S. P. SRIVASTAVA, J. Feeling aggrieved by the order passed by the Deputy Director of Consolidation where under the revision filed under Section 48 of the U. P Consolida tion of Holdings Act by Abdul Jabbar and others by the present respondents, was al lowed and setting aside the orders passed by the Consolidation Officer and affirmed by the Assistant Settlement Officer (Con solidation) in appeal, the land in dispute was brought within the consolidation scheme, the petitioner has approached this Court seeking redress praying for the quashing of the revisional order. 2. I have heard learned counsel for the parties and have carefully perused the record. 3. The facts shorn of details and neces sary for the disposal of this case lie in a narrow compass. The village where the plots in dispute are situate, was brought within the purview of the U. P Consolidation of Holdings Act with the notification under Section 4 thereof in the year 1980. Much before the start of consolidation proceed ings a dispute in regard to the constructions raised in the plots in question as well as the possessor right in respect thereof was raised in a suit by the Mahboob and others claiming a decree of injunction in the court of Munsif City Azamgarh against Ramzan and others. The aforesaid suit was decided finally in terms of a compromise arrived at between the parties and was decreed in terms of the compromise. The respondents No. 3 to 8 were parties to the aforesaid compromise. The compromise was entered into on 26-3-79 and the suit was decreed in terms of the compromise vide the Judgment and decree dated 26-3-79. On the publica tion of the village record in the proceedings under the U. P Consolidation of Holdings Act an objection was filed by the petitioner under Section 9-A (2) of the aforesaid Act in respect of plot No. 28 having an area of 6. 9 Kari and plot No. 26/3 having an area of 0. 4 Kari praying for keeping the aforesaid land out side the consolidation scheme asserting that the aforesaid land had never been put under cultivation and therein existed the residential house of the objector, his Mar-hai and 31 trees of mangoes, two trees of guava, one tree of lemon, one tree of leechi and one Shah toot which were of more than 12 years of age. At the place where the trees had been dried up fresh trees had been planted. It was also asserted that the entire area was enclosed by a boundary wall. 4. Another objection under Section 9 of the U. P Consolidation of Holdings Act was filed by Ezaz Ahmad, the respondent No. 4 asserting that the plot No. 28 was an agricultural plot and in some part thereof vegetable etc. , was grown and in some part paddy had been sown which crop had been harvested recently. It was also asserted that a wall had been constructed on some area of the plot. No. 28 and a temporary structure had been raised in an unauthorised manner. It was indicated in the objections that the entire plot No. 28 had been kept within the consolidation scheme but the valuation of the constructions raised therein had not been determined. It was also pointed out that certain saplings of mango trees had also been put in the land in dispute recently. Ezaz Ahmad prayed that the value of the constructions etc. , which were existing in the portion of the plot No. 28 be deter mined. The aforesaid objection related to the entire plot No. 28. After filing the aforesaid objection, the respondents No. 3 to 8 filed written reply to the objection filed by the petitioner. In their reply the respon dents asserted that the entire plot No. 28 was an agricultural holding the northern portion whereof was utilised for growing vegetable etc. , and after harvesting the crop the entire plot was ploughed. It was also asserted that towards the north-east and west side of the plot a wall had been con structed recently and a temporary structure was raised covering an area of 8 to 10 karies. The valuation of the constructions had not been determined. It was prayed that the aforesaid valuation be determined. This reply was submitted on 20- 11-81. Thereafter it appears that the petitioner moved an ap plication before the Deputy Director of Consolidation asserting that the land which was sought to be excluded from the con solidation operations was long back con verted into Abadi and the rights and title in respect thereof in between the parties had been finally determined on the basis of the compromise which formed part of the decree passed by the civil court of com petent jurisdiction. The petitioner who claimed to be aged about 85 years requested the Deputy Direc tor of Consolidation to inspect the spot and directed for the exclusion of the land in dispute from the consolidation scheme and prohibit the Consolidation Officer from al lotting the same in any chak. 5. It appears that the land in dispute was inspected by the Consolidation Officer on 1-1-82 pursuant to the direction issued by the Deputy Director of Consolidation. In his report it was noticed by him that on the three sides of the land in dispute a boundary wall up to the height of 3 1/2 to 4 which was a permanent structure had already been built up but on the southern side it had not been joined permanently and there was a temporary wall of baked bricks. There was also a shed with a door and the foundation for a residential house had already been laid. It was also found that a small room which was a permanently structure had also been raised. The Consolidation Officer found that there existed 31 trees of mango, two trees of guava, one tree of leechi, one tree of lemon, one tree of Shah toot which were of a height of about 3 1/2. On visual observation the Consolidation Officer as sessed the age of the trees to be three years although they were claimed to be of five years. He, however, observed that since the matter regarding the exclusion of the land in dispute from the provisional consolidation scheme was under consideration, it was not proper to express any opinion. On the receipt of the aforesaid report the Assistant Settlement Officer (Consolidation) re quested the Deputy Director of Consolidation to dispose of the objection under Sec tion 9-A (2) of the Act filed by the petitioner as early as possible. The Deputy Director of Consolidation thereafter called for a fresh report calling for an explanation as to why the improvement made on the land in dis pute had not been noted in the C. H. Form 2-A at the time of consolidation Partal. The Deputy Director of Consolidation thereafter called for a fresh report calling for an explanation as to why the improvement made on the land in dis pute had not been noted in the C. H. Form 2-A at the time of consolidation Partal. In the meanwhile, the Consolidation Officer disposed of the objections filed by the petitioner vide Judgment and order dated 30-10-83, he came to the conclusion that taking into consideration the existing con structions on the land in dispute and the trees standing; thereon the said land was not fit for consolidation and the assertions made in the objection filed by the respon dents were not correct the land in dispute was, therefore, ordered to be kept out side consolidation scheme allowing the objec tions filed by the petitioner. 6. Abdul Jabbar and others felt ag grieved by the aforesaid order and chal lenged the same in appeal. The appellate authority took consideration the decree passed by the Civil Court and the terms of the compromise the map which formed part of the compromise and the statement of Abdul Munnid recorded in the aforesaid suit which had been decreed on 2-5-79. He also noticed that the bricks which had been used in the southern boundary wall indi cated that they were of the year 1977. He also noticed that there was a pucca room having a verandah in front of it, the founda tion whereof was complete. There was a hand pump as well as tin shed also and there several fruit bearing trees. Considering the evidence on the record the Assistant Settle ment Officer (Consolidation) came to the conclusion that the boundary wall and the room were pre 1979 constructions. He also came to the conclusion that the possession of the petitioner over the land in dispute as claimed was admitted by the contesting respondents to be of a period of more than 12 years and they had also admitted that they had no concern with the land in dispute. The appellate authority also came to the conclusion that the land in dispute was not fit for cultivation at all. The appellate authority also came to the conclusion that the land in dispute was not fit for cultivation at all. The claim of the appellant that the trees had been planted during the consolidation operation was specifically disbelieved holding that the publication of the notification under Sec tion 4 (2) of the Act was done on 27-6-80 and the trees were there in existence from much before one year from the dale of the notification. So far as the omission to note the existance of the trees in CH From 2-A, the appellate authority observed that it was an error on the part of the consolidator who appeared to be in collusion with the appel lant. The Assistant Settlement Officer (Consolidation) also came to the con clusion that the land in dispute being a grove and having been enclosed from the pucca boundary wall did not deserve to be brought within the consolidation scheme. The appeal was accordingly, dismissed. 7. The order passed by the appellate authority was sought to be challeged by the contesting respondent before the Deputy Director of Consolidation in a revision riled under Section 48 of the U. P. Consolidation of Holdings Act. During the pendency of the revision, the Deputy Director of Consolida tion himself inspected the spot on 18-5-84. The Deputy Director of Consolidation came to the conclusion that the trees had been planted after the publication of the notification under Section 4 of the U. P. Consolidation of Holdings Act and ap parently had been planted to get the land in dispute kept outside the consolidation scheme. While accepting the findings recorded by the Consolidation Officer as well as the appellate authority that the land in dispute did not appear to be an agricul tural land and further in view of the exist ence of a large number of trees therein it was impossible to cultivate the same yet, in his view since it was not permissible for any land holder to covert the nature of the land after the publication of the notification under Section 4 of the Act within evil intention, the said conversion were liable to be ig nored. The revisioning authority was fur ther of the view that the constructions raised on the land in dispute were of no consequence as so long as the nature of the land was not declared to have been altered from agricultural to non-agricultural. Till then the land-holder was not entitled to alter the user of the land. On the aforesaid findings the Deputy Director of Consolida tion allowed the revision and setting aside the orders by the Consolidation Officer and the Assistant Settlement Officer (Con solidation) directed for inclusion of the land in dispute within the consolidation scheme. 8. The expression "land" has been defined under Section 3 (5) of the U. P. Con solidation of Holdings Act. land means land held or occupied for purposes con nected with agriculture, horticulture and animal husbandry including pisciculture and poultry farming and includes the site being part of a holding, of a house or other similar structure and trees, wells and other improvements existing on the plots forming the holdings. "consolidation" has also been defined under Section 3 (2) of the Act which means re- arrangement of holdings in a unit amongst several tenure-holders in such a way as to make their respective holdings more than compact. The explanation added to Section 3 (2) of the Act carves out certain exceptions where land cannot be treated to be a holding as contemplated under the aforesaid provision. Apart from other things provided under the explanation it also stand provided that any such area as the Director of Consolidation may declare to be unsuitable for the purposes of consolida tion will also not be taken to be within the ambit of a holding as provided under Sec tion 3 (2) of the Act. 9. Section 143 of the U. P. Zamindari Abolition and Land Reforms Act provides that where a Bhumidhar used his holding or part thereof for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, the Assistant Collector In-scharge of Sub- division may suo-motu or on an application after making such enquiry as may be prescribed make a declaration to the effect. Upon the grant of the declaration the provisions of the Chapter in which section 143 occurs cease to apply in respect of the land so declared to the Bhumidhar with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject. However, it may be noticed that Section 5 (1) (c) of the Act provides that notwithstanding anything contained in the U. P. Zamindari Abolition and Land Reforms Act, 1950 no tenure-holder, except with the permission in writing of the Settle ment Officer (Consolidation) previously obtained shall use his holdings or any part thereof for purposes not connected with agriculture, horticulture or animal hus bandry including pisciculture and poultry farming; providing however that a tenure-holder may continue to hold his holdings or any part thereof for any purpose for which it was in use prior to the date specified in the notification issued under sub-section (2) of Section 4 of the Act. 10. Considering the implications aris ing under Section 143 of the U. P. Zamindari Abolition and Land Reforms Act and the provisions contained in the U. P. Consolida tion of Holdings Act referred to herein above, it seems to me, that once a holding or a part thereof is permitted for being used for the purpose not connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming by the Set tlement Officer (Consolidation) and as the provisions contained in the Consolidation of Holdings Act specifically permit a tenure-holder to continue to use his holding or any part thereof for any purpose for which it was in use prior to the date specified in the notification issued under sub- section (2) of Section 4, once it is found that a particular holding or part thereof was being used for a purpose not connected with agriculture, horticulture or animal hus bandry including pisciculture and poultry farming and it had been used for such pur pose, since before the notification issued under Section 4 (2) of the Act, the said land ought to be kept outside consolidation scheme taking the same to be unfit for con solidation as contemplated under the Act. 11. 11. In the present case both the Con solidation Officer as well as the Settlement Officer (Consolidation) have recorded categorical findings on the appraisal of evidence on the record and the implications arising under the terms of the compromise decree passed in Original Suit No. 438 of 1978 that the land in dispute was not fit for consolidation as contemplated under Sec-tion3 (2) of the U. P. Consolidation of Hold ings Act and it had further been concurrent ly found that constructions of permanent nature had been raised in the land in dispute was surrounded by a pucca boundary wall from much before the year 1979. The. contesting respondents had admitted before the Civil Court of competent juris diction that they had ceased to have any concern with the land in dispute and an injunction was running against them prohibiting them from interfering in the raising of the constructions by the petitioner in the land in dispute or in any manner interfere with his possession in respect thereof. In face of such findings which were arrived at on the appraisal of evidence and the materials on the record with the dismissal of the appeal, the requisi te permission contemplated under Section 5 (1) (c) of the Act will be deemed to have been granted resulting in the bringing out the land in dispute from the purview of the provisional consolidation scheme. In any view of the matter there could be no jus tification for depriving the petitioner from continuing to use his holding or any part thereof for the purposes for which it was in use prior to the date specified in the notification issued under sub-section (2) of Section 4 as contemplated under the proviso to Section 5 (1) (c) of the Act. 12. It may further be noticed that Rule 109-B (2) of the Rules provides that the consolidation authorities may consolidate suo-motu the cases or proceedings pending before it if it is satisfied for reasons to be recorded that such a course is necessary for proper and expeditious disposal of the cases or proceedings and that it would not pre judice the interest of any party to the cases or the proceedings. In the present case what I find is that neither the Assistant Settle ment Officer, Consolidation nor the Deputy Director of Consolidation had taken into consideration the implications arising under Rule 109-B of the U. P. Consolidation of Holdings Act framed under the U. P. Con solidation of Holdings Act. 13. So far as the question in regard to the impugned order passed by the Deputy Director of Consolidation being in excess of the jurisdiction is concerned it may be noticed that the implications arising under a provision which stands pan materia with Section 48 of the U. P. Consolidation of Holdings Act came up for consideration before the Apex Court in the case of M/s Bhool Chand v. M/s Kay Pee Cee Investments and another, reported in 1991jt (1) SC186. In its aforesaid decision, the Apex Court pointed out that the revisional power en visaged under the provisions referred to above cannot be equated with the appellate power and must fall short of the appellate powers of interference with a finding of fact where the finding on a question of fact depends upon the credibility of witnesses there being a conflict of oral evidence of the parties. 14. In its another decision in the case of Ram Dular v. Deputy Director of Consolida tion, Jaunpur, 1994 R. D. 290 (SC), the Apex Court had observed, while interpreting, the scope of Section 48 of the U. P. Consolida tion of Holdiags Act that for considering the correctness, legality or propriety of the order of correctness of the proceedings or irregularity thereof, the revising authority could not assume to itself the jurisdiction of the original authority as a fact finding authority by appreciating itself those facts de novo. It was further observed that the revising authority has to consider whether the legally admissible evidence had not been considered by the authority in recording a finding of fact or law or the conclusion reached by it is based on no evidence or any patent illegality or impropriety had been committed or there was an procedural ir regularity going to the root of the matter had been conducted in recording the find ing. 15. 15. Taking into consideration the scheme underlying the U. P. Consolidation of Holdings Act and the observations made by the Apex Court referred to hereinbefore, there can be no escape from the conclusion that the jurisdiction with which the Deputy Director of Consolidation stands vested under the provisions contained in Section 48 of the aforesaid Act cannot be deemed to be such an appellate power as it is vested in the appellate authority envisaged under the Act. The revisional power contemplated under Section 48 of the U. P. Consolidation of Holdings Act, therefore, must fall short of the appellate power of interference with a finding of fact where the finding of fact depends on the credibility of the witnesses there being conflict of oral evidence led by the parties. 16. In its decision in the case of the Ram Avtar and others v. Ram Dhani and others, 1997 (2) SCC, the Apex Court had made observations to the effect that this Court has repeatedly point out that how soever, wide the power under statutory provision maybe in contrast to Section 115 of the Code of Civil Procedure still while exercising that power the authority con cerned cannot act as court of appeal so as to depreciate the evidence on record for recording findings on question of fact. " It was further observed that the High Court should have set aside the order of the Deputy Director of Consolidation on that ground alone. 17. Considering the facts and cir cumstances indicated hereinabove, suffi cient ground has been made out for inter ference by this Court. 18. In the result, considering the facts and circumstances brought on record and my conclusions indicated hereinabove, this-writ petition succeeds. The order passed by the Deputy Director of Consolidation dated 26-7-84 a true copy of which order has been filed as Annexure 11 is quashed. 19. There shall, however, be no order as to costs. Petition allowed.