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1968 DIGILAW 135 (ALL)

Shakuntala Devi v. Deputy Director of Consolidation, U. P. Lucknow Camp At Bijnor

1968-03-13

SATISH CHANDRA

body1968
ORDER Satish Chandra, J. - This and the connected writ petitions are directed against a common order of the Dy. Director of Consolidation. The Petitioner claimed as the widow of the erstwhile zamindar. She alleged that the plots in dispute were the khudkasht of her husband and she had become their bhumidhar. This plea has been repelled by the authorities below including the Dy. Director of Consolidation. They held that admittedly the Petitioner filed a suit for ejectment of the Respondents u/s 209 of the UP ZA and LR Act. The suit was decreed on 1-7-1958. In execution the delivery of possession took place on 29-6-1959. But inspite of these proceedings, the Respondents judgment-debtors continued to remain in possession undisturbed. The Dy. Director of Consolidation, in my opinion, rightly held that the effect of the proceedings for execution would be to interrupt the possession of the Respondents. Any claim on the basis of adverse possession prior to the date of execution could not be upheld. 2. It was urged before the authorities below that en the issuance of the notification u/s 4 of the UP Consolidation of Holdings Act on 24-1-1964, n respect of the lard in dispute no suit for ejectment of the Respondents and possession of the plots could be instituted in view of Section 49 of the UP Consolidation of Holdings Act. Till that date the Respondents had not matured title by adverse possession. The Dy. Director of Consolidation held that the issuance of the notification u/s 4 would not arrest the running of time for a suit u/s 209 of the UP ZA and LR Act; and that by the time the objection was decided by the Consolidation Officer on 31-3-1966, the Respondents had matured title as Sirdar u/s 210 of the UP ZA and LR Act by being in possession for the requisite period of six years. 3. This view of law taken by the Dy. Director of Consolidation has been challenged in the present writ petition. A Full Bench of this Court in. Abdul Wahid Khan and Ors. v. Dy. 3. This view of law taken by the Dy. Director of Consolidation has been challenged in the present writ petition. A Full Bench of this Court in. Abdul Wahid Khan and Ors. v. Dy. Director of Consolidation and others 1968 AWR 27 has held that a suit for possession u/s 209 ZA Act is not barred by Section 49 of the UP Consolidation of Holdings Act and the promulgation of a notification u/s 4 of the UP Consolidation of Holdings Act could not suspend the running of the limitation for such a suit. A suit for possession has to be filed before the expiry of the prescribed period of limitation inspite of a notification u/s 4 of the UP Consolidation of Holdings Act. On the view expressed by the Full Bench the order of the Dy. Director of Consolidation was correct. 4. On behalf of the Petitioner reliance has been placed upon the decision of the Supreme Court in Ram Adhar Singh v. Ram Roop Singh and Ors. 1968 AWR 14 where it was held that a suit for possession u/s 209 of the UP ZA and LR Act was covered by Section 5 of the UP Consolidation of Holdings Act as it stood before and after its amendment by UP Act XXI of 1966. It was urged that in view of the decision of the Supreme Court the Full Bench decision in Abdul Wahid Khan's case does not hold the field. 5. Section 209 of the UP ZA and LR Act provides for a suit for ejectment of persons occupying land without title. Section 210 provides that if a suit is not brought u/s 209 within the period of limitation provided for it, the person taking or retaining possession shall become the sirdar; and the rights, title and interest of the tenure-holder shall be extinguished. 6. Section 5 of the UP Consolidation of Holdings Act as it stood on 24-1-1964, when the notification u/s 4 of that Act was issued in the present case, ran as follows: 5. 6. Section 5 of the UP Consolidation of Holdings Act as it stood on 24-1-1964, when the notification u/s 4 of that Act was issued in the present case, ran as follows: 5. Effect of declaration--Upon the publication of the notification u/s 4 in the Official Gazette, the consequences, as hereinafter set forth, shall, subject to the provisions of this Act, from the date specified thereunder till the publication of notification u/s 52 or Sub-section (1) of Section 6, as the case may be, ensue in the area to which the declaration relates, namely: (a) The district or part thereof, as the case may be, shall be deemed to be under consolidation operations and the duty of maintaining the record of rights and preparing the village map, the field book and the annual register of each village shall be performed by the District Dy. Director of Consolidation who shall maintain or prepare them, as the' case may be, in the manner prescribed; (b)(i) all proceedings for correction of the records and all suits for declaration of rights and interests over land, or for possession of land, or for partition, pending before any authority or court, whether of first instance, appeal or reference or revision, shall stand stayed, but without prejudice to the right of the persons affected to agitate the rights or interests in dispute in the said proceedings or suits before the Consolidation authorities under and in accordance with the provisions of this Act and the rules made thereunder; (ii) the findings of consolidation authorities in proceedings under this Act in respect of such right or interest in the land, shall be acceptable to the authority or Court before whom the proceeding or suit was pending which may, on communication thereof by the parties concerned, proceed with the proceeding or suit, as the case may be; (c) notwithstanding anything contained in the UP ZA and LR. Act, 1950, no tenure holder, except with the permission in writing of the Settlement Officer, Consolidation, previously obtained shall-- (i) use his holdings or any part thereof for purposes not connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming; or (ii) transfer by way of sale, gift or exchange any part of his holding in the consolidation area; Provided that a tenure-holder may 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 u/s 4. It will be seen that Under Clause (b)(i) suits for possession were also liable td be stayed and Under Clause (b)(ii) decided in accordance with the findings of the consolidation authorities arrived at in proceedings under the UP Consolidation of Holdings Act in respect of the rights or interests in the land. The Amending Act XXI of 1966 deleted Clause (b) and added a new Sub-section (2) to Section 5 which read: (2) Upon the said publication of the notification under Sub-section (2) of Section 4, the following further consequences shall ensue in the area to which the notification relates, namely: (a) every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the Court or authority before whom such suit or proceeding is pending, stand abated. Provided that no such order shall be passed without giving to the parties Notice by post or in any other manner and after giving them an opportunity of being heard; Provided further that on the issue of a notification Under Sub-section (1) of Section 6 in respect of the said area or part thereof, every such order in relation to the land lying in such area or part as the case may be, shall stand vacated. (b) Such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said suits or proceedings before the appropriate consolidation authorities under and in accordance with the provisions of this Act and the rules made thereunder. After its amendment, Section 5 did not expressly refer to suits for possession or partition, but dealt with suits for declaration of rights or interest in any land or for declaration or adjudication, of any other right in regard to which proceedings can or ought to be taken under the Act. All such suits were to stand abated without prejudice to the rights of the persons affected to agitate the right of interest in dispute before the appropriate consolidation authorities under the Act. Prior to its amendment by UP Consolidation of Holdings (Amendment) Act No. 38 of 1958, Section 49 ran as follows: 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. After its amendment, Section 49 runs as follows: Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure-holders in respect of land lying in an area, for which a notification has been issued u/s 4, or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no Civil or Revenue Court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act. 7. Section 5 froze pending suits or proceedings relating to declaration or adjudication of rights pending their adjudication under the Consolidation of Holdings Act. Section 49 forbade the institution of fresh suits or other proceedings with respect to, inter alia, any matter in regard to which a suit or application can be filed under the provisions of the Consolidation of Holdings Act. After their amendment, the scope of both the provisions was enlarged. Section 49 forbade the institution of fresh suits or other proceedings with respect to, inter alia, any matter in regard to which a suit or application can be filed under the provisions of the Consolidation of Holdings Act. After their amendment, the scope of both the provisions was enlarged. Section 5(2)(a), after its amendment provided for the abatement (and not merely the stay) of the suits and proceedings in respect of declaration of rights or interest in any land lying within the area notified u/s 4 and also for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under the Act. The abatement was to be without prejudice to the right of the persons affected to agitate their rights and interest in dispute in the said suit or proceedings before the appropriate Consolidation authorities. Similarly, after its amendment, Section 49 forbade the courts from entertaining any suit or proceeding with respect to rights in the land and also with respect to any other matter for which a proceeding could or ought to have been taken under the Act. It further declared that declaration and adjudication of rights of tenure-holders in respect of the land as well as the adjudication of any other right arising out of the consolidation proceedings shall be done in accordance with the provisions of the Act. Thus, both Sections 5 and 49 were intended to achieve the professed aspiration of the Act, namely, to make the Consolidation authorities the sole and exclusive tribunals for adjudication of, inter alia, all disputes relating to rights and interests in the land covered by the Notification u/s 4, so as to facilitate their consolidation into compact holdings. The two provisions are complementary. They supplement each other. The kinds of the disputes in respect of which Section 5 froze pending litigation are the same for which Section 49 forbade the institution of fresh litigation. Both relate to, the rights or interest in land covered by the Notification u/s 4. The basic aim of the Legislature was to bring all such disputes before one tribunal, namely that created by the Act. It, by Section 11, made the decision of the Consolidation authorities final and binding on the parties. No other courts, civil or revenue, could even entertain suits or proceedings with respect to rights in such land. 8. The basic aim of the Legislature was to bring all such disputes before one tribunal, namely that created by the Act. It, by Section 11, made the decision of the Consolidation authorities final and binding on the parties. No other courts, civil or revenue, could even entertain suits or proceedings with respect to rights in such land. 8. In Ram Ad bar Singh's case, the question before the Supreme Court was whether Section 5 after its amendment in 1966 covered suits for possession. The Supreme Court answered the question in the affirmative. It held that Section 5 was comprehensive to take in suits for possession also because "before a claim for possession is accepted, the court will have, necessarily, to adjudicate upon the right or interest of the Plaintiff, in respect of the disputed property, taking into account the claim of the opposite party". It was observed that the provisions of the UP Consolidation of Holdings Act clearly indicated that disputes with respect to rights were all within the jurisdiction of the authorities constituted under the Act to adjudicate upon. The authorities under the Act were courts of competent jurisdiction. So, a suit for possession was covered by the amended Section 5 the cause the matter with respect to any such suit could be adjudicated upon under the Act. The Supreme Court did not accept the submission that a relief for ejectment of a trespasser could not be granted under the Consolidation of Holdings Act and so a suit for possession u/s 209 of the ZA Act would not be within the purview of Section 5 of the Consolidation of Holdings Act. In my opinion, Sections 5 and 49 are pari materia. They have been enacted to subserve the same scheme. They should receive the same interpretation. Section 49, as it stood prior to its amendment, prohibited the institution of suits in respect of matters in regard to which a suit or application could be filed under the provisions of the Act. 9. Section 49, as it stood prior to its amendment, came up for interpretation before a Full Bench of this Court in Abdul Wahid Khan v. Deputy Director of Consolidation and others 1968 AWR 27 . 9. Section 49, as it stood prior to its amendment, came up for interpretation before a Full Bench of this Court in Abdul Wahid Khan v. Deputy Director of Consolidation and others 1968 AWR 27 . Jagdish Sahai, J., speaking for the Full Bench, said that the provision barred a suit or other proceeding only in two circumstances, namely; (a) when the matter arose out of consolidation proceedings and (b) when the matter was such in regard to which a suit or application could be filed under the provisions of the Act. It was held that a suit for possession u/s 209 of the ZA Act does not agitate any matter arising out of consolidation proceedings. The first part of Section 49 was hence not attracted. It was observed that in order to attract the second part of Section 49 it would have to be seen as to whether there was any provision analogous to Section 209 of the UPZA Act in the UP Consolidation of Holdings Act. That is to say, whether a relief similar to the one contemplated by a suit u/s 209 of the ZA Act could be granted under the Consolidation of Holdings Act. It was held that Section 209 provided for the ejectment of a trespasser, which was not contemplated by the Consolidation of Holdings Act, because the delivery of possession to a tenure-holder of the chak allotted to him after investigating his title was not of the same nature as the proceeding to eject a trespasser by way of a suit u/s 209 of the ZA Act, nor was it a substitute for the suit u/s 209. 10. This line of reasoning does not appear to have appealed to the Supreme Court in Ram Adhar Singh's case. According to the Supreme Court, suits for possession involve a declaration or adjudication of rights or interest in, the land. Such suits were covered by Section 5 of the Consolidation of Holdings Act. Such suits were to stand abated and the parties had a right to agitate their rights and interest in dispute in those suits before the appropriate consolidation authorities. Thus, the persons interested in recovering possession by ejectment of a trespasser could agitate the matter in dispute under the Consolidation of Holdings Act. Such suits were to stand abated and the parties had a right to agitate their rights and interest in dispute in those suits before the appropriate consolidation authorities. Thus, the persons interested in recovering possession by ejectment of a trespasser could agitate the matter in dispute under the Consolidation of Holdings Act. According to the reasoning of the Supreme Court, the matter in dispute would be the dispute relating to rights or interest, and not the object of the suit, or the cause of action set out therein, or the relief asked for. 11. The Full Bench held that the Consolidation authorities determine the rights of the parties only for the purposes and in the process of implementing the scheme of consolidation and that those authorities are not courts, but tribunals of limited jurisdiction created to decide rights only for consolidation purposes. The Supreme Court on the other hand, held that the Consolidation authorities are courts of competent jurisdiction. Their orders are final and cannot be questioned in any other court of law. It seems, therefore, that the decision of the Full Bench cannot be said to hold the field after the decision of the Supreme Court in Ram Adhar Singh's case. 12. The true perspective for the application of Section 49 appears to be to see whether the title in dispute in the suit u/s 209 of the UP ZA and LR Act is such that in regard to its adjudication, a suit or application could appropriately be made under the UP Consolidation of Holdings Act. If it could be, the suit would be within the prohibition of Section 49 of the UP Consolidation of Holdings Act, and it could not be instituted. 13. The Full Bench in Abdul Wahid Khan's case interpreted Section 49 as it stood previously. The notification u/s 4 of the Act was issued in the present case on 24-1-1964. The present case would be governed by the amended Section 49. As seen above, this provision was markedly changed after the amendment. Previously, this provision restrained a litigant from instituting suits. Now it debars civil or revenue courts from entertaining suits. Further, previously a suit could not be instituted with respect to any matter in regard to which a suit or application, could be filed under the Act. This rather ambiguous phrase was repealed. Previously, this provision restrained a litigant from instituting suits. Now it debars civil or revenue courts from entertaining suits. Further, previously a suit could not be instituted with respect to any matter in regard to which a suit or application, could be filed under the Act. This rather ambiguous phrase was repealed. Now, no court can entertain suits with respect to rights in land for which a notification has been issued u/s 4. It has been further made clear that declaration and adjudication of rights of tenure-holders in respect of such land shall be done in accordance with the provisions of the Consolidation of Holdings Act. Now, there is a categorical bar, both positively and negatively, to adjudication of rights of tenure-holders, by regular courts. Positively, such adjudication shall be done under the Act; negatively, the civil or revenue courts are debarred from entertaining any suit or proceeding for it. This direct, clear and categorical bar was re-enforced by the further fresh provision, "Notwithstanding anything contained in any other law for the time being in force". So the bar is to operate irrespective of any other provision of law. 14. Section 209 of the ZA Act provides for a suit for possession. Such suits involve adjudication of rights of the parties in relation to the land on which possession is claimed. Such suits cannot be entertained by the civil or revenue courts after the publication of the Notification u/s 4 of the Consolidation of Holdings Act, because the adjudication of rights cannot be undertaken by such courts. Thus, Section 209 permits the institution of a suit for possession and Section 49 prohibits the courts from entertaining it. Obviously, these two provisions cannot operate at the same time. They cannot stand together. They are repugnant to each other. According to the Supreme Court in Mathra Prashad and Sons Vs. State of Punjab, AIR 1962 SC 745 , if the provisions in two Acts cannot stand together, repeal can be implied. Obviously, these two provisions cannot operate at the same time. They cannot stand together. They are repugnant to each other. According to the Supreme Court in Mathra Prashad and Sons Vs. State of Punjab, AIR 1962 SC 745 , if the provisions in two Acts cannot stand together, repeal can be implied. Maxwell (The interpretation of Statues, Eleventh Edition, Page 156) states: When the latter of two general enactments is couched in negative terms, it is difficult to avoid the inference that the earlier one is impliedly repealed by it for instance, where a general Act exempted from licensing regulations the sale of a certain kind of beer and a subsequent one enacted that "no beer" should be sold without a licence, it would obviously be impossible to save the former from the repeal implied in the latter. The Consolidation of Holdings Act was passed in 1953, whereas the ZA was enacted in 1950. The former would prevail over the latter. Further, the Consolidation of Holdings Act provides for adjudication of rights in respect of the land covered by the Notification u/s 4, whereas the ZA Act provides for adjudication of rights in respect of the agricultural land in general. The Consolidation of Holdings Act is a special Act, comparatively speaking. It is settled that a general law, even though later, does not abrogate the earlier special one by mere implication. According to Maxwell (Interpretation of Statutes, Eleventh Edition, page 168), in such cases, the general provision would not apply to the particular cases dealt with by the special statute. It stands repealed pro tanto. 15. All these aspects apart, Section 49 now opens with the clause "Notwithstanding anything contained in any other law for the time being in force". This provision would, therefore, apply inspite of contrary provisions elsewhere. S 209 of the ZA Act, being such a contrary provision, would go and stand repealed in its application to the land covered by the Notification u/s 4 of the Consolidation of Holdings Act. Section 210 of the ZA Act provides for extinguishment and creation of rights on non institution of a suit u/s 209. This section cannot operate independently of Section 209. If Section 219 is not in existence in respect of some land, Section 210 cannot create or extinguish title on it. Thus, Section 210 would also stand repealed along with Section 209. 16. This section cannot operate independently of Section 209. If Section 219 is not in existence in respect of some land, Section 210 cannot create or extinguish title on it. Thus, Section 210 would also stand repealed along with Section 209. 16. The position thus appears to be that on the publication of the notification u/s 4 of the Consolidation of Holdings Act, Sections 209 and 210 of the ZA Act would disappear from the statute book. No suit can be filed u/s 209 and no consequences, as mentioned in Section 210, can possibly ensue with respect to the land covered by the Notification u/s 4. So, no title can mature by continuance of possession after the date of the notification u/s 4. 17. In the present case, the cause of action for a suit u/s 209 could arise on 29-6-1959. The Notification u/s 4 was issued on 24-1-1964. Till that date, the prescribed six years period of limitation had not expired. Till that day the Respondents had not matured title u/s 210. Their possession subsequent to 24-1-1964, was of no avail. The Respondents hence could not be declared to have mature title as sirdars merely by virtue of their possession. The Petitioner's title as bhumidhar did not extinguish. She was entitled to be recorded as a Bhumidhar. 18. In the result, the petitions succeed and are allowed. The impugned orders of the authorities below are set aside. It is directed that the Petitioner will be recorded as bhumidhar over the plots in dispute. The Petitioner will be entitled to her costs.