The question of limitation relating to the maintainability of the appeal should be decided first before entering into the merits.

S. N. Srivastava, J.—This is a unique case in which dispute is between husband and wife. Ram Belas opposite 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 opposite party No. 3 was directed to be expunged as Bhumidhar and instead, the name of his wife Rajdei, petitioner was directed to be recorded. From a perusal of the affidavit filed along with application for condonation of delay as well as the grounds of appeal, the allegations of opposite 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, manoeuvred 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 opposite 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 opposite party No. 3 assailed order 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 he filed application on 31st May, 2003. Appeal along with 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 Limitation Act is also pending. The petitioner prayed that question of maintainability of appeal be decided first. By order dated 20th November 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 to the 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. and others v. M/s. Mechano and another, AIR 2002 SC 204 and Bhagwat and others v. Dy. Director of Consolidation and others, 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 High 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 questioned. 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 ju