JUDGMENT
Prakash Krishna, J.
1. The petitioners who are four in numbers instituted a suit being suit No. 240 of 1994-95-96-97 under Section 229-B of U.P.Z.A. & L.R. Act (hereinafter referred as the Act) against the contesting respondents 6 to 11 in respect of plot Nos. 89, 90, 52, 53, 54, 55, 56 and 59 total eight, total area 3 bigha, four biswa, fourteen dhur situated at village Akabarpur, Mugarson, Pargana Mah, Tehsil Handia, district Allahabad, on the allegations that the said plots belonged to their father late Nankoo, whose name was recorded in the revenue records as Bhumidhar in the basic year. During consolidation operation in the village, the name of Late Nanakoo son of Ayodhya the father of the petitioners was recorded in Akarpatra. Since there was an mistake in the revenue records the petitioners did not file any objection during consolidation operation. It appears that after the close of the consolidation operation the names of the contesting respondents who are defendant No. 2 to 8 in the suit were illegally got recorded, consequently the aforesaid suit under Section 229-B of the Act was instituted.
2. The defendant/respondents filed their separate written statements. On the basis of the pleadings of the parties, the Sub Divisional Magistrate, Handia framed the issues. Issue No. 3 is to the effect as to whether the suit is barred under Section 49 of the U.P. Consolidation of Holdings Act. An application was filed by the contesting respondents who are defendants in the suit that the said issue be decided as a preliminary issue. The Sub Divisional Magistrate by the order dated 17th July, 1997 (Annexure-7 to the writ petition) refused to decide the issue No. 3 as a preliminary issue on the ground that it is necessary to have evidence of the parties first. He was of the view that the basic facts and evidence relating issue should come on the record before decision of the said issue. Aggrieved against the aforesaid order dated 17th July, 1997, some of the defendants filed an appeal and the remaining defendants filed revision before the Additional Commissioner I, Allahabad Division Allahabad. The revision and the appeal were heard and were disposed of by a consolidated order dated 23rd of December, 1998 by which the Additional Commissioner allowed the appeal and remanded the matter to the Trial Court for a fresh decision after giving opportunity of hearing to all the parties concerned. It may be stated here that during pendency of the suit defendant No. 3, Mahavir son of Ayodhya expired. An argument was raised before the Additional Commissioner that the Trial Court should have first disposed of the substitution application to substitute the heirs of deceased Mahavir before passing the order dated 17th July, 1997. The appeal to the Additional Commissioner by order dated 23.12.1998 filed as Annexure-8 to the writ petition, set aside the order dated 17th July, 1997 and restored the matter to the file of the trial court to rehear and reconsider the matter alter giving proper opportunity of hearing to all the parties concerned.
3. Subsequently, an application on behalf of Smt. Ram Kali, Smt. Ram Rati and Indra Bahadur, contesting respondent No. 6, 7 and 8 to the writ petition for reviewing the order dated 23rd December, 1998 was filed on 12th January, 1999, on the ground that the appeal filed by them may be allowed in toto and portion of the order remanding the matter to the Trial Court be set aside. This review application has been allowed by the new incumbent namely, Sri D.N, Shukla, Additional Commissioner by the impugned order dated 7th April, 2003 on the ground that his predecessor in his order has failed to appreciate properly the legal position and as such in the interest of justice the said order is liable to be reviewed. The order dated 7.4.2003 was unsuccessfully assailed by the present petitioners before the Board of Revenue U.P. Allahabad. Feeling aggrieved against the aforesaid two orders dated 7.4.2003, passed by the Additional Commissioner Allahabad, in Revision No. 83/97/98-99 and the order dated 07.05.2003 passed by the Board of Revenue U.P. at Allahabad, the present writ petition has been filed for quashing of the aforesaid two orders as well as the order dated 23.12.1998.
4. Heard learned Counsel for the parties and perused the record.
5. The Additional Commissioner by the order dated 23.12.1998 (Anneuxre-8) allowed the appeal and revision on the short ground that proper opportunity of hearing was not given to the parties concerned. He was of the view that before disposal of the issues it is necessary that the substitution should be decided first. He was also of the view that since the order under revision before him was passed without affording an opportunity to the heirs of the deceased/defendant No. 3, therefore, the matter should be reconsidered by the trial court after substituting the heirs of the deceased and giving them an opportunity in the matter. This order has been reviewed by the new incumbent solely on the ground that the order passed by his predecessor was not in accordance with law.
6. Mainly the order dated 7/4/2003 is under challenge in the present petition. The order passed on the review application is cryptic and does not disclose any application of mind. In Para 3 of the order it has been stated that plaintiff Rishi Ram has failed to produce the evidence to show that the issue raised in the present suit could or ought not be raised before the consolidation authorities. The said observation is totally uncalled for in as much as the stage of giving evidence had not yet arrived at as only issues were framed and in the suit recording of evidence had not yet commenced.
7. After framing the issues the trial-court had fixed 8/8/97 for recording the evidence. Therefore, the Additional Commissioner proceeded to decide the review application on wrong assumption of facts and without taking into consideration the material on record. The Additional Commissioner has proceeded to decide the review application with a wrong angle, as if, he was hearing appeal or revision against the order of his predecessor in the office. In para 2 of the order he posed a question as to whether an issue which could have been raised or ought to have been raised before the consolidation authorities could be raised, subsequently, alter close of the consolidation operation in a suit under Section 229-B or not. With this background in his mind he proceeded to decide the review application. The Additional Commissioner has failed to take notice of this fact that he was dealing with a review application and possesses only a very limited jurisdiction. The question posed by him was not at all germane for the decision of the review application. At the most he could consider while deciding the review application if there is any error apparent on the face of the record in the order dated 12.12.1998 passed by his predecessor. It is now well settled that while deciding a review application it is not open to the Court to correct an error of judgment. The Apex Court in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma with regard to the extent and scope of power of review vested in Court has observed as follows :-
Power of review may he exercised on the discovery of new and important matter or evidence which after exercise of due diligence was not within the knowledge of the person making review or could not be produced by him at the time when the order was made. It may be exercised where some mistake error apparent on the face of record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused that the appellate power which may enable the appellate court to correct all manner of errors committed by the subordinate court.
8. In view of above authoritative pronouncement by the Apex Court it is held that subsequent incumbent Sri D.M. Shukla on the post of Additional Commissioner exceeded in his jurisdiction and committed illegality in allowing the review application dated 12.1.1999 and setting aside the order dated 23.12.1998, There is no finding in his order that there was an error apparent on the face of the record in the order sought to be reviewed. In this view of the matter the order dated 17.4.2003 can not be sustained and is liable to be quashed. The Board of Revenue against the aforesaid order has dismissed the revision summarily and failed to appreciate the question of law involved therein. The only paragraph which is relevant in the order of the Board is quoted below, which reads as follows :-
4. That the learned Additional Commissioner has considered the matter properly and has recorded a finding that the present suit would be deemed to be barred by Section 49 of the U.P.CH. Act. He has relied on various rulings of the Hon’ble High Court and the Hon’ble Board of Revenue. There is no factual mistake or jurisdictional error in the impugned order passed by the learned Addl. Commissioner to justify interference at this stage.
9. Revision against the order allowing review, the Board of Revenue failed to address itself about ambit of power of review possessed by the authority subordinate to it. The Board of Revenue thus, decided the revision without considering that the Additional Commissioner has exceeded in its jurisdiction while allowing the review application. The observation in the order of the Board of Revenue that there was no jurisdictional error in the order of the Additional Commissioner is legally incorrect and the said observation is hereby set aside.
10. The upshot of the above discussion is that the Additional Commissioner exceeded in its jurisdiction while setting aside its earlier order dated 23.12.1998 and allowing the review application and in passing the impugned order dated 7.4.2003 (Annexure-10 to the writ petition). The order dated 7.4.2003, passed by the Additional Commissioner (Annexure-10 to the writ petition) is, therefore, quashed. Consequently, the order of the Board of Revenue dated 7.5.2003 (Annexure-11 to the writ petition) dismissing the revision against the said order dated 7.4.2003 is also hereby quashed with the result that the order dated 23.12.1998 passed by the Additional Commissioner (Annexure-8 to the writ petition) is restored back and the matter stands remanded to the Sub Divisional Magistrate, Handia. Since more than fifteen years have already lapsed, at this distance of time it would not serve the interest of justice to direct the trial court to re decide as to whether issue no. 3 should be decided as a preliminary issue, before recording the evidence. This Court, therefore, in exercise of its supervisory jurisdiction directs the trial court to proceed to record the evidence of the respective parties than decide the issue no. 3 along with other issues. To this extent the order dated 23.12.1998 passed by the Additional Commissioner stands modified and substituted by this order. It is a sad affair to note that due to filing of revision/appeal and review application against an interlocutory order dated July 27, 1997 suit is stale at its infancy and recording of evidence has not yet started. Delay in deciding a lis is against the interest of society in general and it causes unnecessary harassment to litigants in particular. The trial court should now make an endeavour to decide the suit expeditiously, preferably within one year from the date of the production of certified copy of this order before it.
11. The writ petition is allowed as indicated above with costs assessed at Rs. 1000/- payable by the respondent
Nos. 6, 7 and 8 to the petitioners.