Nihore Chamar v. Sudishta Chamar — 1984 DIGILAW 327 (ALL)

JUDGMENT B. D. Agarwal, J. 1. This appeal is directed against the judgment and decree of Sri D. N. Shukla, Additional Civil Judge, Azamgarh dated March 28, 1962. 2. The dispute is with respect to a portion of plot no. 611 situate in village Raipur district Azamgarh. The area of the land involved in controversy is 16-Rep. (Suppl.) 200 links only. The plaintiff has his house north faced in village Raipur. The land in question lies towards the south of this house. There are certain trees also standing on this land including the bamboo clumps. The plaintiffs brought the suit on July 10, 1958 alleging that this land constitutes his Sahen and he has been making use thereof for miscellaneous agriculturcal purposes. It was asserted that the trees also belong to him. The defendants 1 to 4 obtained a deed of sale from the defendant no. 5 on July 15, 1957 in respect of this land and the trees existing thereon. The defendant no. 5 was not competent to make transfer since he had no right, title or interest. On or about July 15, 1957 the defendants 1 to 4 interfered with the possession of the plaintiff and hence the suit claiming the relief of cancellation of the aforesaid deed of sale and perpetual injunction. In the alternative possession has also been claimed. The defendant 1 to 4 resisted the suit refuting that the land was held by the plaintiff as his Sahen at any stage. It was pleaded that the land constitutes a grove and it was held as such by the defendant no. 5 who became bhumidhar thereof on the date of vesting under the U. P. Zamindari Abolition and Land Reforms Act and thereafter made sale to the contesting defendants for consideration by a registered instrument. The defendants had stepped into possession by virtue of this purchase. The Sahen of the plaintiff, it was asserted, lies to the north of his house and in part towards the east thereof, and not towards south. The trial court dismissed the suit on March 14, 1961 being of the view that the land in question did not constitute the plaintiffs' Sahen and that the defendants 1 to 4 had acquired valid title by the purchase made by them on July 15, 1957 from the defendant no. 5. The trial court dismissed the suit on March 14, 1961 being of the view that the land in question did not constitute the plaintiffs' Sahen and that the defendants 1 to 4 had acquired valid title by the purchase made by them on July 15, 1957 from the defendant no. 5. The decree passed by the trial court was, however, reversed in appeal on March 28, 1962. 3. Aggrieved the defendants 1 to 4 preferred this second appeal on August 1, 1962. This was admitted at the preliminary hearing on March 9, 1976. 4. Sri U. K. Misra, learned counsel for the appellants contended that section 49, U. P. Consolidation of Holdings Act bars the suit giving rise to this appeal. It is argued that there was notification of the State Government under section 4 (i) of this Act concerning this aera. In the khatauni of the period 1363-65 F. Paltu- the defendant no. 5 (the predecessor- in- interest of the appellants) is recorded as Bhumidhar of the disputed land vide Ex A-4. Subsequent to the purchase made by the defendants 1 to 4 by the registered deed of sale dated July 15, 1967 corresponding to 1375 F. the defendants were mutated in the revenue papers over this land by the order of the Assistant Collector passed on May 31, 1958 vide Ex A-1. In view of the consolidation operations having commenced in the area, it was open to the plaintiff, it is argued, to have raised objections within the period specified under section 9 (2) of the U. P. Consolidation of Holdings Act (hereinafter referred to as the Act). The plaintiff filed objections purporting to be under this provision on August 31. 1976. This was rejected by the Consolidation Officer on June 21, 1977 under section 9-A of the Act on the ground that the same was beyond limitation and the delay had not been satisfactorily accounted for. It was observed that the plaintiff-objector could not plead in the circumstances of lack of kaowledge of the proceedings. The plaintiff preferred revision under section 48 of the Act against this order but that also was dismissed by the Deputy Director of Consolidation on October 5, 1977. It was found that the notification under section 9 had been made on August 31, 1970; the notification under section 20 had taken place on May 14, 1972. The plaintiff preferred revision under section 48 of the Act against this order but that also was dismissed by the Deputy Director of Consolidation on October 5, 1977. It was found that the notification under section 9 had been made on August 31, 1970; the notification under section 20 had taken place on May 14, 1972. The appellants have placed on record copies of these orders accompanied with affidavit. The submission for the appellant is that in view of the provisions contained in Sees. 49 and 11-A of the Act, the plaintiff-respondents had the remedy to move the consolidation authorities within the prescribed period and that due to this failure on his part he is precluded from asserting any longer that the defendants-appellants are not the Bhumidhars of the land in dispute or that the same was not held as grove by Paltu who made the sale in favour of the appellants. The argument is possessed of merit in my opinion. Section 49 reads as under :- "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 area, for which a (notification) has been issued under sub-section (2) of Sec. 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 matters for which a proceeding could or ought to have been taken under this Act." According to Sec. 11-A no question in respect of claims to land, relating to the consolidation area made or which ought to have been raised under Sec. 9 but has not been raised, shall be raised or heard at any subsequent stage of the consolidation proceedings. The crux of the dispute as will appear from the narration of the facts made above, is whether the defendants -appellants can claim the land to be held by them as Bhumidhars or in other words as to whether this was grove held as such by Paltu before he made the sale in favour of the defendants-appellants. The crux of the dispute as will appear from the narration of the facts made above, is whether the defendants -appellants can claim the land to be held by them as Bhumidhars or in other words as to whether this was grove held as such by Paltu before he made the sale in favour of the defendants-appellants. In case the land belongs to the defendants as Bhumidhars, the plaintiff respondent would be precluded from asserting right, title or interest as Sahen over the same land. There can be little doubt in view of the provisions referred above that the plaintiff-respondents could and ought to have raised before the consolidation authorities the contention that the defendant-appellants are not the Bhumidhars or that Paltu was himself not the Bhumidhar and as such was not competent to make the sale. From the plaint, it would appear, to be clear that the plaintiffs' case is that the sale executed by the defendant no. 5 is unauthorised or void in other words since this was made by the defendant no. 5 having any title over the land. The consolidation authorities will have had the jurisdiction to decide whether the land constitutes a grove and is held as Bhumidhars by the defendant-appellants or as to whether the same has the character of Sahen situate in the Abadi as asserted by the plaintiff-respondents. In case they found that the land is Sahen, the consolidation authorities could not adjudicate as to whom does it belong, but in case the finding was that this constitutes grove, the consolidation authorities could certainly adjudicate the right, title or interest over the said land and find whether the defendant appellants are or are not Bhumidhars thereof. This, it would appear is the settled view of this Court as indicated from the decisions in Second Appeal no. 343 of 1968, Sahdeo Pandey v. Sheo Adhar dated 7-4-1969; Badn Ahir v Sahdeo Ahir, 1981 RD 15; Bishambhar v, Suraj Bali, 1981 ACJ 562; Mumtaz All v. Babu Raw, 1982 ACJ 477; motilal v. Puranawasi, 1982 RD 375; Chandar Shekhar v. Kardhi, 1981 ALJ 618. 5. 343 of 1968, Sahdeo Pandey v. Sheo Adhar dated 7-4-1969; Badn Ahir v Sahdeo Ahir, 1981 RD 15; Bishambhar v, Suraj Bali, 1981 ACJ 562; Mumtaz All v. Babu Raw, 1982 ACJ 477; motilal v. Puranawasi, 1982 RD 375; Chandar Shekhar v. Kardhi, 1981 ALJ 618. 5. In view of the omission on the part of the plaintiff-respondents to agitate the matter before the consolidation authorities in accordance with the limitation provided therein and the order made by those authorities having became final, the plaintiff-respondent is precluded from asserting any longer in this Court that the defendant-appellants are not the Bhumidhars of this land or that this land retains the character of his Sahen. 6. Sri Yatindra Singh, learned counsel for the plaintiff-respondent no1 straneously urged that the bar of section 49/11-A is not attracted. The sub mission made by him is that in view of the decree passed by the Civil Court a favour of the plaintiff-respondents, it was not required of him to raise the objection before the consolidation authorities. The rejection of the ..objection filed was on ground of limitation and there has been no adjudication on merit by the said authorities. In view of the decree of the lower appellate court, the consolidation authorities must have, it is argued, corrected the revenue records themselves and even if this has not been done,, the record is to be deemed as corrected and lastly it was argued that since the appeal cannot abate now due to the notification under section 52 of the Act having been issued, the plaintiff-respondents would be without a remedy if the contention of defendant-appellants is upheld. On careful consideration given to the matter, I am not impressed with this line of reasoning. It seems to be overlooked that the decision given by the courts below was subject to the right of the defendant appellants to file a second appeal in this Court. The lower appellate court decided the matter on March 28, 1962 the second appeal was filed thereafter in this Court within limitation on August 1, 1962. The decision of the civil court not having become final, it cannot be maintained that in view of the decree of the lower appellate court, the plaintiff-respondent was not required to raise objection before the consolidation authorities. The effect of sections 49/11-A is moreover overriding. The decision of the civil court not having become final, it cannot be maintained that in view of the decree of the lower appellate court, the plaintiff-respondent was not required to raise objection before the consolidation authorities. The effect of sections 49/11-A is moreover overriding. An special forum has been created under the Act and a decision of the consolidation authorities given within their jurisdiction binds as well the civil court. Since subsequent to this second appeal having been filed proceedings under the Act commenced, it was incumbent upon the plaintiff-respondent to take up the matter before the consolidation authorities to prevent adverse decision being arrived at by them in the meanwhile. There could be no question of the defendant-appellants filing any objection before the consolidation authorities for the simple reason that in the revenue records the entries had been in the name of Paltu as Bhumidhar and vide order dated August 31, 1958 the defendant-appellants had already been mutated on the basis of the deed of sale obtained by them vide Ex A. 1. The objection which the plaintiff respondent did file on August 31, 1976 can be of no avail to him for the reason that this was beyond the prescribed limitation and moreover the same was rejected by the consolidation officer on June 21, 1977 and this was maintained in revision also on October 5, 1977. It is of no consequence that the rejection was on ground of limitation and not upon merit because the fact remains in either event that the question relating to the title of the defendant appellants as Bhumidhars of this land remained unagitated upon merit in accordance with section 9 (2) and therefore, the plaintiff-respondent cannot now be permitted to raise in this Court a claim to the said land. On November 20, 1970 the appellant had made an application before this Court for an order to the effect that this appeal and the suit giving rise to the same stand abated under section 5 (2) (a) of the Act. As the respondents' learned counsel also submits, section 5 (2) required an order of abatement to be made by the Court. No such order was passed. For the plaintiff respondent himself it is pointed in the counter affidavit that notification under section 52 of the Act has issued in the meanwhile. As the respondents' learned counsel also submits, section 5 (2) required an order of abatement to be made by the Court. No such order was passed. For the plaintiff respondent himself it is pointed in the counter affidavit that notification under section 52 of the Act has issued in the meanwhile. Therefore, since the consolidation operations have closed, there is no question now arising to abate this appeal or the suit giving rise to the same but this cannot be made the basis for the plaintiff-respondent to contend that he is left without a remedy and hence the bar of sections 49/11-A be not taken to be applicable. The reason is that the opportunity was there under the law as envisaged under section 9 (2) but the plaintiff did not avail of it and the objection that he did raise subsequently stands rejected by the competent authority; that does not leave it open to the plaintiff-respondent to contend in this proceeding that the land be taken to be held by him as the Sahen. 7. Sri Singh cited Nahun v. Deputy Director of Consolidation, 1973 RD 146. This does not assist him. In that case rule 39, Revenue Court Mannual was under consideration in the context of section 20 (b) of the U. P. Zamindari Abolition and Land Reforms Act. It was held that even if the correction has not been incorporated in the record, it would be immaterial and the entry of 1356 F. would be deemed to have been acted before the date of vesting. No such presumption can be raised in the present for the reason that, as explained above, the decision given by the courts below was subject to second appeal and the second appeal had been filed within limitation and has been pending. Further the objection which the plaintiff raised relating to the entry at a belated stage stands rejected. 8. Reliance for the plaintiff-respondent was placed also on Kamla Shonkar v. The Deputy Director of Consolidation, 1979 RD 78. In that case the petitioners were recorded as Bhumidhars of the plot in dispute. The objection was raised by the respondents that the plot was a Abadi on the spot. The Consolidation authorities found that the plot was of the character of A badi. It was directed however, that the entry in favour of the petitioners as Bhumidhars be expunged. In that case the petitioners were recorded as Bhumidhars of the plot in dispute. The objection was raised by the respondents that the plot was a Abadi on the spot. The Consolidation authorities found that the plot was of the character of A badi. It was directed however, that the entry in favour of the petitioners as Bhumidhars be expunged. Brother Ojha, J. held on these facts that the order of the consolidation authorities directing the entry in favour of the petitioners be expunged was without jurisdiction. Since on the spot inspection the consolidation authorities found that the land was covered by Abadi, the only jurisdiction which they had was to make an entry in column 24 C. H. Form 2-A. This also accepts that the consolidation authorities were competent to del ermine whether the land was held as Abadi or as to whether it was held as Bhumidhari land. The distinguishing features of the instant case further is that the plaintiff respondent raised objection belatedly in the matter that stands rejected. The rejection has become final. The plaintiff respondent cannot, therefore, at this stage agitate that the land be deemed to be held by him still as Abadi. Upon merit the decision arrived at by the lower appellate court can easily be classed as perverse and against the evidence placed on the record. The land in question is 1/5th of an acre in area. According to the averments in the plaint itself this has had five full grown trees of which there are two mango trees, one Mahua tree and one Neem tree. In addition there have been three clumps of bamboos standing on this land. In the plaint the defendant no. 5 is shown as the resident of village Raipur where the disputed land is situate. Evidence on the record is admittedly to the effect that Pardeshi adoptive father of the defendant no. 5 had been all through a resident of this village. Pardeshi died, as stated by Paltu the defendant no. 5, about 15 years prior to the institution of the suit. The adoption of the defendant no. 5 took place nearly twenty years prior to the suit. It was further testified that pardeshi had planted the trees on the land in dispute during his life time and three trees were planted latter by Paltu himself. 5, about 15 years prior to the institution of the suit. The adoption of the defendant no. 5 took place nearly twenty years prior to the suit. It was further testified that pardeshi had planted the trees on the land in dispute during his life time and three trees were planted latter by Paltu himself. Despite this evidence on the record, the lower appellate court has gone on to say and laid emphasis upon observing that the defendant no. 5 belongs to another village and therefore, it was not probable that the trees may have been planted over this land by him or his adoptive father. This is clear misreading of the evidence on the record. The lower appellate court has then attached undue importance to the local inspection made by it as recorded in the Inspection note dated March 12, 1962. The inspection could be taken into assistance no doubt but this had to be only for the purpose of appreciation of direct and circumstantial evidence brought on the record. There was no sign of cultivation found anywhere on the disputed land; none has said that there was possibility of the land being put to cultivation. There is no indication in other words that in face of the existing trees the land or any substantial part thereof may be put to cultivation. This should have been taken into consideration as well in arriving at the rinding with respect to the true character of the land, namely, as to whether it does or does not constitute a grove. The mere fact that the trees are situate behind the house of the plaintiffs, could not lead to the inference drawn by the lower appellate court that they belong to him. It could not have -been overlooked in this connection that the plaintiffs' house faces north and in cross examination it had to be admitted that he has had his Kolher etc. on the land situate to the north. Reference was also made by the lower appellate court to the entries in the extract of Abadi trees dated 12-9-1949 vide Ex. land 2. These were prepared in connection with the case relating to partition among the zamiudars of their interest as such in the area. The parties before us were not arrayed in that proceeding. Reference was also made by the lower appellate court to the entries in the extract of Abadi trees dated 12-9-1949 vide Ex. land 2. These were prepared in connection with the case relating to partition among the zamiudars of their interest as such in the area. The parties before us were not arrayed in that proceeding. It is not disputed that the proceedings concerning the partition were abated on account of the vesting due to the abolition of the Zamindari. In face of these developments there could be no adverse inference drawn against the defendant appellants from the entries on the said extracts. It is also worthy of note that the lower appellate court itself records that the plaintiff respondent could have had his Sahen towards the north and not on any other side. The claim laid by the plaintiff over the disputed land as is clear from the plaint is on the sole basis that this constitutes his Sahen. Since the lower appellate court itself found that this land could not form his Sahen, the basis of the claim disappeared and the finding relating to the title to the trees was reached as I mentioned above upon an entirely non existent premise. 9. Having regard to the discussion made in the above the suit of the plaintiff-respondent fails in this appeal both on merit and in view of the provision contained in sections 49/11-A of the U. P. Consolidation of Holdings Act. The appeal is, accordingly, allowed. The judgment and decree of the lower appellate court are set aside. In the circumstances of the case costs will be borne by the parties. Appeal allowed.