The main legal point established is that the right to file an appeal is not restricted to situations where the order is ex parte, and both remedies, i.e., recall application and appeal, cannot be pursued simultaneously. Additionally, all questions of maintainability, limitation, and merit are to be dealt with together in cases covered by appeal and revision, while preliminary objections are to be decided first in matters before the Consolidation Officer.

( 1 ) BY means of this writ petition, petitioners have challenged the judgment of the Deputy director of Consolidation, Banda dated 21. 12. 2004.

( 2 ) LEARNED counsel for the petitioners and learned State Counsel have been heard.

( 3 ) FACTS in brief, will be sufficient to dispose of this writ petition.

( 4 ) PROCEEDINGS are under Section 9-A (2) of UPCH Act (hereinafter referred to as the Act) which is in respect to adjudication of dispute in respect to the title of parties. It is claimed that the grand father of the petitioners filed objection under Section 9-A (2) of the Act which was allowed by the Consolidation Officer by order dated 4. 7. 1997. After about four years, respondent No. 4 filed a time barred appeal under Section 11 (1) of the Act along with an application under Section 5 of Limitation Act. The petitioners filed objection to appeal and an application was moved that as the appellant has also filed Restoration Application before the Consolidation Officer, appeal is not maintainable and it is otherwise barred by time and therefore, the question of maintainability and the delay may be decided first. The appellate authority after hearing learned counsel for the parties, disposed of application/objection of the opposite party by giving a direction that the appeal will be heard on the question of delay, maintainability and on merits together on the next date. The order of appellate authority was affirmed by the revisional court by order dated 21. 12. 2004 and thus the petitioners are before this Court.

( 5 ) SUBMISSION of learned counsel for the petitioners is that as the respondent has already filed restoration application before the Consolidation Officer and otherwise also, the appeal was barred by time, objections were liable to be decided first before deciding the appeal on merits. It is submitted that the respondent having availed remedy of filing appeal, he cannot be permitted to avail two remedies so as to cause harassment to the petitioners.

( 6 ) IN view of aforesaid submission, three questions arises for consideration of this Court. i) If the order of Assistant Consolidation Officer /consolidation Officer is said to he ex parte, then against that order whether appeal under Section 11 (1) of the Act is maintainable or not ? ii) If the appeal is filed by a party against the order of Assistant Consolidation Officer /consolidation Officer and at the same time, he files restoration application what is the course to be adopted by the courts concerned ? iii) If the appeal is to be decided by the Settlement Officer Consolidation which is barred by time and the opposite party objects the decision of appeal on merits and press for disposal of question of maintainability and delay then whether in each and appellate Court is required to decide the question of maintainability and delay as preliminary issue or the question of maintainability, delay and merits, all can be decided simultaneously.

( 7 ) ALL the three questions stated above as posed by this Court on its answer may have far reaching consequences as in most of the cases at all level of consolidation courts, they generally arise and therefore, this Court has given serious thought over the matter.

( 8 ) SO far as the first question is concerned, the argument that against the order of Assistant consolidation Officer /consolidation Officer, if it is said to be ex parte, appeal is not maintainable, it appears to be based on some misconception. Needless to say that the appeal is creature of statute. Appeal is provided under Section 11 of the Act which will be useful to be quoted here.

"any parry 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 w