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1979 DIGILAW 417 (ALL)

Babadeen v. Badri etc.

1979-04-02

I.B.SINGH

body1979
JUDGMENT H.N. Agarwal, M. - This is a plaintiff's second appeal against the judgment and decree of learned Additional Commissioner Faizabad Division dated March 22, 1974 dismissing the appeal holding that the plaintiff's suit for plots of list B and C of the plaint was barred by Section 49 of the C.H. Act. 2. The Plaintiff's suit for division regarding plots of list A was decreed. No appeal against it was filed by any of the defendants. That suit was dismissed on January 1, 1971 regarding plots of list B and C. Against this dismissal appeal was filed by the plaintiffs. 3. Brief facts of the case are that Babadin and four other sons of Bhagwandin had filed a suit against Santu and another under Section 176 of the ZA and LR Act. The plaintiffs had given a pedigree in the plaint. They had contended that the land in suit which was noted in list A, B and C in the plaint had once belonged to the common ancestor of the parties namely Bakhtawar; that it had come to the hands of the parties after the death of the common ancestor; that the parties were entitled to the land in suit equally. With these allegations the plaintiff had sought a partition of the land in suit and had claimed half share in it. The plaintiff had contended further that in case any of the land in suit was not found to be recorded in the name of the common ancestor it had been acquired by Santu defendant No. 1 in representative capacity for the benefit of the family and hence the parties have an interest in that land also. 4. The suit was opposed by defendant No. 1. He contended that the plaintiffs had no right or claim to the land in suit; that the suit was barred by Section 49 of the C.H. Act that he was sole Bhumidhar and Sirdar of the entire land in suit. 5. I have heard the learned counsel for the parties and have perused the record. 6. The main question for determination is whether the suit of the plaintiffs regarding plots of list B and C was barred by Section 49 of the C.H. Act or not. The lower court had held that it being a division suit was not barred. 5. I have heard the learned counsel for the parties and have perused the record. 6. The main question for determination is whether the suit of the plaintiffs regarding plots of list B and C was barred by Section 49 of the C.H. Act or not. The lower court had held that it being a division suit was not barred. The lower appellate court had held that the suit was barred by Section 49 of the CH Act. Both the parties had admitted that consolidation operations had taken place in the villages in question. It had been argued by the learned counsel for the appellant that no paper of consolidation operations have been filed to show that any adjudication was done by the consolidation authorities. Therefore, it cannot be held that the suit was barred by Section 49 of the C.H Act and it was open to the plaintiff to show that entries made under Section 27(2) of the U.P. CH Act, prepared in accordance with sub-section (1) of Section 27 raised a rebuttable presumption of correctness, hence it has been argued that the suit was not barred by Section 49 of the U.P. CH Act. Reliance has been placed on Chaubey Ram Swaroop v. Laxmi Narain 1979 AWC (R) page 16. 7. The learned counsel for the respondent has argued that as the plaintiffs did not agitate about their title or share before the consolidation authorities during consolidation operations, therefore, the suit was clearly barred by Section 49 of the CH Act. 8. On behalf of the appellants reliance has been placed on 1976 AWC 585 which has been relied upon in 1978 RD 89 and 1979 AWC 16 . These rulings are that Section 49, U.P. Consolidation of Holdings Act does not apply as a bar where entries made under Section 27(2) of the CH Act which are presumed to be correct are rebutted to be incorrect but they do not lay down that adjudication of consolidation courts can be questioned by Revenue or Civil Court. These rulings do not help the appellants. 9. The learned counsel for the respondent argued that the appellants ought to have agitated for their claim in the consolidation courts. They failed to do so. Their suit is, therefore, barred by Section 49 of the CH Act. Reliance has been placed on 1976 RD 132, 1970 RD 413. These rulings do not help the appellants. 9. The learned counsel for the respondent argued that the appellants ought to have agitated for their claim in the consolidation courts. They failed to do so. Their suit is, therefore, barred by Section 49 of the CH Act. Reliance has been placed on 1976 RD 132, 1970 RD 413. These rulings certainly apply to the facts of this case. 10. The latest ruling reported in 1979 RD 50 is not applicable to the facts of this case as it is regarding Sir land recorded in a representative capacity. 11. In view of the above, in my considered opinion the suit of the plaintiffs-appellants regarding plots of list B and C of the plaint is barred by Section 49 of the CH Act as the plaintiffs did not agitate about their title during consolidation operations and the order of the lower appellate court is justified and requires no interference. 12. Hence this second appeal stands dismissed with costs.