Nagendra Singh v. Surajpal Singh — 1982 DIGILAW 1233 (ALL)

JUDGMENT B. D. Agarwal, J. - This appeal is directed against the judgment and decree of the District Judge, Jaunpur passed on Nov. 28, 1974. 2. According to the case of the plaintiffs, the land specified at the foot of the plaint was held by the parties as co-sharers. The dispute arose among them in proceedings under the U.P. Consolidation of Holdings Act, 1953. The parties arrived at a compromise. It was stipulated, according to the plaintiffs, that the plaintiffs will have th share in the land specified in Sch. A at the foot of the plaint comprising area of 1.05 acres and that they shall have ?th share in the land mentioned in Sch. B covering area of 9.49 acres. It is averred further that all the land mentioned in Sch. A plot No. 212 covering .77 acre is grove and it was agreed that the plaintiffs shall have exclusively .47 acre out of the same. In relation to the land mentioned in Sch. B, it is pointed that there is grove comprised in the area of .85 acre in plot Nos. 218, and 211 and it was understood that the plaintiffs will have to their share this grove in entirety. The compromise was reduced to writing on July 21, 1962. As a result of fraud played by the defendant No. 1 this did not record as had been verbally agreed among the parties. The plaintiffs were given share to the extent of th in the land in Sch. A and ? in the land mentioned in Sch. B but in respect of the grove plots specified in the Schs. C and D, it was stated in the said compromise that they be excluded from the purview of the consolidation. The plaintiffs claimed that they became apprised of this fraud in Aug, 1967. The suit giving rise to this appeal was instituted on Dec. 19, 1967 by them claiming the relief for the rectification of the above mentioned compromise dated July 21, 1962 entered before the Consolidation Officer concerned. The plaint was amended subsequently by application 21-A made on April 29, 1968 and the relief sought in the alternative also is that the plaintiffs be declared Bhumidhars of the grove specified in Schs. C and D. 3. The defendants 1, 6 and 7 contested the suit pleading that the compromise dated July 21, 1962 was duly entered into. The plaint was amended subsequently by application 21-A made on April 29, 1968 and the relief sought in the alternative also is that the plaintiffs be declared Bhumidhars of the grove specified in Schs. C and D. 3. The defendants 1, 6 and 7 contested the suit pleading that the compromise dated July 21, 1962 was duly entered into. No fraud of any kind was played in the matter. It was also pleaded that the civil Court does not have the jurisdiction to try the suit and that the suit is barred also in view of Sections 11-A, 27 and 49 of the U.P. Consolidation of Holdings Act 1953. Defendants 3 and 5 entered into compromise with the plaintiffs in this case vide 50-A and 113-A. 4. The trial court expressed the view that the Civil Court has the jurisdiction to try the suit and there is no bar arising on account of Sections 11-A, 27 and 49 of the U.P. Consolidation of Holdings Act, 1953. It was also held that the terms agreed among the parties in the compromise were different than those incorporated in writing on July 21, 1962. The suit was, therefore, decreed in favour of the plaintiffs on Oct. 16, 1973 for declaration that the plaintiffs are Bhumidhars of the land specified in Schedules C and D. As against the defendants Nos. 3 and 5 the decree passed was on the basis of the compromise entered into by them. In the appeal filed by the contesting defendants, it was held that the declaration claimed by the plaintiffs is dependent upon the compromise which they seek to be rectified. The suit for the rectification of the compromise lies in the civil Court and hence S. 331 of the U.P. Act No. 1 of 1951 could not operate as a bar to the maintainability of the suit in the civil Court. It was also held that, the plaintiffs could not maintain the suit in view of the bar created by S. 49 of the U.P. Consolidation of Holdings Act, 1953. The appeal was, therefore, allowed and the suit dismissed except in relation to the defendants 3 and 5. Aggrieved the plaintiffs preferred this appeal. 5. It was also held that, the plaintiffs could not maintain the suit in view of the bar created by S. 49 of the U.P. Consolidation of Holdings Act, 1953. The appeal was, therefore, allowed and the suit dismissed except in relation to the defendants 3 and 5. Aggrieved the plaintiffs preferred this appeal. 5. Before proceeding to the merits of the appeal, it may be noted that subsequent to the compromise dated July 21, 1962 being recorded by the Consolidation Officer, Surendra Singh the plaintiff No. 2 appellant made an application before the Consolidation Officer on Jan. 8, 1964 for retrial. It was contended by him that he was a minor and not properly represented in the proceedings, vide Ex. A-1. This application was rejected by the Consolidation Officer in Jan., 1964 pointing out that Surendra Singh was not proved to have been a minor and that Roop Narain Singh, the plaintiff No. 4 appellant had been doing the Pairvi for and on behalf of the plaintiff. Further, it was observed that the application made was beyond limitation (Ex. A-2). Against this order, Surendra Singh above mentioned, filed an appeal before the S. O. (C) On Jan. 31, 1964, which was dismissed on Mar. 24, 1964 (Ex. A-3/ A 4). The rejection made was on ground that the application was barred by limitation and that Surendra Singh was not proved to be a minor. Surendra Singh then took the matter in revision under S. 48 of the U.P. Consolidation of Holdings Act, 1953 which was dismissed on July 8, 1964 on ground that this was not maintainable (Ex. A-5), Writ Petition No. 5445 of 1964 was filed then by Surendra Singh against this order and the same was dismissed by a non-speaking order on Jan. 18, 1965 by this Court (Ex. A-7). The other plaintiffs-appellants applied that their names be recorded exclusively against the grove comprised in the disputed land but this application was rejected by the Consolidation Officer on Dec. 21, 1964 on the basis of the order passed earlier upon the compromise dated July 21, 1962. Nagendra Singh plaintiff No. 3 appellant also filed an appeal before the S. O. (C) directed against the order of the Consolidation Officer dated July 21, 1962 vide (Ex. A-15). The appeal was dismissed on Jan. 21, 1964 on the basis of the order passed earlier upon the compromise dated July 21, 1962. Nagendra Singh plaintiff No. 3 appellant also filed an appeal before the S. O. (C) directed against the order of the Consolidation Officer dated July 21, 1962 vide (Ex. A-15). The appeal was dismissed on Jan. 30, 1964 observing that the order made was ex parte and the appeal filed was beyond limitation. 6. Learned counsel for the plaintiffs-appellants submitted that in so far as sub-sec. (1) of S. 331 of the U.P. Act No. 1 of 1951 is concerned this may not be said to bar the suit giving rise to this appeal from being instituted in the Civil Court. There is no dispute raised on the point that in its substance the plaintiffs have sought the relief of the declaration to the effect that they are the Bhumidhars of the land covered ,by the schedules C and D specified at the foot of the plaint. The argument advanced, however, is that in view of sub-sec. (1-A) of S. 331 of the U.P. Act No. 'l of 1951 the issue on the point could not be reagitated by the defendants in the appellate Court in the absence of anything to the effect that there had been consequent failure of justice caused to them in the process. The plea on the point of jurisdiction had been raised by the contesting-respondents in their written statement and an issue on the subject was also drawn by the trial Court. The finding recorded by the trial Court on that issue was in favour of the plaintiffs. In view of sub-sec. (1-A) of S. 331 of the U.P. Act No. 1 of 1951 which is at par in this respect with S. 21 of the Civil P. C. and S. 11 of the Suits Valuation Act, the defendants had as well to show that there was prejudice resulting due to the suit having been disposed of by the Civil Court instead of the revenue Court. In the case of Raj Bahadur Singh v. Smt. Gaura, 1977 Rev Dec 165 at p. 167 : AIR 1977 NOC 149 Hon'ble M.P. Mehrotra, J. observed "In my view, even though the question of jurisdiction was raised at the earliest stage by the defendants-appellants still, the second condition laid down in the said provision has not been satisfied in the instant case. The second condition is that there should be a consequent failure of justice by the trial in the wrong forum. It has not been shown to me that by the trial of the suit in the civil Court there was any consequent failure of justice. This provision is in line with S. 11 of the Suits Valuation Act and S. 21 of the Code of Civil Procedure. The purpose of these analogous provisions is not to allow a decree, delivered after contest in the wrong court, to be questioned in the appellate or revisional court merely on the ground of want of jurisdiction unless it is shown that prejudice has been caused or there has been failure of justice in consequence of the trial in the wrong forum. It has been judicially held that prejudice is not to be equated with the error to a finding recorded by wrong forum. In the same manner, prejudice is not shown to be caused merely because the wrong forum has tried the suit." The same view was taken by the Division Bench of this Court in the case of Sabha Chand v. Narain Singh, (F.A. No. 3121 of 1974) decided on Dec. 12, 1980 (1981 Rev Dec (SOC) 46 : 1981 UPLT NOC 130). 7. This brings me to the chief question raised in this appeal, namely, whether the suit is maintainable in the civil Court despite S. 49 of the U.P. Consolidation of Holdings Act, 1953. S. 49 reads as under : "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 of tenure-holders in respect of land lying in the area, for which a (notification) has been issued (under sub-sec. (2) of S. 4). S. 49 reads as under : "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 of tenure-holders in respect of land lying in the area, for which a (notification) has been issued (under sub-sec. (2) of S. 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 matter for which a proceeding could or ought to have been taken under this Act." 8. The first part of S. 49, it will be observed, is positive in its terms. If a right arises out of the Consolidation proceedings and in regard to which its proceeding could or ought to have been taken under this Act, the adjudication of any such right shall be done in accordance with the provisions of this Act. The second part which is negative in its terms takes away the jurisdiction of a civil or revenue Court to entertain any suit or proceedings with respect to the right in such land or with respect to any other matter for which a proceeding could or ought to have been taken under this Act. 9. Learned counsel for the plaintiffs-appellants contends that the land specified in the Schs. C and D was held by them as their grove and, consequently, they are the Bhumidhars thereof. In the Consolidation proceedings, according to them, they were wrongly deprived of this land due to fraud practised against them. The fraud alleged is with respect to the compromise filed on July. 21, 1962 before the Consolidation Officer in the proceedings under S. 12-B for partition of joint holdings. ' The plaintiffs have had to the seek declaration in their favour because, there is cloud cast upon their claim as, Bhumidhars of this land due to the aforesaid compromise recorded by the Consolidation Officer. It may not, therefore, be doubted in my opinion that the rights asserted by the plaintiffs including the one with respect to the rectification sought by them of the compromise, arises out of the consolidation proceedings. 10. It may not, therefore, be doubted in my opinion that the rights asserted by the plaintiffs including the one with respect to the rectification sought by them of the compromise, arises out of the consolidation proceedings. 10. S. 12-B made provision for partition of joint holdings by the Consolidation Officer. The partition could be made by him of his own motion at any time after the publication of the revised records under S. 11-B of the Act or on the application of any of the joint tenure-holders. S. 12-C provided that any person aggrieved by the order of the Consolidation Officer or the Assistant Consolidation Officer, as the case may be, under S. 12-B could, within 21 days of the date of the order, file an appeal before the S.O. (C), whose decision shall be final and not to be questioned before any court of law except as otherwise provided by or under this Act. These provisions now stand deleted by the U.P. Act VIII of 1963 but these were in force at the relevant time. In para 13 of the plaint we find it said that the plaintiffs came to know of the fraud in Aug. 1967. Evidence is clear and cogent to show that this averment is fictitious. P.W. Rup Narain Singh the plaintiff No. 4, appellant the Karpardaz for and on behalf of the co-plaintiffs, who is also admittedly a signatory to the said compromise, deposed in cross-examination that he became aware of the mistake committed within two months from the date on which the compromise came to be recorded and also that he informed other members of the family, the co-plaintiffs, of the same. As mentioned above, Surendra Singh plaintiff No. 2 appellant made application on Jan. 8, 1964 vide Ex. A-1 assailing this compromise. Nagendra Singh plaintiff No. 1 appellant also filed appeal under S. 12-C which came to be dismissed on Jan. 30, 1964 vide Ex.A-15/A-16. Surendra Singh took the matter in appeal also under S. 12-C and then in revision before the filing of the writ petition. The other plaintiffs also applied to the effect that they were the exclusive Bhumidhars of the grove plots. All this was long before Aug., 1967. 30, 1964 vide Ex.A-15/A-16. Surendra Singh took the matter in appeal also under S. 12-C and then in revision before the filing of the writ petition. The other plaintiffs also applied to the effect that they were the exclusive Bhumidhars of the grove plots. All this was long before Aug., 1967. There is nothing absolutely on the record to suggest that the consolidation Scheme had been confirmed upto the period when the plaintiffs became apprised on their own showing of the terms in which the compromise had come to be recorded. The cause of action, therefore, accrued to the plaintiffs, if any, on July 21, 1962 or on the date when the knowledge with regard to the alleged fraud, was acquired and it was open, therefore, to the plaintiffs to have preferred appeal under S. 12-C within the period prescribed for the purpose and if necessary to move in revision under S. 48 of the Act. True, the writ petition filed by Surendra Singh was dismissed in limine by this Court on January 18, 1965 vide Ex. A-7, but this cannot be taken to be an authority for the proposition that S. 49 of the Act is not attracted to the facts revealed. I am conscious that the appeal filed by Surendra Singh appellant under S. 12-C was dismissed by the S.O. (C) on Mar. 24, 1964. The dismissal, however, was on the ground that Surendra Singh was proved to have been a minor and that Roop Narain Singh the uncle who signed the compromise had been Karpardaz for and on behalf of the plaintiffs. It was also observed that the application made by Surendra Singh for the restoration against the order, dated July 21, 1962 was beyond limitation. (See Ex.A.4). Similarly the appeal under S. 12-C filed by Nagendra Singh was dismissed on Jan. 30, 1964 vide Ex. A-16 on the basis that he had notice of the proceedings before the Consolidation Officer. The decision in any of these cases, was not on the footing that an appeal under S. 12. C did not lie against the order passed on July 21, 1962 by the Consolidation Officer whereby the plaintiffs were precluded from claiming themselves to be the Bhumidhars of the disputed land. 11. The decision in any of these cases, was not on the footing that an appeal under S. 12. C did not lie against the order passed on July 21, 1962 by the Consolidation Officer whereby the plaintiffs were precluded from claiming themselves to be the Bhumidhars of the disputed land. 11. In Smt. Natho v. Board of Revenue Allahabad, 1966 All LJ 563, 'B' had died at the stage when the statement of proposal had already been confirmed under S. 23. Dispute arose in mutation proceedings. The Division Bench held that once the proceeding upto the stage of section 23 have been completed and the statement of proposals under S. 23 have been confirmed, all adjudications already made upto that stage become final. There after there is no provision empowering the consolidation authorities to go into the new question of title or rights which may arise as a result of new cause of action which accrued after the statements of proposals have been confirmed. In Smt. Bhuri v. Sunder, 1973 All LJ 352, the proceedings for allotment of the chak had been completed. 'P' died after the consolidation scheme was finalised under S. 23. 'S' sought mutation, claiming to be the brother of the deceased, Smt. 'B' set up a rival claim on the basis of being the sister. The application had to be decided under S. 27 (e) of this Act read with S. 33 of the U.P. Land Revenue Act and it was held by the D. B. that to such an application S. 49 was inapplicable. Both these decisions were approved by the Supreme Court in Suba Singh v. Mahendra Singh, AIR 1974 SC 1657 relied upon for the appellants. In that case the question of inheritance to the estate of 'J' arose after the consolidation operations had been substantively completed. 'J' was alive when the proposal under S. 23 was finalised. He was held to be a Bhumidhar under the confirmed scheme. Upon these facts, it was held that there is no provision in the Act for any dispute of title which arises subsequent to the confirmation of the statement under S. 23 to be decided by way of Arbitration or otherwise. He was held to be a Bhumidhar under the confirmed scheme. Upon these facts, it was held that there is no provision in the Act for any dispute of title which arises subsequent to the confirmation of the statement under S. 23 to be decided by way of Arbitration or otherwise. An application for mutation on the basis of inheritance when the cause of action arose after finalisation of the publication of the scheme under S. 23, is not a matter in regard to which an application could be filed under the provisions of this Act within the meaning of S. 49. This decision in the case of Suba Singh (supra) was followed in Karbalai Begum v. Mohd. Sayeed, 1980 All LJ 902 : AIR 1981 SC 77 . In that case, too, the view taken is that in relation to a cause of action accruing after the Chakbandi was completed, there is no bar created by S. 49 of the Act. In all these cases, therefore, the cause of action arose subsequent to the finalisation of the Consolidation scheme and the confirmation thereof under S. 23. In the instant case, on the contrary, the cause of action, if any, accrued to the appellants prior to such confirmation and in view of section 49 read with S. 12-C, the plaintiffs-appellants could agitate the matter before the Consolidation authorities since the dispute arose out of the Consolidation proceedings and it relates to the adjudication of right, title or interest to land which the Consolidation authorities could take cognizance of. 12. In Smt. Premwati v. Harnam Singh, 1980 All WC 96 : 1980 UPLT NOC 71 cited for the appellants, the suit was for declaration that the order passed by the Deputy Director of Consolidation under Section 48 was void. It was held that S. 49 could not be Attracted to such a suit because there is no provision in the Act which permits readjudication against the order made by the Deputy Director 'of Consolidation. This evidently can have no application to the facts in the instant case where the order impugned was passed by the Consolidation Officer. In Ram Nath v. Smt. Munna, 1976 All WC 412 (FB) also relied on for the appellants, the question related to the cancellation of a deed of sale in respect of an agricultural plot pending in civil Court. In Ram Nath v. Smt. Munna, 1976 All WC 412 (FB) also relied on for the appellants, the question related to the cancellation of a deed of sale in respect of an agricultural plot pending in civil Court. The transaction being found to be voidable, the Full Bench expressed the view that the Civil Court was competent to adjudicate on that question. The decision of the Supreme Court in Gorakh Nath v. H.N. Singh, AIR 1973 SC 2451 was followed. This cannot be of avail to the appellants because in the instant case the validity questioned is of the order passed by the Consolidation authority himself against which provision is made for an appeal under the Act. 13. Learned counsel for the appellant then submitted that the land specified in Schs. C & D was wrongly excluded by the Consolidation Officer in the order made by him on the basis of the compromise recorded on July 21, 1962 under the impression that he could not adjudicate title with respect to the grove land. The argument advanced is that despite this land being grove, the Consolidation Officer is not precluded from deciding the question of title relating to it. The expression 'land' is defined in S. 3 (5) of this Act as meaning land held or occupied for purposes connected with agriculture, horticulture and animal husbandry (including pisciculture and poultry farming). "Consolidation" is defined in Cl. (2) of S. 3 as meaning rearrangement of holdings in a unit amongst several tenure-holders in such a way as to make their respective holdings more compact. According to CL (1) of the Explanation for purposes of the above mentioned Cl. (2), land holding does not include the land which was grove in the agricultural year immediately preceding the year in which the notification under S. 4 was issued. This means clearly that grove is excluded only for purposes of rearrangement of holdings in a unit amongst the various tenure-holders. For all over purposes including the adjudication of right, title or interest to grove there is no exclusion made. This view finds support from the decisions in the cases of Kushar v. Ahmad Khan, 1962 All WR (HC) 391 (DB), Dalel v. Baroo, 1963 All WR (HC) 230 : AIR 1967 All 59 (FB), Ram Niranjan v. Bhawani Prasad, 1973 All WR (HC) 109. This view finds support from the decisions in the cases of Kushar v. Ahmad Khan, 1962 All WR (HC) 391 (DB), Dalel v. Baroo, 1963 All WR (HC) 230 : AIR 1967 All 59 (FB), Ram Niranjan v. Bhawani Prasad, 1973 All WR (HC) 109. Grove land is land and, therefore, may be included in a holding. When the holdings of a tenure-holder are rearranged for the Consolidation, grove land forming part of them will be left out and only the remaining land of the holdings will be rearranged. It may, therefore, be urged for the appellants that the view entertained by the Consolidation Officer that the disputed land had to be excluded from his purview for the purposes of adjudication of right, title or interest to it since this was grove, was erroneous. The remedy, however, against this lay again in appeal under S. 12-C and in so far as the Civil Court is concerned S. 49 would prevent it from taking cognizance of the me. 14. For the above the appeal fails and is dismissed. Costs on parties.