JUDGMENT S.K. Singh, J.
1. By means of this writ petition, petitioners have challenged the judgment of the Deputy Director of Consolidation Varanasi dated 24.12.92 (Annexure-4 to the writ petition).
2. For disposal of the matter the facts in brief will suffice. Dispute relates to the property which was Bhumidhari of Devi Prasad. Land comprised in Khata No. 23 and 24 situated in village Jaisinghpur District Varanasi is in dispute. On the death of Devi Prasad name of Jugri is said to have been mutated as his widow who was the natural heir under Section 171 of U.P. Z.A. & L.R. Act. It is said that after the start of the consolidation proceedings except the Khata in disute name of Suit. Jugri continued over land of other Khata and over the land in dispute name of daughter of Devi Prasad viz. Sitabi was got entered by alleged reconciliation/order at the level of Assistant Consolidation Officer. It is said that for the first time fraud came to the knowledge when husband of Suit. Jugri Started negotiating the land in dispute and he executed agreement to sale then she filed a suit under Section 229-B of U.P.Z.A. & L.R. Act. It is thereafter the file of the proceedings of the Assistant Consolidation Officer was got traced with great difficulty with the intervention of the authorities on 26.4.89. In the meantime Suit. Jugri executed a registered will deed in favour of the petitioner on 11.4.1988 and having become natural heir of the deceased on inspection of the file, an appeal was filed before the Settlement Officer Consolidation. Appellate authority by taking note of the fraud and manipulation in the matter, by assigning reasons condoned the delay in filing appeal and remanded the matter back to the Consolidation Officer for deciding the ease of the parties on the merits by judgment dated 2.12.1989. Against the judgment of the appellate authority opposite party filed revision which was allowed by the Deputy Director of Consolidation by judgment dated 24.12.92 and thus the same is under challenge by the petitioner.
3. Parties counsel have been heard at length.
4. Submission of the learned counsel for the petitioner is that the Deputy Director of Consolidation has illegally interfered in the discretion so exercised by the appellate authority by which delay in filing appeal was condoned and matter was remanded back to the Consolidation Officer for fresh decision on the merits. It is submitted that it was clear case of fraud as Smt. Jugri was admittedly the widow of Devi Prasad and Sitabi was the daughter of the deceased Devi Prasad and therefore entry at the start of the consolidation proceedings in favour of Sitabi on the basis of alleged reconciliation in which admittedly Jugri was not party can only by the result of fraud. Submission is that Jugri Devi is widow of the deceased and she was recorded over land of other Khata and therefore she could not come to know about the entry in favour of Sitabi over Khata in question and it: is only when the land was tried to be disposed of a suit was filed and thereafter on the basis of registered will executed by Jugri on her death petitioners filed appeal which was allowed by the Settlement Officer Consolidation after condoning the delay and the parties were directed to get their rights decided on the merits. Submission is that on the findings and the reasons so given by the appellate authority the exercise cannot be said to be illegal or perverse in any manner and therefore, interference was not called for. Lastly, it is submitted that the emphasis in the judgment given by the Deputy Director of Consolidation for not permitting the petitioner to get trial on the merits is that petitioners were not party in the proceedings before the Assistant Consolidation Officer and therefore, they have no right to file appeal is totally erroneous and thus judgment of the Deputy Director of Consolidation be interfered so that justice may be done.
5. In support of the submission that, appeal filed by any person aggrieved who is not party in the proceeding can be maintainable reliance has been placed on the decision given in case of Jagmohan Singh and Ors. v. Deputy Director of Consolidation Varanasi and Ors. reported in 1983, RD, paga 65, Brahmadeo and Ors. v. Deputy Director of Consolidation at Deoria and Ors. reported in 1986 RD, page 166 and in case of Sumer Chand v. Divisional Commissioner, Dehradun and Ors. reported in 2003(95) RD page 596.
6. In support of the submission that as the order of appellate authority was of remand no revision was maintainable reliance has been paced on the decision given in case of Rajbir and Ors. v. Deputy Director of Consolidation, Meerut and Ors. reporterd in 1999 RD, page 313, Ajab Singh and Ors. v. Jt. Director of Consolidation and Ors. reported in 1996 RD, page 104 and in case of Kshitish Chandra Bose v. Commissioner of Ranchi reported in AIR 1981 SC, page 707.
7. In response to the aforesaid submission Learned counsel for the respondents vehemently submits that as provided under Section 11 of U.P.C.H. Act appeal can be filed only by a party in the proceedings under Section 9A (2) of the U.P.C.H. Act and therefore, Deputy Director of Consolidation has rightly allowed the revision and held the appeal filed by the petitioners to be not maintainable. It is further submitted that order was passed by the Assistant Consolidation Officer in the year 1964 and therefore after such a long time filing of appeal cannot be said to be justified and on the facts it has been fully established that there is nothing wrong in the order of the Assistant Consolidation Officer which was based on the reconciliation.
8. In support of the submission that appeal under U.P.C.H. Act can be filed only by the party to the proceedings under Section 9-A(2) of U.P.C.H. Act and not by any other person reliance has been placed on the decision given in case of Bala Prasad v. Deputy Director of Consolidation Banda and Ors. reported in 2003(94) RD, 405, Rishal Singh v. Board of Revenue U.P. Alld. and Ors. reported in 1970 RD, page 413 and in case of Kushar v. Ahmad Khan and Ors. reported in 1962 RD, 172.
9. In the light of the aforesaid arguments the court has examined the matter.
10. In view of the serious argument as has come from both sides the main issue which is to be dealt with by this court is that whether appeal filed by the petitioners who were not party in the proceedings under Section 9-A(2) of U.P.C.H. Act can be said to be maintainable and thus their claim can be examined in appeal. The appellate court and the revisional court deferred on the matter. Appellate court has entertained the appeal and considered the contentions on the merits and by recording reasons condoned the delay in filing appeal and remanded the matter back to the Consolidation Officer for fresh trial on the merits whereas revisional court was of the view that petitioner not being party in the proceedings they have no right to file appeal and thus appeal being not maintainable at their instance the order of the Assistant Consolidation Officer could not have been permitted to be reopened.
11. Parties counsel have placed reliance on several cases on the point and therefore it will be proper to have a look to the matter in the light of pronouncement on the subject.
12. To begin with, I may take the case as referred by the Learned counsel for the respondents. The first decision as referred is the decision in case of Bala Prasad (Supra). This court by quoting Section 11 of U.P.C.H, Act by reading its plain language has opined that only party to the proceedings can file appeal. Other decision referred by the learned counsel is of Rishal Singh (Supra) in which it has been held by this court that appeal was rightly dismissed as appellate court has not found the appellant to be aggrieved person. Thus, so far this case is concerned it is not directly on the point. Other decision as referred by the learned counsel for the respondent i.e. in case of Kushar (Supra) that is on the point that entries finally made in the consolidation record cannot be permitted to be re-investigated in view of Section 49 of the U.P.C.H. Act and determination of title over the land in consolidation under Sections 9 to 11 is final and they are not be questioned in any court of law and thus that is also not on the point.
13. To the counter to the cases referred above, now a look to the decision as referred by the learned counsel for the petitioner appears to be direct on the point. In case of Jagmohan Singh (Supra) maintainability of the appeal by a person not party to the proceedings under Section 9-A(2) of U.P.C.H. Act was considered in detail, placing reliance on the pronouncement of the Apex Court. The consideration as made by this court can be extracted here-
"No exception can be taken to the argument advanced by the learned counsel as a general proposition. It further cannot be disputed that Legislature in conferring right since 1964 on, any party to the proceedings aggrieved by an order as against any person aggrieved by the order intended to restrict the right of appeal. Yet the question is whether the expression 'any party to the proceeding' is to be understood in such narrow sense as suggested by learned counsel for opposite party. Construed literally if 'A" was party and he died after the order was passed by consolidation officer but before expiry of limitation for period of appeal his heirs shall have no right to approach Settlement: Officer (Consolidation under Section 11 of the Act), because they were not party and consolidation of Holdings Act does not provide for such contingency. While interpreting a provision it is not only the langauge but its setting, background and objective which has also to be kept in mind. The Legislature while restricting the right of appeal could not have intended to confine it to those persons only who were either objector or contester. That would be too narrow a construction. If the interpretation as suggested by learned counsel for opposite party is accepted it is likely to cause immense hardship and would give rise to complications.
Appeal under Section 11 lies against orders passed by Assistant Consolidation Officer and Consolidation Officer under Section 9. If the intention would have been to confine it to Sub-clause (i) of Section 9-A (1) it. would have been mentioned there. But on the language as it stands appeal lies against orders passed under Sub-clause (ii) of Section 9-A(1) as well. If it is confined to party or objector or contestor then obviously no appeal would lie against such order. And yet an order passed under Section 9-A(1) may be prejudicial to a person.
In Section 96 of Civil Procedure Code, appeal lies from every decree passed by any court. The language used is of widest import. But. can it be suggested that an appeal can be filed by any person or stranger who has nothing to do with the decree. Even without the use of expression 'party to the decree' the words have necessarily to be read there.
Similarly in State of Punjab V. Amar Singh it was held both by majority and minority that an appeal could be filed even by a person who was not party to the proceedings. In paragraph 84 it was held-
"Firstly there is a catena of authorities which following the doctrine of Lindley, L.P., in re Securities Insurance Co have laid down the rule that a person who is not a party to a decree or order may with the leave of the Court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it. As a rule, leave to appeal will not be refused to a person, who might have been made ex-nominee a party."
Crux of the matter appears to be the prejudice or injury which is caused to a person by the order. If there is injury then whether the statute says so or is silent, whether the language is narrow or wide the remedy of appeal provided can be availed both on principle of natural justice and existence of prejudicial order against person concerned. In light of these principles a person who is effected by an order of consolidation officer cannot be deprived of approaching the appellate authority.""
14. Similarly in another decision given in case of Bramadeo (Supra) this court was ceased with similar issue and in this decision also the matter was considered in detail which will also be useful to be quoted here. The analysis as made in para 8 to 11 in this judgment is quoted here-
"8. At this stage I consider it proper to have Dictionary meaning of word 'Party'. IN view of dictum in P.B. Samant v. A.R. Antuley dictionary meaning of a word can be ascertained to have correct interpretation, In Webster Third New International Dictionary word 'Party' denotes one directly disclosed by record to be so involved in the prosecution of defence of a proceeding as to be bound by the decision or judgment therein; one indirectly disclosed by the record as being directly interested in the subject matter of a suit or as having power to make a defence or control the proceedings or appeal from the judgment meaning of 'party is.
9. According to 'Bourvier's Law Dictionary' 'Parties' in law may be said to be those united in interest in the performance of an act. That term includes every party to an act. In equity all persons materially interested, either legally or beneficially in the subject matter of a suit, are to be made parties to it, either =as plaintiff or defendant so that there may be a complete decree that may bind them all (see Christian v. R. Co). It is not indispensable that all the parties should have an interest in all the mattes contained in the suit, but it is sufficient if each party has an interest in some material matter in suit, and it is connected with the orders (see Erown v. Safe Deposit Co). In the absence of parties and without their having an opportunity to be heard, a court is without jurisdiction to make an adjudication affecting them. Active parties are those who are so involved in the subject matter in controversy that no decree can be made without their being in court. Passive parties are those whose interests are involved in granting complete relief to those who ask it.
10. Accordingly to words and Phrases (Permanent Edition) Volume 31 in its broadest meaning, the word party includes one concerned with, conducting, or taking part in any matter or proceeding, whether he is named or participates as formed party or not. A party to a judicial proceedings is one whose interest in subject matter, whether favourable or adverse is such that his presence on the record is either necessary or proper.
11. In view of the aforesaid meaning of the word 'party' it is evidence that if a person is concerned with conducting or taking part in any matter or proceeding he is a party even though he may not have been impleaded or made a party by the other wise. Further the words under Section 11 of the Act are, 'any party' and not 'any person impleaded as party'. Legislature can not make such provision that if an interested person is not made a party by the other wise he cannot file an appeal, and he is helpless. Assuming he does not file an appeal he shall have to file an objection afresh which would be barred by Section 11-A in case he files a civil suit for cancellation of the order of the Consolidation Officer or Assistant Consolidation Officer that can abate under Section 5. In case he does not file an appeal or objection during consolidation operation, and if he prefers to file a suit after de-notification under Section 52, his suit would be barred by Section 49 of the Act. By enacting Section 11 and using word 'any party' the intention of the Legislature cannot be to deprive a person from right of appeal. The interpretation of a particular statutory provision has to be effective and operative. I am accordingly, of the view that petitioners have a right of appeal even though they were not impleaded as a party in the objection filed by Smt. Rama Devi, respondent No. 4."
15. In these cases it was held that appeal filed by any aggrieved person is maintainable.
16. In another decision, in case of Sumer Chandra (Supra) again the matter was considered and it was held that appeal by any aggrieved person is maintainable. In this decision reliance has been placed on the decision given by the Apex Court in case of Jatan Kunwar Gocha v. Golcha Properties Pvt. Limited reported in 1971 SC, 374 and AIR 1979 Orissa, page 175. The extract of para 18 and 19 will be useful to be noticed here-
"18. In Abdul Rasid Khan v. S.K. Rahimmullam. It has been held that a person who is not a party to the suit may prefer an appeal. Reliance was also placed in the judgment of the Apex Court which is quoted below-
AIR 1979 Orissa, 175.
"In Smt. Jatan Kunwar Golcha V. Golcha Properties Pvt. Ltd. it has been held that it is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the Appellate Court and such leave should be granted if he would be prejudicially affected by the judgment. This decision has also been followed by a Division Bench of this Court in Teja Singh v. A.D.M. (Executive) Suldargarh). It was open to the petitioner to ask for leave to appeal to the Appellate Court and if he is prejudicially affected, leave was to be granted, as has been held by the Supreme Court in the case referred to above. But the petitioner did not take recourse tot his position."
19. In the aforesaid judgment, reliance has been placed on the judgment of the Apex Court reported in Smt. Jatan Kunwar Golcha v. Golcha Properties Pvt. Ltd. (in Liquidation). The relevant portion of the Apex Court is quoted below-
"AIR 1971 SC 374 (V 58 C 91) "In our opinion apart from Rule 139 to which reference has been made by the High Court the Official Liquidator as well as the learned Company Judge were bound by the rules of natural justice to issue a notice to the appellant and hear her before making the order appealed against. If there was default on their part in not following the correct procedure it is wholly incomprehensible how the appellant could be deprived of her right to get her grievance redressed by filing an appeal against the order which had been made in her absence and without her knowledge. It would be a travesty of justice if a party is driven to file a suit which would involve long and cumbersome procedure when an order has been made directly affecting that party and redress can be had by filing an appeal which is permitted by law. It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate court and such leave should be granted if he would be prejudicially affected by the judgment."
17. On examination of the aforesaid pronouncement it is clear that the decision given by this court in case of Bala Prasad (Surpa) holding that appeal by a person who is not party in the proceedings under Sect in 9-A(2) of U.P.C.H. Act is not maintainable has not noticed the decision of the Apex court and the consideration as made whereas other decisions on the point as referred in this judgment has noticed the view as has been taken by the Apex court for holding that appeal by any aggrieved person is maintainable. In view of the above this court takes an opportunity to add something.
18. We have noticed the trend of the pronouncement in other decisions including that of the Apex Court that if a person satisfies the appellate court that he is adversely affected by the decision of the court and he can be brought within the purview of person aggrieved then appeal at his instance can be maintainable. So far the language of Section 11 of the U.P.C.H. Act although it states that-
"Any party to the proceedings under Section 9-A aggrieved by order of the Assistant Consolidation Officer or the Consolidation Officer under that Section may within 21 days of the order file an appeal before the Settlement Officer Consolidation"
19. But at the same time we will have to consider the sprit behind the remedy of appeal, so available to a party preferring appeal. If an order is passed by the Assistant, Consolidation Officer/Consolidation Officer and a person is party in the proceedings and he is aggrieved by order he can get himself satisfied by filing an appeal but even if a person is aggrieved by order of Assistant Consolidation Officer/Consolidation Officer but as he is not party he can not file appeal. Thus irrespective of right to file appeal and its maintainability relief is to be given to a person, who satisfies appellate court that he is adversely affected. Unless this is proved, appellate court will not allow appeal which has been filed even by the person who was party in the proceedings. Therefore the required satisfaction for appellate court is prejudice to the person whether he was party or not. It will be harsh to say that, "will, a person is able to prove injury by an order but he will not be heard in appeal although against order of Consolidation Officer, otherwise appeal lies, as he was not party. If this view is taken then that will lead to very alarming situation in as much as before the Assistant Consolidation Officer/Consolidation Officer anybody just may file an objection/claim without any right and obtains an ex-parte order without any proper service, or on basis of some compromise or by any other device and then take plea that look here your appeal is not maintainable and thus leave that aggrieved person to run here and there in the trace of his proper forum where to get justice and from which court/forum to get hearing in respect to the order so to be challenged. Cases as are decided under Section 9-A (2) of U.P.C.H. Act is concerned, needless to say that it is the forum to decide question of title of the parties. On its finality Section 49 of the U.P.C.H. Act bars fresh adjudication by any court either civil court or revenue court in respect to the claim of the parties which was either decided or might or ought to be decided. A look to the provisions of Section 49 of U.P.C.H. Act at this stage will also be proper Section 49 Bar to Civil Court jurisdiction-Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure holders in respect of land by the lying in an area, for which a (notification) has been issued (under Sub-section (2) of Section 4) or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no Civil or Revenue Court, shall entertain any suit or proceeding with respect, to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act:
(Provided that nothing in this section shall preclude that Assistant Collector from initiating proceedings under Section 122-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 in respect of any land, possession over which has been delivered or deemed to be delivered to a Gaon Sabha under or in accordance with the provisions of this Act).
20. Thus after the order passed by the Assistant Consolidation Officer/Consolidation Officer if aggrieved person is required to file his fresh objection that can be said to be barred under Section 11 of U.P.C.H. Act and during pendency of the consolidation proceedings if that person is required to go in the civil court to get order of the Assistant Consolidation Officer/Consolidation Officer set aside then on account of continuance of the consolidation proceedings that suit may be required to be abated and in case that person do not file appeal and wait for de-notification under Section 52 of U.P.C.H. Act then bar of Section 49 of the U.P.C.H. Act may come into play and thus by taking any mode/recourse a person who feels himself aggrieved and adversely affected by the order of the Assistant Consolidation Officer/Consolidation Officer he has to run from pillar to post for getting needful done. It is in this context the Apex court in case of Smt. Jatan Kunwar (Supra) has made the following observation-
"It would be a travesty of justice if a party is driven to file a suit which would involve long and cumbersome procedure when an order has been made directly affecting that party and redress can be had by filing an appeal which is, permitted by law. It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate court and such leave should be granted if he would be prejudicially affected by the judgment."
21. In view of the aforesaid the main clue appears to be that if a person is able to satisfy the appellate court that he is adversely affected by the order and he under law can be said to be aggrieved by that order then by leave of the court appeal can be entertained and his contention on the merits can be examined. After this analysis if we take the view that appeal will be not maintainable that, will be too harsh and that will be in violation of principle of natural justice. If inspite of proof of prejudice and adverse effect from the order sought to be challenged under appeal, the appeal is held to be not maintainable then it may lead to very drastic results. 'A' obtains order behind the back of 'B' without impleading him and then 'A' sits in safe zone after taking advantage of his fraud, if it is so and 'B' starts running here and there instead of direct remedy of appeal, as it is said to be not maintainable, 'B' is either to file suit against order of Assistant Consolidation Officer/Consolidation Officer or to wait for notification under Section 52 U.P.C.H. Act or during continuance of Consolidation of Holding proceedings he is to approach Civil Court, it will remain big question. The intention of legislature cannot be interpreted in this way. Thus it can be safely held that if there is an order to which a person is not party then on satisfaction of the court about prejudice or adverse effect on him that very court or if matter is taken up by way of appeal by appellate court the contention is to be examined on the merits subject to of course proof of adverse effect and prejudice from the order challenged.
22. In view of the analysis made above this court is of the considered view that as and when there is an order by the Assistant Consolidation Officer/Consolidation Officer any person claiming himself aggrieved on proof of prejudice and adverse effect from the order sought to be challenged have a right to move that very court or the appellate court and his contention has to be examined on merits subject to recording of a findings and the satisfaction about prejudice.
23. Here is the case where the Settlement Officer Consolidation after recording his satisfaction about prejudice and adverse effect on the recorded person, by mentioning the claim of the parties and the facts in brief have chosen to remand the matter back to the Consolidation Officer for a fresh trial on the merits. Appellate authority has further recorded a finding that all the parties/recorded persons and even member of the consolidation committee are not the signatory to the reconciliation on the basis of which the order was passed in favour of the opposite party. Thus the facts and the reasons as has been given by the Settlement Officer Consolidation by which order of remand was recorded has not been considered by the Deputy Director of Consolidation. He appears to have been heavily impressed by the consideration that as compromise order was not challenged by the recorded person, on the appeal filed by the petitioner the matter could not have been examined. This court is of the view that interference by the Deputy Director of Consolidation on the aforesaid consideration cannot be said to be justified. In view of the aforesaid discussion the argument as advanced by the learned counsel for the petitioner that order of remand being interlocutory no revision was maintainable before Deputy Director of Consolidation, needs no answer in this case.
24. For the analysis made above, this writ petition succeeds and is allowed. The judgment of the Deputy Director of Consolidation dated 24.12.1992 (Annexure-4 to the writ petition) is hereby quashed. Now Consolidation Officer will proceed in the matter in the light of the directions as given by the appellate authority in its judgment dated 2.12.1989 with all expedition in accordance with law after affording full opportunity of evidence and hearing to the parties without allowing any unwarranted adjournment unless it is required for very compelling reasons as the matter is quite old.
25. Parties are to bear their own costs.