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Khageshwar Vs. Hoshram and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 18 of 1963
Judge
Reported inAIR1966All191
ActsConstitution of India - Article 226
AppellantKhageshwar
RespondentHoshram and ors.
Appellant AdvocateHargur Charan and ;Srivastava, Advs.
Respondent AdvocateSriramji and ;Kesho Ram, Advs. for No. 1 and ;Standing Councel for Nos. 2 to 4
DispositionAppeal allowed
Excerpt:
constitution - jurisdiction - article 226 of constitution of india - order pending in appeal before the settlement officer is passed on application made under section 42a - no appeal lie from such order - held, writ of prohibition may be issued to the settlement officer to proceed with appeal. - .....act saying that the entry was manifestly erroneous and should be corrected and substituted by the entry 'hoshram and khageshwar'. this application was addressed to the settlement officer, who sent it to the consolidation officer. the consolidation officer allowed it: and ordered the entry to be corrected as 'hoshram and khageshwar alias kharag'. he did this not on the ground that there was any clerical mistake in the revised record but on the basis of an inquiry into the title. he considered the evidence about the title of the parties to the land and found that both were entitled to it. he did not at all go into the question what was the entry made in the statement prepared under section 8, whether the mistake in the revised record was a clerical mistake and whether section 42-a applied.....
Judgment:

Desai, C.J.

1. The appellant is Khageshwar and respondent No. 1 is his brother, Hoshram. During the consolidation proceedings a statement mentioned in Section 8 of the Consolidation of Holdings Act was prepared. The dispute between the appellant and the respondent is about certain land which is claimed by the appellant as owned jointly by him and the respondent and is claimed by the respondent as owned exclusively by him. It is not known what entries were made in the statement prepared under Section 8 but no objection was made under Section 9 by the appellant or the respondent against whatever entry was made in it. After hearing objections from other parties about other land the statement was revised as required by Section 10(2) and was published as required by Section 11-B. In the revised record the entry was of 'Hoshram alias Khageshwar', The entry was obviously wrong; 'Hoshram' was not the alias of Khageshwar being his brother's name. Khageshwar had an alias but it was 'Kharag' and not 'Hoshram.'

The appellant made an application expressly purporting to be one under Section 42-A of the Act saying that the entry was manifestly erroneous and should be corrected and substituted by the entry 'Hoshram and Khageshwar'. This application was addressed to the Settlement Officer, who sent it to the Consolidation Officer. The Consolidation Officer allowed it: and ordered the entry to be corrected as 'Hoshram and Khageshwar alias Kharag'. He did this not on the ground that there was any clerical mistake in the revised record but on the basis of an inquiry into the title. He considered the evidence about the title of the parties to the land and found that both were entitled to it. He did not at all go into the question what was the entry made in the statement prepared under Section 8, whether the mistake in the revised record was a clerical mistake and whether Section 42-A applied at all or not. From his order an appeal was filed by the respondeni in the Court of the Settlement Officer. The appellant, who was the respondent in that appeal contended before the Settlement Officer that the appeal was incompetent because no appeal lies from an order passed under Section 42-A and an appeal could lie only under Section 11 from an order passed by the Consolidation Officer only under Section 10. The Settlement Officer rejected the appellant's preliminary objection. Thereupon the appellant filed a petition for prohibition to restrain the Settlement Officer from proceeding with the appeal and that petition being refused by Kailash Prasad, J. he has come up in appeal.

2. The order, pending in appeal before the Settlement Officer, was undoubtedly passed on the application made under Section 42-A. It is not disputed that no appeal lies from an order passed under Section 42-A. Therefore, the appeal filed by the respondent was incompetent. It is also not disputed that the appeal that lies to a Settlement Officer from a Consolidation Officer's order is from an order passed under Section 10 on an objection made under Section 9. Here the order was not passed on an objection by the appellant and was not an order under Section 10. As a matter of fact, the stage for an objection under Section 9 had passed; there could be no objection under Section 9 after the publication of the revised statement under Section 11-B. Therefore, the appeal was not competent and prohibition ought to have been issued. The matter was not at the discretion of our learned Brother; if he found that no appeal lay from the order, he was bound to prohibit the Settlement Officer from proceeding with the appeal. In no circumstances could an order without jurisdiction be allowed to be passed; nothing is to be gained by it.

3. We, therefore, allow this appeal and issue a writ of prohibition forbidding the Settlement Officer from proceeding with the appeal. This does not mean that the respondent is left without any remedy against the order passed by the Consolidation Officer if it itself was against law. If the Consolidation Officer had no jurisdiction to correct the mistake, it would be open to the respondent to apply for certiorari for the quashing of the order. Merely because the order was without jurisdiction he could not claim that he had a right to challenge it by appeal. Having regard to the circumstances of the case we leave the parties to bear their costs of this Court themselves.


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