ORDER S. N. Srivastava, J.
1. By an order dated 30th July, 2003, Assistant Settlement Officer Consolidation remanded the matter to Consolidation Officer to decide the case on merits in accordance with law. The said order was affirmed by the Deputy Director of Consolidation in revision by an order dated 20.10.2003. These two orders are impugned in the present writ petition.
2. Learned counsel for the petitioners urged that the appeal preferred by the contesting respondents was not maintainable inasmuch as it was filed after notification under Section 52 (1) of the U. P. Consolidation of Holdings Act (hereinafter called as the 'Act') dated 8.2.1986 and the appeal cannot be heard and decided on merits as it was not pending on the date of publication of notification under Section 52 (1) of the Act. Learned counsel further urged that the order, considering the case of contesting respondents on merit and remanding the matter to be considered on merits by Consolidation Officer, was without jurisdiction.
3. Learned counsel for the caveator urged that actually appellate authority rightly passed an order in accordance with law on merits. He further urged that appeal was filed along with a application under Section 5 of Indian Limitation Act dated 26.10.2002, the delay in filing appeal was already condoned and revision preferred against the said order was dismissed on 29.5.2003 the said order has become final. The effect of that order is that the appeal shall be deemed to be pending on the date of notification under Section 53 of the Act and was rightly decided under Section 52 (2) of the Act.
4. The land in dispute was recorded in the name of Vikramaditya in the basic year. Petitioners got his name expunged on the basis of some compromise. The heirs of Vikramaditya filed appeal against order for expunging name of Vikramaditya on the ground, inter alia, that no compromise was entered into and the name of Vikramaditya, father of contesting respondents, was wrongly expunged from the revenue records and petitioner's name was wrongly recorded on the basis of forged compromise. As petitioners have no right, title or interest under law, order and compromise was liable to be quashed,
5. Considered the arguments of the learned counsel for the parties. In order to appreciate the fact and in order to the associate rival contention, Section 52 (2) of the Act is necessary to be quoted :
"52. (2) Notwithstanding anything contained in Sub-section (1), any order passed by a Court of competent jurisdiction in cases of writs filed under the provisions of the Constitution of India, or in cases of proceedings pending under this Act on the date of issue of the notification under subsection (1), shall be given effect to by such authorities as may be prescribed and the consolidation operation shall, for that purpose, be deemed to have not been closed."
6. From the, material on record it transpires that an order dated 18.10.1977, passed in Case No. 2575 under Section 12 of the Act, appears to be passed on the basis of compromise. The contesting respondents challenged the said compromise and explained delay in filing appeal. The application, after condonation of delay, was allowed by appellate authority on being satisfied on the question of sufficient cause for condonation of delay. Order dated 29.5.2003 passed by the appellate authority was affirmed in revision.
7. Once the delay in filing appeal was condoned, the appeal shall be treated to be within time and shall be deemed to be pending on the date of notification under Section 52 (1) of the Act. Impugned order considering appeal on merits and remanding the matter to the Consolidation Officer to decide the case of the parties on merits, was rightly passed in accordance with law. The argument of the learned counsel for the petitioners that since appeal was filed after date of notification under Section 52 of the Act and as such impugned order cannot be passed, is unsustainable in law.
8. Assistant Settlement Officer Consolidation rightly remanded the matter to Consolidation Officer to frame issue to record evidence of the parties and to provide opportunity of hearing in order to decide the case on merits. Parties have been given full opportunity now to plead their case, lead evidence in support of their pleadings and opportunity of hearing to establish their title on merits. The order of remand passed by Assistant Settlement Officer Consolidation as affirmed by the revisional court were rightly passed in accordance with law. There is no infirmity, Illegality or perversity in the judgment impugned.
9. Petition lacks merit and is, accordingly dismissed.