Ram Kewal v. Bhagwat Prasad — 1983 DIGILAW 69 (ALL)

JUDGMENT Kaushal Kishore, Member. - This is a plaintiff's second appeal against the judgment and decree dated September 5, 1976 by the learned Additional Commissioner, Faizabad Division, Faizabad reversing the judgment and decree dated September 30, 1974 by the learned trial court in a suit under Section 229-B/209 of the U.P.Z.A. and L.R. Act and thereby dismissing the suit of the plaintiff. 2. I have heard the learned counsel for the parties and have also perused the record. 3. The plaintiff's case is that he was the tenure-holder of plot number 1681 before vesting and after, and during consolidation proceedings he was given Maliyat for this plot and same was entered in Form CH-23 but the land given in lieu of this plot was omitted in CH-46, that the Gaon Sabha treating this land as its property, gave lease to the defendants 3 to 6 who unauthorisedly interfered with the plaintiff's possession, hence the suit, the defendant contested on the basis of the Gaon Sabha lease and the Gaon Sabha and the State also contested on the basis of records. The main point of contest is the order of the Consolidation Officer dated May 8, 1964 on the basis of which form CH-23 was prepared including Maliyat of plot number 1681 in favour of the plaintiff, which is relied upon by the plaintiff and is denied as forged by the defendants. The learned trial court framed issues and gave finding on issue number 6 was that the suit was barred under Section 49 of the U.P.C.H. Act, on issue number 10 that the plaintiff's claim was not barred under Section 11-A of the U.P.C.H. Act, on issue No. 11 that the Gaon Sabha was estopped from contesting the plaintiffs right as the Gaon Sabha has knowledge of the case number 3767 for including the left out Maliyat and the order dated May 8, 1964 by the Consolidation Officer, and on issues numbers 1 and 9 that the plaintiff is Bhumidhar. The learned Additional Commissioner did not discuss issues numbers 6 and 11 and has discussed only the evidence right from 1356F. The learned Additional Commissioner did not discuss issues numbers 6 and 11 and has discussed only the evidence right from 1356F. to date and the objection under Section 20 of the U.P.C.H. Act, the order dated May 8, 1964 and held that there were forgeries and manipulations right from 1356 F. and the plaintiff was not Bhumidhar, that the plaintiff's objection under Section 20 of the U.P.C.H. Act was barred under Section 11-A of the Act and the order dated May 8, 1964 was forged. 4. The learned counsel for the appellant argued that the findings by the learned Additional Commissioner are based on surmises and conjectures and are liable to be interfered with in the second appeal, that the observation of the learned Additional Commissioner that no basis of entries in 1356 F and 1359F. was revealed by the plaintiff, is incorrect in view of the replication dated April 27, 1973 in which the position had been clarified, that the admission of the Pradhan and the defendants in favour of the plaintiff had been ignored, that the entry of 1356 F. was not Fazri and the letting was proved by the ex-zamindar and the plaintiff's oral evidence, in support, he cited a ruling reported in 1975 R.D. 528 (H.C.). In which it was held that admission to tenancy included oral admission also and no document was necessary, that the learned Additional Commissioner had ignored the provisions of Section 114 of the Evidence Act in considering the order dated May 8, 1964 as Farzi since a certified copy of the order had been filed and its genuineness had to be presumed. 5. The learned counsel for the respondents argued that the claim of the plaintiff was barred under Section 49 of the U.P.C.H. Act because in CH-45 he was not recorded, and cited in support a ruling reported in 1971 R.D. 414 in which entries in CH-45 have been held to be final. He further argued that the learned Additional Commissioner has rightly discarded the entries of 1356F and 1359F as in 1356F the plaintiff's father was recorded in Ziman-4 and in 1359F the plaintiff was recorded in ziman-21 besides the pages of the original Khatauni Khatas 191 to 214 being torn off. He further argued that the learned Additional Commissioner has rightly discarded the entries of 1356F and 1359F as in 1356F the plaintiff's father was recorded in Ziman-4 and in 1359F the plaintiff was recorded in ziman-21 besides the pages of the original Khatauni Khatas 191 to 214 being torn off. He argued that there was a finding of fact by the first appellate court that the order of May 8, 1964 was not passed by any Consolidation Officer and was forged, that the Consolidation Officer could not pass this order as the objection was barred under Section 11-A of the U.P.C.H. Act, that the court had no jurisdiction, so the order was nullity and the entry in C.H.-23 had to be ignored, in support, he cited a ruling reported in 1978 R.D. 251 in which it was held that the plot which was out of the consolidation could not be brought that the lease by the Goan Sabha was not cancelled, so the lessees continued to have their rights, that the lease was voidable only and could not be deemed void and that the learned Additional Commissioner had given findings of fact on appraisal of evidence on record and even if alternative inference can be drawn, it is not liable to be interfered with in the second appeal. The learned D.G.C. (R) for the Gaon Sabha/State endorsed the arguments of the other respondents. The learned D.G.C. (R) for the Gaon Sabha/State endorsed the arguments of the other respondents. The learned counsel for the appellant further argued that the entry of 1356F as such gave certain rights and no further enquiry was needed, that the signatures of the Consolidation Officer were not compared and examined by the learned Additional Commissioner as expert and his finding was not binding on this point, that the finding of the defendant's possession by the learned Additional Commissioner was not material as no claim of the defendant was based on possession, that the objection under Section 20 of the U.P.C.H. Act was perfectly within the scope since the valuation of the plot number 1961 was found but not included in the Chak of the plaintiff and the objection did not require any correction in the record but only inclusion of Maliyat which was left out, that the bar under Section 11-A of the U.P.C.H. Act would not apply for this reason, that the lease was void ab-intito as the Goan Sabha had no right and that in view of misreading of evidence and perversity of findings based on conjectures and surmises, the findings, by the learned Additional Commissioner have to be interfered with. 6. I have considered the various aspects mentioned in depth with the help of the record. The most important questions are relating to bar under Section 49 of the U.P.C.H. Act and the bar under Section 11-A of the U.P.C.H. Act relating to the Consolidation Officer's order dated May 8, 1964. It is mainly with reference to the provisions of Section 11-A of the Act which bar a question relating to claim to a land at subsequent stage, that the respondents have argued that the order dated May 8, 1964 has to be deemed without jurisdiction, manipulated and forged. The learned Additional Commissioner has held that the objections at the stage of Section 20 cannot be made for correcting the records and Section 11-A bars such applications. The learned Additional Commissioner by incorrect appraisal of the proceedings held the view that the Maliyat of plot number 1681 could not be given by the Consolidation Officer by order dated May 8, 1964 and it attracted the bar of Section 11-A. But evidently it was not case of correction. The learned Additional Commissioner by incorrect appraisal of the proceedings held the view that the Maliyat of plot number 1681 could not be given by the Consolidation Officer by order dated May 8, 1964 and it attracted the bar of Section 11-A. But evidently it was not case of correction. Ram Kewal was already recorded and his name was there in C.H. 2A and earlier in Khatauni 1363-64F and 1368 Fasli. It was only an omission of Maliyat of the plot number 1681 and no correction of entries of rights as he was already recorded as seen from CH-2-A. The learned Additional Commissioner has found manipulations in Khatauni 1356 Fasli, 1359 Fasli and C.H. Form 2-A and 23 but has failed to examine the value of order dated May 8, 1964 in view of forgeries and manipulations, but has failed to appreciate that the order dated May 8, 1964 itself justified the view that Ram Kewal was genuinely recorded tenant in CH-A and Maliyat was rightly given in CH-23. In respect of the order dated May 8, 1964, the finding by the learned Additional Commissioner that the original order did not bear signatures of the Consolidation Officer is not a finding as a signature expert. The learned trial court also compared the orders in original filed and gave a clear finding that by appearance it was seen that the order dated May 8, 1964 was written in the hand of the Consolidation Officer were in initials which were different than his full signatures on other files but were similar to his initials as existed on other files also. The learned Additional Commissioner has not contradicted this part of finding that the order dated May 8, 1964 was written by the Consolidation Officer in his own hand and just in a sweeping remark said that the signatures were not of the Consolidation Officer, so the order, was forged. If the Consolidation Officer wrote order, and same one also according to the learned Additional Commissioner put signatures below the order, this whole order had to be explained and the learned Additional Commissioner could not have avoid obtaining an expert's opinion if he differed from the trial court on the point of genuineness of the order dated May 8, 1964. There is no round-about way to decide the question. There is no round-about way to decide the question. His finding on this point is clearly based on surmises and conjectures and is liable to be interfered with in the second appeal. In fact, there is nothing to show that the order dated May 8, 1964 was not genuine and once this order is held genuine, the firm position of the plaintiff's right being settled in consolidation proceedings is established. 7. As regards bar under Section 11-A, it has been already said that the nature of objection under Section 20 of the Act and the order of the Consolidation Officer makes it clear that the addition of Maliyat of 1981 which was left out was fully within the stage of Section 20 and no question of bar under Section 11-A of the Act is reproduced below to facilitate a proper appraisal : "11-A. Bar on objections. No question in respect of (i) claim to land; (ii) partition of joint holdings; and (iii) valuation of plots, trees, wells and other improvements, where the question is ought to be raised by a tenure-holder of the plot or the owner of the tree, well or other improvement of the tree, well or other improvement recorded in the annual register under Section 10, relating to the consolidation area, which has been raised under Section 9 or which might or ought to have been raised under that section but has not been so raised, shall of the consolidation proceedings". It only prohibits subsequent objections about the claims to land or valuation of plots, trees etc. In the instant case, there is no claim to land Ram Kewal was already recorded in 1369F and did not require filing objection under Section 9. He also did not contest the correctness of the valuation. Since the valuation of plot number 1681 area 7-2-5 was not added in his Chak, it was an objection for inclusion of that Maliyat. There was no dispute that plot No. 1681(M)/7-2-5 was in the name of Ram Kewal and the Gaon Sabha had not raised any objection under Section, C.H. Act. Later on this Maliyat was omitted by mistake and the Consolidation Officer while passing order dated May 8, 1964 had already consulted Chakbandi Committee. So the U.P.C.H. Act was not barred under Section 11-a of the Act, as found by the learned trial court. 8. Later on this Maliyat was omitted by mistake and the Consolidation Officer while passing order dated May 8, 1964 had already consulted Chakbandi Committee. So the U.P.C.H. Act was not barred under Section 11-a of the Act, as found by the learned trial court. 8. As regards bar under Section 49 of the U.P.C.H. Act, the learned Additional Commissioner has not set aside the finding on issue number 6 and has not discussed the point at all. It is surprising that bar under Section 49 of the U.P.C.H. Act prevailing against the defendant's claim, the learned Additional Commissioner chose to discuss all evidence prior to consolidation proceedings and even the consolidation records. His finding that the plot number 1681 was never let to the father of Ram Kewal, apart from being incorrect in view of entries in 1356F and 1359F, is also beyond jurisdiction in view of bar under Section 49 of the CH-23 and the Form CH-45 is normally only a reproduction of it, incorporating any orders on CH-23 but no such order being there, it was pure omission of Ram Kewal's name on the land given to him in lieu of Maliyat of 1681. It is settled law that CH-23 is final and the bar under Section 49 of the U.P.C.H. Act relates to any claim against the entries in CH-23 and CH-45, the former is to be deemed correct. Reliance is placed on the ruling in Bhagat Dayal v. Data Ram, 1978 R.D. 272. Here the plaintiff's claim is based on CH-23 and an omission in CH-45, so no bar lies against the plaintiff's claim while the bar lies against the claim of the defendant and all considerations of documents previous to consolidation proceedings by the learned Addl. Commissioner are irrelevant and beyond jurisdiction. Such mistake in CH-45 is merely clerical error and is rebuttable under Section 27(2) of the U.P.C.H. Act since final adjudication is authoritatively incorporated in Form CH-23. In such cases, the bar under Section 49 of the U.P.C.H. Act will not be applicable to the correction of mistake under Section 27(2) of the U.P.C.H. Act, as held in the ruling in Ram Lakhan v. Ratan, 1978 R.D. 169 and Jaimal v. Man Singh, 1978 R.D. 104. 9. In such cases, the bar under Section 49 of the U.P.C.H. Act will not be applicable to the correction of mistake under Section 27(2) of the U.P.C.H. Act, as held in the ruling in Ram Lakhan v. Ratan, 1978 R.D. 169 and Jaimal v. Man Singh, 1978 R.D. 104. 9. It is further to be noted that the Gaon Sabha being in knowledge of the order dated May 8, 1964, did not file any appeal or revision against this order it became final. Now the Gaon Sabha was estopped from contesting against it and a finding was given by the learned trial court on issue No. 11 on this point, which has not ben reversed by the learned Additional Commissioner, not even discussed at all, so the learned Additional Commissioner should have held no rights of the Gaon Sabha, such claim of the Gaon Sabha being barred by Section 49 of the U.P.C.H. Act and all claims of the other defendants 3 to 6 flowing from the imagined rights of the Gaon Sabha also barred under Section 49 of the U.P.C.H. Act. There was to escape from this conclusion and the findings of the learned Additional Commissioner on this ground also need be set aside. 10. In view of the above discussion, the judgment and decree by the learned Additional Commissioner cannot be upheld and has to be set aside. Accordingly, this appeal is allowed the judgment and decree dated September 5, 1976 is hereby set aside and the judgment and decree by the learned trial court is hereby confirmed. In view of the finding by the learned Additional Commissioner that the defendants are in possession, the learned trial court decree shall also include a decree for ejectment of the defendants under Section 209 of the U.P.Z.A. and L.R. Act.