- (1.) THIS writ petition has been filed challenging the order dt. 15-2-2006 passed by the Deputy Director of Consolida­tion (for short D.D.C) under Section 48 of the U.P. Consolidation of Holdings Act (here­inafter referred to as 'the Act') remanding the matter to the Consolidation Officer after set­ting aside the order passed by the Consolida­tion Officer (for short C.O.) dated 26-9-1985 and also the order dated 21-5-2002 passed by the Settlement Officer Consolidation (for short S.O.C)/appellate authority, confirming the order passed by the C.O., and prayed to set aside the order passed in the Revision dated 15-2-2006.
(2.) HEARD learned counsel for the parties and perused the record. First point to challenge the validity of the order dated 15-2-2006 is that against the order of the appellate authority (S.O.C) no revision was maintainable as provided under Rule 109 (3) of the Rules of the Act, where appeal has been provided against the order of the C.O. and the respondent No. 2 had availed this opportunity and filed the appeal which was dismissed by the S.O.C. vide his order dated 21-5-2002. It is provided under Rule 109 (3) that the appellate court's order is final, hence the revision against the order was not maintainable. Learned counsel for the respondent No. 2 cited law reported in 2008 (3) AWC 2793 : (2008 (4)'ALJ 518) Subba and others v. D.D.C., where this court held that under Section 48 of the Act, D.D.C. is not precluded from examining the correctness of an order passed by the S.O.C., under Rule 109 of the Rules of the Act. No law in reply has been cited on behalf of the petitioners. Hence, in view of the law laid down by this Court referred above, this argument of learned counsel for the petitioner is without merit.
(3.) OTHER grounds for challenge are as fol­lows: (A) On the basis of the possession of the petitioners on the property in dispute, their names were recorded by the C.O., vide its or­der dated 26.09.1995 and their possession was never denied either by the respondent No. 2 or his father and the case filed by father of the opposite party No. 2 under Section 209 of the U.P.Z.A and L.R. Act against the petitioners was dismissed and petitioners' possession was also certified by the Naib Tehsildar of the area in his report dated 17-1-1968. (B) Their possession and ownership on the property in dispute was held by the learned District Judge in Land Acquisition Case (Ref­erence No. 60 of 1976 Matabadal Singh v. Ghirou) vide order dated 12-12-1978 (Annexure No. 3 to the writ petition) which was also confirmed by this Court in F.A.F.O. No. 41 of 1979 Ghirou v. Mata Badal Singh (Annex-lire No. 7) and their possession was also ac­cepted by Khusi Ram in his statement re­corded on 30-11-1988 (Annexure No. 8). 5. Counter affidavit filed by the respon­dent No. 2 denying possession of the peti­tioners on the land in dispute and he has also claimed his father's possession and after the father's death he himself is in possession of the property in dispute. 6. Learned counsel for the respondent No. 2 argued that the order dated 26-9-1985 was passed in ex-parte proceedings without giv­ing opportunity of hearing and the appellate court also rejected the appeal on the point of limitation, although application to condone the delay along with affidavit showing suffi­cient ground for condoning the delay, which was even not rebutted and there was no rea­son to discard and disbelieve the same. No finding on the above points A and B raised and denied by the respondent No. 2 by counter affidavit regarding possession on the prop­erty in dispute was given either by the appel­late court or by the revisional court. Matter has been simply remanded to Consolidation Officer to consider all the arguments and dis­pute raised by either parties and decide the dispute on merit. No opinion has been ex­pressed by the D.D.C., and simply he said that the matter requires reconsideration about mutating the name on the basis of category 9. The order of remand has been passed to decide the dispute afresh on the merit after affording opportunity of evidence and hearing both the parties. There was no evidence of petitioner and the respondent No. 2 on record and in revision finding of fact be cannot be recorded, so opposite party No. 1 was not in a position to decide the matter on merit at the time of passing the impugned order. 7. No opinion has been expressed by the D.D.C in the matter on merit of the case. It is simply a remand order after setting aside the order of C.O. and S.O.C., which were also passed without considering the case of the respondent No. 2 on merit as the order of the C.O., said by the respondent No. 2 was passed in ex parte proceedings, and against the order, appeal was filed with an application under Sec­tion 5 of the Limitation Act to condone the delay which was dismissed on the point of limitation only. It is established law that liberal view should be taken by the court in condon­ing the delay and every effort should be made to decide the matter on merit, after giving op­portunity of hearing and evidence to both the parties. Considering all these aspects, if the D.D.C., has set aside both the orders and re­manded the matter for reconsideration, there is no illegality, infirmity and invalidity in the impugned order. Oder was passed giving rea­sons. No sufficient ground to interfere in the impugned order shown. Impugned order passed is an interlocutory order. Learned coun­sel for the respondent has also argued that no writ petition is maintainable against such or­der. Seeing the nature of the impugned order, this argument of the learned counsel for the respondent No, 2 cannot be said without force. 8. In the circumstances, it is evident that writ petition has not been filed bona fidely and the petitioners have not approached this Court with clean hands. The writ petition has no force and the same is accordingly dismissed. Petition dismissed.;