ORDER

1. By this petition preferred under Article 227 of the Constitution of India the petitioners have challenged the order dated 28.8.2019 passed by the Additional Commissioner, Ujjain Division, Ujjain whereby the order dated 29.8.2017 passed by the Sub Divisional Officer, Tehsil and District Shajapur dismissing their appeal as barred by time and the order dated 29.8.2017 passed by the Additional Tehsildar, Tappa Maksi, Tehsil and District Shajapur have been set aside.

2. The facts in brief are that the petitioners made an application under section 178 of M.P. Land Revenue Code, 1959 (here-in-after referred to as "the Code, 1959") for partition of the lands in dispute before the Additional Tahsildar, Maksi, District Ujjain. The application was allowed by the Additional Tahsildar and the partition as prayed for was permitted and order in that regard was passed in Namantaran Panji No.5 on 15.6.2005.

3. Being aggrieved by the order aforesaid the respondents preferred an appeal under section 44 (1) of the Code, 1959 before the Sub Divisional Officer, Shajapur. Since the same was barred by time by about 11 years they filed an application under Section 5 of the Limitation Act, 1963 for condonation of delay in filing the appeal. By order dated 29.8.2017 the application under section 5 of the Limitation Act was rejected by the Sub Divisional Officer and the appeal itself was also consequently dismissed as barred by time. Being aggrieved by the said order the respondents preferred second Appeal under section 44 (2) of the Code, 1959 before the Additional Commissioner which has been allowed by him by the impugned order by holding that the partition order passed by the Additional Tehsildar was illegal and had been passed by him by violating the rules as regards partition and various other irregularities were also committed by him.

4. Learned counsel for the petitioners submits that since the first appeal preferred by the respondents was dismissed as barred by time, the second appellate authority, the Additional Commissioner had no jurisdiction to enter upon merits of the case. He could have only decided the issue as to whether the Sub Divisional Officer had correctly refused to condone the delay in preferring the appeal before him. However by allowing the appeal on merits it has traveled beyond its jurisdiction.

5. Learned counsel for the respondents has submitted that the impugned order is perfectly just and legal. The Additional Tehsildar had passed the partition order in favour of the petitioners in fragrant violation of the rules as regards partition. The partition effected was not legal and in accordance with law. All the co-owners were not heard in the matter. Neither were the proceedings properly registered nor notices served upon interested parties. The order in fact was not passed and the respondents were not made parties therein hence the same has rightly been set aside by the Additional Commissioner.

6. I have heard learned counsel for the parties and have perused the record.

7. When a First Appeal is dismissed by the First Appellate Authority solely upon rejection of an application for condonation of delay in filing the same and Second Appeal is preferred against that order, then the jurisdiction of Second Appellate Authority is confined to consideration of question as to whether the First Appellate Authority has rightly refused to condone the delay. If it holds that delay has rightly been refused to be condoned, then the appeal before it would be dismissed. If it holds that delay has wrongly been refused to be condoned, then it may allow the appeal, condone the delay in preferring the First Appeal and remand the matter back to the First Appellate Authority to decide the Appeal on merits or may pass such appropriate orders as it may deem fit. However, under any circumstance the Second Appellate Authority has no jurisdiction whatsoever to enter upon merits of the matter and to adjudicate upon the validity of the order passed by the