JUDGMENT Kaushal Kishore, Member - This is a reference made to us by a Single Member of the Board for setting the controversy no the point whether the bar under Section 49 of the C.H. Act to a suit for declaration under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act will be applicable if a person is recorded in a representative capacity prior to, during and after the close of consolidation operations. The reference though not formally framed is contained in para 6 of his order dated September 8, 1978. It will be useful to reframe the reference into the following specific questions: (i) Whether the bar under Sec. 49 of the C.H. Act to a suit for declaration under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act will be applicable if a defendant is recorded in a representative capacity prior to, during and after the close of consolidation operations and the plaintiff not being recorded, remained in possession as a co-tenant. (ii) Whether the bar under Section 49 of the C.H. Act to a suit for declaration under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act will be applicable if a defendant is recorded in a representative capacity during and after the close of consolidation operations and the plaintiff not being recorded remained in possession as a co-tenant. 2. The question arose in Second appeal No. 21 of 1976-77/Mirzapur, Bhola Nath v. Mangaroo which came up before the Board for hearing and the Commissioner's view that the plaintiff could agitate his title even when the consolidation proceedings were over was over was a mixed question of law and fact, was contested. Ultimately, the view taken by the Member in Asha Ram v. Jyoti Prasad 1978 R.D. 226 that if a person recorded in a representative capacity prior to, during and after the close of consolidation operations, the suit for declaration under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act would not be barred by Section 49 of the U.P.C.H. Act, was found to be the centre of controversy. The referring Member after agreeing will the view expressed by the Hon'ble High Court in cases reported in 1976 R.D. 162 and p. 191, expressed his anxious consideration that a deviation from these view would undo the entire scheme of consolidation. The referring Member after agreeing will the view expressed by the Hon'ble High Court in cases reported in 1976 R.D. 162 and p. 191, expressed his anxious consideration that a deviation from these view would undo the entire scheme of consolidation. While considering the application of Section 49 of the U.P.C.H. Act, no doubt, the intention of the legislature is to be given due regard, but not in disregard to the opportunity to establish one's rights as provided under the statute and this opportunity must be real. Here it becomes important to arrive at the correct meaning 'could or ought to have been taken' occurring in Section 43 of the U.P.C.H. Act reproduced below: "S. 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 to tenure-holders in respect of land lying in an area, for which a (notification) (1) has been issued (under sub-section (2) of Section (4) 2, or adjudication or any other right arising out of consolidation proceeding 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." (1) Subs. by Sec. 41 of (Amendment) Act No. VIII of 1963. (2) Subs. by Sec. 48 of Land Laws (Amendment) Act XII of 1965 dated June 18, 1965. Our considered view is that unless there was a real cause of action, which means that by any overt act of one party, the other party felt aggrieved, no proceeding ought to have been taken under the U.P.C.H. Act when neither side finds anything to dispute about, so far as possession and rights in land are concerned, there is no adjudication by the consolidation authorities and no cause of action can be assured by mere entries which are not consistent with the continuing factual position. 3. The referring Member has considered the following rulings on the question: (1) 1979 R.D. 226, (2) 1977 R.D. 144, (3) 1976 R.D. 162 and 191, (4) 1972 R.D. 94. 4. 3. The referring Member has considered the following rulings on the question: (1) 1979 R.D. 226, (2) 1977 R.D. 144, (3) 1976 R.D. 162 and 191, (4) 1972 R.D. 94. 4. The ruling reported in 1978 R.D. 226 is the subject matter of controversy. 5. The ruling reported in 1977 R.D. 144 is to the effect that Section 49 of the U.P.C.H. Act is an issue of law and can be decided as a preliminary issue. However, it does not deal with the question of an entry in the representative capacity and so is not relevant to the reference. 6. The ruling reported in 1976 R.D. 191 is that Section 49 imposes an absolute bar but this also does not deal with the effect of entry in representative capacity and is, therefore, not relevant to the reference. The same is the case with the ruling reported in 1972 R.D. 94 and it cannot be held to be applicable to this reference. 7. The only ruling that touches the point is contained in 1976 R.D. 162 wherein father and the son are the two parties, the son sought cancellation of a sale-deed by his father on the ground that he held the land in a representative capacity for both. It was held that the son's claim was barred by Section 49. In this case, no history of the tenancy has been given to show that the son would have been a co-Bhumidhar with his father and actually was so in practice but for the entry in the sole name of this father. It is only the son's allegation that his father held the land in representative capacity, it is not a real representative capacity in the sense considered in 1978 R.D. 226. 8. The learned counsel for the appellant has cited the following rulings in support of his contention that Section 49 of the U.P.C.H. Act is an absolute bar to any subsequent consideration: 1. Sheo Balak v. Sheo Narain 1980 R.D. 6. 2. Ram Nath v. Nepal etc. 1977 R.D. 144. 3. Rampal Singh v. Khandey and others 1976 R.D. 162 = 1976 R.D. 132 = 1976 A.W.C. 229. 4. Abbas Khan v. Kallu Khan 1976 R.D. 191. He has further argued that the ruling reported in 1978 R.D. 226 and similar views in other rulings are actually not applicable to the facts of the present case. 1977 R.D. 144. 3. Rampal Singh v. Khandey and others 1976 R.D. 162 = 1976 R.D. 132 = 1976 A.W.C. 229. 4. Abbas Khan v. Kallu Khan 1976 R.D. 191. He has further argued that the ruling reported in 1978 R.D. 226 and similar views in other rulings are actually not applicable to the facts of the present case. However, this aspect is not for consideration by this Bench and our consideration must be confined to the reference alone. 9. The learned counsel for the respondents has argued that the essence of the whole question is that there must be real cause of action for any suit or proceeding with respect of rights or other matters to enable the parties to bring such suit or proceeding during consolidation operations under the U.P.C.H. Act. He has cited the rulings reported as below: 1. Raj Bahadur Singh v. Board of Revenue 1979 R.D. 50. 2. Babadin v. Badri 1979 R.D. 311. 3. Asha Ram v. Jyoti Prasad 1978 R.D. 226. 4. Sahab Singh v. Raj Bahadur 1977 R.D. 83. 10. We have gone through these rulings and find that 1977 R.D. 144 and 1976 R.D. 191 are not relevant to this reference as already discussed above. Thus, the earlier pronouncements on the subject available are 1980 R.D. 6, 1976 R.D. 162, 1979 R.D. 50, 1979 R.D. 311, 1978 R.D. 226 and 1977 R.D. 83. In Sheo Balak etc. v. Sheo Narain etc.(B.R), it was held that a person claiming rights of co-tenancy in the land where his name is not recorded should file an objection before the consolidation authorities and if he fails to do so and his name is not recorded, the bar of S. 49 of the U.P.C.H Act comes into play. This is based on a subsequent observation that the present revenue law does not recognise the concept of entries made in a representative capacity. 11. This is based on a subsequent observation that the present revenue law does not recognise the concept of entries made in a representative capacity. 11. In Rampal Singh v. Khandey and others, the Hon'ble C.S.P. Singh, J. held that the bar came into effect on account of the fact that on the publication of the new revenue records a declaration of rights of the father of the plaintiff took place and any challenge to his being the sole Bhuimdhar could not thereafter be entertained by any civil court on account of the fact that the plaintiff could or ought to have taken objection to the name of his father being entered as sole Bhumidhar in consolidation proceedings. In Raj Bahadur Singh and another v. The Board of Revenue U.P., the subject has been considered in detail and the observation of the Hon'ble K.N. Goel, J. may be reproduced with advantage, as below: "From the provisions of Section 8, 9 and 9-A of the Act it does not follow that the Legislature intended that even where members of a Hindu Joint Family were peacefully in joint possession and did not desire any partition, or where co-sharers were under a family arrangement peacefully in separate possession over their respective shares and did not desire any change in the recorded entry, the consolidation authorities were required to record their respective shares or necessarily to effect partition even if not required for ensuring proper consolidation or that if the non-recorded co-parceners did not seek to get their names or shares specified, their title should get extinguished. The case of co-sharers who are in undisturbed cultivatory possession of different areas according to their shares cannot be equated with one of trespassers or persons claiming adverse possession. In the instant case, what has happened is that the recorded co-sharer has come to court with false allegations for disturbing the existing position and wants to take advantage of Section 49 while the defendant-respondent is only seeking to defend the existing factual position which is in accordance with respective rights of the parties. Section 49 merely embodies the principle of res-judicata including constructive res-judicata. It is well settled that the principle of constructive res-judicata applies only where the decision in the earlier proceedings in necessarily inconsistent with the defence subsequently raised. Section 49 merely embodies the principle of res-judicata including constructive res-judicata. It is well settled that the principle of constructive res-judicata applies only where the decision in the earlier proceedings in necessarily inconsistent with the defence subsequently raised. As the entry of the name of petitioners alone was not necessarily inconsistent with the continuance of the defendant as co-sharer, the consolidation proceedings should not operate as res-judicata. The rights of co-sharers in actual cultivatory possession are not extinguished by reason of their not taking steps for having their names and shares specified in the consolidation proceedings. The view expressed by the Board to the effect that in the circumstances Section 49 of the U.P. Consolidation of Holdings Act did not bar the defence of the respondents is thus not in accord with equity and justice but is also legally correct." 12. In Saheb Singh v. Raj Bahadur, our learned colleague/predecessor, Sri A.K. Sharma, Member has also dealt with the circumstances in detail and it is worthwhile to reproduce his observations as below: "The relevance of the bar of Section 49 of the C.H. Act may be further seen. The position here is clear the consolidation record entered the names of the plaintiffs as Bhumidhars of the plot. There was no dispute about it raised by anyone before the Consolidation authority. The plaintiff's names were adopted as they had come up from the past. There was no verdict on any dispute given by the Consolidation authority. In the arguments before me it has emerged that neither side had found anything to dispute about, so far as possession and rights in land were concerned. It is an accepted finding that the defendant as descendants other than the plaintiffs together have been in possession of just two thirds of the plots from much before Consolidation just as the plaintiffs had been on their one third and the position has always remained the same, inspite of the entry of Consolidation. There was no actual taking of possession by the plaintiffs over the two third of the plot as a result of consolidation. No delivery of possession took place. Everything stayed put where it was as to possession of one-third and two-third portions. There was no actual taking of possession by the plaintiffs over the two third of the plot as a result of consolidation. No delivery of possession took place. Everything stayed put where it was as to possession of one-third and two-third portions. There has all along been acquiescence in and acceptance of this position on the part of the plaintiffs and the learned courts below have found no evidence of forcible entry and have rejected the superficial, vague and concocted plea of Sajhidari. Rather all the ingredients of a well-established family arrangement have been found to exist. It is also uncontrovertible that the plot is ancestral and the names were recorded in the revenue records before Consolidation in a representative capacity. It also recognises that the possession of one co-tenure holders is the possession of all co-tenure holders. Where no dispute took place before the Consolidation authority and the entry as it existed was adopted in the record of rights, and the possession have continued as they were and no trespass was found, there was no case for trespass and ejectment. Section 49 of the C.H. Act is not relevant here and is no bar to defendant showing with reference to all the antecedent and genealogy and pre-Consolidation revenue record, how he and other descendants happen to be peacefully cultivating ?rd of the plot and were not trespassers." 13. It would also be worthwhile to consider the views expressed in the ruling reported in 1964 R.D. 70 to show that mere entries in revenue records do not confer rights on the land reproduced as below: Indradeo and another v. Ram Govind and others 1964 R.D. 70 (H.C.). "Where the plaintiffs have been in actual cultivatory possession of the plots to the extent of their share the fact that the entry in revenue papers was only in the name of the defendants will have no consequence so far as legal rights are concerned, because, it did not represent the correct state of affairs. Further, as the property was a joint family property, the possession of one member over the same will be deemed to be the possession on behalf of all, and the entries of defendants' name in the revenue records will also be deemed to be in a representative character, which will not confer on them any rights to the exclusion of other members of the family." 14. In Sheo Balak v. Shiv Narain, the pronouncement is based largely on non-recognition of the concept of the entries made in a representative capacity. However, this non-recognition only means that such plea by itself would not be a ground for presumption of entries in representative capacity. But it cannot be a bar to the factual position being established that in practice one or only some tenure-holders were entered in representative capacity and others being rightful co-tenure holders had been left out without giving rise to a real cause of action. In Rampal Singh v. Khandey and others also, it appears to have been overlooked that although publication of the new revenue records amounted to a declaration of rights accordingly but if the actual possession of respective co-tenure-holders had continued with only few recorded in a representative capacity no real cause of action had arisen and so it could not be said that any person was aggrieved and that a proceeding could or ought to have been taken during consolidation proceedings under the Act. This aspect has been discussed in detail in different situations of the cases - Raj Bahadur Singh v. Board of Revenue, Asha Ram v. Jyoti Prasad and Sahid Singh v. Raj Bahadur, referred to above. The same conclusion follows from all these discussion that the co-tenants under the family arrangement being peacefully in separate possession over their respective areas, really did not fell need of any change in the recorded entries, even though the entry in a representative capacity may not be recognised by the present revenue law. Here, it must again be repeated that mere entries in revenue records do not create or confer rights it it only that existing rights are represented by the entries and if there is any mistake in the entries, the rights cannot suffer. 15. The facts of the cases Ram Nath v. Nepal and Abbas Khan v. Kalloo Khansubstantially differ from the situation in the case Asha Ram v. Jyoti Prasad, which is the subject matter under consideration. In the case Babadin v. Badri, also question of bar under Section 49 of the U.P.C.H. Act does not appears to have been rightly appreciated. It appears that no adjudication was done by the consolidation authorities. In the case Babadin v. Badri, also question of bar under Section 49 of the U.P.C.H. Act does not appears to have been rightly appreciated. It appears that no adjudication was done by the consolidation authorities. Still while holding that there was no bar where entries under Section 27 (2) of the U.P.C.H. Act which are presumed to be correct are rebutted to be incorrect, it was held that the bar under Section 49 of the U.P.C.H. Act applied since it was not laid down that the adjudication of the consolidation records could be question by revenue or civil court. If there had been any adjudication by the consolidation courts, the situation would be different. But the situation as envisaged in the ruling reported in 1978 R.D. 226 differs and so the ruling in Babadin v. Badriwould also be not relevant to the present question. 16. Thus the overwhelming view supports the basic principles that:- (1) When there is no real cause of action for any suit or proceeding with respect to rights or other matters to enable the parties to bring such suit or proceeding during the U.P.C.H. Act, the bar under Section 49 of the U.P.C.H. Act becomes irrelevant, and (2) mere entries cannot take the place of rights of co-tenure-holders. It has been common in the past that on the death of a person, where there are several sons, some being minor or much younger than the eldest brother, the entry was made of the eldest brother alone in a representative capacity but he had not been in exclusive possession amounting to adverse possession open and hostile to the possession of other co-tenants resulting in their ouster and the others who were not doing cultivation themselves either being minors or students or for other reasons, did still enjoy their share. This could happen before the start of consolidation operations or even during the consolidation proceedings unless there was an adjudication of rights in the consolidation proceedings on a dispute, it could not be said that there was any real cause of action for seeking declaration and adjudication of rights or that in regard to such matter, a proceeding could or ought to have been taken under the U.P.C.H. Act. For this very reason, the bar under Section 49 of the U.P.C.H. Act loses its relevance. 17. For this very reason, the bar under Section 49 of the U.P.C.H. Act loses its relevance. 17. We may further observe that the anxiety of the referring Member that by accepting the view expressed in Asha Ram v. Jyoti Prasad and others, the entire scheme of consolidation will become ineffective, is not well-founded. Such cases are not many and even if in some such rare cases the rights have to be declared without conforming to the entries finalised in consolidation operations, the usefulness of the scheme is not reduced, what to say of being lost. Even the appeals etc. arising out of orders passed in consolidation proceedings continue till several years after the de-notification without affecting the general scheme as provided under Section 52 (2) of the U.P.C.H. Act itself, the object of consolidation proceedings apart from mainly consolidating the holdings, is also to finally settle the existing disputes and not to bar settlement of disputes on fallacious presumptions. Even the entries made under Section 27 of the U.P.C.H. Act can be challenged and rebutted, as held in 1976 A.W.C. 585 and 1978 R.D. 89. 18. Our answers to the questions referred to and reframed by us as number (i) and (ii) is para 1 of this judgement are as follows: (i) that the bar under Section 49 of the U.P.C.H. Act to a suit for declaration under Section 329-B of the U.P. Zamindari Abolition and Land Reforms Act will not be applicable if a defendant is recorded in a representative capacity prior to, during and after the close of consolidation operations and the plaintiff not being recorded, remained in possession as a co-tenant. (ii) that the bar under Section 49 of the U.P.C.H. Act to a suit for declaration under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act will not be applicable if a defendant is recorded in a representative capacity during and after the close of consolidation operations and the plaintiff not being recorded, remained in possession as a co-tenant. 19. Let the reference be retuned with the above answers, to the Single Member for dealing with the appeal further.