Badri Ahir v. Sahdeo Ahir — 1980 DIGILAW 758 (ALL)

JUDGMENT K.P. Singh, J. - This is a defendants second appeal against the judgment of 1st Additional Civil Judge, Azamgarh dated 27-10-1965 whereby the judgment and decree of the trial Court decreeing the plaintiffs suit for permanent injunction against the defendant has been confirmed. 2. In short, the plaintiff claimed the disputed land as his Abadi and Sahan and had asserted that the defendants had got wrong during the the consolidation operation with regard to the disputed plot No. 33/2 as their Sirdari and that the aforesaid land was not land contemplated by the provisions of the U. P. Consolidation of Holdings Act, hence the entry in favour of the defendants during the consolidation operation was without jurisdiction and that the defendants were trying to interfere with the possession of the plaintiff, hence the suit. 3. the defendants-appellants had contested the claim of the plaintiff and have asserted that a part of the disputed land was their Sahan and Abadi and that a part of it was that cultivators land, hence the plaintiffs suit was barred by the provisions of Section 49 of the U. P. Consolidation of Holdings Act and various other pleas were taken to negative the claim of the plaintiff. 4. Both the courts below have decreed the plaintiffs suit and have rejected the contention of the defendants that the suit was barred by Section 49, of the U. P. Consolidation of Holdings Act. Aggrieved by the judgment of the appellate authority the defendants have preferred the above-noted second appeal. 5. The learned counsel for the appellant has contended before me that the courts below have acted illegally in rejecting the claim of the defendants regarding bar of Section 49 of the U. P. Consolidation of Holdings Act. According to the learned counsel for the defendants-appellants when the plaintiff had agitated question of wrong entry in favour of the defendant-appellant and had failed in his attempt before the consolidation authorities, the courts below have acted illegally in entertaining the suit and recording a finding that the disputed land is not cultivators land. During the course of argument the learned counsel for the appellants could not indicate to me as to when the entry of Sirdari in respect of a portion of the disputed land in their favour came into existence. 6. During the course of argument the learned counsel for the appellants could not indicate to me as to when the entry of Sirdari in respect of a portion of the disputed land in their favour came into existence. 6. The learned counsel for the plaintiff-respondent has tried to support the judgments of the courts below and has submitted before me that on the findings of the fact recorded by the courts below that disputed land is not land contemplated by the provisions of U. P. Consolidation of Holdings Act, the courts below were right in repelling the contention of the appellants about the bar of Section 49 of the U. P. Consolidation of Holdings Act. The learned counsel for the respondent has placed reliance upon the ruling reported in Jagdish v. Lauhar, 1970 RD 396, 1973 RD 345 , Deo-narayan v. Board of Revenue & 1974 RD 5 Triloki Nath v. Ram Gopal. He has emphasised that as the disputed land is not 'land contemplated by the provisions of U. P. Consolidation of Holdings Act there does not arise any question of bar of Section 49 of the U. P. Consolidation of Holdings Act. In the ruling reported in 1974 RD 5 , Triloki Nath v. Ram Gopal it has been laid down that if the area was being used for the purposes of making bricks, that is for purposes unconnected with agriculture etc. such an area would not be covered by the- definition of the word 'land and hence the consolidation courts would have no jurisdiction to adjudicate upon the rights of the parties in respect thereto. In this view of the matter the learned counsel for the respondent has submitted that on the findings of fact recorded by the courts below the disputed land is not an agricultural land, hence the defendants plea about bar of Section 49 was rightly repelled. I have difficulty in accepting the submission of the learned Counsel for the respondent. The aforesaid ruling does not deal directly with the question of bar of S. 49 of the U. P. Consolidation of Holdings Act. I will indicate my reasons for not accepting the submission of the learned counsel for the respondent later. 7. I have difficulty in accepting the submission of the learned Counsel for the respondent. The aforesaid ruling does not deal directly with the question of bar of S. 49 of the U. P. Consolidation of Holdings Act. I will indicate my reasons for not accepting the submission of the learned counsel for the respondent later. 7. The ruling reported in 1973 RD 345 Deo Narayan v. Board of Revenue has held that bar of S. 49 of the U. P. Consolidation of holdings (sic) of Bhumidhari, Sirdari or Asami Rights and not to tenure-holder governed by the provisions of U. P. Tenancy Act. In the present case the defendants were recorded as Sirdar over a portion of the disputed land, hence in my opinion the aforesaid ruling does not negative the claim of the defendants-appellants regarding Sirdari right due to bar of Section 49 of the U. P. Consolidation of Holdings Act. It is true that on analogy one can contend that bar of Section 49 of the U. P. Consolidation of Holdings Act is inapplicable to the area which is Abadi or any land not contemplated by the provisions of the U. P. Consolidation of Holdings Act. The real point under my consideration at present is whether the civil courts can examine the question about Sirdari nature of the disputed land when the plaintiff had agitated the question before the consolidation authorities and could not get appropriate relief and in what circumstances the plaintiff can challenge the entry of tenancy right recognised by the consolidation authorities. 8. In 1970 RD 396 Jagdish v. Lauhar, a learned single Judge of this Court has observed in Paragraph 12 as below: ".........If an Abadi plot is wrongly recorded as an agricultural plot during consolidation proceedings and because of absence of knowledge of this fact by the real owner the entry in revenue papers remains uncorrected, in my opinion a suit claiming right in the Abadi plot cannot be held to be barred by Section 49 of the Act. In such cases it is Section 27 of the Act which has to be looked into. Since the entry has not been corrected during consolidation operation every presumption will be made against a person challenging the entry. But, once he proves the inaccuracy of the entry he is entitled to succeed. In such cases it is Section 27 of the Act which has to be looked into. Since the entry has not been corrected during consolidation operation every presumption will be made against a person challenging the entry. But, once he proves the inaccuracy of the entry he is entitled to succeed. This is the result in my opinion of the amended Section 27 sub-clause (2) of the Act. If the contention of the appellants were to be accepted there was absolutely no need to amend Section 27 sub-clause (2) of the Act." 9. Relying upon the above observation, the learned Counsel for the respondent has submitted that on the findings of fact arrived at by the courts below the suit of the plaintiff respondent was not barred by the provisions of Section 49 of the U. P. Consolidation of Holdings Act. 10. No doubt the aforesaid ruling helps the contention of the learned counsel for the respondents. It would not be out of place to mention here that a Division Bench of this Court in 1972 RD 326 Rakesh Kumar v. Board of Revenue has observed as below:- "The decision of a learned single Judge in Jagdish v. Lauhar 1970 RD 396 is distinguishable on facts. There it was held that the plaintiff had no knowledge of the consolidation proceedings, and, therefore, he could not make objections there. That is not the case before us. We need not express any opinion on the correctness of the view that mere lack of knowledge would be sufficient to hold that the litigant could not file objection within the meaning of Section 9 of the Consolidation of Holdings Act". 11. In 1973 All WR 233 Pandohi v. Mahadeo a learned single Judge of this Court has observed in Paragraph 3 of his judgment as below:- ".........I find no force in this contention inasmuch as Section 27 (2) deals with the evidentiary value of the entries whereas Section 49 raises bar to the jurisdiction of the civil or Revenue Courts H in entertaining suits or proceedings in which the correctness of such an entry is challenged. If Civil or Revenue Courts H are debarred from entertaining such a question, obviously that Court cannot enter into the merits of the dispute and decide about the correctness of the entries. The courts below were, therefore. If Civil or Revenue Courts H are debarred from entertaining such a question, obviously that Court cannot enter into the merits of the dispute and decide about the correctness of the entries. The courts below were, therefore. justified in holding that the suit was barred by the provisions of Section 49 of the Act". (Emphasis is mine) 12. In the present case I find that the plaintiff-respondent had made an attempt to get the entry of Sirdari in favour of the defendant corrected before the consolidation authorities but he could not succeed. In this view of the matter I think that the ruling relied upon by the learned counsel, for the respondent reported in 1970 RD 396 does not apply to the fact of the present case. Moreover the courts below have not examined the question as to when the plaintiff respondent came to know about the wrong entry and whether the plaintiff-respondent could challenge the entry of Sirdari in favour of the defendant-appellant at relevant stage. Section 49 of the U. P. Consolidation of Holdings Act reads thus:- "Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure-holder in respect of land lying in an area for which a notification has been issued under subsection (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 proceedings with respect to rights in such land or with respect to any other matter for which a proceeding could or ought to have been taken under this Act." In the present case the consolidation authorities had jurisdiction to decide whether the disputed land was agricultural land or Abadi land and when the consolidation authorities declared the defendant appellant as sirdar of a portion of the disputed land, the plaintiff respondent had a right to challenge the decision of the consolidation authorities. I do not find that the plaintiff respondent has challenged the entry of Sirdari in favour of the defendant appellant on the ground of fraud or collusion etc., hence, prima facie, I am not prepared to hold that the plaintiffs suit was not barred by the provisions of Section 49 of the U. P. Consolidation of Holdings Act. To my mind, the courts below do not get jurisdiction to decide the question as to whether the disputed land is Abadi or Sirdari of the defendant in the circumstances of the present case unless they also come to the conclusion that some fraud was practised or the plaintiff could not challenge the entry of Sirdari in favour of the defendant appellant at relevant time. The courts below have failed to examine the bar of Section 49 raised on behalf of the defendants appellants from correct angle, hence in the ends of justice it is proper that the judgment of the appellate court should be set aside and the appellate court be asked to re-examine the claim of the defendants-appellants regarding bar of Section 49 of the U. P. Consolidation of Holdings Act in the light of the pleading of the parties, evidence on record and the rulings mentioned supra. 13. For the reasons given above, this second appeal succeeds and is allowed. The judgment of the lower appellate court dated 27-10-1965 in Civil Appeal No. 81 of 1964, Badri and others v. Sahdeo is hereby set aside and the case is sent back to the lower appellate court for re-examining the claim of the defendants-appellants regarding bar of Section 49 of the U. P. Consolidation of Holdings Act in the light of the observations made in this judgment. Parties are directed to bear their own costs.