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1976 DIGILAW 244 (ALL)

Zohra v. Raghubar

1976-04-05

H.N.AGARWAL

body1976
JUDGMENT H.N. Agarwal, Member. - This is a second appeal against the judgment and order dated February 14, 1975 in appeal No. 543 of 1973, district Barabanki preferred in a case under Section 229-B of the U.P.Z.A. and L.R. Act against the judgment and order passed by the Judicial Officer, Barabanki. 2. I have heard and learned counsels for the parties and have gone through the record. 3. The respondent No. 1 Raghubir had filed a suit under Section 209/229-B of Z.A. Act regarding plot Nos. 63, 333 and 331 in village Chamrauli, district Bara-banki. The trial court by its order dated November 13, 1973 held that Section 49 of the Consolidation of Holdings Act bars the suit. The lower appellate court has however, held a contrary view and remanded the suit back for fresh trial. 4. Both counsels have argued at length the question whether or not the suit was barred by Section 49 of the C.H. Act. It is admitted case of both the parties that the land in suit was originally the Bhumidhari holding of one Baley. Raghubar the plaintiff-respondent and one Asha Ram who died issueless were his sons whereas Smt. Zohra the defendant-appellant is his widow. The case of the plaintiff-respondent is that Smt. Zohra being the widow could not succeed as an heir or Baley as his male descendants were alive. On the other hand the case of the defendant-appellant is that by a family settlement she along with both her sons, Reghubar and Asha Ram jointly succeeded, Baley as con-Bhumidhars of the land and remained in joint cultivatory possession. There was consolidation in the village in 1363 and 1364F and by the order of the Consolidation Officer, Patranga, which acts as res judicata between the parties, all the three were jointly recorded as co-Bhumidhars of the land in suit with equal shares. After the death of Asha Ram, Smt. Zohra also succeeded to his share being a widowed mother and thus her total share in the holding came to ?rd. She executed a sale deed of ?rd share in the holding in favour of Jagmohan, who was also defendant No. 4 in the original suit and has now joined in the appeal. 5. A copy of the order passed by the Consolidation Officer III on May 15, 1960 in case No. 3770 under Section 12 of C.H. Act. She executed a sale deed of ?rd share in the holding in favour of Jagmohan, who was also defendant No. 4 in the original suit and has now joined in the appeal. 5. A copy of the order passed by the Consolidation Officer III on May 15, 1960 in case No. 3770 under Section 12 of C.H. Act. Smt. Zohra w/o Baley v. Raghubar and Asha Ram, ss/o Baley has been filed. In this order the Consolidation Officer has held that the names of Raghubar, Asha Ram and Smt. Zohra be recorded as legal heirs of Baley over the holding in question. Since this order has not been quashed or modified in any manner, it has become final between the parties. The question whether the determination of title made under the C.H. Act can be reopened or challenged by the civil or revenue court has been considered by the High Court as well as the Board of Revenue on a number of occasions. A Bench of Allahabad High Court has held as follows in Kusar v. Ahmed Khan, 1962 A.L.J. 565:- "12 It will thus be seen that the Act provides a complete code for the disposal of all objections arising at different stage in the consolidation proceedings." Objections, relating to title are to be raised at the earliest stage, and Section 11-A makes a further provision that: "No question in respect of land lying in a consolidation area, which might and ought to have been raised under Section 9 but has not been raised shall be raised or heard at any further stage of the consolidation proceedings." This section, in a way, lays down the rule of res judicata so far as the question relating to the filing of objections under Section 9 i.e., objections relating to title in respect of the holdings, are concerned. The idea behind these provisions is that all disputes between different claimants, in whatever right a title may be claimed, must be decided finally before the holdings are rearranged so as to consolidate them at one or more places, as may be prescribed under the Act. The idea behind these provisions is that all disputes between different claimants, in whatever right a title may be claimed, must be decided finally before the holdings are rearranged so as to consolidate them at one or more places, as may be prescribed under the Act. Having regard to these provisions, as also the law as specifically laid down in Section 49, the only conclusion one can arrive at is that the jurisdiction of Civil and Revenue Courts to question the correctness or otherwise of the entries which are made in the revenue records as a result of the consolidation proceedings is completely barred." 6. Likewise another Bench of the same High Court has held as follows in Smt. Natho v. Board of Revenue and others, 1966 R.D. 170.:- "We may of course, make it clear that even the mutation proceedings would be proceedings under the Land Revenue Act, though the power of the Assistant Collector under the Land Revenue Act is exercised by the Consolidation authorities by virtue of Section 5-A of the Consolidation of Holdings Act. The mutation proceedings before an Assistant Collector under the Land Revenue Act, so that they do not decide any rights and do not result in declaration or adjudication of rights of tenure-holders." 7. The learned counsel for the respondents has not been able to show how any contrary view can be taken considering the specific provisions of U.P.C.H. Act. The learned Commissioner has made a curious distinction to the effect that at the time of publication under Section 9 of the C.H. act in the village, Baley was alive and there was no question of anybody raising any objection regarding the entries on the land in suit. He has failed to consider that it was reported to the consolidation authorities that Baley had died and the order of the Consolidation Officer dated May 15, 1960 was in fact passed on the objection under Section 12, C.H. Act filed by Smt. Zohra widow of Baley to the effect that her husband had died and she with their two sons were the legal heirs of the deceased and their names should be recorded in place of the deceased. As we have seen above it was fully within the competence of the Consolidation Officer to order mutation. As we have seen above it was fully within the competence of the Consolidation Officer to order mutation. If the present plaintiff-respondents or any other person had any objection to the proposed mutation they should have either pressed their objection before the Consolidation Officer or should have moved against the decision of the Consolidation Officer in accordance with law. How the above decision of the Consolidation Officer has become final between the parties and Section 49 of the C.H. Act clearly bars a suit. The learned Addl. Commissioner has erred in law in holding that the suit was not barred under Section 49 and that the trial court should have recorded the evidence of the parties before deciding this issue. 8. I hereby allow the appeal, set aside the order of the lower appellate court and restore the order of the trial court.