JUDGMENT A. Banerji, J. 1. This second appeal arises out of a judgment and decree passed by the Civil Judge, Bulandshahr, dated April 29, 1972, dismissing the appeal of the defendant-appellants. The trial court had decreed the plaintiffs' suit and cancelled the sale deed dated 22-6-1966 executed by defendant no. 1 in favour of defendant no. 2. 2. The relevant facts briefly stated are as follows : Plaintiffs filed suit no. 77 of 1968 for the cancellation of the sale deed dated 22nd June, 1966 executed by Mohammad Ahmad in favour of Mohammad Arif and also for the cancellation of the Waqf deed dated 22nd May, 1965 executed by the appellant Mohammad Ahmad. Plaintiff's case was that Syed Mohammad Siddiq had created a Waqf in respect of the plots by Waqf deed dated October 11, 1943. The appellant Mohammad Ahmad was appointd Mutwalli of the said Waqf. The Waqf deed also provided that after the appellant Mohammad Ahmad, his two brothers would succeed him as Mutwalli. The deed further stipulated that Mutwalli would have no right to Waqf property. During consolidation proceedings, certain plots were allotted to the Waqf in lieu of the existing plots held by the Waqf. The appellant no. 1, Mohammad Ahmad, who had no right to sell the Waqf plots, did so in favour of appellant no. 2, Mohammad Arif on 22nd June, 1966 and he also created a separate Waqf. Plaintiffs therefore sought the relief for the cancellation of the Sale deed dated 22nd June, 1966 executed by appellant no. 1, Mohammad Ahmad in favour of appellant no. 2, Mohammad Arif, and also for the cancellation of the Waqf deed. The defendants in their written statement took up the plea that Syed Mohammad Siddiq was a Zamindar and he had created a Waqf in respect of his proprietary right and after the abolition of Zamindari in the State of Uttar Pradesh the said proprietary right came to an end and as such the Waqf also became non-est. Appellant Mohammad Ahmad was in actual possession over the disputed plots and after abolition of Zamindari he became Bhumidhar. His rights were recognised as Bhumidhar and as such he could transfer the plots to defendant no. 2, Mohammad Arif and create a separate Waqf in respect of other plots. Appellant Mohammad Ahmad was in actual possession over the disputed plots and after abolition of Zamindari he became Bhumidhar. His rights were recognised as Bhumidhar and as such he could transfer the plots to defendant no. 2, Mohammad Arif and create a separate Waqf in respect of other plots. Among other pleas it was stated that the suit was barred by Section 49 of the U. P. Consolidation of Holdings Act and the Civil Court had no jurisdiction to try the suit. Further, plaintiffs' right to file the suit was also questioned. Defendant-appellant no. 2 took up the plea that he was a bona fide purchaser for value without notice and as such his interest should be protected. 3. The trial court came to the conclusion that Mohammad Ahmad being Mutwalli did not become Bhumidhar of the plots in dispute in his own rights and he could not transfer the suit plots to the appellant no. 2, Mohammad Arif nor could he create another Waqf. The trial court further held that the civil court had jurisdiction to try the suit and the suit was not barred by Section 49 of the Consolidation of Holdings Act. Plaintiffs' suit was decreed and the sale deed dated 22nd June, 1966 executed by Mohammad Ahmad in favour of Mohammad Arif was cancelled. 4. Mohammad Ahmad filed an appeal in the court below. The appellate court held that the civil court had jurisdiction to try the suit. Plaintiff no. 1 was the Bhumidhar of the plots in dispute and the appellant no. 1 MOHAMMAD Ahmad did not acquire Bhumidhari rights in his personal capacity. Learned Civil Judge further held that the suit was not barred by section 49 of the Consolidation of Holdings Act. Lastly, the appellants' contention that the plaintiffs had no right to file the suit was repelled. Consequently, the appeal was dismissed as without force. Against the above judgment and decree the present second appeal was filed. The appeal-came up before me on the 11th of March, 1980. The appeal was filed by both the appellants. However, Mohammad Ahmad had died and no application had been made to bring his heirs on record. Appellant No. 2, Mohammad Arif, had not filed any appeal against the trial court decree although he had been arrayed as respondent in the appeal. The appeal was filed by both the appellants. However, Mohammad Ahmad had died and no application had been made to bring his heirs on record. Appellant No. 2, Mohammad Arif, had not filed any appeal against the trial court decree although he had been arrayed as respondent in the appeal. I had held that he was as such not entitled to be arrayed as an appellant in this appeal. An argument was raised that he was arrayed as a legal representative of Mohammad Ahmad. This argument was repelled. Mohammad Ahmad was alive when Mohammad Arif filed the appeal. Consequently, Mohammad Arif could not be the legal representative, of Mohammad Ahmad during his life time. I had held that the appeal had become improperly constituted and Mohammad Arif had no right to file the appeal. 5. Against the above order, appellant Mohammad Arif went up to Supreme Court and their Lordships allowed the appeal by an order dated 15th February, 1982 and directed the second appeal to be heard on merits. Consequently, this appeal came up before me. The hearing of the case was interrupted because either the Court was not available or the case was passed over. 6. I have heard Mr. R. H. Zaidi, learned counsel for the appellant and Mr. M. A. Qadeer, learned counsel for the respondents. Mr. Zaidi for the appellant argued that the view taken by the court below that the civil court had jurisdiction was patently erroneous, as the revenue court alone had jurisdiction. In support of his contention, he cited the decisions in the case of Gorakh Nath v. H. A. Singh, AIR 1973 SC 2451 ; Ajodhya Prasad v. Gangotri Prasad, 1981 AWC 469 ; Smt. Rakesh Bala v. John Eric, 1982 AWC 431 and Vijai Singh v. 11 AddI. District and Sessions Judge Bulandshahr, 1982 RD 207 and also tried to distinguish the case reported in Kishori Lal v. Shambhoo Nath, 1979 RD 37. Mr. Zaidi, further contended that there is no finding of either court that any part of the Waqf property was covered by the sale deed. His third contention was that the claim of the plaintiffs was barred by section 49 of the U. P. Consolidation of Holdings Act and in support thereof he cited the decision in the case of Pandobi v. Mahadeo, 1974 RD (Supplementary) 244 by Mr. His third contention was that the claim of the plaintiffs was barred by section 49 of the U. P. Consolidation of Holdings Act and in support thereof he cited the decision in the case of Pandobi v. Mahadeo, 1974 RD (Supplementary) 244 by Mr. Justice Misra and Ram Pal Singh v. Khandey, 1976 AWC 229 by Mr. Justice C. S. P. Singh. The fourth point was that no valid Waqf could be created, as the plots had undergone a change. Fifthly, it was argued that the possession was relevant in this case. On the date of enforcement of the ZA and LR Act, the person in possession of Sir Malikana land would become Bhumidhar notwithstanding the property being Waqf property. Sixthly, he urged that the original plots in which Waqf was created having disappeared, the plaintiffs could not claim new plots in lieu thereof. In support of this contention, he cited a decision of the Supreme Court in the case of Piarey Lal v. Hori Lal, 1977 AWC 297 SC. Mr. Qadeer replying to the arguments urged that the civil court had jurisdiction and in support thereof he cited the decisions in the case of Mahabir Singh v. Smt. Hum Kaur, 1981 AWC 120 , Beni Prasad v. Smt. Ujji, 1978 AWC 549 , Yogeshwar Krishna v. Mahant Damodar Dass, Second Appeal No. 259/70 decided on 6-2-1980. As regards bar of suit under Section 49 of the Consolidation of Holdings Act, reference was made to the decision in the case of Karbalai Begum v. Mohd. Sayeed, 1980 ALJ 902. Learned counsel further argued that Mohammad Ahmad was Mutwalli and as such he could not claim adverse possession on the basis of his own possession. The property being Waqf property, the Mutwalli could not acquire any right to sell the same as his own property. Lastly, on the question of effect of change of plots during consolidation proceedings, learned counsel urged that the change would not affect the right of the Waqf to claim the plots allotted in lieu of the original plots. Learned counsel also urged that Mohammad Arif was not a bona fide purchaser for value without notice. Learned counsel further urged that the appellant was raising questions of fact, which could not be permitted to be raised in the second appeal and the appeal had no merits. 7. Mr. Learned counsel also urged that Mohammad Arif was not a bona fide purchaser for value without notice. Learned counsel further urged that the appellant was raising questions of fact, which could not be permitted to be raised in the second appeal and the appeal had no merits. 7. Mr. Zaidi in rejoinder cited the following cases :- (1) Khamani Ram v. District Judge, Budaun, 1983 ALJ 1378, (2) U. B. Singh v. The Board of Revenue U. P. Allahabad, AIR 1974 All. 202 , (3) Smt. Sumara v. Baij Nath, 1983 ALJ 921 on the meaning of the term "failure of justice" as used in Sec. 331 (1-A) of the U. P. Zamindari Abolition and Land Reforms Act and also cited the decision in the case of Karbalai Begum v. Mohammad Sayeed, 1980 RD 300 on the application of Sec. 49 of the Consolidation of Holdings Act. 8. Apart from the above, learned counsel for the appellant filed an application under Order 41, Rule 27, CPC for taking on record additional evidence. He also filed another application to add a ground on the question that essential issue regarding the plea of protection under Section 41 of the Transfer of Property Act had not been framed. He moved yet another application for admitting as additional evidence C. H. Form 41 (?) (u/Or. 41) Rule 27 CPC for taking on record original forms which they had withdrawn after the record had been sent back to the court below. This application has wrongly been headed under Order 41, Rule 27, CPC. This was not in the nature of additional evidence but original papers which had been withdrawn from the record and was sought to be put back on the record. All these applications have been separately disposed of and will be referred to in this judgment wherever necessary. The first question to be considered is whether the civil court had jurisdiction to try the suit. The suit was for cancellation of a sale deed and for the cancellation of a waqf deed. The suit for cancellation of a sale deed or a Waqf deed would lie in the civil court for no such suit can be filed in revenue court. A suit for declaration that a particular sale deed was void or ineffective could, however, be filed in the revenue court. The suit for cancellation of a sale deed or a Waqf deed would lie in the civil court for no such suit can be filed in revenue court. A suit for declaration that a particular sale deed was void or ineffective could, however, be filed in the revenue court. In the present case, the suit was for cancellation of a sale deed. Such a relief could not be given by the revenue court. Primarily, therefore, the suit would lie in the civil court. 9. Learned counsel for the appellant argued that the sale deed was referred to as void document in the plaint itself and, as such, it did not require any cancellation. At the most a declaration would have sufficed and in that event, the proper forum for the suit could be the revenue court. He referred to the decision of their Lordships of the Supreme Court in the case of Gorakh Nath v. H. N. Singh (supra) and other cases mentioned along with it earlier in this judgment. In Gorakh Nath's case their Lordships were considering the scope of Sec. 5 (2) of the U. P. Consolidation of Holdings Act. The question before their Lordships was whether the application under Sec. 5 (2) of the Consolidation Act was maintainable. The High Court had held that it was not maintainable. Their Lordships set aside that order and directed the case to be decided on the merits afresh. While doing so, their Lordships elucidated the scope of Sec. 5 (2) of the aforesaid Act and pointed out a distinction between the case where the document was wholly or partly invalid so that it could be disregarded by any court or authority and one where it had to be actually set aside before it ceased to have legal effect. In the present case no question of application of Sec. 5 (2) arises. The question is one whether the suit lay in the revenue court or in the civil court. It was not a case where the matter could go before the consolidation authorities. In this view of the matter, the argument of the learned counsel for the appellant placing reliance on the decision of Gorakh Nath's case and other similar cases are of no avail. 10. The principal question would be whether the relief could be given without setting aside/cancelling the sale deed and the waqf deed. In this view of the matter, the argument of the learned counsel for the appellant placing reliance on the decision of Gorakh Nath's case and other similar cases are of no avail. 10. The principal question would be whether the relief could be given without setting aside/cancelling the sale deed and the waqf deed. If it could not be done, then the suit would not lie in any other court than the civil court. In the present case, the Mutwalli, who was appellant No. 1 in this appeal, executed a sale deed in favour of appellant no. 2. The Mutwalli is not owner of any Waqf property. He has no right, title or interest to alienate such property without following that provisions of law. In the present case, the waqf owned certain agricultural plots. During consolidation proceedings these plots were changed for some other plots. The Mutwalli showed his possession in personal capacity, got his name recorded over it and then in due course of time sold them to appellant no. 2. The Waqf, which was the owner of the agricultural property was thus deprived of the property by the act of the Mutwalli. The Mutwalli acted fraudulently so as to deprive the Waqf of its property. In such a ease it was necessary for the waqf to file a suit for the cancellation of the sale deed so that the cloud on its title was lifted otherwise the waqf would have lost its property perpetually. In such an event it was imperative for the waqf to file a suit for cancellation of the sale deed. Such a suit could be filed only in the civil court. I am, therefore, of the view that the courts below have rightly held that the suit lay in the civil court, and I do not find any merits in the contentions raised by the learned counsel for the appellant on this point. The second contention of Mr. Zaidi was that there was no finding of either court that any part of the waqf property was covered by the sale deed. It is sufficient to note that the original waqf deed mentioned certain agricultural plots. These agricultural plots during the consolidation proceedings were changed for some new plots. The name of the waqf as the owner of the property should have been recorded over these new plots in lieu of the original plots. It is sufficient to note that the original waqf deed mentioned certain agricultural plots. These agricultural plots during the consolidation proceedings were changed for some new plots. The name of the waqf as the owner of the property should have been recorded over these new plots in lieu of the original plots. The Mutwalli got his own name recorded over it instead of the waqf. The sale deed was executed by the Mutwalli in his personal capacity to appellant no. 2 in respect of the new plots. Consequently, the number of the new plots, which were sold by the impugned sale deed, could not find its place in the original waqf deed. This was obvious. It did not require a finding that these were the very plots which were referred in the original waqf deed. In view of the facts mentioned above, it is obvious that the new plots given in lieu of original plots also belonged to the waqf and could not be alienated by the Mutwalli treating them to be his personal property. The transfer was therefore of the property which belonged to the waqf. Consequently, the contention of learned counsel on this point also has no merits. 11. The next contention of the learned counsel for the appellants was that the claim of the plaintiffs was barred by Sec. 49 of the Consolidation of Holdings Act. In support of his contention, he cited a decision of a learned single Judge of this Court in the case of Pandobi v. Mahadeo (supra). In this case the question for consideration before the learned single Judge was whether the entry, which had been sought to be corrected before the consolidation authorities and which was in fact not corrected, could be disputed in a civil suit and resort could be had to sub-sec. (2) of Sec. 27 of the Act in that behalf and whether such a question could be resisted in view of the provisions of Sec. 49 of the Act. The learned single Judge held that Sec. 27 (2) deals with evidentiary value whereas Sec. 49 raises a bar to the jurisdiction of civil or revenue court in which the correctness of such an entry is challenged. The learned single Judge held that Sec. 27 (2) deals with evidentiary value whereas Sec. 49 raises a bar to the jurisdiction of civil or revenue court in which the correctness of such an entry is challenged. Learned single Judge further opined that if the civil or revenue courts are debarred from entertaining such questions, obviously this Court cannot enter into merits of the dispute and decide about the correctness of the entries. Learned single Judge relied on the decision of a Division Bench in the case of Rakesh Kumar v. Board of Revenue, 1972 RD 326. It was held that there was nothing to indicate that Sec. 27 (2; overrides, modifies or repeals any part of Sec. 49 of the Act. 12. The next case cited in this context is of Rampal Singh v. Khandey (supra). It was contended before the learned single Judge that consolidation proceeding does not bar a suit where the right claimed is founded on the allegation that the tenure-holder is recorded in a representative capacity. The learned single Judge held that he was unable to agree with this contention. It was observed that it was open to the plaintiff to have filed an objection in section 9 proceeding claiming his share in the holding or claiming Bhumidhari right. No such objection had been preferred and as such the name of the plaintiff's father must have been entered in the revenue record prepared under sec. 27 of the Act. After that stage was reached, the bar of Sec. 49 of the Act would come into play. The reason was that on the publication. of new revenue record, declaration of rights of the father of the plaintiff had taken place and any challenge to his being the sole Bhumidhar could not thereafter be entertained by any civil court. On the basis of these decisions learned counsel contended that the suit was barred under Sec. 49 of the Act. In my opinion, the view taken in these cases is not the correct view. In the case of Karbalai Begum v. Mohd. Syeed (supra) the plaintiff Karbalai Begum, widow of Syed Lack Husain, and defendants 1 and 2, her husband's cousins, were in joint possession of the plots in the dispute, being co-bhumidhars. In my opinion, the view taken in these cases is not the correct view. In the case of Karbalai Begum v. Mohd. Syeed (supra) the plaintiff Karbalai Begum, widow of Syed Lack Husain, and defendants 1 and 2, her husband's cousins, were in joint possession of the plots in the dispute, being co-bhumidhars. The appellant was living with her sons at Lucknow and her husband's cousins were looking after the lands which consisted of agricultural land and groves and she was given her share by her cousins from time to time. The defendants used to manage the properties which were joint and used to give her share and assured her of looking after the property on her behalf. Having gained her confidence, the two defendants managed to properties and during consolidation of holdings proceedings got separate plots carved out and she was never informed of any proceeding by them. It was only three years before the suit that she came to know that her name had been deleted from the Khewat and the entire property was mutated in the name of the two defendants. She filed the suit which was dismissed, but on appeal the District Judge decreed the suit for joint possession. The District Judge came to a finding that fraud was committed during consolidation operation either by the defendants or by some one else as a result of which the rights of the plaintiff were sought to be extinguished. On appeal the High Court interfered with the finding of fact. Their Lordships of the Supreme Court observed that the High Court was in error in interfering with the finding of fact. The view taken by the High Court that there was nothing to show that any fraud was practised upon the consolidation authorities so as to make the order a nullity was also not correct, for it did not fully attract this part of the case made out by the plaintiff. Another ground on which the High Court non-suited the appellant was that the suit was barred by Sec. 49 of the Act. Their Lordships observed:- "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. Their Lordships observed:- "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. In Suba Singh v. Mahendra Singh, AIR 1974 SC 1657 this Court made the following observations:- . "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 Section 23, is not a matter in regard to which an application could be filed 'under the provisions of this Act' within the meaning of clause 2 of Section 49. Thus, the other limb of Section 49, also is not attracted. The result is that the plea of the bar of the civil courts' jurisdiction to investigate and adjudicate upon the title to the land or the sonship of the plaintiff has no substance." Their Lordships held that the High Court was in error in holding that the suit was barred by Sec. 49 of the Act. The facts of this case make it abundantly clear that the court trying the suit was not barred by the provisions of Sec. 49 of the Act from going into the question of title. In view of the above decision of their Lordships of the Supreme Court, the decisions cited by the learned counsel for the appellant as regards the bar of Sec. 49 of the Act are not apt. Applying the above principles to the facts of the present case, I am of the view that Sec. 49 of the Act does not bar the present suit. 13. The fourth point argued was that no valid Waqf could be created, as the plots had undergone a change. I find no merits in this contention. If the plots, which were Waqf property and which had undergone a change because of operation of law, the newer plots would be invested with the same right, title and interest as the owner had in the original plots. Consequently, the new plots would be Waqf property and would be treated as such. Merely because the plots had undergone a change, it would not cease to be Waqf property. Reference was made by the learned counsel for the appellant to the decision in the case of Piarey Lal v. Hori Lal (supra). Consequently, the new plots would be Waqf property and would be treated as such. Merely because the plots had undergone a change, it would not cease to be Waqf property. Reference was made by the learned counsel for the appellant to the decision in the case of Piarey Lal v. Hori Lal (supra). That was a case pertaining to agreement of sale in respect of certain specified agricultural plots. The Court was considering whether the contract in respect of specified agricultural plots could be enforced as against plots which were given in lieu of the original plots. The court gave reasons to hold that the contract was not enforceable as the right, title and interest of the tenureholder ceased in the property by virtue of Sec. 30 (a) of the Consolidation of Holdings Act and the agreement for sale became void within the meaning of Sec. 56 of the Contract Act. That was, as seen above, a matter of contract of sale and the enforcement of an agreement for conveyance of specified agricultural plots. In the present case, there is no question of any agreement for sale or any specific performance of contract of sale. Under the provisions of the U. P. Consolidation of Holdings Act on the change of the original holding the tenure holder gets another plots of land in lieu of his original holding. The tenure-holder's right does not come to an end. He gets the same right in the plots allotted to him during consolidation operation. In the other words he does not get divested of his title in the process of consolidation. It is true that he loses his right, title and interest in the original holding but has the same right in the plots allotted to him during consolidation of holdings proceedings In the present case, the Waqf was the owner of certain plots. During consolidation of holdings proceeding they were changed for some other plots. The title of the Waqf did not cease i.e. it did not lose his right over agricultural land but he gets the same right in some other plots allotted to the Waqf during consolidation of holdings proceeding. During consolidation of holdings proceeding they were changed for some other plots. The title of the Waqf did not cease i.e. it did not lose his right over agricultural land but he gets the same right in some other plots allotted to the Waqf during consolidation of holdings proceeding. In other words, the Waqf does not lose its title over agricultural land that it had before the allotment of new plots except that it had no concern with the original holding, but its title in the newly allotted plots remained intact. There is no question of transfer of its right under any agreement or contract in the present case. 14. The question whether the Waqf could be created by the Waqif is a question of fact. There was no dispute that the Waqif had created a valid Waqf in the properties which were original holdings. He transferred them to the Waqf by the Waqf deed. It is too late in the day to challenge the same. If it was sought to be challenged, it ought to have been challenged separately. The very fact that appellant no. 1 accepted Mutwalliship of the Waqf is clear indication of the fact that there was a Waqf of which he was Mutwalli. It is, therefore, not open to him to say now that there was no valid Waqf. The contention of the learned counsel on this point is also without any merits. It was next argued that possession was relevant in this case and there was no finding on the question of possession by the courts below. It appears that the argument is misconceived. A perusal of the judgments of the courts below adequately points out that the courts have considered the question of possession and have clearly expressed themselves that the possession was not with either of the appellants. The possession was that of the Waqf. It is for this reason that the courts below had decreed the suit for cancellation of the sale deed only. In my opinion, the view taken by the courts below on this point is in accordance with law and is fully justified. 15. Lastly, I may refer the argument that there was a failure of justice within the meaning of Sec. 331 (1-A) of the U. P. Zamindari Abolition and Land Reforms Act in the present case. In my opinion, the view taken by the courts below on this point is in accordance with law and is fully justified. 15. Lastly, I may refer the argument that there was a failure of justice within the meaning of Sec. 331 (1-A) of the U. P. Zamindari Abolition and Land Reforms Act in the present case. In my opinion, the decreeing of the plaintiff's suit for the cancellation of the sale deed executed by appellant no. 1 in favour of appellant no. 2 did not result in any failure of justice. As a matter of fact, if the courts below had failed to decree the suit, it would have resulted in failure of justice. Appellant no. 1 was admittedly the Mutwalli of the Waqf. He could not prescribe the adverse possession in respect of Waqf property. He having not pleaded the time or the period during which he held the property adverse to the interest of the Waqf, it could not be urged on his behalf that he was holding the property in his personal capacity. There are three cardinal requirements of adverse possession viz. Nec vi, nec clam, nec precario. The possession of Mutwalli of the Waqf property was in any event permissive possession. It could not become adverse unless there was some overt act. No such act has been pleaded nor any evidence has been led to establish the same. In this view of the matter, the theory of adverse possession or personal possession by the appellant no. 1 over the property in dispute is without any basis. The courts below have rightly negatived the plea of the appellant no. 1 in regard to his title to the property in dispute. 16. For the reasons indicated above, I find no merits in any of the points canvassed before me in this appeal. The appeal must fail and is accordingly dismissed with costs. Appeal dismissed.