An application for condonation of delay in appeal must be resolved before merits consideration; an appeal without such a ruling is legally unsustainable.

JUDGMENT :

Chandra Kumar Rai, J.

1. Vakalatnama filed on behalf of respondent no.5 is taken on record.

2. Heard Mr. V.K. Singh, learned Senior Counsel assisted by Mr. Shivam Yadav, learned counsel for the petitioner, Mr. Rajesh Yadav as well as Ms. Ruchi Mishra, learned counsels for respondent no.4 and 5, Mr. Bhupendra Kumar Tripathi, learned counsel for respondent- Gaon Sabha and learned Standing Counsel for the State respondents.

3. With the consent of learned counsel for the parties, the instant petition is being heard finally without inviting counter affidavit.

4. The instant petition has been filed for the following relief:-

"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 6.1.2025 passed by Board of Revenue, Lucknow in case No. Rev/929/2024/Jaunpur and the order dated 5.3.2024 passed by Additional Commissioner (Judicial)-I, Varanasi Division, Varanasi in case No. 308 of 2023 (Amlesh Vs. Faujdar and others);

(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to affirm the division of property as per the final order dated 23.9.2022 passed by Sub Divisional Magistrate."

5. On 6.3.2025, following order was passed by this Court:-

" 1. Heard Mr. V.K. Singh, learned Senior Counsel for the petitioner and Mr. Rajesh Yadav and Ms. Ruchi Mishra, learned counsels for private respondent no.4.

2. Learned Senior Counsel for the petitioner submitted that time barred appeal under Section 207 of the U.P. Revenue Code, 2006 filed by private respondents has been allowed without passing any order for condonation of delay in filing appeal setting aside the order of the Trial Court and remitted the matter back before the Trial Court for consideration of kurra. He further submitted that final decree prepared in the partition suit has not been challenged by the private respondents nor the same has been set aside, as such, the order passed by Additional Commissioner cannot be sustained in the eye of law. He submitted that in revision, petitioner has taken specific ground that no separate application under Section 5 of Limitation Act has been filed by the private respondents in appeal nor any order for condonation of delay has been passed by the Additional Commissioner, as such, the order passed in appeal remanding the matter before the Trial Court is wholly illegal in view of the ratio of law laid down by Division Bench of this Court in the case reported in 2022 (155) R.D.309, Ram Prakash Vs. Deputy Director of Consolidation and Others .

3. Mr. Rajesh Yadav, learned counsel for private respondent no.4 submitted that matter be adjourned for tomorrow to enable him to obtain instruction as to whether delay in filing of appeal was condoned or not.

4. Put up this matter as fresh on 7.3.2025 at 12:00 P.M.

5. Learned Senior Counsel for the petitioner also submitted that the matter is fixed for 7.3.2025 before the Trial Court in pursuance of the remand order passed by Additional Commissioner in appeal.

6. In view of the aforementioned fact the petitioner can file necessary application before the Trial Court to adjourn the proceeding for reasonable period."

6. Mr. Rajesh Yadav, learned counsel for respondent no.4 submitted that separate application for condonation of delay was filed in appeal under Section 207 of U.P. Revenue Code, 2006 and no objection was filed to the delay condonation matter, as such, it will be presumed that delay in filing the appeal was condoned and the appeal was accordingly decided on merit setting aside the order of Trial Court and remitting the matter back before th