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1965 DIGILAW 458 (ALL)

Ram Lal v. Assistant Collector

1965-11-01

JAGDISH SAHAI, W.BROOME

body1965
JUDGMENT Jagdish Sahai, J. - This special appeal is directed against the judgment of V. G. Oak, J. dated 4-9-1961, dismissing writ petition No. 921 of 1960 filed by the appellant, Ram Lal. 2. The plots in dispute lie in village Rashidpur, pergana Sadabad, district Mathura. A notification under Sec. 4 of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act) was issued in respect of this village. Mutation proceedings under Secs. 7 and 8 of the Act were held by the consolidation authorities. In respect of the plots in dispute the mutation entry in the revenue papers made by the consolidation authorities is half share for each party. The matter so far as the mutation proceedings were concerned became final. Later on the respondents, Dori Lal and Thakur Das, filed an objection under Sec. 12 of the Act. In that objection they did not plead that they had anything more than half share in the plots in dispute. They objected to the chaks allotted to them on the ground that those chaks contained land of inferior quality to that given to the appellant. Whereas Mr. Swami Dayal, who has appeared for the appellant, has contended that those objections were dismissed, Mr. Ojha submitted that the same were not disposed of. However, a decision on that point is really not necessary to decide the question that has been raised before us. 3. Admittedly the proceedings under the Act were closed and the village was identified under the provisions of Sec. 52 of the Act. Thereafter, Dori Lal and Thakur Das made an application under Act X of 1949 praying that a declaration of Bhumidhari granted in favour of the appellant, Ram Lal, be cancelled. The Assistant Collector, 1st Class, allowed the application of Dori Lal and Thakur Das and cancelled the Bhumidhari Sanad granted to Ram Lal in respect of the plots in dispute. An appeal was filed by Ram Lal, which was heard by the Additional Commissioner, Agra. The learned Additional Commissioner allowed the appeal in so far that he cancelled the Sanad not altogether, but only in respect of ?rd share in the plots in dispute, holding that Dori Lal and Thakur Das were entitled to ?rd share in the plots in dispute. 4. The learned Additional Commissioner allowed the appeal in so far that he cancelled the Sanad not altogether, but only in respect of ?rd share in the plots in dispute, holding that Dori Lal and Thakur Das were entitled to ?rd share in the plots in dispute. 4. It also appears that a partition suit under Sec. 49 of the U.P. Tenancy Act 1939 (hereinafter referred to as the Tenancy Act) was pending between the parties on the date when the notification under Sec. 4 of the Act was issued by the State Government. The Assistant Collector passed a preliminary decree in favour of Dori Lal and Thakur Das, holding their shares to be ?rd in the plots in dispute. An appeal was filed before the Commissioner, Agra Division, which was heard and decided by the Additional Commissioner, who held that the decree passed by the Assistant Collector under Sec. 49 of the Tenancy Act stood "wiped off by consolidation proceedings taken in the village which have since been confirmed." The Additional Commissioner dismissed the appeal as infructuous. An appeal was taken to the Board of Revenue, which first stayed the proceedings under Sec. 5 of the Act and later on after proceedings under Sec. 12(5) of the Act were over, decided the appeal in terms of C. H. Form No. 25 of 24/30-1-1961. By means of the writ petition giving rise to this appeal, the orders passed by the Assistant Collector and the Additional Commissioner under Act X of 1949 had been challenged. 5. The sole question that requires determination is whether proceedings under Act X of 1949 were barred by virtue of the provisions of Sec. 49 of the Act which at the relevant time read:- "49. Bar to Civil Courts jurisdiction. - No person shall institute any suit or other proceeding in any Civil or Revenue Court with respect to any matter arising out of consolidation proceedings or with respect to any other matter in regard to which a suit or application could be filed under the provisions of this Act." 6. Oak, J. was of the opinion that Sec. 49 of the Act did not bar the application made by Dori Lal and Thakur Das under Act X of 1949. Oak, J. was of the opinion that Sec. 49 of the Act did not bar the application made by Dori Lal and Thakur Das under Act X of 1949. He was of the opinion that by filing the application under Act X of 1949 Dori Lal and Thakur Das "did not attempt to reopen consolidation proceedings." Oak, J. further observed: "All that they urged before the Assistant Collector was that a certain Sanad was wrongly issued to Ram Lal. This was not a matter arising out of consolidation proceedings. Nor is this a matter in regard to which a suit or application could be filed under the provisions of the U.P. Consolidation of Holdings Act, 1953. The 1953 Act contains no provision for cancellation of a Sanad for Bhumidhari rights. So the present case is not barred by either of the two parts of Sec. 49 of the U.P. Consolidation of Holdings Act, 1953." 7. With great respect to Oak, J. we are unable to agree with him. The bar created by Sec. 49 is an absolute one and no matter could be adjudicated upon before any other authority or court which could be decided in proceedings under the Act. Under Sec. 12 of the Act it was open to the respondents, Dori Lal and Thakur Das, to contend that the share of the appellant was only 1 /3rd and not half as was held by the consolidation authorities. This they did not do. The result was that under the provisions of Sec. 23 the provisional consolidation scheme was confirmed and orders relating to allotment of chaks were issued. The appellant also became entitled to possession over the chak allotted to him by virtue of the provisions of Sec. 24 of the Act; and under the provisions of Sec. 27 of the Act new records were prepared in respect of the plots in dispute, showing the share of the appellant to be half. Thereafter possession was delivered under Sec. 28 of the Act. The result of the orders passed by the consolidation authorities was that the share of the appellant in the plots in dispute was half and not l/3rd. Thereafter possession was delivered under Sec. 28 of the Act. The result of the orders passed by the consolidation authorities was that the share of the appellant in the plots in dispute was half and not l/3rd. Inasmuch as in proceedings under Act X of 1949 a decision has been recorded by which the share of the appellant has been reduced to 1 /3rd, it is clear that an order has been passed which militates against and nullifies the order passed under the Act. We are, therefore, unable to agree with Oak, J. that in the prohibition contained in Sec. 49 of the Act, a proceeding under Act X of 1949 is not included. A perusal of the provisions of the Act and the rules framed thereunder would reveal that the scheme is that all those matters which can be directly or indirectly decided by the consolidation authorities cannot be adjudicated upon by any other authority or court. Sec. 4 of the Act provides that on a declaration under Sec. 5 being made all proceedings for correction of the records and all suits for declaration of rights and interests over land or for partition, pending before any authority or court, whether of first instance, appeal or reference or revision, shall stand stayed. It further provides that the suit, appeal or revision or any other proceeding stayed under Sec. 5 of the Act shall after the conclusion of proceedings under the Act be decided in accordance with the decision recorded by the consolidation authorities. There is, therefore, no doubt that no order can be passed by any other authority or court which would have the result of either circumventing or nullifying an order passed under the Act. In this view of the matter, a decision recorded in proceedings under Act X of 1949 holding that the share of the appellants is one-third and not one-half, as decided by the consolidation authorities, is in the teeth of the provisions of Sec. 49 of the Act and for that reason is without jurisdiction and a nullity. 8. For the reasons mentioned above, we allow this special appeal, set aside the judgment of Oak, J. dated 4-9-1961 and allow the writ petition. In the circumstances of the case we direct the parties to bear their own costs both before the learned single Judge and before this Bench. Appeal allowed.