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1984 DIGILAW 1093 (ALL)

Gopal v. Jagannath alias Jagnu

1984-12-18

M.WAHAJUDDIN

body1984
JUDGMENT M. Wahajuddin, J. - The Defendants have preferred this second appeal against the judgment and decree of the First appellate Court, decreeing the Plaintiffs suit for permanent injunction restraining the Defendants from Interfering with the possession of the Plaintiff in any way over old plot No. 1289 area 5.35 acres and corresponding area of plot No. 836 (new) though wrongly shown as plot No. 835 in the Chakbandi map. The Defendants, present Appellant's stand is that as in the Chakbandi map, plot No. 836 is recorded in the names of the Defendants giving area as 5.35 acres the Defendants are the owners of the land in suit and not the Plaintiff in whose name plot No. 836 is recorded. It is also urged that the claim is barred by Section 42-A of the U.P. Consolidation of Holdings Act and Section 49 of that Act and the Plaintiff's correct relief was to approach the consolidation authorities for the correction of the map and papers, if any. Earlier reliance was placed upon in the case of Ganga Glass Works (Private) Ltd., Balwali Vs. The State of U.P. and Others, AIR 1972 All 158 a Single Judge pronouncement but when pointed out that this ruling is over-ruled in Ghafoor Vs. Addl. Commissioner and Others, (1978) AWC 836 a Division Bench, the argument was given up. 2. Actually the crux of the matter is as to what is the effect of Section 27(2) of the U.P. Consolidation of Holdings Act as introduced in 1965 retrospectively. It is noteworthy that prior to this amendment the entries and the map prepared in the consolidation would have been conclusive for proof of title and the civil courts jurisdiction or the other courts jurisdiction to ignore it would have been barred u/s 49 of the U.P. Consolidation of Holdings Act, but after the introduction of Section 27(2) the position has changed. The legislature has left ft open to the court concerned seized of the matter not to be bind by such entry and it has been laid down that the entry is rebuttable. When that is the provision, the finality of such entries disappears and the bar u/s 49 of the U.P. Consolidation of Holdings Act would also not come into play. 3. The Plaintiff has brought this suit for injunction which relief can be granted by the civil court. When that is the provision, the finality of such entries disappears and the bar u/s 49 of the U.P. Consolidation of Holdings Act would also not come into play. 3. The Plaintiff has brought this suit for injunction which relief can be granted by the civil court. Jurisdiction plea was also not raised before the trial court. When that is the position the civil court has complete jurisdiction to determine the right of the parties over land in suit. The civil court would, therefore, be equally competent to identify that land irrespective of whatever plot number may be mentioned in the papers Including map. The position is that the two plots are formed corresponding to old plots. Old plot No. 1289 had an area of 5.35 acres and that plot was recorded in the Plaintiff's name while old plot No. 1288 was recorded in the Defendant name and its area was 1.06 acres. That being the position and the two plots being separate and distinct, obviously the Plaintiff is the owner of the plot having an area of 5.35 acres irrespective of whatever corresponding number is given in the map or Re...papers. The entries u/s 27(2) are not conclusive but rebuttable and when that is the position the wrong entries stand rebutted by a perusal of the earlier entries in relation to the area of those separate pieces of lands. It is not a case in which there is one single plot. It is a case in which there are two separate plots as to be identifiable with relation to their respective areas and if that is done the Plaintiff is definitely the owner of the particular plot which has the area of 5.35 acres, irrespective of what corresponding number is given in the map or any papers later. Such entries will be taken as wrong and will be ignored. This Court may not be able to direct correction of any entries, but this Court will be fully competent to give relief in respect of any land, which on assessment of entire evidence, it finds to be that of the Plaintiff and as entries are not conclusive In view of Section 27(2) of the U.P. Consolidation of Holdings Act, they would not stand in the way of the Court. 4. 4. I, therefore, fully agree with the findings of the first appellate court that the land in dispute belongs to the Plaintiff and the Plaintiff is entitled to the injunction claimed. In the result this second appeal is dismissed and the order of the first appellate court is upheld and confirmed. In the special circumstances of this case, the parties shall bear their own costs in this appeal.