# Deena Nath and others v. Deputy Director of Consolidation, Ballia and others

- **Citation:** (2010) 2 ILRA 475
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-05-21
- **Case number:** Civil Misc. Writ Petition No. 10166 of 2008
- **Bench:** Sunil Ambwani, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deena-nath-and-others-v-deputy-director-of-consolidation-ballia-and-others-41596
- **Pages:** 14

## Headnote

U.P. consolidation of Holding Act 1953-
Section 48-Revision-against the order.
passed
by
Settlement
officer
of
Consolidation by Setting aside the order
passed by Consolidation officer and
order of remand to decide as freshwhether Revision maintainable? held-
"yes".

Held: Para 31

In view of the foregoing discussions, we
are of the view that the order of the
Settlement Officer of Consolidation by
which appeals were finally decided was
not an interlocutory order and the
revision
under
Section
48
of
U.P.
Consolidation of Holdings Act, 1953 was
clearly maintainable.

Our answers to the questions are as
follows:-

1) an order passed in appeal under
section 11 of the U.P. Consolidation of
Holdings Act by the Settlement Officer
Consolidation deciding the appeal finally
by setting aside the order of the
Settlement Officer Consolidation and
476 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
remanding
the
matter
to
the
Consolidation
Officer
is
not
an
interlocutory order within the meaning
of section 48 of the U.P. Consolidation of
Holdings Act and revision is not barred
against such order under section 48.

2)the law down in Ajab Singh and others
Vs. Jt. Director of Consolidation and
others, reported in 1996 R.D. 104, Rajbir
Vs.
Dy.
Director
of
Consolidation,
reported in 1999 (90) R.D. 313, Rajit
Ram Singh and others Vs. Mahadev
Singh and others, reported in 2002 (93)
R.D. 224 do not lay down the correct
law.
Case law discussed:
1996 R.D. 104, 1999(90) R.D.313, 2002(93)
R.D. 224, A.I.R. 1981 S.C.707, A.I.R.1960 S.C.
941, JT 2000(1) SC 65,1990 R.D.162, A.I.R.
1977 SC 2185, A.I.R. 1980 S.C. 962.

## Text

_Characters 0–39,584 of 45,150. This is a partial read: ask again with offset=39584 for what follows._

2 All] Deena Nath and others V. Deputy Director of Consolidation and others
475
Forms and, therefore, in the absence of
any such prior inquiry there was no
occasion for calling upon the petitioners
to file any objections. The initiation of the
notice itself was absolutely unfounded
and based on no evidence in relation to
the date of death of Sadashiv.

25. The petitioners, in my opinion,
had conclusively proved that Raghu
Nandan died later on after the death of
Sadashiv. The petitioners accordingly
inherited the entire shares of Sadashiv to
the tune of 1/7th each and when Raghu
Nandan
died
thereafter
they
again
inherited his share accordingly. If the
aforesaid calculation is taken to be correct
then there is no surplus land in the hand
of the petitioners. The impugned orders,
therefore, in my opinion, being erroneous
are liable to be set aside. Accordingly, the
order of the prescribed authority dated
31.3.1986 and that of the learned
Commissioner dated 4.2.1988 hereby
quashed. The prescribed authority shall
accordingly, proceed to maintain the
revenue records in relation to the claim of
the petitioners and pass an appropriate
order to that effect in the light of the
conclusions
and
observations
hereinabove.

26. The writ petition is allowed with
no orders as to costs.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.05.2010

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 10166 of 2008

Deena Nath and others ...Petitioners
Versus
Deputy Director of Consolidation, Ballia
and others
 ...Proforma Respondents

Counsel for the Petitioners:
Mr. Rahul Sahai

Counsel for the Respondents:
Mr. J.P. Singh
C.S.C.

U.P. consolidation of Holding Act 1953-
Section 48-Revision-against the order.
passed
by
Settlement
officer
of
Consolidation by Setting aside the order
passed by Consolidation officer and
order of remand to decide as freshwhether Revision maintainable? held-
"yes".

Held: Para 31

In view of the foregoing discussions, we
are of the view that the order of the
Settlement Officer of Consolidation by
which appeals were finally decided was
not an interlocutory order and the
revision
under
Section
48
of
U.P.
Consolidation of Holdings Act, 1953 was
clearly maintainable.

Our answers to the questions are as
follows:-

1) an order passed in appeal under
section 11 of the U.P. Consolidation of
Holdings Act by the Settlement Officer
Consolidation deciding the appeal finally
by setting aside the order of the
Settlement Officer Consolidation and
476 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
remanding
the
matter
to
the
Consolidation
Officer
is
not
an
interlocutory order within the meaning
of section 48 of the U.P. Consolidation of
Holdings Act and revision is not barred
against such order under section 48.

2)the law down in Ajab Singh and others
Vs. Jt. Director of Consolidation and
others, reported in 1996 R.D. 104, Rajbir
Vs.
Dy.
Director
of
Consolidation,
reported in 1999 (90) R.D. 313, Rajit
Ram Singh and others Vs. Mahadev
Singh and others, reported in 2002 (93)
R.D. 224 do not lay down the correct
law.
Case law discussed:
1996 R.D. 104, 1999(90) R.D.313, 2002(93)
R.D. 224, A.I.R. 1981 S.C.707, A.I.R.1960 S.C.
941, JT 2000(1) SC 65,1990 R.D.162, A.I.R.
1977 SC 2185, A.I.R. 1980 S.C. 962.

(Delivered by Hon'ble Ashok Bhushan, J.)

1. This Division Bench has been
constituted to consider following two
questions referred to it:-

"(i) Whether an order passed in
appeal under section 11 of the U.P.
Consolidation of Holdings Act by the
Settlement Officer Consolidation deciding
the appeal finally by setting aside the
order
of
the
Settlement
Officer
Consolidation and remanding the matter
to the Consolidation Officer is an
interlocutory order within the meaning of
section 48 of the U.P. Consolidation of
Holdings Act and revision is barred
against such order under section 48.

(ii) Whether the law down in Ajab
Singh and others Vs. Jt. Director of
Consolidation and others, reported in
1996 R.D. 104, Rajbir Vs. Dy. Director
of Consolidation, reported in 1999 (90)
R.D. 313, Rajit Ram Singh and others
Vs. Mahadev Singh and others, reported
in 2002 (93) R.D. 224 lay down the
correct law."

2. Brief facts of the case, which are
necessary to be noted for deciding the
above two questions, are; proceedings
under the U.P. Consolidation of Holdings
Act, 1953 were started in the village in
which objections under Section 9-B of the
U.P. Consolidation of Holdings Act, 1953
were filed by respondent No.2. The said
objections were allowed by order dated
18th January, 2005 against which an
appeal under Section 11(1) of the U.P.
Consolidation of Holdings Act, 1953 was
filed by the writ petitioners before the
Settlement Officer of Consolidation. The
Settlement
Officer
of
Consolidation
allowed the appeal by judgment and order
dated 27th September, 2007 setting aside
the order of Consolidation Officer dated
18th January, 2005 and remanding the
matter before the Consolidation Officer
for deciding the objections afresh. Against
the order dated 27th September, 2007
passed by the Settlement Officer of
Consolidation, revision under Section 48
of U.P. Consolidation of Holdings Act,
1953 was filed by respondent No.2. An
objection was raised on behalf of the writ
petitioners, who were respondents in the
revision, that revision under Section 48 of
the U.P. Consolidation of Holdings Act,
1953 is not maintainable since the order
of Settlement Officer of Consolidation
dated 27th September, 2007 remanding
the matter to the Consolidation Officer
was an "interlocutory order", the revision
against an interlocutory order is not
maintainable. The said objection was
considered by the Deputy Director of
Consolidation and vide order dated 13th
February, 2008 the Deputy Director of
Consolidation
held
that
revision
is
maintainable. This writ petition has been
2 All] Deena Nath and others V. Deputy Director of Consolidation and others
477
filed challenging the order dated 13th
February, 2009 passed by the Deputy
Director of Consolidation.

3. The petitioners in the writ petition
claim that revision under Section 48 of
the U.P. Consolidation of Holdings Act,
1953 was not maintainable, hence the
order of Deputy Director of Consolidation
is liable to be set-aside. In the writ
petition reliance was placed by the
petitioners on three judgments of this
Court rendered by different learned Single
Judges taking the view that revision
against an interlocutory order of remand
is not maintainable. The said judgments
are Ajab Singh and others Vs. Jt.
Director of Consolidation and others,
reported in 1996 R.D. 104, Rajbir Vs.
Dy. Director of Consolidation, reported
in 1999 (90) R.D. 313, Rajit Ram Singh
and others Vs. Mahadev Singh and
others, reported in 2002 (93) R.D. 224.
Expressing doubt over the correctness of
the aforesaid judgments, two questions, as
noted above, have been referred for
consideration.

4. We have heard Sri Rahul Sahai,
learned counsel for the petitioners, Sri J.P.
Singh, learned counsel appearing for
contesting
respondent
and
learned
Standing Counsel.

5.

Learned
counsel
for
the
petitioners
contended
that
order
of
remand
by
Settlement
Officer
of
Consolidation was an interlocutory order
it having not decided the lis between the
parties. He further contended that revision
was not maintainable in view of the
express exclusion as contained in Section
48 of U.P. Consolidation of Holdings Act,
1953 itself. Learned counsel for the
petitioner
has
placed
reliance
on
judgments of the Apex Court in the cases
of
Kshitish
Chandra
Bose
vs.
Commissioner of Ranchi reported in
A.I.R. 1981 S.C. 707, Satyadhyan
Ghosal and others vs Smt. Deorajin
Debi and another reported in A.I.R.
1960 S.C. 941 and the aforesaid three
judgments of the learned Single Judges of
this Court as noticed above.

6.

Learned
counsel
for
the
respondent refuting the submissions of
learned counsel for the petitioners,
contended that the order of remand passed
by Settlement Officer of Consolidation
was not an interlocutory order. It is
contended that appeal having been finally
decided, it was a final order and the
revision was maintainable under Section
48 of U.P. Consolidation of Holdings Act,
1953. Reliance has been placed on
judgments of the Apex Court in the cases
of Mammu vs. Hari Mohan and
another reported in JT 2000(1) SC 65,
Preetam Singh and others vs. Assistant
Director of Consolidation and others
reported in (1996)2 S.C.C. 270 and
judgment of the learned Single Judge of
this Court in the case of Bhagwat and
others
vs.
Deputy
Director
of
Consolidation and others reported in
1990 R.D. 162.

7.

We
have
considered
the
submissions of learned counsel for the
parties and have perused the record.

8. The main issue, which is to be
considered in this proceedings, is as to
whether the order passed by Settlement
Officer of Consolidation deciding the
appeal finally by setting aside the order of
Consolidation Officer and remanding the
matter to the Consolidation Officer, is an
"interlocutory order" within the meaning
478 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
of Section 48 of the U.P. Consolidation of
Holdings Act, 1953, as to whether
revision against that order is barred and as
to whether three judgments of the
different learned Single Judges, as noticed
above, holding that revision is not
maintainable against an interlocutory
order lay down the correct law.

9. Before proceeding to consider the
respective submissions of the learned
counsel for the parties, it is necessary to
notice the relevant provisions of the U.P.
Consolidation of Holdings Act, 1953.

10. Section 11 of the U.P.
Consolidation of Holdings Act, 1953
provides for appeal before the Settlement
Officer of Consolidation. Section 11(1)
contemplates
decision
thereon
by
Settlement Officer of Consolidation after
hearing the parties. Section 48 of the U.P.
Consolidation of Holdings Act, 1953
provides for revision. By U.P. Land Laws
(Amendment) Act, 1982 Section 48 of
U.P. Consolidation of Holdings Act, 1953
was amended excluding revision against
an
interlocutory
order.
The
words
"interlocutory order" were also defined by
Explanation-(2) of Section 48. Section 48,
as
amended
by
U.P.
Land
Laws
(Amendment) Act, 1982, is as follows:-

"48. Revision and reference. - (1)
The Director of Consolidation may call
for and examine the record of any case
decided or proceedings taken by any
subordinate authority for the purpose of
satisfying himself as to the regularity of
the proceedings; or as to the correctness,
legality or propriety of any order other
than interlocutory order passed by such
authority in the case of proceedings and
may, after allowing the parties concerned
an opportunity of being heard, make such
order in the case of proceedings as he
thinks fit.

(2) Powers under sub-section (1)
may be exercised by the Director of
Consolidation also on a reference under
sub-section (3).

(3) Any authority subordinate to the
Director of Consolidation may, after
allowing
the
parties
concerned
an
opportunity of being heard, refer the
record of any case or proceedings to the
Director of Consolidation for action
under sub-section (1)

Explanation (1) - for the purposes of
this
section,
Settlement
Officers,
Consolidation
and
Consolidation
Lekhpals shall be subordinate to the
Director of Consolidation.

Explanation (2).- for the purposes of
this section, the expression ''interlocutory
order'
in
relation
to
a
case
or
proceedings, means such order deciding
any matter arising in such case or
proceeding or collateral thereto as does
not have the effect of finally disposing of
such case or proceeding.

Explanation (3).- for the purposes of
this section to examine the correctness,
legality or propriety of any order includes
the power to examine any finding,
whether of fact or law, recorded by any
subordinate authority, and also includes
the power to re-appreciate any oral or
documentary evidence."

11. One more section, which is
necessary to be noted, is Section 40 of the
U.P. Consolidation of Holdings Act,
1953, which provides that proceedings
before
the
Settlement
Officer
of
2 All] Deena Nath and others V. Deputy Director of Consolidation and others
479
Consolidation, Consolidation Officer and
Assistant Consolidation Officer shall be
deemed to be judicial proceedings. Rule
65 of U.P. Consolidation of Holdings
Rules, 1954 contains provisions with
regard to transfer of a case. Section 40 of
the U.P. Consolidation of Holdings Act,
1953 and Rule 65 of U.P. Consolidation
of Holdings Rules, 1954 are quoted
below:-

"40. Proceedings before Settlement
Officer
Consolidation,
Consolidation
Officer and Assistant Consolidation
Officer to be judicial proceedings. - A
proceeding
before
a
Director
of
Consolidation,
Deputy
Director
of
Consolidation,
Settlement
Officer
Consolidation, Consolidation Officer and
Assistant Consolidation Officer, shall be
deemed to be judicial proceedings within
the meaning of sections 193 and 228 and
for the purposes of Section 196 of the
Indian Penal Code.

"65. [See Section 54].- (1) The
Settlement Officer, Consolidation, may
withdraw any case from the file of any
Consolidation
Officer
or
Assistant
Consolidation Officer subordinate to him
may refer the same for disposal to any
other Consolidation Officer or Assistant
Consolidation Officer competent to deal
therewith.

[(1-A) The officer before whom
appeals, revisions or references under the
provisions of the Act or these rules are
instituted may transfer any case instituted
or pending before him to any other officer
empowered to hear and decide such case,
or recall case pending before any other
officer from the file of that officer to his
own file. The District Deputy Director of
Consolidation
of
a
district
where
Joint/Deputy/Assistant
Director
of
Consolidation is posted may call for
record of any revision or case pending
before such officer for disposal and may
transfer it to such officer if he is unable to
decide it for some reason.]

(2) The Director of Consolidation
may withdraw any case from the file of
any Settlement Officer, Consolidation,
and refer the same to any other Settlement
Officer, Consolidation for disposal."

12. The dictionary meaning of the
words "interlocutory order" according to
Law Lexicon (P. Ramanath Ayer) 1997
Edition, is as follows:-

"Interlocutory
order.
An
interlocutory order is one which is made
pending the case and before a final
hearing on the merits.

An interlocutory order is made to
secure some end and purpose necessary
and essential to the progress of the suit,
and generally collateral to the issues
formed
by
the
pleadings
and
not
connected with the final judgment."

13. The dictionary meaning of the
words "interlocutory order" according to
Halsbury's Law of England, 4th Edition,
Vol.26, Paragraph 506, is as follows:-

"Interlocutory order. An order which
does not deal with the final rights of the
parties, but either - (1) is made before
judgment and gives no final decision on
the matters in dispute, but is merely on a
matter of procedure, or (2) is made after
judgment, and merely directs how the
declarations of right already given in the
final judgment are to be worked out, is
termed ''interlocutory'. An interlocutory
480 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
order, even though not conclusive of the
main dispute, may be conclusive as to the
subordinates matter with which it deals."

14. The dictionary meaning of the
words "interlocutory order" is, an order
made during the progress of an action,
which does not finally dispose the rights
of the parties. Section 397 of the Cr.P.C.
also uses the words "interlocutory order".
The words "interlocutory order" as used
in Section 397 of Cr.P.C. came for
consideration before the Apex Court in
the case of Amar Nath vs. State of
Haryana reported in A.I.R. 1977 SC
2185 in which it was held that the term
"interlocutory order" merely denotes
orders of a purely interim or temporary
nature which do not decide or touch the
important rights or the liabilities of the
parties.

15. Again in the case of V.C.
Shukla vs. State through CBI reported
in A.I.R. 1980 S.C. 962 the Apex Court
held that interlocutory order has to be
construed in contradiction to or in contrast
with final order, it means not a final order,
but an intermediate order. It is made
between the commencement of an action
and the entry of the judgment.

16. In the present case we are
concerned with an order, which is an
order of remand by which remand order
the appeal filed under Section 11 of U.P.
Consolidation of Holdings Act, 1953 was
allowed, the order of Consolidation
Officer, which was appealed against was
set-aside and the Consolidation Officer
was directed to decide the rights of the
parties afresh. Thus our consideration in
the present case has to be confined to an
order of remand of the above category.

17. The Apex Court in Kshitish
Chandra
Bose's
case
(supra)
was
considering an order of remand as
contemplated under Order XLI, Rule 25
of C.P.C. In the said case plaintiff's suit
was decreed by the trial Court on question
of title and adverse possession. The
defendant filed an appeal before the
Additional Judicial Commissioner which
affirmed the findings of the trial Court on
both the points. Thereafter defendant went
up in second appeal to the High Court
which held that there was no clear
evidence to show that the plaintiff had
obtained title by adverse possession and
by
its
judgment
dated
17.2.1967
remanded the case to the trial Court for a
decision only on the question of title.
After remand, the Additional Judicial
Commissioner dismissed the plaintiff's
suit. The plaintiff then went up in appeal
to the High Court which affirmed the
finding
of
the
Additional
Judicial
Commissioner. Thereafter the appeal by
special leave was filed in the Apex Court.
It is contended before the Apex Court that
plaintiff did not come in appeal before the
Apex Court against the first judgment of
the High Court because the order passed
by the High Court was not a final order
but in the nature of interlocutory order,
hence the appellant could not be debarred
from challenging the validity of the first
judgment of the High Court even after the
second judgment was passed. In the above
context, following was laid down by the
Apex Court in paragraphs 5 and 6 of the
said judgment:-

""5. Secondly, it was contended that
even so the finding of the High Court on
the question of adverse possession was
given without at all considering the
materials and evidence on the basis of
which the two posts had concurrently
2 All] Deena Nath and others V. Deputy Director of Consolidation and others
481
found that the plaintiff had acquired title
by adverse possession. It is contended
that the plaintiff did not come up in
appeal before this court against the
impugned judgment of the High Court
obviously because the order passed by the
High Court was not a final one but was in
the nature of an interlocutory order as the
case had been remanded to the Additional
Judicial
Commissioner
and
if
the
revisional court had affirmed the finding
of the trial court, no question of filing a
further appeal to the High Court could
have arisen. Thus, the appellant could not
be debarred from challenging the validity
of the first judgment of the High Court
even after the second judgment by the
High Court was passed in appeal against
the order of remand. In support of this
contention, the counsel for the appellant
relied on a decision of this Court in the
case of Satyadhavan Ghosal V. Shiksha
Mitra. Deorajin Debi, (1960) 3 SCR 590:
(AIR 1960 SC 941) where under similar
circumstances this Court observed as
follows:

"In our opinion the order of remand
was an interlocuroty judgment which did
not terminate the proceedings and so the
correctness thereof can be challenged in
an appeal from the final order."

In coming to this decision this Court
relied on an earlier decision in the case of
Keshardeo Chamria V. Radha Kissen
Chamria and vice versa, 1953 SCR 136:
(AIR 1953 SC 23) where the same view
was taken.

6.Mr. Sinha appearing for the
respondent was unable to cite any
authority of this Court taking a contrary
view or overriding the decisions referred
to above. In this view of the matter we are
of the opinion that it is open to the
appellant to assail even the first judgment
of the High Court and if we hold "that this
judgment was legally erroneous then all
the subsequent proceedings, namely, the
order of remand, the order passed after
remand, the appeal and the second
judgment given by the High Court in
appeal against the order or remand would
become non est."

18. Another judgment, which has
been relied by learned counsel for the
petitioners is judgment of the Apex Court
in Satyadhyan Ghosal's case (supra).
The Apex Court in the said case
considered Sections 11 and 105 of C.P.C.
and laid down as to when an interlocutory
order can be challenged in appeal from
final decree. In the said case the Apex
Court laid down that Section 105(2) does
not apply to the Supreme Court and an
order of remand can be challenged while
challenging the final decree. Following
was laid down in paragraphs 15 and 16 of
the said judgment:-

"15. When the code of 1877 made
provisions in Chapter 43 for appeal
against certain orders, S. 591 thereof
provided "Except as provided in this
chapter, no appeal shall lie from any
order passed by any court in the exercise
of its original or appellate jurisdiction"
and went on to say "but if any decree be
appealed against any error, defect or
irregularity in any such order affecting
the decision of the case, may be set forth
as a ground of objecting in the
memorandum of appeal". The position
remained the same in the code of 1882.
The present Code in its 105th section uses
practically the same phraseology except
that the word "any such order" has been
substituted by "any order" and an
482 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
additional provision has been made in the
second subsection in respect of orders of
remand. The expression "such order" in S.
591 gave rise to a contention in some
cases before the Privy Council that S. 591
applied to nonappealable orders only.
This contention was overruled by the
Privy Council and that view was adopted
by the Legislature by changing the words
"any such order" to "any order". As
regards the orders of remand it had been
held that under S. 591 of the Code a party
aggrieved by an order of remand could
object to its validity in an appeal against
the final decree, though he might have
appealed against the order under S. 588
and had not done so. The second subsection of S. 105 precludes an appellant
from taking, on an appeal from the final
decree, any objection that might have
been urged by way if appeal from an
order of remand.

16. It is clear therefore that an
interlocutory order which had not been
appealed from either because no appeal
lay or even though an appeal lay an
appeal was not taken could be challenged
in an appeal from the final decree or
order. A special provision was made as
regards orders of remand and that was to
the effect that if an appeal lay and still the
appeal was not taken the correctness of
the order of remand could not later be
challenged in an appeal from the final
decision. If however an appeal did not lie
from the order of remand the correctness
thereof could be challenged by an appeal
from the final decision as in the cases of
other interlocutory orders. The second
sub-section did not apply to the Privy
Council and can have no application to
appeals to the Supreme Court, one reason
being that no appeal lay to the Privy
Council or lies to the Supreme Court
against an order of remand."

19. It is relevant to note that in the
above cases while referring to order of
remand as an interlocutory order, the
Apex Court laid down that in a case when
appeal lay against remand order and is not
filed or no appeal lay against such an
order, the higher Court is not precluded
from considering the correctness of
remand order. The question considered by
the Apex Court in the aforesaid judgments
was as to whether when an appeal is not
filed against remand order, the correctness
of the same can be challenged or not
when the appeal is filed against final
order. No such ratio has been laid down
by the Apex Court in the said judgment
that no appeal lay against an order of
remand, which is an interlocutory order. It
is true that order of remand has been
termed as interlocutory order in the
aforesaid
two
judgments
but
the
observation has been made in the
judgments itself that appeal may or may
not lay against such interlocutory order of
remand. Thus above two judgments
cannot be held to be laying down
proposition that order of remand, which is
an
interlocutory
order,
cannot
be
appealed.

20. At this juncture, it is relevant to
note the provisions of of the appeal as
contained in Code of Civil Procedure with
regard to an order of remand. Order XLI
Rules 23 and 23A of Code of Civil
Procedure provide for remand by the
appellate Court. Order XLI, Rules 23 and
23A of Code of Civil Procedure Code are
quoted as below:-

"23. Remand of case by Appellate
Court.- Where the Court from whose
2 All] Deena Nath and others V. Deputy Director of Consolidation and others
483
decree an appeal is preferred has
disposed of the suit upon a preliminary
point and the decree is reversed in
appeal, the Appellate Court may, if it
thinks fit, by order remand the case, and
may further direct what issue or issues
shall be tried in the case so remanded,
and shall send a copy of its judgment and
order to the Court from whose decree the
appeal is preferred, which directions to
re-admit the suit under its original
number in the register of civil suits, and
proceed to determine the suit; and the
evidence (if any) recorded during the
original trial shall, subject to all just
exceptions, be evidence during the trial
after remand.

[23A. Remand in other cases.-
Where the Court from whose decree an
appeal is preferred has disposed of the
case otherwise than on a preliminary
point, and the decree is reversed in
appeal and a re-trial is considered
necessary, the Appellate Court shall have
the same powers as it has under rule 23.]"

21. Under Order XLIII, Rule 1(u) of
the Code of Civil Procedure an order
under Rule 23 or Rule 23A of Order XLI
is appealable. Thus Code of Civil
Procedure itself provides appeal from an
order of remand.

22. We in the present case have to
decide the question in the light of the
statutory scheme as is delineated by
Section 48 of U.P. Consolidation of
Holdings Act, 1953. "Interlocutory order"
has been defined in Explanation (2) of
Section 48. Explanation (2) provides that
expression ''interlocutory order' in relation
to a case or proceedings, means such
order deciding any matter arising in such
case or proceeding or collateral thereto as
does not have the effect of finally
disposing of such case or proceeding.
Thus an order deciding any matter in a
case or proceeding, which does not have
the effect of finally disposing of such case
or proceeding, is an interlocutory order.
Explanation (2) also contemplates a
category of orders, which are excluded
from expression ''interlocutory order' i.e.
those orders which have the effect of
finally
disposing
of
such
case
or
proceeding.

23. Section 40 of the U.P.
Consolidation of Holdings Act, 1953, as
quoted above, provides that proceedings
before
the
Settlement
Officer
of
Consolidation are judicial proceedings.
Rule 65 of U.P. Consolidation of
Holdings Rules, 1954, as quoted above,
uses the word ''case'. The appeal filed
before
the
Settlement
Officer
of
Consolidation is a case pending before the
Settlement Officer of Consolidation and is
also a proceeding within the meaning of
Section 40 of U.P. Consolidation of
Holdings Act, 1953. By the order passed
by Settlement Officer of Consolidation
dated 27th September, 2007 Appeal
Nos.2308/3964 and 2318/3979 both were
finally
decided.
The
order
of
the
Settlement Officer of Consolidation thus
finally disposed of the appeals or
proceedings, thus on the plain wordings
of Explanation (2) of Section 48 of U.P.
Consolidation of Holdings Act, 1953 was
excluded
from
the
definition
of
interlocutory order as provided therein.

24. The order of the Settlement
Officer of Consolidation, which finally
decided the appeal by setting aside the
order of Consolidation Officer and
remanding the matter to the Consolidation
Officer was an order finally deciding the
484 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
appeal and thus cannot be termed to be an
interlocutory order.

25. The judgment of the Apex Court
relied
by
learned
counsel
for
the
respondent in Mammu's case (supra)
fully supports the view, which we are
taking. The facts of the said case are to be
noted in detail. In the said case
proceedings were initiated under the
Kerala Land Reforms Act, 1963 by the
respondents before the Land Tribunal,
who
were
tenant
for
purchase
of
Kudikidappukaran right under Section 80B of the Act. The applications were
dismissed by the Land Tribunal. An
appeal was filed by the respondents
before the appellate authority, which was
allowed.
The
appellate
order
was
challenged before the High Court in
revision. The High Court set-aside the
order of the appellate authority and
remanded the matter to the appellate
authority. The appellate authority again
passed an order in favour of the
appellants.
The
appellate
authority
remanded the matter to the Land Tribunal.
The above appellate order was not
challenged in revision. The Land Tribunal
found that the appellant was entitled to 10
cents of land. The order was challenged in
appeal by the respondents before the
appellate authority. The appeal was
dismissed on the finding that previous
order of the appellate authority was a final
order and since that order was not
challenged in revision, the order has
become final. The appellate order was
challenged before the High Court, which
was set-aside. The question, which arose
for consideration before the Apex Court,
was as to whether the order of the
appellate authority remanding the matter
to the Land Tribunal was a final order
and, therefore, was available to be
challenged in revision or it was merely an
interlocutory order against which no
revision could be filed. The Apex Court
after considering the aforesaid issue held
that the order of remand was a final order
and revision lay against such an order.
Paragraphs 8, 9 and 10 of the said
judgment, which are relevant, are quoted
below:-

"8. On the case pleaded by the
parties and the findings recorded by the
Land Tribunal, the appellate authority and
the High Court in the orders passed in the
proceedings, two questions emerge for
consideration : (1) whether the High
Court was right in holding that the order
passed
by
the
appellate
authority
remanding the matter to the Land
Tribunal was not a final order and
therefore, not challengable in revision
before the High Court and (2) whether the
finding of the High Court that the
appellant cannot claim kudikidappu right
in respect of the structure in question is
sustainable in law.

9. Section 103 of the Act, so far as it
is material for the present proceeding, is
quoted hereunder :

"103. Revision by High Court :- (1) Any
person aggrieved by-
"(i) any final order passed in an appeal
against the order of the Land Tribunal or;
(ii) any final order passed by the Land
Board under this Act or;
(iii) any final order of the Taluk Land
Board under this Act,
xxx xxx xxx xxx
may, within such time as may be
prescribed, prefer a petition to the High
Court against the order on the ground
that the appellate authority or the Land
Board, or the Taluk Land Board, as the
2 All] Deena Nath and others V. Deputy Director of Consolidation and others
485
case
may
be,
has
either
decided
erroneously, or failed to decide, any
question of law.

(2) The High Court may, after giving an
opportunity to the parties to be heard,
pass such orders as it deems fit and the
orders of the appellate authority or the
Land Board, or the Taluk Land Board, as
the case
may be, shall, wherever
necessary, be modified accordingly."

10. The question that arises for
consideration in this case is whether the
order of the appellate authority remanding
the matter to the Land Board with a
direction to pass order in the light of the
observations/directions in the order is a
'final order' within the meaning of S.
103(1) of the Act? The Kerala High Court
in certain decisions has taken the view
that only an order which disposes of a
proceeding before the Land Board, can be
said to be a 'final order' and against such
an order, a revision petition shall lie; any
other order of the appellate authority
which does not dispose of the proceeding
before the Land Board cannot be said to
be a 'final order' and no other revision
petition shall lie against such an order.
This interpretation, in our considered
view, does not flow from the language of
the statutory provision. Clause (i) of subsection (1) of S. 103 provides that any
final order passed in an appeal is available
to be challenged in revision by any person
aggrieved by such order. The clear and
unambiguous language in which the
section is couched conveys the meaning
that a revision petition cannot be filed
against an interlocutory order passed in an
appeal. To put it differently, an order
which does not dispose of the appeal is
not a 'final order.' An order of remand in
which the matter is remanded to the Land
Board for disposal in accordance with law
cannot be said to be an interlocutory order
for the simple reason that the appeal filed
before the Land Tribunal stands disposed
of by such order. In a case where the Land
Tribunal keeps the proceeding pending
and calls for a finding on a specific issue
or point formulated by it from the Land
Board or any other authority, then such an
order cannot be said to be a final order
against which a revision can be filed
before the High Court. The reasoning in
some of the judgments of the Kerala High
Court, particularly in Bhaskara Menon v.
Gangadharan (1983 Ker LT 435) (supra)
and in Joseph v. Velayudhan Pillai (1976
Ker LT 870) (supra) that a 'final order' is
one which disposes of the proceeding
before Land Board, in our view, is clearly
erroneous. The view taken by the High
Court in 1979 Ker LT 910, Mahadevan
Iyer v. Bhagavaty Ammal is extracted.

"a literal understanding of subsection (i) of S. 103 only . . . . . .means
that there must be an appeal from an
order of the Land Tribunal and the
appellate order should be a final one as
distinguished from an interlocutory order.
The final order must dispose of the
appeal. The words "final order in an
appeal" mean only that and this is all that
is contemplated by the Legislature will be
clear from the nature of the appeals
provided for under S. 102 of the Act to the
appellate authority. An appeal will lie
from any order passed by the Land
Tribunal under the various sections
enumerated in S. 102. Such orders may be
either orders of final disposal of the
proceeding
taken
before
the
Land
Tribunal or may be only preliminary
orders which conclusively determine the
status of the parties and direct incidental
enquiries leading to a final order by the
486 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Land Tribunal closing the proceedings.
Such being the character of the orders
against which appeals can be filed before
the appellate authority 'final order'
passed in an appeal against the order of
the Land Tribunal in S. 103(1)(i) can only
an
order
finally
disposing
of
the
proceedings initiated before the Land
Tribunal. Finality must relate to the
appeal only and not to the Land Tribunal
proceedings.
To
understand
or
to
interpret the section to mean final order
disposing of the Land Reform proceedings
on appeal will be recasting the section
which is not allowed."

That
view
has
our
approval.
Therefore, the finding of the High Court
in the impugned order that no revision
petition could be filed against the order of
remand passed by the Land Tribunal is
erroneous. The first question is answered
in the negative."

26. The proposition of law as laid
down in the above case is fully attracted
in the present case. The order of remand
made by the Settlement Officer of
Consolidation was, thus, a final order
against
which
revision
was
fully
maintainable.

27. Now comes the judgments of
learned Single Judges in Ajab Singh's,
Rajbir's and Rajit Ram Singh's cases
(supra). In Ajab Singh's case (supra)
following was laid down in paragraph
15:-

"15. It is next to be seen whether the
order of remand passed by Settlement
Officer Consolidation was not open to
revision it being an 'interlocutory order'
within the meaning of section 48 of the
U.P. Consolidation of Holdings Act which
excludes, in no uncertain terms, an
'interlocutory order' from the purview of
revisional jurisdiction. In Satya Dhayan
Ghosal V. Smt. Deo Rajan Devi an order
of remand has been held to be an
interlocutory judgment in that it does not
terminate
the
proceeding
and
its
correctness can be challenged in appeal
from the final order. In coming to the
aforesaid conclusion the Apex Court has
relied on its earlier decision rendered in
Keshar Deo Chamaria Vs. Radhey Kissen
Chamaria and the proposition laid down
therein has been reiterated in Kshistish
Chandra vs. Commissioner of Ranchi. In
view of these authorities, I am of the
considered view that the order of remand
passed
by
Settlement
Officer
Consolidation
was
an
'interlocutory
order' within the meaning of section 48 of
the U.P. Consolidation of Holdings Act
and, therefore, not open to revision. Its
legality can, however, be examined in
revision against the final judgments and
orders rendered pursuant to the order of
remand and if at that stage the Deputy
Director of Consolidation finds that the
order of remand was legally erroneous,
all subsequent proceedings, viz. The order
passed by the Consolidation Officer
pursuant to the order of remand as also
the appellate order passed in appeal
preferred against such order of the
Consolidation Officer would become non
est. Since the order of remand is neither
appealable nor revisable, its correctness
is open to examination at subsequent
stage when the matter comes up finally in
revision. The impugned order is therefore,
liable to be quashed on this ground as
well. The decision in Bhawat and others
v. Deputy Director of Consolidation and
others has no application to the facts of
this case and in any case it cannot be
2 All] Deena Nath and others V. Deputy Director of Consolidation and others
487
accepted in view of the Apex Court's direct
decisions on the point."

28. Learned Single Judge relying on
the judgment of the Apex Court in
Satyadhan
Ghoshal's
and
Kshitish
Chandra Bose's cases (supra) took the
view that remand order by Settlement
Officer
of
Consolidation
was
an
interlocutory order. Learned Single Judge
did not refer to definition of ''interlocutory
order' as given in Section 48, Explanation
(2). Learned Single Judge held that
correctness of remand order is open to
examination at subsequent stage when the
matter comes up finally in revision.