Jagdeo v. Lauhar — 1970 DIGILAW 191 (ALL)

ORDER S.N. Singh, J. - The short point for decision in this appeal is as to whether the suit in the instant case was barred by the provisions of Section 49 of the UP Consolidation of Holdings Act or not. 2. Brief facts giving rise to the appeal as disclosed from the record of the case is as follows: The land in suit comprised 100 links area of plot No. 370 old. The plot was originally recorded as the hereditary tenancy of Timmal and Telhu sons of Siar vide extract Khatauni 1354F. Ext. A-5 on the record. It appears that this plot of land was adjacent to the Abadi. In proceedings u/s 53 of the UP Tenancy Act Raja Ram Misra Defendant No. 1 acquired this area for the purposes of constructing a house over it and thereafter he constructed a house over the same. On 1-2-1955 Raja Misra Defendant No. 1 sold the house along with the land appurtenant to it in favour of the Plaintiffs vide Ext. 5 on the record. The case of the Plaintiffs is that after this purchase they planted certain trees and bamboo clumps and remained in possession thereof. Although the Plaintiffs had their construction and trees on this plot which had acquired the nature of Abadi plot revenue entries showed that this plot was the sirdari plot of Raja Ram Misra. Consolidation operation took place in the village. The entry of the name of Raja Ram Misra continued and was not got corrected during consolidation operation. The Plaintiff's case is that since this plot had assumed the nature of Abadi and they were in possession they never knew that it was recorded as sirdari of Defendant No. 1 as such they did not take any step during consolidation operation to get the entries corrected. During consolidation operation this plot No. 370 was (sic) as 161 area 100 links. Since this (sic) continued to be recorded as sirdari of Raja Ram Misra although he had transferred this plot in favour of the Plaintiffs it appears that he obtained bhumidhari right in respect of this plot and sold it in favour of Defendants Nos. 2 to 4 Jagdeo and others by a registered sale deed dated 29-4-1962. Since this (sic) continued to be recorded as sirdari of Raja Ram Misra although he had transferred this plot in favour of the Plaintiffs it appears that he obtained bhumidhari right in respect of this plot and sold it in favour of Defendants Nos. 2 to 4 Jagdeo and others by a registered sale deed dated 29-4-1962. After this sale according to the case of the Plaintiffs Defendants interfered with the possession of the Plaintiffs which necessitated the filing of the present suit with a prayer that the Defendants be restrained from interfering with the possession of the Plaintiffs over the disputed plot which contained a delapi-dated house, trees and bamboo clumps. At the foot of the plaint the Plaintiffs gave the boundary of the plot and the old number 370 measuring 100 Karis. 3. The suit was contested by the Defendants Nos. 2 to 4 who pleaded that the land in suit was sirdars holding of Raja Ram Misra Defendant No. 1 who after acquiring bhumidhari right sold the same to the Defendants Nos. 2 to 4 so they have become the owner in possession of the plot in dispute. They denied the right of the Plaintiff and asserted that the sale deed in favour of the Plaintiffs was fictitious and pleaded the bar of Section 49 UP Consolidation of Holdings Act. 4. The learned Munsif on a consideration of the evidence on the record held that Section 49 of the UP Consolidation of Holdings Act barred the jurisdiction of the civil court to sit in judgment over the entries made during consolidation proceedings. According to him entries made during consolidation operation were conclusive in nature and he further held that sale deed of sirdari holding by Defendant No. 1 in favour of the Plaintiffs was void and created no title in the Plaintiffs. He accepted the sale in favour of the Defendant Nos. 2 to 4 to be valid accordingly dismissed the suit. 5. On appeal the lower appellate court formulated the point for determination as follows: whether the land in dispute was Abadi land of Defendant No. 1 or was it his sirdaii holding and whether the Plaintiffs have been in possession? 6. 2 to 4 to be valid accordingly dismissed the suit. 5. On appeal the lower appellate court formulated the point for determination as follows: whether the land in dispute was Abadi land of Defendant No. 1 or was it his sirdaii holding and whether the Plaintiffs have been in possession? 6. After having formulated the above point the lower appellate court recorded a finding that the land in dispute was house site and Abadi of Defendant No. 1 and not an agricultural land at the time when he sold it to the Plaintiffs. It further found that Plaintiffs continued in its possession from the date of sale to the date of suit. It also held that Defendant Nos. 2 to 4 did not acquire any right nor possession over the suit land by virtue of the sale deed executed in their favour. It did not agree with the Munsif that the suit was barred by Section 49 of the UP Consolidation of Holdings Act or that the entries made during consolidation were of conclusive nature. Accordingly it decreed the Plaintiffs' suit for injunction as prayed. 7. The Defendants have come up in appeal to this Court and Sri Uma Kant Misra learned Counsel for the Appellants vehemently argued that the suit of the Plaintiffs was barred by Section 49 of the UP Consolidation of Holdings Act which hereafter will be called the Act. In support of his contention the learned Counsel relied on the cases of Dalel v. Baroo 1963 AWR 230 , Sri Ram Lal v. Assistant Collector, Mathura 1966 AWR 140 and Rishal Singh v. Board of Revenue 1970 AWR 123 . He also made a reference to the cases of Abdul Wahid Khan v. Dy. Director of Consolidation 1968 AWR 27 and Smt. Shakuntala Devi v. Dy. Director of Consolidation 1968 AWR 27 1. He also drew my attention to an order of admission of a writ petition in which there was an ob servation that my decision in Shah Mohd. v. Niyaz Mohd. S.A. No. 2456 of 1967 dated 10-3-1969 may require reconsideration. 8. As against these submissions of the learned Counsel for the Appellants Shri Padmanath Singh learned Counsel for the Respondents supported the decision of the lower appellate court and relied on the decisions given in Shah Mohd. v. Niyaz Mohd. v. Niyaz Mohd. S.A. No. 2456 of 1967 dated 10-3-1969 may require reconsideration. 8. As against these submissions of the learned Counsel for the Appellants Shri Padmanath Singh learned Counsel for the Respondents supported the decision of the lower appellate court and relied on the decisions given in Shah Mohd. v. Niyaz Mohd. (supra), Thakur Sant Bux Singh v. S.C. Singh, Dy, Director of Consolidation 1965 AWR 416 and Dalel Singh v. The Board of Revenue 1968 AWR 314 . 9. In order to determine the question in controversy it is necessary to quote Section 49 and relevant portions of Section 27 of the Act which are as follows: 10. Section 49 : Bar to the Civil Court jurisdiction--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 Under Sub-section (2) of Section 4, or adjudication of any other rights 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. 27. New Revenue Records--(1) As soon as may be, after the final Consolidation Scheme has come into force, the District Deputy Director of Consolidation shall cause to be prepared for each village, a new map, field book and record of rights in respect of the consolidation area, on the basis of the entries in the map, as corrected u/s 7, the 'khasra chakbandi', the annual register prepared u/s 10 and the allotment orders as finally made and issued in accordance with the provisions of this Act. The provision of the Uttar Pradesh Land Revenue Act, 1901, shall, subject to such modifications and alterations as may be prescribed, be followed in the preparation of the said map and records. (2) The entries in the map, the field book and the record of rights, prepared Under Sub-section (1) shall be final and conclusive. (3) * * * * 11. (2) The entries in the map, the field book and the record of rights, prepared Under Sub-section (1) shall be final and conclusive. (3) * * * * 11. In the present case from the facts stated above it is clear that the cause of action for the suit arose after the conclusion of the consolidation proceedings. On the finding of fact recorded by the lower appellate court the plot in dispute was Abadi land and in possession of the Plaintiffs. It is clear that in respect of the cause of action, that arose in the instant case no proceeding could be taken before the consolidation authorities for there was no interference of possession during consolidation operation. So it cannot be said that for the relief claimed in the present suit Section 49 of the Act can be a bar. It is contended on behalf of the Appellants that the revenue entries that stood during consolidation operation cannot be challenged after the conclusion of the consolidation operation. 12. It is argued that although there is no adjudication about rights of the parties in consolidation proceedings the entries in revenue records would be deemed exparte decisions against a person whose right is affected by the entries so made. I am unable to accept this contention. This contention loses sight of the provision of Section 27 sub Clause (2) wherein it has been provided that entries made in the record of rights prepared in accordance with provisions of Sub-section (1) shall be presumed to be true until the contrary is proved. Originally we find that u/s 27 of the Act entries made in the record of rights prepared in accordance with the provisions of Sub-section () of Section 27 were made conclusive. But now after the amendment of UP Consolidation of Holdings Act in the year 1963 the entries made during consolidation operation are only presumed to be true until the contrary is proved. This change in the section would suggest that wrong entries made during consolidation proceedings or wrong entries which remained uncorrected during consolidation proceedings could be proved to be wrong in suit instituted after the conclusion of consolidation proceedings. This change in the section would suggest that wrong entries made during consolidation proceedings or wrong entries which remained uncorrected during consolidation proceedings could be proved to be wrong in suit instituted after the conclusion of consolidation proceedings. In the present case we find that although the plot in dispute had ceased to be agricultural plot and on the finding of fact recorded by the lower appellate court it was recorded sirdari of Defendant No. 1 which could not have been recorded on the facts found. This plot originally was hereditary tenancy of Timmal and others and had been taken by the Defendant No. 1 for construction of house it could not have become the hereditary tenancy or sirdari of Defendant No. 1. The entry made in revenue papers in favour of Defendant No. 1 was obviously wrong. On the facts found in this case it is clear that the Defendants Nos. 2 to 4 who must be deemed to have knowledge of the sale deed in favour of the Plaintiffs which is a registered document in respect of this very land purchased litigation and nothing else. There being no adjudication about the right and possession of the Plaintiff and Defendant No. 1 during consolidation proceedings it cannot necessarily be taken for granted that because the wrong entries were not corrected Defendant No. 1 must be deemed to have possession and title to the property in dispute at the date of the sale in 1962. On the finding recorded by the lower appellate court about continuous possession of the Plaintiffs from 1955 onwards even if it be held that Defendant No. 1 was the sirdar of the plot in dispute at the time of sale Defendant No. 1's right must be held to have been extinguished by lapse of time. If an Abadi plot is wrongly recorded as an agricultural plot during consolidation proceeding and because of absence of knowledge of this fact by the real owner the entry in revenue papers remains uncorrected in my opinion a suit claiming right in the Abadi plot cannot be held to be barred by Section 49 of the Act. In such cases it is Section 27 of the Act which has to be looked into. Since the entry has not been corrected during consolidation operation every presumption will be made against a person challenging the entry. In such cases it is Section 27 of the Act which has to be looked into. Since the entry has not been corrected during consolidation operation every presumption will be made against a person challenging the entry. But once he proves the inaccuracy of the entry he is entitled to succeed. This is the result in my opinion of the amended Section 27 Sub-clause (2) of the Act. If the contentions of the Appellants were to be accepted there was absolutely no need to amend Section 27 Sub-clause (2) of the Act. 13. Now it is necessary to notice the cases cited by the parties. In Dalel v. Baroo 1963 AWR 230 it was held that "having regard to the context in which the word 'could' is used in Section 49, it can only mean that if in respect of a particular matter, the aggrieved person has a method of redress under the Act, then in regard to such a matter the jurisdiction of the civil court is barred. Section 49 bars the jurisdiction of the civil courts to take cognizance of a suit involving the question of title to grove-land, as that would be a matter in regard to which an application could be filed under the provisions of the Act, viz. Section 12. 14. This case is distinguishable. In the present case the Plaintiffs could not have filed an application before the consolidation authorities for the declaration of their right in the Abadi plot. 15. In Sri Ram Lal v. Assistant Collector, Mathura 1966 AWR 140 it was held that "the bar created by Section 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." The facts giving rise to the special appeal before the Bench were different than the facts of the present case. In that case decision in proceedings under Act 10 of 1949 was taken contrary to the decision arrived at by the consolidation authorities. That was not a case of mere wrong entry, on the contrary that was a case wherein consolidation authorities had decided the rights of the parties. Thus this case has no application to the facts of the present case. 16. That was not a case of mere wrong entry, on the contrary that was a case wherein consolidation authorities had decided the rights of the parties. Thus this case has no application to the facts of the present case. 16. In Rishal Singh v. Board of Revenue 1970 AWR 123 it was held that revenue courts cannot be asked to go into the merits of the consolidation proceedings the rights determined either after contest or without contest by the consolidation authorities in respect of the land before it came to the common consolidation pool are final and cannot be challenged on merits in any civil or revenue court. The facts giving rise to this case are also distinguishable. This case had distinguished the decision in Second Appeal No. 2456 of 1967 Shah Mohammad v. Niyaz Mohammad decided on 10-3-1969 with which I am in complete agreement. 17. The two decisions reported in the cases of Abdul Wahid Khan v. Deputy Director of Consolidation 1968 AWR 27 and Smt. Shakuntala Devi v. Deputy Director of Consolidation 1968 AWR 27 1 referred to above by the learned Counsel for the Appellants in my opinion have no relevancy to the facts of the present case. 18. The decisions relied on by the learned Counsel for the Respondents reported in the cases of Thakur Sant Bux Singh v. S.C. Singh, Deputy Director of Consolidation 1965 AWR 416 and Dalel Singh v. The Board of Revenue 1968 AWR 314 are distinguishable. I have followed the decision given in Shah Mohammad v. Niyaz Mohammad S.A. No. 2456 of 1967 D\- 10-3-1969. Merely because certain observations have been made while admitting a writ petition cannot take away the efficacy of a decision given by a Single Judge unless it is specifically overruled by a larger Bench. On the facts of this case I am satisfied that if the case is held to be barred by Section 49 of the Act great prejudice will be done to the Plaintiffs and will add premium to the fradulent act of the Defendant No. 1. 19. No case for interference has been made out. Accordingly this appeal fails and is hereby dismissed with costs.