory order passed by such
authority in the case or proceedings, may,
after allowing the parties concerned an
opportunity of being heard, make such
order in the case or proceedings as he
thinks fit.

(2) Powers under sub-section (1)
may be exercised by the Director of
Consolidation also on a reference under
sub-section (3).

(3) Any authority subordinate to
the Director of Consolidation may, after
allowing
the
parties
concerned
an
opportunity of being heard, refer the record
of any case or proceedings to the Director
of Consolidation for action under subsection (1).

x x x x

53-B.
Limitation.-
The
provisions of Section 5 of the Limitation
Act, 1963, shall apply to the applications,
appeals, revisions and other proceedings
under
this Act
or
the
rules
made
thereunder."

10. A perusal of Section 11 of 1953
Act shows that any party to the proceedings
under Section 9-A thereof, if aggrieved by
an order of the Assistant Consolidation
Officer or the Consolidation Officer may
prefer an appeal before the Settlement
Officer, Consolidation within 21 days of
the date of the order. Any decision given by
the Settlement Officer, Consolidation in
appeal is final and cannot be questioned in
any Court of law.

11.

The
Settlement
Officer,
Consolidation while hearing the appeal is
deemed
to
be
Court
of
competent
jurisdiction. Section 53-B of the 1953 Act
provides that provision of Section 5 of
1963 Act shall apply to the applications,
appeals, revisions and other proceedings
under the Act or the rules made thereunder.
Meaning thereby, if an appeal is filed
beyond the period of 21 days, as provided
under Section 11 of 1953 Act, aggrieved
party can move an application seeking
condonation of delay under Section 5 of
1963 Act.
2 All. Ram Prakash Vs. Deputy Director of Consolidation, Hardoi & Ors.
263

12. Section 48 of 1953 Act provides
that Director Consolidation may call for
and examine the record of any case decided
or proceedings taken by any subordinate
authority for the purpose of satisfying
himself as to the regularity of the
proceedings; or as to the correctness,
legality or propriety of any order, passed by
such authority. The aforesaid power can be
exercised with reference to any order
except an interlocutory order. Such a power
can
also
be
exercised
by
Director
Consolidation on a reference made by any
authority subordinate to him.

EARLIER JUDGMENTS:

13. In Girja Shanker's case (supra),
which in the opinion of learned counsel for
the petitioner lays down correct law, a
Single Bench of this Court opined that an
order
passed
by
appellate
authority
condoning the delay in filing the appeal is
not an interlocutory order, hence, revision
under Section 48 is maintainable against
that order.

14. In Bhagwat and others Vs.
Deputy Director of Consolidation and
others (1990) RD 162, a Single Bench of
this Court opined that an order deciding an
application seeking condonation of delay
cannot be said to be interlocutory and
revision
against
that
order
was
maintainable.
An
application
for
condonation of delay has to be decided first
by the appellate authority and in case
allowed, the appeal may be decided on
merits on a subsequent date.

15. In Parbhu and another Vs.
Deputy
Director
of
Consolidation,
Ghazipur and others (2013) 1 ADJ 554,
the issue under consideration was, as to
whether
revisional
authority
without
condoning the delay could hear the revision
on merits. The opinion expressed by the
Court was that the order passed by
revisional authority deciding the revision
petition on merits without condoning the
delay was erroneous. Direction was issued
for
deciding
the
application
for
condonation of delay first and thereafter the
revision petition was to be taken up for
hearing.

16. In Jais Lal Vs. Deputy Director
of Consolidation, Jaunpur and another
(2014) 1 ADJ 248, a Single Judge of this
Court had opined that the appellate
authority has to decide the question of
limitation first either by condoning the
delay or refusing to condone the same. In
case, the delay is condoned, the matter can
be decided on merits but not prior to one
month from the date the order is passed for
condonation of delay. It is for the reason
that the aggrieved party should have
opportunity to question that order before
the higher forum.

17. In Budh Sagar and others Vs.
Jai Prakash and others (2013) 1 ADJ
381, a Single Bench of this Court opined
that the appellate authority is to pass the
order
on
the
application
seeking
condonation of delay first and thereafter
proceed to hear the case on merits.

18. In Dev Narain Singh's case
(supra), a Single Bench of this Court
opined that it is not mandatory for the
appellate authority to decide the application
for condonation of delay first and then hear
the appeal on merits. An application for
condonation of delay can be considered
along with main appeal at the time of final
argument.

DISCUSSIONS:
264 INDIAN LAW REPORTS ALLAHABAD SERIES

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.
----------
(2022)02ILR A264
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.02.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Matters Under Article 227 No. 269 of 2022

Lakshmi Kant Shukla ...Petitioner
Versus
Ram Niranjan ...Respondent

Counsel for the Petitioner:
Pankaj Gupta

Counsel for the Respondents:
Ghaus Beg, Anurag Shukla

A. Code of Civil Procedure, 1908 - Order
VI Rule 17 - Amendment application.
When cannot be allowed.- A proviso has
been inserted in Order VI Rule 17 C.P.C. which
says that "no application for amendment shall
be allowed after trial has commenced, unless
the court comes to the conclusion that inspite of
due diligence, the party could not have raised
the matter before commencement of trial". In
Vidyabai & ors. v Padma Latha & anr.r AIR 2009
SC 1433 it has been observed that the said
proviso is couched in mandatory form and the
court's jurisdiction to allow an application for
amendment is taken away unless the conditions