- (1.) S. N. Srivastava, J. The dispute in the instant petition revolves round the lands bearing Plot Nos. 2580, 2238 and 2199 admeasuring 2 acres, 3. 0 acres and 0. 10 acres respectively situated in village Kasidahan, Taluka Korh, Pargana Bhadohi, Tahsil Gyanpur District Bhadohi (Sant Ravi Das Nagar) and facts constitutive of the grievances of the petitioner are that a patta had been executed by Maharaja Kashi Naresh in the year 1943 in respect of the aforesaid land in favour of petitioner's father and when the consolidation operation commenced to run in the village, father of the petitioner filed objection under Section 9 of the U. P. Consolidation of Holdings Act thereby staking claim of sirdari rights over the plots in question. The objection came to be decided by means of the judgment dated 22-3-1966 in which the father of the petitioner was held to bear sirdari rights. It would appear from the record that the respondents were not arrayed in the aforestated proceeding under Section 9 of the C. H. Act preferred an appeal against the orders dated 22-3-1966 passed by Consolidation Officer after an efflux of more than 19 years on the premises inter alia that part of the land was constituent of their Abadi and was in their possession. The present petitioner resisted claim by filing counter-affidavit and it would appear that the petitioner sought hearing of the case on the point of maintainability and delay and also prayed that only thereafter the appellate Court could proceed and decide the appeal on merit. The plea of the petitioner did not find favour with the Settlement officer consolidation who passed an order dated 6-12- 1997, the essence of which is that since the matter related to the claim that it was property of Gaon Sabha and instead of hearing the matter on question of maintainability alone, the entire appeal has to be decided on merit including consideration on the point of delay. The revision filed against the order of the Settlement Officer Consolidation too met the fate of dismissal. It is these two orders, which aggrieved the petitioner who has canvassed their validity by means of the present petition.
(2.) HEARD Sri Namvar Singh learned Counsel for the petitioner, Sri G. P. Yadav, learned Counsel appearing for the contesting opposite party No. 9, Sri Anuj Kumar, learned Counsel representing the Gaon Sabha and the standing Counsel. Learned Counsel for the petitioner began his submission stating that the appeal in the matter was filed by the contesting respondent after an elapse of more than 19 years and unless the delay was condoned, the consolidation authorities had no jurisdiction to proceed to decide the case on merit. He further submitted that the Settlement Officer Consolidation fell into error in taking a view that the question of maintainability and merit could be heard and decided by a composite order. He further canvassed that contesting opposite party was not a party to the proceeding before the Consolidation Officer and therefore, he has no locus standi to canvass the validity of the said order after an efflux of more than 19 years. In opposition, Sri G. P. Yadav, appearing for contesting opposite party No. 9 made his submissions in vindication of the impugned orders contending that the order passed by the Settlement Officer Consolidation was rightly passed and the Deputy Director Consolidation rightly dismissed the revision. It brooks no dispute and rather it is borne out from the record that the contesting respondent was not a party to the proceeding before the Consolidation Officer or the Asstt. Consolidation Officer under Section 9-A of the U. P. C. H. Act and having slept over the matter for over 19 years, the contesting respondent woke up to the urgency of invoking appellate jurisdiction. The question that the contesting respondent who was not a party in the proceedings before the Consolidation Officer under Section 9-A of the U. P. Consolidation of Holdings Act could maintain appeal, is a question of considerable significance going to the root of the matter in relation to the plots in question particularly when respondents were/are not claiming any bhumidhari/sirdari rights and have set up title to Gaon Sabha and whether the petitioner had every justification to agitate the plea of deciding the question of maintainability in the first instance. Before I proceed to deal with the respective submissions advanced across the bar, it would be appropriate to have picture of what Section 11 (1) of the U. P. Consolidation of Holdings Act, 1954 envisages. It may usefully be quoted below : "11. (1) Any party to the proceedings under Section 9- A aggrieved by an order of the Assistant Consolidation Officer or the Consolidation Officer under that section, may within 21 days of the date of the order, file an appeal before the Settlement Officer, Consolidation, who shall, after affording opportunity of being heard to the parties concerned give his decision thereon which, except as otherwise provided by or under this Act, shall be final and not be questioned in any Court of law. " From a perusal of the above provision, there remains no manner of doubt that any party to the proceeding aggrieved by an order of Asstt. Consolidation Officer or Consolidation Officer may, within 21 days of the date of order, file an appeal. In the light of the above, two questions come up for consideration; firstly that the appellant has to establish that he was a party to the proceedings and secondly that he was aggrieved by the order of Consolidation Officer before maintaining his case. Reverting to the orders impugned herein, it would appear from a bare reading of the orders that both the authorities i. e. , Settlement Officer Consolidation and the Deputy Director, Consolidation have not addressed themselves to the most material and vital points as envisaged in the aforestated provisions. It is settled position in law that all persons who have some interest in law within the meaning of Section 9 of the Act, could prefer an appeal provided they were parties to the proceedings before the Consolidation Officer. In the conspectus of the facts and circumstances, the contesting opposite parties are required to establish that they were aggrieved parties though they were not arrayed as parties in the proceedings before the Consolidation Officer filed by the father of the petitioner and secondly that they were required to explain the delay spanning over 19 years in preferring the appeal. They are also required to establish whether they could maintain the appeal. In support of his contention the learned Counsel appearing for the contesting respondent drew attention of the Court to the case law in Sajjan Kumar v. Deputy Director, Consolidation, 1997 RD 118 : 1997 (1) JCLR 368 (All), on which Deputy Director Consolidation placed credence. In this case, the persons claiming to be parties aggrieved were arrayed in the proceeding and were held to be aggrieved and this Court was seized of the question of condonation of delay in filing the appeal. I have bestowed my laborious thoughts over the applicability of the decision and in my considered view, the ratio flowing from the said decision cannot be called in aid in support of the case of contesting respondent in the facts of the present case. In the above case, the Court has been of the view that question of delay as well as merit could be reckoned into consideration and decided simultaneously and by a composite decision but in the present case, opposite parties were not parties to the proceedings. It was not established by them how they were aggrieved against the order of the Consolidation Officer nor have they explained their conduct in sleeping over the matter for over 19 years. It is well-settled position in law that even if a person has not been a party to a proceeding but in some exceptional cases satisfies the Court that he is aggrieved; he may prefer an appeal with the leave of the Court. This view receives reinforcement from the decision of the apex Court in the case of Jatan Kunwar v. Golcha Properties, AIR 1971 SC 374, which being germane to the point under consideration is quoted below: "it is well-settled that a party who is not a party to the suit may prefer an appeal with leave of the appellate Court and such leave should be granted if he is prejudicially affected by the judgment. " But this question requires thorough and analytical consideration but not in literal terms of the above observation as to whether an appeal after a lapse of more than 19 years could be maintainable by a party who was not a party and in this context, I am of the view that the Settlement Officer Consolidation as well as Deputy Director Consolidation fell into error in converging to the view without delving deep into the question of delay spanning over 19 years to the effect that question of maintainability of the case as also merit could be considered and decided together by a composite order. It should also be noted here that revision was filed against the order of Settlement Officer Consolidation directing the case to be hard on the question of maintainability of appeal as well as on merit and in making this direction, the appellate Court had not dwelt upon merit of the case and in the circumstances, the revisional authority overstepped the mark of his jurisdiction in revision by making some observation on the merit which is wholly uncalled for and lends every justification for interference by this Court in exercise of its extra-ordinary jurisdiction under Article 226.
(3.) IN the peculiar facts and circumstances of the case when appeal has been preferred after an efflux of more than 19 years, and also having regard to the fact that they were not parties to the proceeding under Section 9-A of the Act before the Consolidation Officer and that respondents were/are claiming their title in the Gaon Sabha and not any bhumidhari or sirdari rights, the question that needs to be considered and decided by the appellate Court is whether the contesting respondent is aggrieved party or prejudicially affected by the orders of the Consolidation Officer under Section 9 of the U. P. Consolidation of Holdings Act. All such questions relate to maintainability of the appeal and have to be decided first by the appellate Court before proceeding which requires consideration is whether the appellant had prayed for leave of the Court to file appeal. If any such prayer has been canvassed, the appellate Court then is enjoined to clinch the question whether leave should be granted and appeal should be permitted to be filed. IN the conspectus of the above discussion, I am of the view that the question of maintainability of appeal has to be dealt with and decided first by the appellate Court and in case, the appellate Court converges to the view that appeal is maintainable only then it could proceed further to decide the appeal on points involving merits. As a result of foregoing discussion, petition succeeds and is allowed. The impugned orders are quashed and the matter is directed to be remitted to the appellate Court for decision afresh on the questions aforestated and in the light of the observations embodied in this judgment. Petition allowed. .;