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Allahabad High Court · body

2007 DIGILAW 330 (ALL)

SAROJ SINGH v. BOARD OF REVENUE LUCKNOW

2007-02-12

S.S.CHAUHAN

body2007
S. S. CHAUHAN, J. This writ petition has been filed challenging the judgment and orders dated 7. 3. 2005 and 13. 1. 2005 passed by the opposite parties No. 1 and 2, by means of which the order of the Collec tor passed in appeal dated 18. 8. 1999 has been set aside and the Collector has been directed to hear and decide the restoration application and condonation of delay ap plication and thereafter if he thinks proper, may decide the appeal on merit as well. 2. The facts giving rise to the present petition are that opposite party No. 4 mossed an application on 4. 5. 1988 with the prayer that plot No. 138 measuring 72 decimal in which she was residing along with the land appurtenant in the form of hata may be recorded as abadi as she was residing in the said premises from the year 1935 and by mistake ef the revenue authorities the said error has crept in. She has also stated that there was one Well on the said land of the house, which has not been shown in the settlement map. She, therefore, prayed that according to the spot position, correction be made in the map regarding house, Well, boundary gate and lawn (hata ). The Naib Tehsildar submitted a report on 3. 5. 1989, in which it was stated that house, Well, boundary wall of the op posite party No. 4 was existing for the last 20 years and no agricultural activity was being done on the said land. The opposite party No. 4 was in possession over the en tire land, but her possession has been re corded only on 21 decimal. Therefore, the land in question may be declared as abadi. The then Sub-Divisional Officer (South), Varanasi heard the matter and by means of order dated 8. 5. 1989 rejected the applica tion of the opposite party No. 4 finding it as not maintainable. The opposite party No. 4 thereafter on 10. 5. 1989 moved a recall ap plication, inter alia, stating therein that she was not heard before the impugned order was passed and, therefore, the said ex-parte order may be recalled and after hearing her, this order may be passed. The then Sub-Divisional Officer by means of order dated 7. 7. 1990 recalled the ex-parte order dated 8. 5. 1969. On 16. 8. The then Sub-Divisional Officer by means of order dated 7. 7. 1990 recalled the ex-parte order dated 8. 5. 1969. On 16. 8. 1990 an ap plication was moved by opposite party No. 4 that from the report of the Naib Tehsildar her possession was established and, therefore, under section 33/39 of the U. P. Land Revenue Act, the case may be registered and the name of the other per sons may be expunged. The petitioners were issued notice and thereafter it is al leged that publication was made in the newspapers as well on 5. 10. 1990, but the petitioners did not put in their appearance, whereupon ex-parte proceedings were drawn and ex-parte order was passed on 12. 10. 1990 expunging the names of the pe titioners from the said plot and recording the name of opposite party No. 4 as bhu-midhar and further order was passed for recording the plot in question as abadi in the Khasra. Agamst this order Smt. Usha Singh through her General Power of Attor ney, Ganpat Singh moved an application on 26. 10. 1994 alleging therein that the no tices were never served upon the petition ers regarding the said proceedings and they were not used to reading of newspa pers and they did not receive any informa tion, therefore, the ex-parte order dated 12. 10. 1990 may be recalled. An application under section 5 of the Limitation Act along with the affidavit was also moved for con doning the delay in moving the application for recall of the order. The opposite party No. 4 filed an objection on 26. 5. 1995 to the recall application of Smt. Usha Singh. The Deputy Collector (South) heard the parties and rejected the recall application of Smt. Usha Singh on 15. 4. 1998. Against this order Smt. Usha Singh preferred a revision No. III of 1998 on 12. 5. 1998 before the Additional Commissioner. Thereafter an appli cation was moved before the Additional Commissioner for withdrawal of the revi sion on 23. 11. 1998 on finding that the revision was not maintainable against the said order and the revision was withdrawn on 23. 2. 1999. An application for obtaining the copy was moved on 8. 3. 1999 and the copy was received by the petitioners on 17. 3. 1999 and thereafter on 19. 3. 1999 first appeal was filed against the orders dated 15. 4. 2. 1999. An application for obtaining the copy was moved on 8. 3. 1999 and the copy was received by the petitioners on 17. 3. 1999 and thereafter on 19. 3. 1999 first appeal was filed against the orders dated 15. 4. 1998 and 12. 10. 1990 before the Collec tor with the prayer that the appellant may be given the benefit of sections 5 and 14 of the Limitation Act and if any delay has oc curred that has occurred on the wrong ad vice of the Counsel. The Collector heard the matter on the question of limitation and came to the conclusion that the appeal was time barred and the petitioners were enti tled for the benefit of sections 5 and 14 of the Limitation Act and the delay has been reasonably explained. Apart from the above, the Collector set aside the ex-parte order dated 12. 10. 1990 and the order dated 15. 4. 1998 by means of which the recall application of the petitioners was rejected and remitted the matter to the Deputy Collector to decide the same in accordance with law after considering the merit and de-meirt of the matter which certain obser vations in the impugned order dated 18. 8. 1999. The opposite party No. 4 filed a second appeal before the Additional Commissioner, inter alia, on the ground that the Collector has recorded a finding on the merit, which was not warranted under law and the Collector could not have con doned the delay without recording a spe cific finding regarding the explanation of delay submitted by the petitioners. The Additional Commissioner by means of or der dated 13. 1. 2005 allowed the second appeal and set aside the order of the Col lector mainly on the ground that if the matter was remitted to the Deputy Collec tor for deciding the same in accordance with law, then there was no occasion to record finding regarding the merit of the matter. It was also held that the Collector should have first decided the question of limitation and maintainability of the appeal and thereafter could have decided on merit. The petitioners filed a revision be fore the Board of Revenue and the Board of Revenue also rejected the revision in a cur sory manner reiterating the order of the Additional Commissioner. 3. It was also held that the Collector should have first decided the question of limitation and maintainability of the appeal and thereafter could have decided on merit. The petitioners filed a revision be fore the Board of Revenue and the Board of Revenue also rejected the revision in a cur sory manner reiterating the order of the Additional Commissioner. 3. The submission of the learned Counsel for the petitioners is that the revi sion could not have been dismissed in a cursory manner and the Board of Revenue has failed to take into consideration the fact that the Additional Commissioner has exceeded his jurisdiction in interfering with the order of the Collector. The Collector has remitted the matter to the Deputy Collector for disposing of the same in accordance with law and has also come to the conclu sion that the petitioners were not given any opportunity before expunging their names and the order in question was ex-parte and, therefore, the recall application was wrongly rejected. He also submits that the appeal was not delayed, but on account of the fact that a revision was filed against the order dated 15. 4. 1998, which was got with drawn subsequently and thereafter the ap peal was filed before the Collector. The petitioners, therefore, were entitled for the benefit of sections 5 and 14 of the Limita tion Act. The record reveals that the order dated 12. 10. 1990 was passed ex-parts and in fact the recorded tenure holders were not given any opportunity of hearing and without hearing them their names were expunged. The petitioners came to know about the passing of the order in the month of October, 1994 and an application for re call of the order dated 12. 10. 1990 was immediately moved on 16. 10. 1994 and even from the finding of the Collector it is estab lished that the petitioners were never heard and their valuable right has been taken away in the form of land recorded in their names on the basis of the sale deed. 4. Learned Counsel for the opposite party No. 4 submits that the Board of Revenue has committed no illegality and the matter has been remitted to the Collec tor to hear and decide the same in accor dance with law after recording a specific finding with regard to the maintainability of appeal and condonation of delay. 4. Learned Counsel for the opposite party No. 4 submits that the Board of Revenue has committed no illegality and the matter has been remitted to the Collec tor to hear and decide the same in accor dance with law after recording a specific finding with regard to the maintainability of appeal and condonation of delay. He further submits that the Collector could not have recorded any finding on the merit of the matter and in fact the Collector has not discussed the facts, which were necessary for condoning the delay and in absence of any finding to that effect the order of the Collector is bad in law. The Additional Commissioner has remitted, the matter to the Collector to hear and dispose of the same for considering the question of maintainability and the genuineness of rea sons for condonation of delay, which find ing he has not recorded in his impugned order. Learned Counsel has further tired to give force to his arguments by submitting that the petitioners have remedy of filing suit and the writ petition against the pro ceedings under section 33/39 of the Land Revenue Act would not be maintainable. It has also been submitted that the Collector has not given any finding regarding the delay in moving the recall application and so the order of the Collector suffers from manifest illegality. 5. I have heard the learned Counsel for the parties and gone through the record. 6. The opposite party No. 4 moved an application on 4. 5. 1988 with the prayer that the plot No. 138 measuring 72 decimal in which she was residing along with the land appurtenant may be recorded as abadi as she was residing in the said premises since the year 1965 and the revenue authorities have not corrected the said er ror as was required from them. The Naib Tehsildar submitted a report on the said application of the opposite party No. 4 on 3. 5. 1989, wherein it was stated that the opposite party No. 4 was living on the plot in dispute for the last 20 years and no agricul tural activity was being carried on the said land. The Naib Tehsildar submitted a report on the said application of the opposite party No. 4 on 3. 5. 1989, wherein it was stated that the opposite party No. 4 was living on the plot in dispute for the last 20 years and no agricul tural activity was being carried on the said land. It was also stated in the said report that the opposite party No. 4 was in pos session over the entire land, but her pos session was recorded only on 21 decimal and hence the plot in question may be de clared as abadi. The Sub-Divisional Officer (South), Varanasi heard the matter and re jected the application of the opposite party No. 4 by means of order dated 8. 5. 1989. The opposite party No. 4 thereafter on 10. 5. 1989 moved a recall application stating therein that she was not heard when the impugned order was passed and, therefore, the ex-parte order may be recalled. The Sub-Divisional Officer (South) by means of order dated 7. 7. 1990 recalled the ex-parte order dated 8. 5. 1989. On 16. 8. 1990 an ap plication was moved by the opposite party No. 4 that from the report of the Naib Tehsildar her possession was established and, therefore, a case may be registered under section 33/39 of the U. P. Land Reve nue Act and the names of other persons recorded in the said plot may be expunged. Notices were issued to the petitioners and thereafter, as alleged, publication was also made in the newspaper on 5. 10. 1990, but the petitioners could not know about the said publication" as they were not use to of reading newspaper. The Deputy Collector proceeded ex-parte and passed an order on 12. 10. 1990 expunging the names of the pe titioners from the said plot and the name of opposite party No. 4 was recorded as bhu-midhar and further order was also passed that the plot in question may be recorded as abadi in khasra. Smt. Usha Singh came to know about the passing of the said order in the month of October, 1994 and imme diately she moved an application on 26. 10. 1994 alleging therein that no notice was served upon her at any point of time regarding the pendency of the proceedings and she was not use to of reading newspa per and, therefore, the ex-parte order dated 12. 10. 1994 alleging therein that no notice was served upon her at any point of time regarding the pendency of the proceedings and she was not use to of reading newspa per and, therefore, the ex-parte order dated 12. 10. 1990 may be recalled. She also filed an application under section 5 of the Limi tation Act along with an affidavit explain ing the delay in moving the recall applica tion. An objection was filed by the opposite party No. 4 to the said application for recall on 26. 5. 1995. The Deputy Collector (South) heard the parties and rejected the applica tion of Smt. Usha Singh on 15. 4. 1998. Against this order Smt. Usha Singh pre ferred Revision No. III of 1998, on 12. 5. 1998 before the Additional Commis sioner. Thereafter an application was moved before the Additional Commis sioner for withdrawal of the revision on 23. 11. 1998 finding that the revision was not maintainable against the impugned order dated 12. 10. 1990. The revision was dis missed as withdrawn on 23. 2. 1999 and an application for obtaining the copy of the said order was moved on 8. 3. 1999 and the copy of the order was received by the peti tioners on 17. 3. 1999. The petitioners filed an appeal on 19. 3. 1999 before the Colelctor against the orders dated 15. 4. 1998 and 12. 10. 1990. The petitioners also claimed the benefit of sections 5 and 14 of the Limita tion Act and stated that if any delay has occurred, then it has occurred on the basis of the wrong advice given by the Counsel, on a Court of which the revision was filed in the Court of Additional Commissioner though the same was not maintainable. The Collector heard the matter on the question of limitation and the recall application and came to the conclusion that the petitioners were entitled for the benefit of sections 5 and 14 of the Limitation Act and the delay has been reasonably explained as the peti tioners have specifically stated that they acquired knowledge in the month of Octo ber, 1994 and thereafter they moved an application on 26. 10. 1994 immediately for recalling the orders dated 15. 4. 1998 and 12. 10. 1990. 10. 1994 immediately for recalling the orders dated 15. 4. 1998 and 12. 10. 1990. The condonation of delay has been claimed only on account of the fact that the petitioners could not acquire any knowledge regarding the pendency of the proceedings. 7. The record also reveals that the substituted service was affected upon the petitioners though publication and in fact the petitioners could not know that proceedings were going on against them for expunging their names. The petitioners were recorded as tenure holders along with opposite party No. 4 and in such circumstances the Collector found that the expla nation given by the petitioners was reason able and the names of the petitioners could not have been expunged without giving them opportunity of hearing. 8. Learned Counsel for the opposite party No. 4 has relied upon the decision reported in Harihar Misra v. Deputy Director of Consolidaiton/addl. District Magistrate (Finance and Revenue), Deoria and others, 2005 (98) RD 534 to contend that the delay should not be con doned arbitrarily or whimsically. He has relied upon para 7, which itself lays down that in accordance with the latest trend of the Apex Court and of this Court the mat ter of condonation of delay has to receive liberal consideration and the condonation of delay will not prejudice any party as the matter is still to be decided on merit. 9. In the case of P. K. Ramachandran v. State of Kerala and another, 1998 (89) RD 18 it has been held that the High Ceurt has not given proper reasoning for condoning the delay of 565 days, therefore, the order was set aside. In the case reported in Smt. Cyan Mati v. Ad ditional Commissioner (Admn. ). Basti Division and others, 2002 (93) RD 510 it has been held that writ peti tion against the proceedings under section 33/39 of the Land Revenue Act will not be maintainable. To the same effect is the case reported in Ishu v. State of U. P. and others, 2003 (94) RD 217 and in the case reported in Smt. Amrendra Kaur v. Collector, Rampur and others, 2003 (95) RD 211. 10. To the same effect is the case reported in Ishu v. State of U. P. and others, 2003 (94) RD 217 and in the case reported in Smt. Amrendra Kaur v. Collector, Rampur and others, 2003 (95) RD 211. 10. Learned Counsel for the petition ers in support of his submission has relied upon the decision reported in Shri Krishna v. Board of Revenue, 1996 RD 382 U. P. , to contend that without giving any notice or opportunity of hearing if any order is passed under section 33/39 of the U. P. Land Revenue Act, then the same would be bad in law. In the case reported in Kari Naimuddin v. Pargana Adhi- kari/asst. Collector (First Class), Ghaziabad and others, 1999 (90) RD 431 it has been held that entry in the revenue record in the name of a person cannot be expunged without giving oppor tunity of hearing to the aggrieved person. In Smt. (Dr.) Shanti Bharadwaj v. Board of Revenue, Allahabad and others 1994 RD 338 it has been held that the Board of Revenue has ex ceeded its jurisdiction in interfering with the recall order. In the said case the demar cation proceedings were drawn and there after objection was filed by the objectors. The land in question was declared as agricultural land. The owners of the land were not impleaded as party nor copy of the ob jection was, given to them. An application for recall was moved by the owners and the demarcation, officer recalled the order. In the above circumstances, it was held that the Board of Revenue has exceeded its ju risdiction in interfering with the remand order. 11. Learned Counsel for the petition ers has also relied upon the decision reported in Ram Briskh Singh and others v. Amjad 2005 (98) RD 749 in which it has been held that the expression "sufficient cause" should re ceive liberal construction so as to advance substantial justice. 12. The Apex Court in the case re ported in N. Balakrishnan v. M. Krishnamurthy, 1998 (89j RD 607 has held that condonation of de lay is a matter of discretion of the Court, which can be exercised only when the de lay is within certain limit. Once the Court has accepted the explanation as sufficient, it will amount to exercise of discretion and the superior Courts should not normally disturb such finding. Once the Court has accepted the explanation as sufficient, it will amount to exercise of discretion and the superior Courts should not normally disturb such finding. In this case the Apex Court further held as under: "it is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limita tion Act does not say that such dis cretion can be exercised only of the delay is within a certain limit. Length of delay is no matter, ac ceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncon-donable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the ex planation thereof is satisfactory. Once the Court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbi trary or perverse. But it is a differ ent matter when the first Court re fuses to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammeled by the conclusion of the lower Court. The reason for such a different stance is thus: The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the Court in dif ferent situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object for providing a legal remedy is to repair the damage caused by rea son of legal injury. Law of limita tion fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitat ing newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitat ing newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and conse quential anarchy. Law ef limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation ). Rules of limita tion are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their rem edy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. This Court has held that the words "sufficient cause" under section 5 of the Limitation Act should receive a liberal construc tion so as to advance substantial justice vide Shakuntalc Devi fain v. Kuntal Kumari, AIR 1969 SC 575 and State of West Bengal v. the Administrator, H&wrah Municipality. AIR 1972 SC 749 " 13. In the case of Phool Chand and an other v. Dy, Director of Consolidation, Azamgarh and others 2004 (96) RD 41 it has been held that the delay can be condoned even on oral prayer and the expression "sufficient cause" should receive liberal interpretation and if sufficient cause has been shown, then the delay should be condoned. 14. The argument of the learned Counsel for the opposite party No. 4 that writ petition against the proceedings under section 33/39 of the U. P. Land Revenue Act will not be maintainable does not seem to be correct because there has been no adju dication on merit up till now. The petition ers are litigating all throughout for adjudi cation of their claim on merit. Therefore, the case laws cited by the Counsel for the opposite party No. 4 do not come to his aid. The petition ers are litigating all throughout for adjudi cation of their claim on merit. Therefore, the case laws cited by the Counsel for the opposite party No. 4 do not come to his aid. The Collector may have exceeded his ju risdiction in recording certain finding on merit, but the second Appellate Court has wiped out the said finding by recording a specific finding to that effect and the sec ond Appellate Court has misdirected itself in interfering with the order of the Collec tor with regard to maintainability of ap peal, wherein it has been said that the Col lector should examine the matter regarding the condonation of delay and maintainability of appeal. The Appellate Court could have interfered only to the extent that finding recorded by the Collector on merit will not be read in favour of either of the parties and whatever points are raised by the contesting parties, the same may be decided in accordance with law by the Collector. The remittance of matter to the Collector by the second appellate Court does not seem to be legally tenable and the second appellate Court has misdirected itself on the issue of condonation of delay. From the record, it is apparent that the pe titioners have never acquired any knowl edge regarding the order dated 12. 10. 1990 and as and when they acquired knowledge, they immediately moved recall application. The petitioners will not be benefited by approaching the Court at a belated stage when their valuable right is going to be effected and their names have been ex punged from the revenue records. They are interested and aggrieved persons and the Collector, therefore, rightly condoned the delay and there was no occasion to assume otherwise that the delay could not have been condoned. 15. The next point, which has been argued by the learned Counsel for the op posite party No. 4 is that the petitioners have already filed a suit under section 49/59 of the U. P. Tenancy Act through Suit No. 6 of 1999 and the same is pending be fore the Sub-Divisional Officer, Varanasi and once the petitioners have availed rem edy of suit, the correction proceedings al ready come to an end and cannot be con tinued as they are summary in nature and the finding recorded in the suit would be binding upon the parties. He, therefore, submits that the writ petition is liable to be dismissed. 16. The argument of the learned Counsel for the opposite party No. 4 cannot prevail in view of the law laid down by this Court time and again and in catena of de cisions it has been held that the mutation proceedings cannot be stayed on account of the fact that a regular suit has been filed. 17. Learned Counsel for the petition ers has relied upon a decision reported in Mohit Bhargav v. Board of Revenue, U. P. , Lucknoiv and others, 2006 (24) LCD 1478 wherein mutation proceedings were pending and the regular suit for cancellation of sale deed was also pending in the Civil Court and this Court relying upon the Full Bench decision of the Board of Revenue reported in Irfan All V. Rafeeq, 1992 RD 299 held that the mutation proceedings cannot be stayed, to await decision in the regular suit. 18. The next case relied upon by the Counsel for the petitioner is reported in Mithan Singh v. Chandra Pal Singh and others, 1982 Alllj 1445 wherein it has been held that in spite of pendency of the suit for cancellation of sale deed pending in the Civil Court mutation proceedings before the consolidation authorities cannot be stayed. This Court in the above decision followed the case re ported in Ram Nath v. Smt. Munna 1976 RD 220. In para 3 of the above case this Court held as under: "3. I am unable to agree with this contention. If the name of opposite parties 1 to 3 will be recorded on the land in dispute on the basis of the impugned sale deed and the petitioner ultimately succeeds in getting the sale deed cancelled through the competent Civil Court where his suit is pending, the name of the petitioner will then be re corded in place of opposite parties 1 to 3 on the basis of the order passed in the civil Suit. The pro ceedings in the consolidation courts cannot wait for long and the consolidation authorities have to give effect to the sale deed which is voidable. The pro ceedings in the consolidation courts cannot wait for long and the consolidation authorities have to give effect to the sale deed which is voidable. If the sale deed is chal lenged by the petitioner on the ground that it is void, then the consolidation authorities can deter mine the said question but the sale deed cannot be challenged before the consolidation authorities on the ground that it is voidable for rea sons stated in the civil suit. The consolidation authorities will have no jurisdiction to determine that question and they will have to rec ord the names of opposite parties 1 to 3 which will be subject to the fi nal decision in the Civil Court (see Ram Nath v. Smt. Munna) 1976 RD 220. In this view of the matter the petitioner will not be prejudiced in any man ner. " 19. In the case reported in Smt. Hafiza v. D. D. C. and others,1986 RD 184 this Court held as un der: "it was, thus, urged that in any view of the matter the proceedings in the objection filed under section 12 of the Act, could not be stayed by the Consolidation Officer and he should have proceeded to decide the case on merits after taking evi dence of the parties. I find much substance in the argument. Similar question came up before me for consideration in Umesh v. Deputy Director of Consolidation, Banda (2) wherein the proceedings in the pending case under section 9 (2) of the Act were stayed by the Con solidation Officer till the disposal of the pending suit, regarding can cellation of the sale deed pertaining to land in dispute. It was held that the order passed by the Consolida tion Officer staying proceedings in the objection under section 9 (2) of the C. H. Act until final decision in the Civil Suit for cancellation of sale deed suffered from manifest error. It was noticed that the deci sion of the learned Single Judge of this Court in Smt. Laun Sri Devi v. Rajendra Singh (3) was not approved by the Division Bench in Ram Sewak v. Deputy Director of Consolidation, Deoria (4) wherein it was observed: 0 "before parting with this case it is nec essary however to observe that the decision in Smt. Laungshris case (supra) turned on the facts of the case. It cannot be urged as a matter or law that in every case where a suit for cancellation of sale deed or gift deed is pending or suit for specific performance has been filed the Consolidation Authorities should stay their hands. Facts of a particular case may justify that or der. Finalisation of Consolidation proceedings does not affect the suit for cancellation or specific per formance etc. In case Consolidation proceedings are finalized in faovur of a, on strength of sale deed but the same is cancelled or suit for specific performance is decreed in favour of b he can be substituted in place of a and possession be delivered under Rules. Normally therefore, proceedings before con solidation authorities should not be stayed. " 20. Considering the above dictum of this Court in various decisions, it is clear that the mutation proceedings pending be fore the Deputy Collector cannot be put in limbo and have to be adjudicated upon irrespective of the fact that suit under sec tion 49/59 of the U. P. Tenancy Act has been filed. The petitioners valuable right has been affected by expunging their names under section 33/39 of the Land Revenue Act. Such action amounted to de cision of title and without giving notice and opportunity of hearing to the petitioners the ex-parte order, which has been passed, was not sustainable in the eye of law. 21. For the reasons indicated above, I am unable to agree with the proposition propounded by the Counsel for the oppo site party No. 4. 22. On the question of maintainability of appeal also the second appellate Court has misdirected itself when the Collector has recorded a specific finding that the re vision was got dismissed as not pressed and thereafter the appeal was filed and if any wrong advice was tendered by the counsel, then the parties should not suffer for the same, in view of the law laid by the Apex Court in the case reported in Rafiq v. Munshilal and another. AIR 1981 SC 1400 The appeal before the Collector in the circumstances was maintainable and the same has been dis posed of in accordance with law and the parties have been relegated before the Deputy Collector to get their claim adjudicated in accordance with law. AIR 1981 SC 1400 The appeal before the Collector in the circumstances was maintainable and the same has been dis posed of in accordance with law and the parties have been relegated before the Deputy Collector to get their claim adjudicated in accordance with law. The second Appellate Court and the Board of Revenue could not take notice of the fact that the Collector has only relegated the parties be fore the Deputy Collector to place their case on merit in accordance with law. 23. The case laws relied upon by the Counsel for the opposite party No. 4 does not come to his rescue and this Court feels satisfied that the expression "sufficient cause" should receive liberal construction and when there was no knowledge with the petitioners and only there was substi tuted service through publication, there is all the more reason to believe that there was no service upon the petitioners. If the order of the Second Appellate Court is maintained, then there will be multiplicity of proceedings and for 1 nothing the Collec tor will adjudicate the matter again without there being any adjudication on merit of the matter. 24. Considering the above legal posi tion and the facts enumerated hereinabove, I feel that the judgment and orders dated 7. 3. 2005 and 13. 1. 2005 cannot be sustained in law and are liable to be set aside. 25. The writ petition is accordingly allowed and the judgment and orders dated 7. 3. 2005 and 13. 1. 2005 passed by the Board of Revenue and the Additional Commissioner are hereby set aside. The finding recorded by the Collector with regard to the merit of the matter will not be read as held by the Additional Commissioner. The matter is remitted to the Dep uty Collector, where the parties will put their respective cases and after giving them opportunity of adducing evidence in order to substantiate their claim, the Deputy Collector will decide the case within a pe riod of six months from the date a certified copy of this order is produced before him. Petition Allowed. .