High Court · 2025

Sri B.Q. Siddiqui, learned counsel has accepted notice on behalf of private respondent nos. 2 to 7 on caveat. Under challenge is the order passed by the Deputy Director of Consolidation dated 08.01.2025 whereby the revision preferred by the private respondent nos. 2 to 7 has been allowed, as a consequence, a time barred appeal which was preferred by the petitioners before the Settlement Officer of Consolidation and the order by which delay was condoned vide order dated 28.01.2021 has been set aside. The learned counsel for the petitioners has submitted that the property in question i.e. Plot Nos. 2597 and 2584 situate in Village Balrampur Dehat Pargana, Tehsil and District Balrampur was recorded in the name of Abdul Hameed Khan. It is the case of the petitioners that Sri Abdul Hameed Khan had six sons out of which Sri Shareef Khan had died in his lifetime leaving behind Talukedar Khan, Zahid Khan, Mannan Kha, Saleem Khan and Haleem Khan. The petitioners on one hand are claiming rights in respect of the property in question on the basis of succession being heirs of Abdul Hameed Khan whereas the private respondents are the purchasers from Zahid Khan. It is the case of the petitioners that initially Abdul Hameed Khan had settled his property which comprised of a house and a shop in favour Talukedar Khan in the year 1976. Later, it is the case of the petitioners that Sri Zahid Khan also entered into a settlement in terms whereof he had stated that he had got the disputed plots i.e. Plot Nos. 2597 and 2584 from his father and he in his lifetime settled the properties amongst himself and his brothers i.e. the petitioners. It is submitted that Zahid Khan did not have a right to sell the property to the private respondents and in this way, the rights of the petitioners have been impacted. It is further submitted that in an around the year 2007 when the private respondents who were the purchasers of Zahid Khan attempted to disturb the possession of the petitioners who have been in possession of the property in question, did they make the necessary inquiries, inspection and thereafter an appeal was preferred before the Settlement Officer of Consolidation on 05.01.2018 along with an application under Section 5 of the Limitation Act. The Settlement Officer of Consolidation by means of his order dated 28.01.2021 while condoning the delay of about 51 years also set aside the order dated 07.11.1961 and further directed the names of the three petitioners as co-sharers along with that of Zahid Khan. It is further submitted that the private respondents being aggrieved against the order passed by the Settlement Officer of Consolidation preferred a revision and the Revisional Court erred in allowing the revision by means of order dated 08.01.2025. The submission is that condonation of delay is a discretion vested in Court and once the said discretion was exercised positively, condoning the delay, there was no error which was apparent which could persuade the Revisional Court to have intervene and allowing the revision. The learned counsel for the petitioners further submits that the family settlement of 1976 was a registered instrument and even the family settlement which came to be made by Zahid Khan and his other brother Talukedar Khan was also an important document which has not been appropriately considered by the three Consolidation Courts and accordingly the Revisional Court erred in entering into the merits in setting aside the order passed by the Settlement Officer of Consolidation which requires interference by this Court. Sri B.Q. Sidiqui, learned counsel for the private respondents has submitted that first and foremost the alleged family settlement which is being relied upon by the petitioners is denied. It is further urged that there was no material brought on record by the petitioners to establish that the disputed properties was ever procured by Abdul Hameed Khan. Since Abdul Hameed Khan did not acquire the property, nor it was disclosed when and how he got the property, he could not have executed any family settlement and even if at all such a family settlement was made, the same was not binding on the private respondents. He further elaborates that the recorded tenure holder Hasbulnisha @ Hamizan widow of Rahman Hussain and Inayat Hussain S/o Rahmat Hussain. Sri Zahid Khan had procured the property in the year 1961 along with Mohd. Sher Khan along with Akbar Ali Khan. It is thereafter that Zahid Khan had sold the property to Jan Mohd. on 07.03.1988 and the private respondents are the recorded tenure holders. It is further urged that there was no material brought on record by the petitioners to indicate or substantiate their claim. There was no worthy explanation of the fact that the petitioners have filed a time barred appeal and the manner in which the application under Section 5 has been moved, it only contained vague averments and there is no cogent explanation given for condoning the delay of about 51 years. In such circumstances, the Settlement Officer of Consolidation had merely transgressed its jurisdiction while passing the order dated 28.01.2021. This aspect has been considered by the Revisional Court while allowing the revision of the private respondents and as such where the petitioners have miserably failed to substantiate their case, there can be no misplaced sympathies in allowing the application for condonation of delay, accordingly, the order passed by the Revisional Court does not suffer from any error and the writ petition deserves to be dismissed. The Court has heard the learned counsel for the parties and perused the material on record. There is nothing on record the substantiate that the property i.e. plot nos. 2597 and 2584 were purchased by Sri Abdul Hameed Khan, the only inference which is sought to be derived by the petitioners is by relying upon Annexure No. 2 which relates to a Khatauni of the Fasli Year 1372 to 1374 wherein there appears to be some reference to an order dated 07.11.1967 in terms whereof the name of the Abdul Hameed Khan was scored off and in its place the name of Zahid Khan was recorded. The record further indicates that there has been a direct contest on the aforesaid documents filed by the private respondents. The record would further indicate that the Notification under Section 52 (1) of the U.P. Consolidation of Holdings Act, 1953 was made in the year 1983 and almost after three decades, the appeal came to be filed. There is no clear averment in the entire writ petition which could state in so many words as to how and when Abdul Hameed Khan acquired the property which was in absence thereof, it cannot be said that the petitioners would have inherited the property in question. In order to inherit, there should have been the property in the name of common ancestor from where it could devolve but there is no material on record to establish this fact. As far as the family settlement which is sought to be relied upon by the petitioners also does not reveal as to the source of acquisition of the property by Abdul Hameed Khan. The other settlement which has been relied upon by the petitioners is between allegedly Zahid Khan and Talukedar Khan. This also does not reveal as to how the said settlement could have been made by Zahid Khan especially when he had purchased the property by virtue of a sale deed. There is nothing on record to substantiate that merely because the petitioners are the brother of Zahid Khan, they would get a right in the property. The alleged order of 1967 also could not be substantiated nor a copy of the same has been brought on record except its reference is in the Khatauni which as per the private respondents was disputed and nothing could be brought before the Settlement Officer of Consolidation or the Deputy Director of Consolidation to establish its authenticity. In the aforesaid circumstances, if at all, the contentions of the petitioners is taken note of yet there is nothing to indicate that the name of the petitioners was ever recorded in the revenue records since 1967 onwards including at the time when Sri Abdul Hameed Khan had expired. It has been stated by the respondents that the sale deed of 1988 also indicates the fact that the property was self acquired by Zahid Khan as the petitioners was a witness to the said sale deed. At no point of time, the said sale deed was ever challenged before any Competent Court. In the aforesaid factual matrix, if the application for condonation of delay filed by the petitioners is seen, it would reveal that except for paragraphs 7, there is nothing to state as to how the petitioners could show and express its bonafides relating to sufficient cause while attempting to file a time barred appeal against the order dated 07.11.1967. The Settlement Officer of Consolidation even though exercised his discretion in condoning the delay but the manner in which it has been done also raises certain issues. Now, it is too well settled to be disputed that once an appeal/revision which is filed with delay, it is the issue of condonation of delay which has to be decided first and only thereafter the matter could have been entered into on merits to pass any substantive order (See Ram Prakash Vs. DDC, Hardoi and others; 2022 (3) ADJ (LB) (DB) as well as Surendra G. Shankar Vs. Esque Finamark (P) Ltd., 2025 SCC Online SC 134). In the instant case, it would reveal that the Settlement Officer of Consolidation has entered into the merits first and thereafter finding that there are certain issues which require consideration that appears to be the motive to condone the delay. This exercise of jurisdiction by the Settlement Officer of Consolidation is not in consonance with law. At this stage, it will also be relevant to notice that even though the issue of limitation is to be liberally construed yet it is circumscribed by exercise of jurisdiction by the courts in order to ascertain whether a sufficient cause has been made out or not. It is not the length of delay which is material rather it is the sufficiency of cause. A long delay with worthwhile cause and explanation can be condoned whereas even a short delay which is not appropriately explained can result in its rejection. This Court takes aid of the decision of the Apex Court in H. Guruswamy & Ors. v. A. Krishnaiah, 2025 SCC OnLine SC 54 wherein the Apex Court in paragraph nos. 13 to 17 has held as under:- "13. We are at our wits end to understand why the High Court overlooked all the aforesaid aspects. What was the good reason for the High Court to ignore all this? Time and again, the Supreme Court has reminded the District judiciary as well the High courts that the concepts such as "liberal approach", "Justice oriented approach", "substantial justice" should not be employed to frustrate or jettison the substantial law of limitation.

14. We are constrained to observe that the High Court has exhibited complete absence of judicial conscience and restraints, which a judge is expected to maintain while adjudicating a lis between the parties.

15. The rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics but seek their remedy promptly.

16. The length of the delay is definitely a relevant matter which the court must take into consideration while considering whether the delay should be condoned or not. From the tenor of the approach of the respondents herein, it appears that they want to fix their own period of limitation for the purpose of instituting the proceedings for which law has prescribed a period of limitation. Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long, it cannot be presumed to be non-deliberate delay and in such circumstances of the case, he cannot be heard to plead that the substantial justice deserves to be preferred as against the technical considerations. While considering the plea for condonation of delay, the court must not start with the merits of the main matter. The court owes a duty to first ascertain the bona fides of the explanation offered by the party seeking condonation. It is only if the sufficient cause assigned by the litigant and the opposition of the other side is equally balanced that the court may bring into aid the merits of the matter for the purpose of condoning the delay.

17. We are of the view that the question of limitation is not merely a technical consideration. The rules of limitation are based on the principles of sound public policy and principles of equity. No court should keep the 'Sword of Damocles' hanging over the head of a litigant for an indefinite period of time." Taking note of the aforesaid, this Court is of the clear view that the manner in which the Settlement Officer of Consolidation has exercised its discretion and has condoned the delay without therebeing any sufficient cause to explain the delay of about 51 years by entering into the merits is not an order passed in sound exercise of discretion or jurisdiction.This aspect has been considered by the Revisional Court who has taken a holistic view and a composite view and for the reasons as indicated that the petitioners were unable to explain the delay which was humongous has allowed the revision and this exercise of jurisdiction by the Revisional Court does not appear to be erroneous or suffering from any palpable error which may persuade this Court to entertain the present petition. For all the reasons aforesaid, this Court does not find that there is any merit, accordingly, the present petition is dismissed. Order Date :- 5.2.2025 Asheesh/- ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Sri B.Q. Siddiqui, learned counsel has accepted notice on behalf of private respondent nos. 2 to 7 on caveat. Under challenge is the order passed by the Deputy Director of Consolidation dated 08.01.2025 whereby the revision preferred by the private respondent nos. 2 to 7 has been allowed, as a consequence, a time barred appeal which was preferred by the petitioners before the Settlement Officer of Consolidation and the order by which delay was condoned vide order dated 28.01.2021 has been set aside. The learned counsel for the petitioners has submitted that the property in question i.e. Plot Nos. 2597 and 2584 situate in Village Balrampur Dehat Pargana, Tehsil and District Balrampur was recorded in the name of Abdul Hameed Khan. It is the case of the petitioners that Sri Abdul Hameed Khan had six sons out of which Sri Shareef Khan had died in his lifetime leaving behind Talukedar Khan, Zahid Khan, Mannan Kha, Saleem Khan and Haleem Khan. The petitioners on one hand are claiming rights in respect of the property in question on the basis of succession being heirs of Abdul Hameed Khan whereas the private respondents are the purchasers from Zahid Khan. It is the case of the petitioners that initially Abdul Hameed Khan had settled his property which comprised of a house and a shop in favour Talukedar Khan in the year 1976. Later, it is the case of the petitioners that Sri Zahid Khan also entered into a settlement in terms whereof he had stated that he had got the disputed plots i.e. Plot Nos. 2597 and 2584 from his father and he in his lifetime settled the properties amongst himself and his brothers i.e. the petitioners. It is submitted that Zahid Khan did not have a right to sell the property to the private respondents and in this way, the rights of the petitioners have been impacted. It is further submitted that in an around the year 2007 when the private respondents who were the purchasers of Zahid Khan attempted to disturb the possession of the petitioners who have been in possession of the property in question, did they make the necessary inquiries, inspection and thereafter an appeal was preferred before the Settlement Officer of Consolidation on 05.01.2018 along with an application under Section 5 of the Limitation Act. The Settlement Officer of Consolidation by means of his order dated 28.01.2021 while condoning the delay of about 51 years also set aside the order dated 07.11.1961 and further directed the names of the three petitioners as co-sharers along with that of Zahid Khan. It is further submitted that the private respondents being aggrieved against the order passed by the Settlement Officer of Consolidation preferred a revision and the Revisional Court erred in allowing the revision by means of order dated 08.01.2025. The submission is that condonation of delay is a discretion vested in Court and once the said discretion was exercised positively, condoning the delay, there was no error which was apparent which could persuade the Revisional Court to have intervene and allowing the revision. The learned counsel for the petitioners further submits that the family settlement of 1976 was a registered instrument and even the family settlement which came to be made by Zahid Khan and his other brother Talukedar Khan was also an important document which has not been appropriately considered by the three Consolidation Courts and accordingly the Revisional Court erred in entering into the merits in setting aside the order passed by the Settlement Officer of Consolidation which requires interference by this Court. Sri B.Q. Sidiqui, learned counsel for the private respondents has submitted that first and foremost the alleged family settlement which is being relied upon by the petitioners is denied. It is further urged that there was no material brought on record by the petitioners to establish that the disputed properties was ever procured by Abdul Hameed Khan. Since Abdul Hameed Khan did not acquire the property, nor it was disclosed when and how he got the property, he could not have executed any family settlement and even if at all such a family settlement was made, the same was not binding on the private respondents. He further elaborates that the recorded tenure holder Hasbulnisha @ Hamizan widow of Rahman Hussain and Inayat Hussain S/o Rahmat Hussain. Sri Zahid Khan had procured the property in the year 1961 along with Mohd. Sher Khan along with Akbar Ali Khan. It is thereafter that Zahid Khan had sold the property to Jan Mohd. on 07.03.1988 and the private respondents are the recorded tenure holders. It is further urged that there was no material brought on record by the petitioners to indicate or substantiate their claim. There was no worthy explanation of the fact that the petitioners have filed a time barred appeal and the manner in which the application under Section 5 has been moved, it only contained vague averments and there is no cogent explanation given for condoning the delay of about 51 years. In such circumstances, the Settlement Officer of Consolidation had merely transgressed its jurisdiction while passing the order dated 28.01.2021. This aspect has been considered by the Revisional Court while allowing the revision of the private respondents and as such where the petitioners have miserably failed to substantiate their case, there can be no misplaced sympathies in allowing the application for condonation of delay, accordingly, the order passed by the Revisional Court does not suffer from any error and the writ petition deserves to be dismissed. The Court has heard the learned counsel for the parties and perused the material on record. There is nothing on record the substantiate that the property i.e. plot nos. 2597 and 2584 were purchased by Sri Abdul Hameed Khan, the only inference which is sought to be derived by the petitioners is by relying upon Annexure No. 2 which relates to a Khatauni of the Fasli Year 1372 to 1374 wherein there appears to be some reference to an order dated 07.11.1967 in terms whereof the name of the Abdul Hameed Khan was scored off and in its place the name of Zahid Khan was recorded. The record further indicates that there has been a direct contest on the aforesaid documents filed by the private respondents. The record would further indicate that the Notification under Section 52 (1) of the U.P. Consolidation of Holdings Act, 1953 was made in the year 1983 and almost after three decades, the appeal came to be filed. There is no clear averment in the entire writ petition which could state in so many words as to how and when Abdul Hameed Khan acquired the property which was in absence thereof, it cannot be said that the petitioners would have inherited the property in question. In order to inherit, there should have been the property in the name of common ancestor from where it could devolve but there is no material on record to establish this fact. As far as the family settlement which is sought to be relied upon by the petitioners also does not reveal as to the source of acquisition of the property by Abdul Hameed Khan. The other settlement which has been relied upon by the petitioners is between allegedly Zahid Khan and Talukedar Khan. This also does not reveal as to how the said settlement could have been made by Zahid Khan especially when he had purchased the property by virtue of a sale deed. There is nothing on record to substantiate that merely because the petitioners are the brother of Zahid Khan, they would get a right in the property. The alleged order of 1967 also could not be substantiated nor a copy of the same has been brought on record except its reference is in the Khatauni which as per the private respondents was disputed and nothing could be brought before the Settlement Officer of Consolidation or the Deputy Director of Consolidation to establish its authenticity. In the aforesaid circumstances, if at all, the contentions of the petitioners is taken note of yet there is nothing to indicate that the name of the petitioners was ever recorded in the revenue records since 1967 onwards including at the time when Sri Abdul Hameed Khan had expired. It has been stated by the respondents that the sale deed of 1988 also indicates the fact that the property was self acquired by Zahid Khan as the petitioners was a witness to the said sale deed. At no point of time, the said sale deed was ever challenged before any Competent Court. In the aforesaid factual matrix, if the application for condonation of delay filed by the petitioners is seen, it would reveal that except for paragraphs 7, there is nothing to state as to how the petitioners could show and express its bonafides relating to sufficient cause while attempting to file a time barred appeal against the order dated 07.11.1967. The Settlement Officer of Consolidation even though exercised his discretion in condoning the delay but the manner in which it has been done also raises certain issues. Now, it is too well settled to be disputed that once an appeal/revision which is filed with delay, it is the issue of condonation of delay which has to be decided first and only thereafter the matter could have been entered into on merits to pass any substantive order (See Ram Prakash Vs. DDC, Hardoi and others; 2022 (3) ADJ (LB) (DB) as well as Surendra G. Shankar Vs. Esque Finamark (P) Ltd., 2025 SCC Online SC 134). In the instant case, it would reveal that the Settlement Officer of Consolidation has entered into the merits first and thereafter finding that there are certain issues which require consideration that appears to be the motive to condone the delay. This exercise of jurisdiction by the Settlement Officer of Consolidation is not in consonance with law. At this stage, it will also be relevant to notice that even though the issue of limitation is to be liberally construed yet it is circumscribed by exercise of jurisdiction by the courts in order to ascertain whether a sufficient cause has been made out or not. It is not the length of delay which is material rather it is the sufficiency of cause. A long delay with worthwhile cause and explanation can be condoned whereas even a short delay which is not appropriately explained can result in its rejection. This Court takes aid of the decision of the Apex Court in H. Guruswamy & Ors. v. A. Krishnaiah, 2025 SCC OnLine SC 54 wherein the Apex Court in paragraph nos. 13 to 17 has held as under:- "13. We are at our wits end to understand why the High Court overlooked all the aforesaid aspects. What was the good reason for the High Court to ignore all this? Time and again, the Supreme Court has reminded the District judiciary as well the High courts that the concepts such as "liberal approach", "Justice oriented approach", "substantial justice" should not be employed to frustrate or jettison the substantial law of limitation.

14. We are constrained to observe that the High Court has exhibited complete absence of judicial conscience and restraints, which a judge is expected to maintain while adjudicating a lis between the parties.

15. The rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics but seek their remedy promptly.

16. The length of the delay is definitely a relevant matter which the court must take into consideration while considering whether the delay should be condoned or not. From the tenor of the approach of the respondents herein, it appears that they want to fix their own period of limitation for the purpose of instituting the proceedings for which law has prescribed a period of limitation. Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long, it cannot be presumed to be non-deliberate delay and in such circumstances of the case, he cannot be heard to plead that the substantial justice deserves to be preferred as against the technical considerations. While considering the plea for condonation of delay, the court must not start with the merits of the main matter. The court owes a duty to first ascertain the bona fides of the explanation offered by the party seeking condonation. It is only if the sufficient cause assigned by the litigant and the opposition of the other side is equally balanced that the court may bring into aid the merits of the matter for the purpose of condoning the delay.

17. We are of the view that the question of limitation is not merely a technical consideration. The rules of limitation are based on the principles of sound public policy and principles of equity. No court should keep the 'Sword of Damocles' hanging over the head of a litigant for an indefinite period of time." Taking note of the aforesaid, this Court is of the clear view that the manner in which the Settlement Officer of Consolidation has exercised its discretion and has condoned the delay without therebeing any sufficient cause to explain the delay of about 51 years by entering into the merits is not an order passed in sound exercise of discretion or jurisdiction.This aspect has been considered by the Revisional Court who has taken a holistic view and a composite view and for the reasons as indicated that the petitioners were unable to explain the delay which was humongous has allowed the revision and this exercise of jurisdiction by the Revisional Court does not appear to be erroneous or suffering from any palpable error which may persuade this Court to entertain the present petition. For all the reasons aforesaid, this Court does not find that there is any merit, accordingly, the present petition is dismissed. Order Date :- 5.2.2025 Asheesh/- ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench