JUDGMENT S.K. Lakhtakia, Member - This is a plaintiffs' second appeal under Section 331 of U.P Act No. 1 of 1951 against the Judgement and decree of the Additional Commissioner, Agra Division, Agra Division, Agra dated 5-9-1975 dismissing the appeal against the Judgement and decree of Assistant Collector, 1st Class, Agra dated 24-4-1973 dismissing the plaintiffs suit under section 209 of U.P. Act No. 1 of 1951. 2. The facts of this case may be summarised as follows:- Plaintiffs Hakim Singh & others brought a suit under Section 209 of U.P. Act No. 1 of 1952 against defendants Hakim Singh and Chhitaria both of whom are real brothers under Section 209 of the Act stating that the plaintiff and defendant No.3 Devi Singh are Co-tenants but the defendants have forcibly occupied the land from 1369 Fasli by taking Taking Devi Singh in the collusion but without the consent of the plaintiff and are liable to ejectment it was also alleged that the defendants No.1 and 2 had raised objection during the consolidation proceedings but their claim was rejected by the Deputy Director of Consolidation by his order dated 14-2-1963 and the plaintiff and Devi Singh were held to be bhumidhars it was alleged that in this way the rights of the parties have been finally determined by the consideration courts but the land being that of behar or (in ravines). it is out of consolidation scheme and possession has not to be delivered by the consolidation authorities, hence the plaintiff have brought this suit even before the de-notification of the village under Section 52 of the consolidation of Holdings Act. The plaintiff consequently claimed possession and damages against the defendants. 3. The defendants filed separate written statements. The defendant Madho Singh admitted his possession on plots No. 1202, 1206, 1207, 1208 while the defendant Chhetaria claimed possession only two plots namely 1210 and 1213. Their defense is that they have been in possession for more than 25 years and had perfected their title by adverse possession and the suit is not cognisable by the revenue court and that the damages are exorbitant and is bad for misjoinder of parties. It was also alleged that till the de-notification under Section 52 of the C. H. Act this suit could not be filed. 4. It was also alleged that till the de-notification under Section 52 of the C. H. Act this suit could not be filed. 4. The trial court framed 8 issues and held that the orders of the consolidation courts were not binding and consequently held the defendants to have perfected their title under Section 210 of U.P. Act No, 1 of 1951 and dismissed the suit. It was also held that the suit was not maintainable having been filed prior to the de-notification under Section 52 of Consolidation of Holdings Act. 5. The appeal filed by the plaintiffs was also dismissed by the learned Additional Commissioner mainly on the ground that the suit was not maintainable having been filed before the de-notification. Feeling aggrieved the plaintiffs have come, up before this court in this second appeal. 6. Heard the learned counsel for both the parties. Perused the record. 7. Admittedly this suit was filed on 3-2-1964 when consolidation operations were on in the village and the de-notification under Section 52 of the Consolidation of Holdings Act was published on 7 5-66 as is evident from an application of the defendant Madho Singh himself dated 15-6-1964 (paper No. 15-A). The suit having been filed during consolidation operations was ordered to be stayed under Section 5 of Consolidation of Holdings Act by the order of the court dated 29-8-1964. After the de-notification the suit was revived and was finally disposed of on merits. Now so far as the question of title is concerned a copy of the order of Deputy Director of Consolidation dated 14-2-1963 is on record which shows that the plaintiff and Devi Singh were held to be bhumidhars of the land and the defendants were not held to have any title. This order of the Deputy Director of Consolidation became final between the parties and was binding on them within the meaning of Section 49 of Consolidation of Holdings Act. The finding of the trial court in side tracking this Judgement and in ignoring the provisions of Section 49 of Consolidation of Act is absolutely against law and has to be quashed. It cannot be maintained at any cost. The revenue court had no option 'but to accept the finding of the Deputy Director of Consolidation which was in favour of the plaintiffs. Consequently the plaintiffs are held to be bhumidhars of the land and the defendants are mere trespassers. It cannot be maintained at any cost. The revenue court had no option 'but to accept the finding of the Deputy Director of Consolidation which was in favour of the plaintiffs. Consequently the plaintiffs are held to be bhumidhars of the land and the defendants are mere trespassers. 8. Now the learned counsel for the respondents argued that since the consolidation proceeding had been continued in the village, the present suit under Section 209 of U.P. Act No. 1 of 1951 could not be brought and was rightly dismissed. He supported the findings of the learned Additional Commissioner who held the suit to be not maintainable on this account. 9. I am afraid the learned Additional Commissioner did not properly examine the scope of Section 49 and Section 5 or the U.P.C.H. Act which do not apply to the instant case against the plaintiffs. Section 5 of the U.P.C.H. Act applied only to those cases which were pending on the date of the notification made under Section 4 of U.P.C.H. Act. Consequently this suit could neither be stayed nor abated ender the provisions of that Section because it was not pending 011 the date of the notification but had been filed during the consolidation operation. The provisions of Section 5 of the U.P.C.H. Act had, therefore, no relevance to the present suit and, therefore, the order of the trial court in staying the suit was neither proper nor just. 10. The suit could however be thrown out if the provisions of Section 49 of U.P.C.H. Act were against the plaintiffs. Now Section 49 of U.P.C.H. Act as it existed on the date of the suit reads as follows: "Bar to Civil Court Jurisdiction. - 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 an area, for which a notification has been issued under Section 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 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." 11. The learned counsel for the appellants argued that the provisions of this section applied to the adjudication of the rights of the parties and they do apply to those matters also in which a relief can be sought from the consolidation courts but they would be inoperative in those cases where relief cannot be granted by those courts. He argued that under Section 209 of U.P. Act No. 1 of 1951 two reliefs are simultaneously claimed. Firstly ejectment and secondly damages. He stressed that under Section 28 of U.P.C.H. Act the Assistant Consolidation officer can deliver possession to the plaintiffs but he cannot award any damages and therefore is no provision in the C. H. Act in which any other consolidation court can grant the relief of damages. He further submitted that since a suit has to be composite for all the reliefs under order Rule 2 CPC it cannot be done that the consolidation courts should be approached for possession and the relief for damages only should be sought for from the revenue court. Consequently a suit under Section 209 claiming both the relief for possession and damages has to be filed before the revenue court and bar of Section 49 of U.P.C.H. Act would not apply to such suit. 12. I find force in the aforesaid argument. Now once the rights of the parties had been determined finally by the consolidation courts and the tenant-in-chief is out of possession it would be unjust if he is kept out of possession even for a single day. In Chapter IV of the C. H. Act enforcement of the scheme of consolidation has been laid down. Under Section 2 : of this Chapter the Settlement Officer, Consolidation shall fix the date, to be notified in the unit, from which the final consolidation scheme come into force. On and after the said date a tenure-holder shall be entitled to enter into possession of the plots allotted to him. Under Section 27 of this chapter the revenue records are prepared and the Section 28 deals with the delivery of possession. On and after the said date a tenure-holder shall be entitled to enter into possession of the plots allotted to him. Under Section 27 of this chapter the revenue records are prepared and the Section 28 deals with the delivery of possession. Under Sub-section (1) of this Section the Assistant Consolidation Officer on an application of the tenure-holder delivers physical possession to him but Sub-section (2) provides that on the expiry of six months from the date of the enforcement of the scheme as notified by the Settlement Officer (Consolidation) the landholder shall be deemed to have entered into actual physical possession of the land. A careful perusal of this Section, therefore, follows that it is not incumbent upon any and every tenure-holder to give an application to the Assistant Consolidation Officer for delivery of possession and more over the period for giving such application has been limited only six months so if no application is given by the tenure-holder under subsection 28 of the U.P.C.H. Act his rights are not effected and he is presumed to be in actual physical possession under Sub-section (2) of the Section of the Act. Consequently on the expiry of six months the plaintiff cannot seek the remedy of ejectment from consolidation court and he can get this remedy only from a revenue court. Now Section 49 of the C. H. Act bars only to such suits in which remedy was available from the consolidation court but was not sought for or was refused. In cases of trespassers the relief for the ejectment cannot be granted by the consolidation courts on the expiry of six months but it does not mean that merely because of their suit the rights of the tenure-holder extinguished or suffer any adverse effect. His rights to oust the trespasser remain-in-tact and he can take recourse to law to eject him if he does not vacate on his own accord. Now the question is as to what would happen to a case where de-notification takes a lot of time after the date of the enforcement of the scheme Should it mean that the land-holder should continue to suffer the trespasser and wait for the de-notification even when no relief can be granted by the consolidation courts. 13. Now the question is as to what would happen to a case where de-notification takes a lot of time after the date of the enforcement of the scheme Should it mean that the land-holder should continue to suffer the trespasser and wait for the de-notification even when no relief can be granted by the consolidation courts. 13. In my opinion in such a case the landholder would be entitled to initiate the suit under Section 209 of U.P. Act No. 1 of 1951 after the final adjudication of the rights of the parties by the consolidation courts in order to claim both the reliefs of possession as well as damages. As argued by the learned counsel for the appellants, since consolidation courts have no authority to grant damages along with ejectment a suit under Section 209 of the Act claiming both the said reliefs would be entertain able by a revenue court even during the consolidation proceedings prior to the de-notification and such suit would not be barred by Section 49 or the U.P.C.H. Act. In the present suit the plaintiff had sought both the said reliefs of ejectment and damages which could not be granted by the consolidation courts, hence this suit was perfectly entertain able by the revenue court and could neither be stayed nor abated under Section 5 of the C. H. Act nor it could be held to be barred by Section 9 C. H. Act. The finding of the learned Additional Commissioner that the suit was not maintainable is, therefore, against law in view of the discussions made above and, therefore such finding cannot be maintained. 14. Now it was argued on behalf of the respondents that the suit is bad for misjoinder of parties but I do not find any force in this argument. Both the defendants are real brothers and the plaintiffs would have taken them to have been in possession together on all the fields. Their defense that they are in separate possession may be an arrangement between themselves but the defendants would be held to be in joint possession over all the six plots are against the plaintiff and the suit cannot be held to be bad for misjoinder of parties. 15. Their defense that they are in separate possession may be an arrangement between themselves but the defendants would be held to be in joint possession over all the six plots are against the plaintiff and the suit cannot be held to be bad for misjoinder of parties. 15. From the evidence on record it is amply proved that the plaintiff's are enure-holders while the defendants 1 and 2 are trespassers, hence they are liable to ejectment and the suit deserves to be decreed. 16. In view of the above discussion this appeal is allowed. The impugned Judgement and decree of both, the courts below are set aside and the plaintiffs suit for ejectment and damages is decreed with costs throughout.