ORDER

1. This petition under Article 226 of the Constitution of India has been filed against the order dated 13.12.2021 and 8.2.2022 passed by Sub Divisional Officer and District Collector respectively in case No.26/Appeal/2021-22 and 2/Revision/2021-22.

2. It is submitted by the counsel for the petitioners that the petitioners are the owner of land bearing survey Nos.195, 218 and 219 situated in village Aaukhana Khurd, Tehsil and District Gwalior. They filed an application for demarcation and accordingly, on 22.5.2014 the Tahsildar passed an order for demarcation. On 28.12.2020 the respondents filed an appeal against the order dated 22.5.2014 accompanied by an application under section 5 of the Limitation Act as well as an application under section 52 of MP Land Revenue Code. It is also specifically mentioned in the writ petition that before the Tahsil Court the respondent was not a party and accordingly, she also filed an application for grant of permission to file an appeal. Thereafter, the SDO without granting leave to appeal and condoning the delay, admitted the appeal, which was challenged by the petitioners by filing Writ Petition No.6478/2021 and accordingly, the Court directed the Collector to assign this case to some other SDO, other than the SDO, Lashkar, District Gwalior. The Presiding Officer was also directed to take up the matter for consideration of grant of leave to appeal as well as under section 5 of the Limitation Act and only after considering these applications, the Revenue Court was directed to proceed in accordance with law. It is submitted that by order dated 13.12.2021 the SDO while deciding the application under section 5 of the Limitation Act has considered the case on merits also and no reason has been assigned for granting leave to appeal. It is further submitted that being aggrieved by the order passed by the SDO, he preferred as revision before the District Collector, Gwalior, which too has been dismissed by order dated 8.2.2022.

3. Challenging both the orders passed by the Tribunals below, it is submitted by the counsel for the petitioners that since the SDO, Jhansi Road, Gwalior has considered the merits of the case, therefore, he is bound to lose the appeal, which has been filed by the respondent against the order of demarcation passed by Tahsildar. Even otherwise, while deciding the application under section 5 of the Limitation Act as well as for deciding the application for leave to appeal, the SDO (Revenue), Jhansi Road, Gwalior should not have considered the merits of the case.

4. Per contra, the counsel for the respondent has supported the reasoning assigned by the Tribunals below.

5. Considered the submissions made by the counsel for the parties.

6. So far as the submission made by the counsel for the petitioners that the SDO (Revenue), Jhansi Road, Gwalior has considered the merits of the case while deciding the application under section 5 of the Limitation Act as well as an application for grant of leave to appeal is concerned, the same is misconceived and misleading. The SDO by his order dated 13.12.2021 had come to a conclusion that the Tahsildar by his order dated 28.4.2014 had observed that Smt. Sheela Sharma, Smt. Hemlata and Ashok Kumar Vajpayee have been served by affixture, whereas from the record, it is clear that the process server had made an endorsement that the noticee were not found at the given address, but the signatures of two witnesses were not obtained and accordingly, it was held that the service of notice was defective and, therefore, it cannot be said that the respondent was served. By no stretch of imagination it can be said that the SDO (Revenue) had considered the merits of the case. Undisputedly, the respondent was not a party to the demarcation proceedings. If any order has been passed against her interest, then she is entitled to file an application for grant of leave to appeal. Under these circumstances, when the petitioners had obtained an order without implea