Gaon Sabha v. Ram Barta — 1978 DIGILAW 707 (ALL)

JUDGMENT G.S. Sial, Member. - Certain preliminary points were raised by the parties to the appeal and requisite dears were passed on those preliminary points is my orders dated May 17, 1978. One of the points raised by the learned counsel for the respondent was that the DGC (R) did not have the authority to file the appeal and accordingly the DGC(R) was required to show that he was legally authorised to file the appeal. The learned counsel for Gaon Sabha submitted that according to the ruling reported in 1971 RD 350, a penal lawyer is authorised under Sec. 127-B(2) to appear without any written authority. He submitted that there was no law which could bar the DGC(R) to appear on behalf of the Gaon Sabha and submitted that Order III, Rule 1 CPC itself provides that except where otherwise expressly provided by any law, no advocate can represent a client and submitted that the express provision of law that will apply to this case is Sec. 127-B of the UPZA and LR Act. Rule 1 of Order III reads as follows :- 1. Appearance, etc., may be in person, by recognised agent or by pleader :-"Any appearance, application or act in or to any Court, required or authorised by such Court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent, or by a pleader on his behalf." The CPC, therefore, clearly provides for an exception in those cases where express provision of law may permit an authority to appear in courts on behalf of the Gaon Sabha. 2. The learned counsel for the respondent, Sri Sankatha Rai, insisted that the authority of Sri R.S Singh to act as DGC(R) should be produced as ordered by the court on May 17, 1978. Accordingly the Registrar was called upon to produce the authority in question. a copy of the letter from the Government enclosing therewith the extension of time of Sri R.S Singh for three years under the provisions of 144 LR Manuals was produced and placed on record. Accordingly the Registrar was called upon to produce the authority in question. a copy of the letter from the Government enclosing therewith the extension of time of Sri R.S Singh for three years under the provisions of 144 LR Manuals was produced and placed on record. The learned counsel, however, insisted that the original letter appointing Sri RS Singh as DGC(R) was still not on record and the above mentioned extension letter has not been issued under S. 127-B read with Rule 114 of the U.P. ZA and LR Rules. The authorization for extension does not permit the DGC(R) to file appeal on behalf of the Gaon Sabha without written authority. He submitted that RD 1971 referred to above is not applicable as the points raised by him are not dealt with is that case. 3. I have gone through the above ruling and find that the contention of the learned counsel for the respondent is not well taken. These very points were raised before my learned predecessor Sri P. Krishen and this clearly answers that the DGC(R) appointed to look after the cases in the Board of Revenue had the requisite authority to attend to all the cases of the State irrespective of their district of origin. Since the point under controversy has already been resolved in that ruling and I am of the same view I hold that there is no force in the contentions of the learned counsel raised by the respondent. 4. As regards the point that there was no resolution of the Gaon Sabha, the DGC(R) submitted that it si not necessary to produce the resolution for the plaint in this case has been filed by the Lekhpal as Secretary of the LMC under Para 131 of the Gaon Samaj Manual. He also referred to 1975 RD page 290 in support of his contention that where the plaint is filed by the Lekhpal under Para 131 no resolution is necessary. Since this point also stands resolved in an earlier ruling of the Board I am also of the opinion that in a case filed by the Lekhpal under Para 131 of the Gaon Samaj Manual no written resolution is necessary for the DGC(R) to appear and argue the case. However, this point was not raised before the courts below and cannot be allowed to be raised as it would require investigation of facts. 5. However, this point was not raised before the courts below and cannot be allowed to be raised as it would require investigation of facts. 5. The learned counsel for the respondent withdrew his objection to the deletion of the name of Sarwan Kumar from the memo of appeal. Hence the appeal is now in order and is being decided on merits. 6. On merits, the learned counsel for the Gaon Sabha stated that the suit was filed inn 1965 under S. 163 of the UPZA and LR Act on the ground that defendant No. 1 had made a sale deed in favour of other defendants against the provisions of law and, therefore, they are liable to ejectment. The notification under Sec. 4 of the C.H. Act was issued on May 27, 1961 and the village was de-notified under Sec. 52 on May 11, 1968. He submitted that at one stage the suit was stayed and after de-notification under Sec.52 the question was raised whether the stayed suit will proceed or not. The trial court ordered on January 9, 1969 that this court had no jurisdiction and, therefore, the plaint was directed to be returned and the proceedings were dropped. The lower appellate court upheld the view of the trial court. The learned counsel for the Gaon Sabha submitted that the suit was filed during the pendency of notification under S. 4 of the C.H. Act therefore Section 5 of the C.H. Act will not apply in this case. The consolidation authorities have no jurisdiction to eject any person, other that a trespasser. The sale deed is admitted and since it has been made in contravention of S. 154 of the ZA Act the suit could be brought before the Revenue Court. He referred to 1971 RD page 337 in this behalf. He also referred to 1965 ALJ page 413 for the proposition that since the Revenue Courts had in fact acquired jurisdiction over the case the same plaint could be adjudicated upon and it is not necessary to take back the plaint and file it again. He, therefore, submitted that the original suit would become proper and should be decided on merits. 7. The learned counsel for the respondent stated that even for the ejectment of Asami under Sec. 202 the Hon'ble High Court have held that consolidation authorities are competent to pass orders for ejectment. He, therefore, submitted that the original suit would become proper and should be decided on merits. 7. The learned counsel for the respondent stated that even for the ejectment of Asami under Sec. 202 the Hon'ble High Court have held that consolidation authorities are competent to pass orders for ejectment. Therefore it is not correct to argue that the ejectment order is beyond the jurisdiction of the consolidation courts. He referred to 1968 RD page 83 (SC) wherein it has been held that in all suits of possession the jurisdiction will be of the consolidation courts because declaration of the title of the parties is involved there. He also referred to RD 1968 page 187 and 1969 RD page 262 in this behalf. He, therefore, submitted that the orders of the courts below are correct as the suit was not maintainable and the plaint was rightly returned. The ruling referred to by the learned. The ruling referred to by the learned DGC(R) will not apply to the facts of the present case as in that case notification under Sec. 52 was published prior to 1966 when the procedure was to stay the proceedings and not to abate them. 8. I have considered the arguments and gone trough the record of the case as well as the rulings. The dispute pertains to the execution of the sale deed prior to the enforcement of consolidation proceedings in the village. The village was placed under consolidation in 1961 and was de-notified in 1968 but the suit was instituted under Sec. 162 of the ZA Act in 1965 on the ground that defendant No. 1 had made the sale deed against the provisions of law and, therefore, vendees were liable to ejectment. Both the courts below have expressed the view that the dispute should have been raised in consolidation courts and since the dispute was not so raised they had no authority to proceed with the suit after the de-notification of the village. The simple point, therefore, to answer is whether a dispute which could be raised in the consolidation courts, but was not so raised, could be proceeded with after the de-notification of the village. The simple point, therefore, to answer is whether a dispute which could be raised in the consolidation courts, but was not so raised, could be proceeded with after the de-notification of the village. The intent of Sec. 49 of the CH Act is that no dispute would be allowed to be raised in any court whatsoever in case the dispute could be raised but was not so raised during consolidation proceedings before the consolidation courts. Therefore, it is clear that the forum chosen for getting the adjudication was not correct. It was the duty of the Gaon Sabha to have raised the dispute before the consolidation authorities. In as much as they have failed to do so, they have lost the right to re-agitate the matter after the closure of the consolidation operations. The contention of the learned DGC(R) mainly is that since there is no provision for the ejectment of persons other than trespassers they could proceed with the ejectment after the closure of the operations. I am afraid, this argument is not well taken. The learned counsel for the respondent has correctly pointed out that even for ejectment of an Asami under Sec. 202 the Hon'ble High Court have held that consolidation courts are competent to pass orders of ejectment. Moreover the Hon'ble Supreme Court have directed that in all suits for possession the jurisdiction will be of the consolidation courts for a declaration with respect to the title of the parties is involved. In this case also the consolidation courts had to adjudicate the title of the parties where the dispute raised before them and hence clearly the jurisdiction was of the consolidation courts and the dispute should have been raised before them. I may also refer in this regard to Sec. 5(c)(2) of the U.P. CH Act which prohibits tenure-holders to transfer their holdings in the consolidation area except with the permission in writing of the Settlement Officer (C.) previously obtained. This provision of law has been inserted for the specific reason that in case rights of parties and their holdings are affected in the consolidation records so that good work of Chak formation does not get disturbed, soon after or during consolidation operations themselves. If any transfer is made during consolidation operations without permission it is deemed to be invalid. This provision of law has been inserted for the specific reason that in case rights of parties and their holdings are affected in the consolidation records so that good work of Chak formation does not get disturbed, soon after or during consolidation operations themselves. If any transfer is made during consolidation operations without permission it is deemed to be invalid. The same principle should apply to transfer made prior to the date of notification otherwise the good work of consolidation will get disturbed in case the Chaks are adjusted after de-notification of the village. The sale was made and was given effect to in consolidation record and if there was any objection regarding the validity of the sale deed it should have been raised before the consolidation authorities to enable them to make necessary adjustment in the Chaks and allot the area under unauthorised transfer to the Gaon Sabha but this was not done and as a result the sale deed was given effect to in consolidation records and the valuation in respect of the land involved in the sale was allowed to the vendee. Now if a dispute is allowed to be raised after the closure of the consolidation operations it will certainly affect the good work done in consolidation operations. This is clearly against the sprit of consolidation of holdings law and in particular would be in violation of S. 49 of the U.P. CH Act. 9. In the result, I hold that the view taken by the courts below is correct and the second appeal stands dismissed. 10. This order will govern S.A Nos. 124 to 125-A of 1970-71/Mirzapur.