Tilam Ram v. Board of Revenue, U. P. , Allahabad — 1982 DIGILAW 279 (ALL)

ORDER K.N. Misra, J. - This petition under Article 226 of the Constitution is directed against the judgment and order dated 27-6-1977 passed by the Board of Revenue dismissing the suit filed by the petitioner under S. 229B/209, U. P. Zamindari Abolition and Land Reforms Act, being barred under S. 49, U. P. Consolidation of Holdings Act (hereinafter referred to as the Act). 2. Briefly stated the facts of the case are that the petitioner's father Pancham, Smt. Nepali and one Udit were recorded co-tenure-holders and they were also allotted chaks during the consolidation operations and their names were recorded in C. H. Form No. 23 as well as 45 prepared during the consolidation operations. Smt. Nepali died issueless prior to the date of verification of the village under S. 52 of the Act. Pancham, the father of the petitioner, also died. After the death of these persons the names of Ram Dass, opposite party 5, who is the brother of the petitioner, and of Gyan Dass, son of Ram Asrey, opposite party 4, were recorded vide order dated 31-9-1964. After the denotification of the village the petitioner filed the present suit under S. 229B/209, U. P. Zamindari Abolition and Land Reforms Act, asserting that the land in dispute belonged to his father Pancham and Smt. Nepali. It was further asserted that Ram Asrey, the father of opposite party 4, Gyan Das, has died during the lifetime of Smt. Nepali and as such upon her death her half share in the land in dispute devolved upon Pancham and upon his death it devolved upon the petitioner and opposite party 5 in equal shares. The petitioner thus pleaded that he and Ram Das alone are Bhumidhars and Sirdars of the plot in dispute and Gyan Dass, son of Ram Asrey, has no right, title or interest in the land in dispute. In the alternative relief for possession was also sought for by saying in case opposite party 4 Gyan Dass is found to be in possession, a decree for possession be also passed against him. The suit was contested by the defendant Gyan Dass, son of Ram Asrey, with the allegations that the plot in dispute belonged to the common ancestor and as such he was a co-sharer in it. The suit was contested by the defendant Gyan Dass, son of Ram Asrey, with the allegations that the plot in dispute belonged to the common ancestor and as such he was a co-sharer in it. It was further pleaded that Smt. Nepali had died during the lifetime of Ram Dass and Pancham and as such the land in dispute had devolved upon his father Ram Asrey. It was further pleaded that during the consolidation operations his name was ordered to be recorded along with Ram Dass on the land in dispute vide order dated 31-9-1964 which is final and binding on the parties. The bar of S. 49 of the Act was also pleaded asserting that the suit filed by the petitioner was not maintainable under S. 49 of the Act. 3. The trial Court, after taking the evidence of the parties, decreed the suit of the plaintiff vide its judgment and decree dated 28-3-1967 and it was held that the land in dispute did not belong to the common ancestor Gaya and Ram Asrey had died during the lifetime of Smt. Nepali and as such upon her death her half share had devolved upon Pancham, the father of the petitioner. The trial Court further found that the order dated 31-9-1964 was a mutation order passed by the consolidation Officer and as such the suit, is not barred under S. 49 of the Act and thus the suit of the plaintiff was decreed. Aggrieved by the said order opposite party 4 Gyan Dass filed an appeal which was dismissed by the Additional Commissioner by order dated 27-9-1968. Still feeling aggrieved by the orders passed by the Courts below opposite party 4 filed a second appeal before the Board of Revenue which was heard and allowed on 30-12-1976 and the suit of the plaintiff was dismissed holding it to be barred under S. 49 of the Act. The petitioner has thus challenged the order passed by the Board of Revenue in this writ petition. 4. Learned counsel for the petitioner Sri G.C. Dwivedi, contended that the view taken by the Board of Revenue holding the suit of the petitioner to be barred under S. 49 is illegal and erroneous. The petitioner has thus challenged the order passed by the Board of Revenue in this writ petition. 4. Learned counsel for the petitioner Sri G.C. Dwivedi, contended that the view taken by the Board of Revenue holding the suit of the petitioner to be barred under S. 49 is illegal and erroneous. He contended that the order dated 31-9-1964 was merely a mutation order and as such the present suit filed by the petitioner for declaration of his rights under S. 229B/209, U.P. Zamindari Abolition and Land Reforms Act, is not barred under S. 49 of the Act. Learned counsel for opposite party 4, Sri M.P. Singh, contended that the order dated 31-9-1964 passed by the Consolidation Officer under S. 12 of the Act cannot be treated to be merely an order of mutation and as such the present suit filed by the petitioner was barred under S. 49 of the Act. He further contended that since the cause of action had accrued prior to denotification of the village upon the death of Pancham and Smt. Nepali and the petitioner having failed to apply for recording his name under S. 12 of the Act and as such the present suit is barred under S. 49 of the Act. 5. Having given my anxious consideration to the matter I am of the opinion that the Board of Revenue committed a manifest error in holding that the present suit filed by the petitioner under S. 229B/209, U. P. Zamindari Abolition and Land Reforms Act, was barred by S. 49 of the Act. 6. It is not disputed before me that proceedings under S. 20 of the Act were concluded prior to the passing of U. P. Act No. VIII of 1963, which came into force on 8-3-1963 and that chaks were allotted in the names of Pancham and Smt. Nepali, which were confirmed prior to the -said date. Smt. Nepali is said to have died on 5-5-1964 whereas Pancham died on 30-8-1964. Although it is asserted on behalf of the opposite party 4 that Pancham had predeceased Smt. Nepali but a finding has been recorded by the Courts below to the effect that Smt. Nepali had predeceased Pancham, and that Ram Asrey, father of opposite party 4, had died prior to the death of Smt. Nepali. Although it is asserted on behalf of the opposite party 4 that Pancham had predeceased Smt. Nepali but a finding has been recorded by the Courts below to the effect that Smt. Nepali had predeceased Pancham, and that Ram Asrey, father of opposite party 4, had died prior to the death of Smt. Nepali. Although the cause of action for getting the names mutated arose after the enforcement of U. P. Act No. VIII of 1963, but in my opinion, the present proceedings would be governed by the principal Act, as it stood prior to amendment by act No. VIII of 1963, in view of the provisions contained in S. 47 (1) of the Amending Act VIII of 1963, which reads as : - "47 Transitory Provisions : - (1) In units notified under S. 4 of the principal Act, prior to the date on which this Act comes into force, hereinafter referred to as the said date, all work in regard to or connected with consolidation operations - (i) beyond the stage of publication of the statement of proposals under S. 20 of the principal Act, where, on or before the said date, that statement had already been published; and (ii) up to an inclusive of the stage of confirmation of the statement of principles under S. 18 of the principal Act, where, on or before the said date, notices under S. 9 of the principal Act had already issued : shall be conducted and concluded in accordance with the provisions of the principal Act, as if this Act had not come into force." 7. It cannot be disputed that in this unit all further proceedings under the provisions of the Act were to be conducted and concluded in accordance with the principal Act, as it stood prior to its amendment by U. P. Act No. VIII of 1963, because the statement of proposals under S. 20 of the principal Act were already published prior to the coming into force of the said Amending Act, i.e. Act No. VIII of 1963. Thus, the mutation proceedings were not to be governed, by S. 12 of the Act as it stood after the amendment by U.P. Act No. VIII of 1963. 8. Thus, the mutation proceedings were not to be governed, by S. 12 of the Act as it stood after the amendment by U.P. Act No. VIII of 1963. 8. In Smt. Bhuri v. Sunder, 1973 All L J 352, a Division Bench of this Court held that (at p. 355) : - "In the present case the proceedings up to the state of S. 23 had been completed when Phundan died. Therefore, Cl. (ii) of S. 49 would govern them, with the result that the application for mutation made at that stage could be decided in accordance with the unamended Act, i.e. in accordance with the provisions of the Act as it stood prior to its amendment by the Amending Act No. XXXVIII of 1958." Considering the bar of S. 49, U.P. Consolidation of Holdings Act, it was observed that: - "Under S. 5 (a) the Settlement Officer (Consolidation) was to maintain Khasra and the annual registers under Chapter III of the U. P. Land Revenue Act. After the new revenue records have been prepared under S. 27 (i), the duty to maintain them further was cast on the Collector under S. 27 (3). None of these provisions authorised institution of an application for mutation except as provided by Chapter III of the U. P. Land Revenue Act. The application for mutation had to be made under the U. P. Land Revenue Act. Section 5 (a) only authorised the Settlement Officer (Consolidation) to decide such applications. Such applications cannot be treated as applications under S. 5 (a) within the meaning of S. 49 of the Act. The application for mutation could not be said to be a matter in regard to which an application could be filed under the provisions of the Act." 9. In Suba Singh v. Mahendra Singh, 1973 Rev Dec 455 : ( AIR 1974 SC 1657 ), the Supreme Court observed (at pp. 1659, 1660) : - "It is well settled that the exclusion of the jurisdiction the Civil Court cannot be easily inferred and any provision which takes it away must be construed strictly. In Suba Singh v. Mahendra Singh, 1973 Rev Dec 455 : ( AIR 1974 SC 1657 ), the Supreme Court observed (at pp. 1659, 1660) : - "It is well settled that the exclusion of the jurisdiction the Civil Court cannot be easily inferred and any provision which takes it away must be construed strictly. The question resolves itself into, whether the consolidation authorities had the jurisdiction to determine finally this complicated question of title when the cause of action had arisen subsequently to the finalisation, publication and even implementation of the consolidation scheme so far as the owner of the property sought to be divided was concerned. The answer of this question must be in the negative. Section 27 (1) requires the Director of Consolidation to cause, soon after the consolidation scheme has come into force, the preparation of the record of rights and other revenue records, but this, in terms of that sub-section is to be done in accordance with the provision of the U.P. Land Revenue Act, 1901. According to sub-section 27 (3) after the records have been so prepared, their further maintenance will be the responsibility of the Collector, and this too, is to be done under S. 33 of the U. P. Land Revenue Act, 1901. It was thus abundantly clear that an application for mutation on the basis of inheritance when the cause of action arose, after the finalisation and 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 Cl. (2) of S. 49. Thus, the other limb of S. 49, also is not attracted. The result is that the plea of bar of the Civil Courts' jurisdiction to investigate and adjudicate upon the title to the land or the ownership of the plaintiff has no substance. Nothing done in consolidation proceedings is undone by that suit." 10. In Karbalai Begum v. Mohd. Sayeed, 1980 Rev Dec 309 : (1980 All LJ 902), the Supreme Court was further pleased to observe (at p. 905) : - "The last ground on which the High Court non-suited the appellant was that after the Chakbandi was completed under the U.P. Consolidation of Holdings Act, the suit was barred by S. 49 of the said Act. Sayeed, 1980 Rev Dec 309 : (1980 All LJ 902), the Supreme Court was further pleased to observe (at p. 905) : - "The last ground on which the High Court non-suited the appellant was that after the Chakbandi was completed under the U.P. Consolidation of Holdings Act, the suit was barred by S. 49 of the said Act. It is well settled that unless there is an express provision barring a suit on the basis of title, the Courts will not easily infer a bar of suit to establish the title of the parties." 11. In Karbalai Begum's case (1980 All L J 902) (supra) the Supreme Court referred to its earlier decision in Suba Singh v. Mahendra Singh, 1973 Rev Dec 455 : ( AIR 1974 SC 1657 ), and held that the present suit was not barred under S. 49. U.P. Consolidation of Holdings Act. 12. In Smt. Bhuria v. Board of Revenue, 1970 Rev Dec 466, Hon'ble Satish Chandra, Chief Justice (as he then was) considered the case where S. 12 of the Act was said to be applicable, and observed : "Section 49 bars only such claims which can be adjudicated during the consolidation operations. In view of S. 12 of the Consolidation of Holdings Act a claim which arises or accrues after the consolidation scheme has been confirmed under S. 23 cannot be adjudicated by the consolidation authorities. In the instant case the title claimed by one of the heirs of the tenure-holder only after latter's death. While he was alive she had no right at all. On his death she became entitled to inherit the holding along with his widow. The cause of action for this claim accrued after proceedings under Sections 7 and 9, U. P. Consolidation of Holdings Act, had been completed and, this, investigation into the claim by the consolidation authorities was barred by S. 12 of the Consolidation of Holdings Act. Consequently, S. 49 of the Consolidation of Holdings Act could not bar adjudication of such a claim in the regular Courts." It was further observed :- "The mutation proceedings conducted by the. Assistant Consolidation Officer were covered by Sections 5 and 27 of the Consolidation of Holdings Act, under which the maintenance of the record have been entrusted to these authorities till the notification of the village under S. 52, Consolidation of Holdings Act. Assistant Consolidation Officer were covered by Sections 5 and 27 of the Consolidation of Holdings Act, under which the maintenance of the record have been entrusted to these authorities till the notification of the village under S. 52, Consolidation of Holdings Act. "Mutation proceedings were not intended to investigate into questions of title. The fact that one of the heirs did not claim any share in those proceedings cannot, obviously, debar her from claiming here right in a regular title suit. Her claim, therefore, could not validly be held to be barred under S. 49, Consolidation of Holdings Act." 13. It is thus well settled that when the cause of action for mutation arose after the finalisation and publication of the consolidation scheme under S. 23 of the Act, the order passed in the mutation proceedings by the consolidation authorities would not operate as res judicata nor the regular title suit would be barred under S. 49 of the Act on the ground that the claimant-plaintiff had failed to claim mutation during consolidation operations. 14. In the mutation proceedings based on cause of action accruing after confirmation of consolidation scheme under S. 23 of the Act, the title of the recorded tenure-holder is not disputed. If the name of the tenure-holder continues in the records at the time of close of consolidation operations by notification made under S. 52 of the Act, and the legal heirs and successors of transferees had omitted to claim mutation in their names during consolidation operations, they would not be debarred from claiming right in regular title suit or in claiming mutation of their names under S. 34, Land Revenue Act. Section 49 of the Act would not operate as a bar to such a suit or application. Even if mutation has already taken place in the name of any claimant during consolidation operations, it would not debar another person from claiming right in the land in question after denotification on the ground that he had omitted to claim mutation during consolidation proceedings. This will, however, hold good if cause of action for claiming mutation accrued after confirmation of consolidation scheme under S. 23 of the Act. Then neither regular title suit nor mutation application would be barred under S. 49 of the Act. This will, however, hold good if cause of action for claiming mutation accrued after confirmation of consolidation scheme under S. 23 of the Act. Then neither regular title suit nor mutation application would be barred under S. 49 of the Act. Such suit or application for mutation will also not be barred by the principles or res judicata on account of mutation order passed in favour of any person during consolidation operations. 15. In this view of the matter, I am of the opinion that the suit filed by the petitioner could not be said to be barred under S. 49 of the Act nor the mutation order dated 31-9-1964 in favour of opposite parties 4 and 5 would operate as res judicata. The validity and correctness of the mutation order, although passed by the consolidation authorities, could be gone into in the regular title suit before the competent court of jurisdiction after denotification of the unit. The plaintiff-petitioner could very well challenge the alleged claim of opposite party 4 which was mainly based on the said mutation order, and he could seek declaration that opposite party 4 has got no right, title or interest in the land in dispute and that it exclusively belongs to him and opposite party 5. The Board of Revenue, in my opinion, has legally erred in dismissing the suit filed by the petitioner by wrongly holding it to be barred under S. 49 of the Act. 16. Learned counsel for opposite party 4 further contended that since the petitioner could file objection in the mutation case during consolidation operations but having failed to do so he cannot now challenge mutation order dated 31-9-1964 and the Board of Revenue has rightly dismissed the suit being barred under S. 49 of the Act. He further contended that the mutation order should be construed to have been passed under S. 12 of the Act and as such it cannot be challenged in the regular title suit after denotification of the village. 17. As already observed above, the proceedings in this unit were to be conducted and concluded in accordance with the provisions of the Act as it stood prior to the amendment made by U. P. Act No. VIII of 1963, therefore, the aforesaid mutation order dated 31-9-1964 cannot be treated to have been passed under S. 12 of the Act. 17. As already observed above, the proceedings in this unit were to be conducted and concluded in accordance with the provisions of the Act as it stood prior to the amendment made by U. P. Act No. VIII of 1963, therefore, the aforesaid mutation order dated 31-9-1964 cannot be treated to have been passed under S. 12 of the Act. Apart from it, even an order of mutation, if passed under S. 12 of the Act, will nevertheless remain a mutation order, because in the mutation proceedings under S. 12 of the Act title of the recorded tenure-holder cannot be disputed nor any claim of independent title in respect of land in dispute can be raised therein. It is well settled that the mutation order is always subject to the decision in the regular title suit and it does not operate as res judicata between the parties. As already observed above it is not obligatory for the legal heir or successor or transferee to unfailingly claim mutation during consolidation operations if cause of action arose for mutation after finalisation of consolidation scheme under S. 23 of the Act. They can claim mutation and can also file title suit even after close of consolidation operations. Their claim would not be barred under S. 49 of the Act on account of inaction on their part in claiming mutation during consolidation operations. Even if the name of some other claimant was mutated in the records on the basis of the mutation order passed under S. 12 of the Act, it being merely a mutation order would be open to op by any other claimant, who can also urge and show that the mutation order was illegal and void inasmuch as no valid and proper mutation proclamation was issued and as such the order passed was per se illegal and void. Learned counsel for opposite party 4, however, urged that since there is no provision in the Act requiring issuance of mutation proclamation and as such the mutation order cannot be challenged nor it can be ignored being illegal and void on that ground and the claimant cannot escape the consequence of not filing the objection in the mutation proceedings under S. 12 of the Act and as such his subsequent title suit would be barred under S. 49 of the Act. I am unable to agree with this contention as well. 18. I am unable to agree with this contention as well. 18. The question whether mutation proclamation should be issued or not in the absence of specific provision to that effect in the Act, had cropped up for consideration by a Division Bench of this Court in Ugra Sen Singh v. Dy. Director of Consolidation, 1970 Rev Dec 445, wherein it was held : "No doubt Sections 7 to 11 do not specifically lay down that a proclamation shall be issued and published, but it is implicit in the provisions contained in sub-ss. (1) and (2) of S. 9 that a notice of mutation application should be published by issuing a suitable proclamation as is done by the ordinary revenue courts dealing with a similar application. Since the Deputy Director has found as a matter of fact that the proclamation issued in the instant case was not in accordance with law, he was within his right in exercise of his revisional powers to hold that it was a material irregularity." 19. In this view of the matter, I do not find any substance in the argument and I am of the opinion that a valid mutation proclamation has got to be issued by the consolidation authorities before allowing a mutation application and if no valid and proper mutation proclamation has been issued the order passed thereon would be per se illegal and without jurisdiction, as it is well settled that a mutation court can assume jurisdiction to pass mutation order after issuing proper and valid mutation proclamation. (See Gulab Shanker Tewari v. Dy. Director of Consolidation, Civil Misc. Writ No. 5390 of 1980 decided on 17-2-1982) : (1982 All LJ 706). 20. In the present case, as already observed, the mutation application, which was filed after the death of Pancham and Smt. Nepali, was to be governed by the provisions of the Act and as it stood prior to Amendment Act VIII of 1963 and the bar of S. 49 of the Act is not at all attracted to the present case, as held in Suba Singh's case ( AIR 1974 SC 1657 ) (supra) and Karbalai Begum's case (1980 All LJ 902) (SC) (supra). The said mutation order also cannot operate as a bar to the present suit nor it can be thrown out on the ground that the plaintiff had not applied for mutation before the consolidation authorities or that he had not challenged the said order during the consolidation proceedings. 21. Opposite party 4, had given up the plea before the lower courts that the land in dispute belongs to common ancestor Gaya. He based his claim merely on the order dated 31-9-1964 passed in his favour ordering his name to be recorded as co-tenure-holder along with opposite party 5. The said mutation order cannot vest any title in opposite party 4 if he had none in the land in dispute nor the said order, which is merely a mutation order, can be held to operate as res judicata between the parties and it will be subject to decision in regular title suit. The Board of revenue has, in my opinion, committed a manifest error of law in dismissing the suit by taking an erroneous view that it is barred under S. 49 of the Act. 22. In the result, the petition succeeds and is allowed and the order dated 27-6-1977 passed by the Board of Revenue is quashed and the Board of Revenue is directed to decide the second appeal on merits and in the light of the observations made above. In the circumstances of the case, I direct the parties to bear their own costs. Since the case is very old one, the parties are directed to appear before the Board of Revenue on 15th April, 1982. Learned counsel for the parties are informed.