JUDGMENT H.N. Agarwal, Member. - This is a second appeal against the judgment and decree of Sri R.C. Nigam. Additional Commissioner, Rohilkhand Division, Bareilly in First Appeal no. 26 of 1974 confirming the judgment and decree of Sub-Divisional Officer, Bilari, dated 13-10-19741 in suit no. 78 of 1973 under section 229-B, U.P.Z.A. & L.R. Act. 2. I have heard the learned counsel for the parties and have gone through the record. 3. The plaintiff-appellant, Abdul Husan had filed a suit seeking declaration of his bhumidhari rights along with the defendant-respondents Ashfaq, Abrar and Chhotey in plots nos. 678, 679, 690, 691 and 692 in village Rustamnager Shaspur. He claimed that the he was the brother's son and heir of the previous tenure holder Munir who had died issue less. Respondent no. 1, Lalla alias Abdul Salam, contested the suit on the ground that he himself was the bhumidhar of the land and that the suit was bared by Section 49 of the U.P. Consolidation of Holdings Act. The courts below have dismissed the suit. Abdul Hasan has now come up in second appeal. 4. The grounds taken in the second appeal are, firstly, that in Bilari Tahsil Chakbandi proceedings were started in 1954-55 and ended before 1956 then the old Chakbandi Act was applicable and there was no bar of Section 49, U.P. C.H. Act; secondly, that under the old Chakbandi Act, the question of title could not be decided in consolidation proceedings and only mutation and partal had to be performed, thirdly, that Srimati Chhotey, the recorded co-tenure holder was not a party to the suit of partition and any decree passed in her absence was not binding on her heirs; fourthly, that Srimati Niyzo who was a defendant in the suit for partition was lunatic at that time and as no guardian was appointed to represent her case, a decree passed against a lunatic person was nullity; fifthly, that the Civil Judge in a regard suit had also held that the said decree was null and void and not binding upon the plaintiff and the heirs of Srimati Niyazo; sixthly, that the judgment of the courts below is based on misreading of facts and evidence on record, and lastly that the plaintiff-appellant was in possession of the land for the last more than twelve years and had acquired title under section 210 of the U.P.Z.A. & L.R. Act. 5. The material question in the second appeal is whether the bar under section 49 U.P. C.H. Act was applicable or not. It is undisputed that consolidation of holdings has taken place in the village and this was completed before U.P. Act XXXVII of 1958 was enacted which amended section 49 of the U.P. Consolidation of Holdings Act Section 49 U.P. C.H. Act as originally enacted by U.P. Act V of 1954 stood as under:- "49. Bar to Civil Court jurisdiction-No person shall institute any suit or other proceeding in any civil court with respect to any matter arising out of consolidation proceedings or with respect to any other matter in regard to which a suit or application could be filed under the provisions of this Act." 6. This section was slightly amended by U.P. Act XIII of 1955 to the extent that the words"Civil Court" were substituted by the words "Civil or revenue courts". However, the section was substantially amended by Act XXXVIII of 1958 as follows:- "49. 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 declaration has been issued under 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." 7. The learned counsel for the appellate has cited "Kumbh Karan v. S.C. Lal Saxena", 1961 R.D. page 334, in which a learned single Judge had held that an objection raising a question of title cannot be enquired into in consolidation proceedings". 8. Another decision cited is Ehsan Ali v. Deputy Director of Consolidation, 1965 R.D. page 346 in which another learned single Judge had held that section 49 of the U.P. Consolidation of Holdings Act did not prevent the filing of a suit for recovery of possession in a regular revenue court. 9. 8. Another decision cited is Ehsan Ali v. Deputy Director of Consolidation, 1965 R.D. page 346 in which another learned single Judge had held that section 49 of the U.P. Consolidation of Holdings Act did not prevent the filing of a suit for recovery of possession in a regular revenue court. 9. Yet another decision cited is "Husain Abbas v. Brij Lal and others", 1965 R.D. page 406 in which a learned Bench of High Court has held as follows:- "We are of opinion that under section 27 of the U.P. Consolidation of Holdings Act the provisions of the U.P. Land Revenue Act are applicable and at the stage of consolidation proceedings, a consolidation authority is concerned solely with the question of possession. If any such erroneous finding has been given by the consolidation Court, that would merely be treated as an observation and would have no binding force in law. It can be disregarded by courts of law and would not affect the rights of a person so far as the question of title is concerned". 10. Yet another decision to the same effect is "Sunt Bux Singh v. S.C. Singh", 1965 R.D. page 417 in which another learned Bench of the High Court has held as follows:- "In view of the interpretation placed by us on Section 27 of the U.P. Consolidation of Holdings Act, it is not competent for consolidation authorities to determine questions of title in proceedings under section 27 and hence any decision given by them on a question of title in such proceedings is not binding on and can very well be ignored by courts of law. Observations to the same effect have been made by a Division Bench of this court in the unreported case referred to above. We do not agree with the contention of the appellant's counsel that, in view of section 49 of the U.P. Consolidation of Holdings Act, the appellant cannot bring a regular suit for establishing his title. As is obvious from its language section 49 operates as a bar against any suit with respect to any matter arising out of consolidation proceedings or with respect of any other matter in regard to which a suit or application can be filed under the provisions of this Act. As is obvious from its language section 49 operates as a bar against any suit with respect to any matter arising out of consolidation proceedings or with respect of any other matter in regard to which a suit or application can be filed under the provisions of this Act. If section 27 does, not concern itself with a question of title then obviously no suit or application could be filed under the provisions of the U.P. Consolidation of Holdings Act for the determination of a question of title in proceedings under section 27 of this Act. That being so, there would arise no occasion for section 49 of the Act to come in the way of the appellant if he decides to file a suit to establish his title." 11. As against the, the learned counsel for the contenting respondent has cited "Dalel v. Baru", 1963 R.D. page 67 in which a learned Bench of High Court has by a majority judgment held that Section 49 of the U.P. Consolidation of Holdings Act bars the jurisdiction of the Civil or revenue court 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 should be filed under the provisions of the Consolidation of Holdings Act. 12. Yet another decision cited is "Sita and another v. State of U.P. and others, 1967 R.D. 372. This decision, however, does not discuss the scope of Section 49 of the U.P. Consolidation of Holdings Act and, therefore, does not help the respondent. It would thus appear that there has been a conflict of opinion on the question of interpretation of the scope of section 49 of the U.P. Consolidation of Holdings Act as it stood before the coming into force of U.P. Act XXXVIII of 1958. In such a situation we are to be guided by the latest pronouncement of the learned Bench of the Allahabad High Court which is reported in 1965 R.D. page 417 quoted above. This decision would overrule the majority decision of the learned Bench reported in 1963 R.D. 67. Thus, the position which emerges is that where consolidation of holdings had been completed before U.P. Act XXXVIII of 1958 came into force, the decision of the consolidation authorities did not bar a suit for declaration of title in a regular revenue Court. This decision would overrule the majority decision of the learned Bench reported in 1963 R.D. 67. Thus, the position which emerges is that where consolidation of holdings had been completed before U.P. Act XXXVIII of 1958 came into force, the decision of the consolidation authorities did not bar a suit for declaration of title in a regular revenue Court. The position, however, is different after U.P. Act XXXVIII of 1958 came into force and now a suit for declaration of title is barred in a revenue Court when Section 49 comes into play. 13. The courts below have thus taken an erroneous view of law in holding that the present suit was barred by section 49 of the U.P. Consolidation of Holdings Act. 14. The learned counsel for the appellant has also shown that the recorded co-tenure holder Munir was succeeded by his widow Srimati Chhotey after his death and that Srimati Chhotey who was the recorded co-tenure holder was not a party to suit of partition relating to this land and as such any decree passed in her absence was not binding either on her or her heirs. The courts below have committed an illegality in not considering this aspect of the case at all and have wrongly held that said decree was binding on the plaintiff who claims to be the heir of Srimati Chhotey being the brother's son of her late husband. 15. Another contention of the learned counsel for the appellant is that Srimati Niyazo who was a defendant in the suit for partition was lunatic at the time and no guardian was appointed to represent her in that case. The learned counsel has cited "Ram Chandra v. Man Singh", A.I.R. 1968 S.C. 954 in which a learned Bench of the Supreme Court has held as follows:- "It is now a well settled principle that if a decree is passed against a minor without appointment of a guardian, the decree is a nullity and is void and not merely voidable. This principle becomes applicable to the case of a lunatic in view of Rule 15 Order 32 of the Code of Civil Procedure". 16. The learned counsel has also cited Maiku v. Uma Shanker, A.I.R. 1978 Alld. 551 in which the same principle has been reiterated. 17. This principle becomes applicable to the case of a lunatic in view of Rule 15 Order 32 of the Code of Civil Procedure". 16. The learned counsel has also cited Maiku v. Uma Shanker, A.I.R. 1978 Alld. 551 in which the same principle has been reiterated. 17. Another contention of the learned counsel for the appellant is that the courts below have committed an illegality in not considering that the learned Civil Judge in a regular suit has held that the decree in the partition suit was null and void and not binding on the plaintiff and heirs of Srimati Niyazo. A copy of the judgment of the Civil Judge Moradabad and others v. Lala and others is on record. I find that the courts below have not considered the effect of this judgment. 18. The contentions of the learned counsel for the appellant that his client had proved himself to be the bhumidhari of the land in dispute by oral and documentary evidence or that he had acquired title under section 210 of the U.P. Z.A. & L.R. Act by being in possession of the land for more than twelve years need not be considered at this stage. The court below had dismissed the suit holding that it was barred by section 49 of the U.P. Consolidation of Holdings Act. However, a closer scrutiny of the legal position has revealed that such was not the case. Thus, the courts below should have gone into the merits of the case without deciding it one way or the other. 19. The result it that I hereby allow the second appeal, set aside the judgments of the courts below, and remand the case to the trial court for decision afresh on merits in accordance with law.