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1965 DIGILAW 396 (ALL)

Khatirzama Khan v. Abdul Hasan Khan

1965-09-27

LAKSHMI PRASAD

body1965
JUDGMENT Lakshmi Prasad, J. - This is a plaintiff's second appeal arising out of a suit for declaration that he is a co-sharer to the extent of half share in the disputed plot along with the defendants-respondents. The trial Court dismissed the claim mainly on the ground that the dispute raised in the suit stood barred by Sec. 49 of the U.P. Consolidation of Holdings Act because of the final adjudication given against the plaintiff-appellant in those proceedings. That view has been upheld by the first appellate court. Hence the plaintiff has come up in second appeal. 2. I have heard learned counsel for the appellant at some length. I have perused the judgment of the first appellate Court. The material portion of the first appellate courts judgment says: "A perusal of Ex. A-ll and Ex. A-25 will show that the plots in suit were allotted to the chak of the contesting defendants in the consolidation proceedings after due publication and adjudication of the rights of the parties Ex. A-12 and Ex. A-20 are form No. 40 which show that the defendant nos. 1 to 4 were held exclusive owners of the property in suit in the consolidation proceedings." 3. In the face of these facts there can be little doubt that Sec. 49 of the U.P. Consolidation of Holdings Act would apply to bar the question of title sought to be agitated by the plaintiff-appellant in the suit giving rise to this appeal. Learned counsel, however, argues that his appeal, arising out of the order of dismissal of his objections against the award given in the case arising out of his objection under Sec. 12 of the U.P. Consolidation of Holdings Act, as it then stood, was wrongly dismissed by the District Judge on the ground that during the pendency of that appeal the consolidation proceedings had come to an end. Assuming that the said contention of the learned counsel is correct, still I fail to see as to how it helps the plaintiff-appellant in the present suit. If the appellate Judgment of the District Judge in that case was erroneous, he should have sought the remedy according to law. Having failed to does he could not be given a right to bring another suit for raising the same dispute which had been decided against him in the proceedings under the consolidation of Holdings Act. If the appellate Judgment of the District Judge in that case was erroneous, he should have sought the remedy according to law. Having failed to does he could not be given a right to bring another suit for raising the same dispute which had been decided against him in the proceedings under the consolidation of Holdings Act. I, therefore see no substance in the contention. 4. The only other point that has been urged by the learned counsel is that in view of the amendment made in Sec. 27 of the said Act by U.P. Act No. XIII of 1965, which has been made retrospectively, it must be held that there arises only a presumption in favour of the entries made in the records under the provisions of Sec. 27 (1) and as such it would be open to the plaintiff-appellant to agitate the question of his title in the suit giving rise to this appeal is true that by the said amendment the words "shall be final and conclusive" occurring in sub-Sec. (2) of Sec. 27 have been substituted by the words "shall be presumed to be true until the contrary is proved". It is also true that this amendment has been given, retrospective effect. Still I fail to see as to what bearing it has on the conclusiveness of the decision given on objections filed under the relevant provisions of the Act in the course of the consolidation proceedings which attaches to them by virtue of Sec. 49. I have not the least doubt that Sec. 27 has no bearing on the interpretation of Sec. 49. In other words, Sec. 49 remains as effective even after its amendment as it was when Sec. 27 stood unamended. Sec. 49 confined itself to the maintenance of records. What is provided by sub-Sec. (2) of Sec. 27 is in respect of such entries as are made as a result of proceedings taken under Sec. 27. The provision in sub-Sec. (2) has nothing to do with such entries as have been entered in the record by virtue of decisions given on questions of title raised in the course of consolidation proceedings. Determination of questions of title in the course of consolidation proceedings under the relevant provisions of the Consolidation of Holdings Act has been made conclusive by virtue of Sec. 49 of the Act. Determination of questions of title in the course of consolidation proceedings under the relevant provisions of the Consolidation of Holdings Act has been made conclusive by virtue of Sec. 49 of the Act. I, therefore, see no flaw in the decree passed by the courts below. 5. No other point has been urged. The appeal is dismissed summarily.