JUDGMENT A.N. Verma, J. - This is a plaintiff's Second Appeal arising out of a suit for injunction restraining the defendants from interfering with the plaintiff's possession over certain agricultural plots. Both the courts below have dismissed the plaintiff's suit as time barred by Section 49 of the U.P. Consolidation of Holdings Act, in respect of her claim regarding the plots in suit in villages in which proceedings under the U.P. Consolidation of Holdings Act had taken place. In respect of the properties suit in other villages the plaintiff's suit has been dismissed on merits. 2. The question which arises for consolidation is whether the plaintiff's suit is barred by Section 49 of the U.P. Consolidation of Holdings Act in respect of the plot of land in suit in villages Gaighat, Maharaj Pattan alias Palia and Rampur Gopalpur. The courts below have dismissed the plaintiff-appellant's claim in respect of the aforesaid villages as time barred by Section 49 of the U.P. Consolidation of Holdings Act, on the ground that in the records prepared by the Consolidation Authorities in the course of consolidation operations, conducted under the aforesaid Act, the names of the defendants only were entered, whereas the plaintiff's name was not entered. She did not file any objection under the said Act, even though she ought to have filed an objection asserting her rights in the land in dispute. 3. In order to determine the controversy, relevant pleadings of the plaintiff might be set out. The plaintiff came to the court with the assertion that the land in suit was the ancestral sir and khudkasht of the joint Hindu Family, of which both the plaintiff and the defendants belong, the plaintiff, therefore, had a right in that land by virtue of being a member of the family and as a result of the coming into force of Act No. 1 of 1951 she became a co-bhumidhar of the same along with the contesting respondents. The names of the defendants alone, however, continued in record. Taking advantage of those entries, the defendant-respondents have started interfering with the possession of the plaintiff over the land in dispute. Hence the suit. 4. The courts below have dismissed the plaintiff's claim in respect of the above mentioned villages only on the ground that the same is barred by Section 49 of the U.P. Consolidation of Holdings Act. 5.
Taking advantage of those entries, the defendant-respondents have started interfering with the possession of the plaintiff over the land in dispute. Hence the suit. 4. The courts below have dismissed the plaintiff's claim in respect of the above mentioned villages only on the ground that the same is barred by Section 49 of the U.P. Consolidation of Holdings Act. 5. The learned counsel for the appellant relying on two decisions of this court, namely, Raj Bahadur v. Board of Revenue, (1979 R.D. 50) and Rati Ram v. Rajvir, (1981 A.L.J. 58) contended that the view taken by the courts below is directly opposed to the declaration of law by this court in the aforesaid two decisions. 6. The learned counsel for the respondents on the other hand submitted that the view expressed by this Court in the aforesaid two decisions is incorrect and requires reconsideration. The learned counsel for the respondents also placed reliance on two decisions of this court reported in Rampal Singh v. Khandey, (1976 R.D. 168) and Rakesh Kumar v. Board of Revenue, (1972 A.L.J. 769). 7. Having heard the learned counsel for the parties. I am of the view that the decisions of the courts below as regards the applicability of the bar of Section 49 of the U.P. Consolidation of Holdings Act is incorrect and is contrary to the view of this Court expressed in the two decisions, mentioned above. I am not satisfied with the contention that the said view of this Court is either incorrect or requires reconsideration. In both the two decisions cited by the learned counsel for the appellant, two learned single Judges of this Court, after analysing the law on the subject in considerable depth, noticing a large number of decisions both of this Court and of the Supreme Court including the decision reported in 1976 R.D. 162 have held that where the names of some or only one of the co-sharers or members of a Joint Hindu Family are entered, the non-recorded members of the Joint Hindu Family are not precluded from asserting their rights in future, even after the close of consolidation operation and that their claim would not be barred by Section 49 of the U.P. Consolidation of Holdings Act.
The ratio is that if the non-recorded members had otherwise no cause or complaint and were allowed to enjoy the property peacefully, their omission to file an objection would not be material or decisive. The learned Judges have in laying down this proposition, relied upon the peculiar position of a Joint Hindu Family and the rights of its various members in the properties owned by such families. I find myself in complete agreement with the view expressed in these two decisions. The said decisions are directly applicable to the facts of the present case. The plaintiff-applicant's plea was that she was a member of the Joint Hindu Family, that the land in dispute was the ancestral Sir and Khudkasht of that family and that she was in possession thereof as such. In these circumstances, her failure to file an objection under the provisions of the U.P. Consolidation of Holdings Act cannot be said to attract the bar of Section 49 of the aforesaid Act so far as the sir and khudkasht lands are concerned. The courts below have, therefore, erred in dismissing the plaintiff-appellant's suit on the ground that the same was barred by Section 49. 8. Coming to the decisions cited by the learned counsel for the respondents, I find that so lar as the case reported in 1976 R.D. 162 is concerned, both the learned Single Judges while deciding the cases of Raj Bahadur Singh (Supra) and Rati Ram (Supra) have rightly concluded that said decision is no longer good in view of the pronouncement of the Full Bench of this Court in Ram Charan v. State of U.P., (1979 A.L.J. 166). As regards the decision reported in Rakesh Kumar v. Board of Revenue, (1972 ALJ 769), on which the learned counsel for the respondents placed great reliance, I find that the ratio enunciated therein does not in any way, run counter to the view taken by the learned Single Judges in the aforesaid two decisions. Furthermore all that this case has held is that Section 49 of the Act is a bar to the plea which raises questions, the acceptance of which will mean the setting aside and cancellation or disregard of the entries in the consolidation proceedings.
Furthermore all that this case has held is that Section 49 of the Act is a bar to the plea which raises questions, the acceptance of which will mean the setting aside and cancellation or disregard of the entries in the consolidation proceedings. In my view the claim of the plaintiff, if accepted as correct, will not involve or mean the setting aside and cancellation or disregard of the entries made in the consolidation proceedings. The claim of the plaintiff is perfectly consistent with the entries, for the reasons mentioned in the decisions of the two learned Single Judges. The learned Single Judges have held that in the case of Joint Hindu Families and in the case of properties such as Sir and Khudkasht governed by principles of Hindu Law, the mere existence of entries in the names of some of the members would not automatically disentitle other members from claiming rights in the property. This decision too is, therefore, not of much assistance to the respondents. 9. The result of the aforesaid discussion is that this appeal succeed in part. The decision of the courts below in so far as the Sir and Khudkasht plots are concerned are set aside. Their decisions in regard to tenancy plots are, however, affirmed. The case is remanded to the trial court for being disposed of according to law having regard to the observations made in this judgment. The parties will bear their own costs of this appeal as well as of the courts below.