Jagannath v. Gauri Shanker — 1976 DIGILAW 561 (ALL)

JUDGMENT H.N. Agarwal, Member. - Revision No. 165 of 1968-69 has been filed by Jagannath against the judgment of Sri S.M. Hasan, Additional Commissioner, Faizabad Division dated February 27, 1969 in Appeal No. 60/200 of 1968 setting aside the order of the Judicial Officer, Fatehpur, district Bara Banki date August 23, 1968 in Suit No. 139 under Sections 2298/209, U.P. Zamindari Abolition and Land Performs Act. 2. Second Appeal No. 130 of 1969-70 has been filed by Gauri Shanker against the judgment and decree passed by the Additional Commissioner on April 21, 1970 in Appeal No. 42/135 of 1969 against the judgment and decree dated August 16, 1969 passed by the Judicial Officer in the same suit. 3. At the request of the counsel for the revisionist the two cases were consolidated by my learned predecessor Sri P.P. Bhatnagar. Accordingly, I have heard the learned counsels in both the cases and have gone through the record. 4. I may take up the revision first. Jagannath had filed a suit under Section 2298/209, U.P. Zamindari Abolition and Land Reforms Act against Gauri Shanker, Gaon Sabha Kaindri and the State of U.P. in respect of certain plots. The suit was contested by Gauri Shanker. On August 6, 1968 Jagannath moved an application for appointment of a Receiver of the land in order to avoid dispute between the parties. On August 19, 1968 an application was moved apparently by Gauri Shanker through in the application he has written his own name not as Gauri Shanker but as Jagannath opposing the appointment of the Receiver. The trial court on August 28, 1968 held that it was difficult to express any opinion at this stage about the possession of the land in suit and appointed the Sarpanch Nyaya Panchayat as Receiver of the land. It also directed that the Receiver will cultivate the land, will get 10 per cent as his management charges and will sell and deposit the sale proceeds after above deduction in the Court. Gauri Shanker filed an appeal against the order appointing a Receiver and the Additional Commissioner allowing the appeal set aside the order. Jagannath has now filed a revision against this order. 5. Gauri Shanker filed an appeal against the order appointing a Receiver and the Additional Commissioner allowing the appeal set aside the order. Jagannath has now filed a revision against this order. 5. The learned counsel for the revisionist has contended that it was a fit case for appointment of Receiver, that the Receiver was a man of position and there was no allegation against his conduct and hence it was expedient in the interest of justice that the Receiver should continue. 6. Rule 1, Order XI, C.P.C. provides as follows:- "1. Appointment of receivers- (1) Where it appears to the Court to be just and convenient, the Court may by order- (a) Appoint a receiver of any property, whether before or after decree; (b) Remove any person from the possession or custody of the property; (c) Commit the same to the possession, custody or management of the receiver; and (d) Confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of rents and profits thereof, the application and disposal of such rents and profits and the execution of documents as the owner himself has, or such of those powers as the Court thinks fit. (2) Nothing in this rule shall authorise the Court to remove from the possession of custody of property any person whom any party to the suit has not a present right so to remove." Thus, the only criterion laid down under the law for appointment of Receiver is that such appointment appears to the Court to be just and convenient. Where there is a dispute regarding landed property and both parties are claiming to be in possession, the trial court would be acting within its jurisdiction in holding that it is just and convenient to appoint a Receiver. The learned Additional Commissioner has not stated in his judgment why in his opinion the appointment of a Receiver was not just or convenient. Without assigning any reason he has merely given a verdict that it was not just and convenient to appoint a Receiver. This verdict is completely erroneous in law. Where a first appellate court sets aside the order of the trial court it must record proper legal grounds for doing so. Without assigning any reason he has merely given a verdict that it was not just and convenient to appoint a Receiver. This verdict is completely erroneous in law. Where a first appellate court sets aside the order of the trial court it must record proper legal grounds for doing so. It is not open to the first appellate court to set aside the order of the trial court on whims without recording any legal grounds. The learned Additional Commissioner has thus exercised jurisdiction not vested in him by setting aside the order of the trial court in this manner. The order of the trial court appointing the Sarpanch of the Nyaya Panchayat as the Receiver of the land in dispute is just and equitable. Sarpanch is not only a man of position but being the head of the Nyaya Panchayat is also the most judicial person available within the Nyaya Panchayat circle. Further, to avoid any loss to any party or the neglect of the land the trial court has also directed the Sarpanch to cultivate the land, sell the produce and deposit the sale proceeds in the Court after deducting ten per cent. This is most reasonable as whichever party ultimately wins the case would be entitled to the sale proceeds. Accordingly, I allow the revision, set aside the order of the learned. Additional Commissioner and restore the order of the trial court. 7. I now come to the appeal. The trial court had dismissed the suit filed by Jagannath on the ground that it had no jurisdiction to try it. The learned Additional Commissioner has, however, held otherwise and set aside the judgment of the trial court. Gauri Shanker, who was the defendant in the suit, has challenged the verdict of the Additional Commissioner. 8. It is the admitted case of both the parties that there has been consolidation in the village. The plaintiff-respondent Jagannath had claimed that the Lekhpal and other consolidation officials had made forgery in the consolidation papers in conspiracy with the defendant-appellant and in plot No. 435 instead of 13 biswa, 13 biswansi only 3 biswa, 13 biswansi was recorded in the name of the plaintiff. The respondent, therefore, sought a declaration of his Sirdari rights in the remaining 10 biswas of the plot. The defendant-appellant, on the other hand, claimed that the suit was barred under Section 49, U.P. Consolidation of Holdings Act. The respondent, therefore, sought a declaration of his Sirdari rights in the remaining 10 biswas of the plot. The defendant-appellant, on the other hand, claimed that the suit was barred under Section 49, U.P. Consolidation of Holdings Act. 9. The counsel for the appellant has contended that in the present suit, cause of action was beyond the jurisdiction of revenue Court and was cognizable only by the Civil Court. He has also contended that C.H. Forms 40, 41 and 45 being documents prepared by the consolidation authorities under the Consolidation of Holdings Act finally determining the rights of parties, can be cancelled and set aside by Civil Court alone. 10. The relevant provisions of the U.P. Consolidation of Holdings Act may be considered here. Section 5 of the Act provides that upon the publication of the notification under Section 4(ii) of the Act, every suit and proceeding in respect of declaration of rights or interest in any land pending before any Court or authority shall stand abated. The persons affected thereupon have the right to agitate their interest in the land in dispute before the appropriate consolidation authorities. The cases relating to claims over land are disposed by the Assistant Consolidation Officers and the Consolidation Officers under Section 9-A of the Act. The appeals against their orders are to be disposed or by the Settlement Officer (Consolidation) under Section 11. Section 12 of the Act provides as follows: "12. Decision of matters relating to changes and transaction affecting rights or interest recorded in revised records- (1) All matters relating to changes and transfers affecting any of the rights or interests recorded in the revised records published under sub-section(1) of Section 10 for which a cause of action had not arisen when proceedings under Section 7 to 9 were started or were in progress, may be raised before the Assistant Consolidation Officer as and when they arise, but not later than the date of notification under Section 52, or under sub-section(1) of Section 6. (2) The provisions of Section 7 to 11 shall mutatis mutandis, apply to the hearing and decision of any matter raised under sub-section (1) as if it were a matter raised under the aforesaid sections." Section 49 of the Act states as follows : "49. (2) The provisions of Section 7 to 11 shall mutatis mutandis, apply to the hearing and decision of any matter raised under sub-section (1) as if it were a matter raised under the aforesaid sections." Section 49 of the Act states as follows : "49. Bar to 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 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." 11. The over all legal effect of the above provisions is that any declaration or adjudication of rights of tenure-holders decided by the consolidation authorities in the above prescribed manner is final and the jurisdiction of the Civil or Revenue Courts is barred. Before the amendment enacted by Land Laws Amendment Act 12 of 1965 dated June 18, 1965, all entries in the record of rights and in the maps prepared by the consolidation authorities were deemed to be final and conclusive. However, after the amendment, Section 27 of the Act reads as follows; "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 under Section 7, the Khasra Chakbandi, the annual register prepared under Section 10 and the allotment orders as finally made and issued in accordance with the provisions of this Act. The provisions of the U.P. Land Revenue Act, 1901 (U.P. Act III of 1901), shall, subject to such modifications and alterations as may be prescribed, be followed in the preparation of the said map and records. The provisions of the U.P. Land Revenue Act, 1901 (U.P. Act III of 1901), shall, subject to such modifications and alterations as may be prescribed, be followed in the preparation of the said map and records. (2) All entries in the record of rights prepared in accordance with the provisions of sub-section (1) shall be presumed to be true until the contrary is proved. (3) After the issue of notification under Section 52, the Collector shall, instead of the map, filed-book and record of rights previously maintained by him, maintain the map, filed-book and record of rights prepared in accordance with the provisions of sub-section 1, and provisions of Sec. 28 and 33 of the U.P. Land Revenue Act, 1901, shall apply to the maintenance of such map, filed-book and record of rights as the case may be." Thus, under sub-section (2) of Section 27, entries in the revenue records prepared by the consolidation authorities are no longer final and conclusive. The sub-section also gives the right to any aggrieved person to prove that the entries in the revenue records prepared by consolidation authorities are not true. After the close of the consolidation operations the State Government shall issue a notification in the official gazette that the consolidation operations have been closed in the suit and village or villages forming part of the unit shall then cease to be under consolidation operations. After the issue of this notification the areas of various consolidation authorities namely the Assistant Consolidation Officer, the Consolidation Officer and the Settlement Officer, Consolidation shall also cease to exist in respect of such village or villages. Now, Section 5 of the Act provides that the consequences as hereinafter set forth, shall ensure from the date specified in the notification issued under sub-sec.(2) of Section 4 till the publication of the notification under Section 6, as the case may be. In other words, the circumstances narrated in Section 5 of the Act do not operate after the close of the Consolidation operations. 12. Where the adjudication of title in respect to any land has been done by the appropriate consolidation authorities in accordance with Sections 9, 11 and 12 of the Act, such adjudication shall be final and conclusive and no civil or revenue Court will have the jurisdiction to further enter into that question. 12. Where the adjudication of title in respect to any land has been done by the appropriate consolidation authorities in accordance with Sections 9, 11 and 12 of the Act, such adjudication shall be final and conclusive and no civil or revenue Court will have the jurisdiction to further enter into that question. Such finality, however, does not attach to the entries made in the record of rights or maps prepared during consolidation. The law has allowed the possibility that clerical and other errors may creep in the preparation of the records of rights and the maps during the consolidation operations and these entries may or may not even be in accordance with the adjudication done by the appropriate consolidation authorities. Where such an error has in effect crept in, and the consolidation authorities ceased to exist after close of the consolidation operations, it could not be the intention of the legislature to shut all doors for the aggrieved person. Thus, after the close of the consolidation operations, the competent Civil or Revenue Court will again have the jurisdiction to look into such cases in accordance with Section 5 of the Act as discussed above. The point of distinction is whether or not the entries made in the records of rights are in accordance with the adjudication of title done by the consolidation authorities. If yes, the jurisdiction of the Civil or Revenue Courts is barred under Section 49. If not, such jurisdiction is not barred after the close of the consolidation operations. 13. In the above light, it is found that in the present case no copies of the orders of appropriate consolidation authorities have been filed which could operate as a bar under Section 49. On the other hand, the specific case of the plaintiff-respondent is that the consolidation authorities had held him to be the tenure-holder of the land in suit but entries in the consolidation papers have been made erroneously on account of a conspiracy between the Lekhpal, subordinate consolidation officials and the defendant-appellant. In view of these specific allegations, there can be no presumption of the correctness of the entries made in the consolidation records in accordance with sub-section (2) of Section 27 of the Act quoted above. The learned Additional Commissioner has rightly held that the present suit was not barred under Section 49 of the U.P. Consolidation of Holdings Act. In view of these specific allegations, there can be no presumption of the correctness of the entries made in the consolidation records in accordance with sub-section (2) of Section 27 of the Act quoted above. The learned Additional Commissioner has rightly held that the present suit was not barred under Section 49 of the U.P. Consolidation of Holdings Act. The learned Additional Commissioner has also rightly held that no cancellation of any document was involved in the suit as the plaintiff-respondent was seeking declaration of the rights which had already been determined in his favour by the consolidation Court. As such, the present suit was maintainable in the revenue Court. The trial court has taken an erroneous view in law in holding that it had on jurisdiction to try the case. In this view of the law, the learned Additional Commissioner rightly set aside the judgment of the trial court dated August 16, 1969 and remanded the case to the trial court for decision on merits in accordance with law. 14. The second appeal against the learned Additional Commissioner's order has no force and is hereby dismissed. 15. To sum up, Revision No. 165 of 1968-69 succeeds, while the Second Appeal No. 130 of 1969-70 fails. 16. This order governs Revision No. 165 of 1968-69 and Second Appeal No. 130 of 1969-70 Bara Banki.