JUDGMENT Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against judgment and decree dated 05.09.2000, passed by Additional District Judge, Udham Singh Nagar, in Civil Appeal No. 78 of 1999, whereby said court has dismissed the appeal, and affirmed the judgment and decree dated 20.09.1999, passed by the trial court [Civil Judge (Junior Division) Khatima] in Suit No.168 of 1989. 2. Heard learned counsel for the parties, and perused the lower court record. 3. Brief facts of the case are that plaintiff/respondent No.1 instituted Suit No. 168 of 1989, before the Civil Judge (Junior Division) Khatima, for injunction against the defendants restraining them from interfering with possession of the plaintiff over land in suit with the pleadings that plaintiff’s father in law Amar Singh was recorded tenure holder (BHUMIDHAR) of land of Khasra No. 228A of Khata No. 180 measuring 41 Bighas and 12 Biswas and also that of Khasra No. 228B measuring 2 Bighas and 6 Biswas. It is also pleaded that during his life time Amar Singh executed a registered “Will” dated 27.01.1981, in favour of the plaintiff and he died on 07.05.1989, whereafter, the plaintiff became owner in possession of the land in Suit. It is alleged by the plaintiff that the defendants want to interfere in the possession of the plaintiff. Hence, the suit for injunction. 4. Defendants contested the suit and filed their written statements (Defendant No. 3 Manohar Singh died during the pendency of the suit, and his name was later deleted). In the joint written statement filed on behalf of the defendants, it is stated that though registered “Will” dated 27.01.1981 was executed by Amar Singh in favour of the plaintiff, but thereafter, on 09.02.1989, a subsequent “Will” was executed by him, as such, the “Will” dated 27.01.1981 carried no force. It is also pleaded by the defendants that the they are in actual possession of half of the land in suit and are cultivating it. It is also stated that only on remaining half portion of the land in suit, plaintiff Shanti Devi is in possession. It is denied that the defendants have attempted to dispossess the plaintiff from the land in suit in her possession. The defendants also took the legal pleas that the suit is barred by Section 331 of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950. It is denied that the defendants have attempted to dispossess the plaintiff from the land in suit in her possession. The defendants also took the legal pleas that the suit is barred by Section 331 of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950. They further pleaded that the suit is barred by Section 49 of Uttar Pradesh Consolidation and Holdings Act, 1953. They also pleaded that the suit is bad for non-joinder of Smt. Harbans Kaur. 5. On the basis of the pleadings of the parties, following issues were framed by the trial court:- 1) Whether the plaintiff is owner in possession of Plot No. 228A and 228B on the basis of “Will” dated 27.01.1981(executed by Amar Singh), if so its effect? 2) Whether the defendants are owner in possession of half of the land in suit on the basis of the “Will” dated 09.02.1989(executed by Amar Singh)? 3) Whether the suit is bad for non-joinder of Smt. Harbans Kaur as a party? 4) Whether the suit is barred by Section 331 of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950? 5) Whether the suit is under valued and court fee paid is insufficient? 6) Whether the suit is bad for mis-joinder of Gurbachan Singh? To what relief, if any, plaintiff is entitled? 6. Apart from above, it appears that the preliminary issue was framed on 31.03.1994, as to whether, the suit is barred under Section 49 of Uttar Pradesh Consolidation and Holdings Act, 1953. Said issue was decided as preliminary against the defendants. On the other issues, the trial court found that the defendants failed to prove the “Will” dated 09.02.1989, relied by them. As against this registered “Will” dated 27.01.1981, was found proved executed in favour of the plaintiff. The other issues were also decided against the defendants and suit was decreed by the trial court, vide its judgment and decree dated 20.09.1999. Aggrieved by said judgment and decree passed in Suit No. 168 of 1989, Civil Appeal No. 78 of 1999, was filed by the defendant No.1, which was dismissed after hearing the parties by the lower appellate court (Additional District Judge, Udham Singh Nagar), vide its judgment and decree dated 05.09.2000. Hence this second appeal was filed by the defendant No. 1 before the Allahabad High Court, where it was admitted on 24.10.2000. Hence this second appeal was filed by the defendant No. 1 before the Allahabad High Court, where it was admitted on 24.10.2000. The second appeal is received by this Court under Section 35 of the Uttar Pradesh Reorganisation Act, 2000, for its disposal. 7. This Court formulated following substantial questions of law involved in the appeal:- 1) Whether during consolidation operations present suit was barred by Section 49 of Uttar Pradesh Consolidation and Holdings Act, 1953? 2) Whether non-examination of the plaintiff in witness box is fatal to her case? 3) Whether the lower appellate court has erred in law in not reading the memorandum of partition filed in evidence on behalf of the defendants? 8. Answer to the substantial question of law No.1: Section 49 of Uttar Pradesh Consolidation and Holdings Act, 1953, reads as under:- “Bar to civil 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 sub-section (2) of Section 4] or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceedings 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.] Provided that nothing in this section shall preclude the Assistant Collector from initiating proceedings under Section 122-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 in respect of any land possession over which has been delivered or deemed to be delivered to a Gaon Sabha under or in accordance with the provisions of this Act.” From the above provision of law, it is clear that no suit regarding declaration and adjudication of rights of tenure holders in respect of land lying in an area, for which, the notification has been issued under Section 4 (2) of Uttar Pradesh Consolidation and Holdings Act, 1953, can be maintained, regarding which proceedings could or ought to have been taken under the Act. 9. 9. Learned counsel for the appellant argued that since the agricultural land of Village Jarasu, Pratappur came under consolidation operations in the year 1986, the suit filed by the plaintiff in the year 1989, in respect of agricultural land was barred by Section 49 of the above Act. On the other hand learned counsel for the plaintiff/respondent argued that the defendant/appellant did not file before the trial court any questionnaire to prove the fact that consolidation operations were on, as such, it cannot be said that the suit was barred by Section 49 of U. P. Consolidation and Holdings Act, 1953. 10. Having considered submissions of learned counsel for the parties, this Court finds that judicial notice of the notification issued under Section 4 (2) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, can be taken even if, no questionnaire is filed by the parties. 11. Lucknow Law Times (Vol XXVIII) 1987 Part–V shows that Commissioner of Consolidation, UP, Lucknow issued notification No. 5484/G-151-85 dated May 61986, which was published in the U.P. Gazette, Part 1-Ka, dated 20th September, 1986, at Page No. 3355. Perusal of the said notification shows that Village Jarasu Pratappur is mentioned at Serial No. 40 of the list of villages, which were brought under the consolidation operations in Tehsil Khatima, District Nainital (now part of District Udham Singh Nagar). Once this Court takes judicial notice of the notification under Section 4 (2) of the aforesaid Act, it is clear that the provision contained in Section 49 of Uttar Pradesh Consolidation and Holdings Act, 1953, bars the present suit in respect of the area for which, notification has been issued. 12. Learned counsel for the plaintiff/respondent contended that the suit for injunction was maintainable in the civil court, as said remedy could not have been obtained from the Consolidation Authorities. In this connection, attention of this Court is drawn to principle of law laid down in Gur Charan Vs. Parwati and others R.D. 1989 Page 251 (Lucknow Bench). I have gone through said case law. What has been held in said case is that where no title is claimed by the plaintiff, the suit for injunction can be maintained. In Gur Charan Vs. Parwati (Supra) it was a suit for cancellation of sale deed and plaintiff’s name was already recorded in the revenue papers as BHUMIDHAR in possession. I have gone through said case law. What has been held in said case is that where no title is claimed by the plaintiff, the suit for injunction can be maintained. In Gur Charan Vs. Parwati (Supra) it was a suit for cancellation of sale deed and plaintiff’s name was already recorded in the revenue papers as BHUMIDHAR in possession. But in the present case, the plaintiff failed to show that her name was recorded in the revenue record, after the death of Amar Singh, as such, the suit for injunction filed in the present case was also for declaration of title under the garb of injunction. As such, the suit was hit by Section 49 of Uttar Pradesh Consolidation and Holdings Act, 1953 13. Therefore, substantial question of law No.1 stands answered in favour of the appellant (defendant No.1). 14. Answer to substantial question of law No.2:- On behalf of the appellant, it is submitted that Shanti Devi (plaintiff) did not dare to enter in the witness box and in her place PW2 (son of the plaintiff) holding power of attorney deposed before the trial court. I have gone through the statement of PW2 Iqbal Singh, who has stated that his mother Shanti Devi (plaintiff) is in old age and she has authorised him to prosecute the case. I agree with learned counsel for the appellant only to the extent that where the power of attorney holder has no personal knowledge of the facts deposed by him, non examination of plaintiff can be fatal to her case. But in the present case, evidence has been given by PW2 Iqbal Singh (son of the plaintiff) power of attorney holder on the basis of the personal knowledge regarding the actual cultivation by her mother. He has also adduced evidence regarding the registered “Will” executed by his grandfather in the name of his mother. Since, his statement is based on his personal knowledge, as such, non examination of plaintiff, who is an old lady cannot be said to be fatal to her case. The statement of PW2 Iqbal Singh is further corroborated from the statement of PW1 Mohan Chandra Sharma, PW3 Balkaar Singh and PW4 Santosh Singh. Since, his statement is based on his personal knowledge, as such, non examination of plaintiff, who is an old lady cannot be said to be fatal to her case. The statement of PW2 Iqbal Singh is further corroborated from the statement of PW1 Mohan Chandra Sharma, PW3 Balkaar Singh and PW4 Santosh Singh. As against it, the statement of DW1 Surjeet Singh (present appellant), DW2 Gurbaksh Singh and DW3 Mahendra Singh were not believed by the two courts below, as the “Will” dated 09.02.1989, relied by them was not filed in original before the trial court. Since the “Will” relied by the defendants was not proved on the record, the courts below have committed no error of law in relying the testimony of PW2 Iqbal Singh. 15. Therefore, substantial question of law No.2 is answered in favour of plaintiff with the observation that in the present case non examination of plaintiff in the witness box is not fatal to her case, as her son (power of attorney holder) had personal knowledge of the facts deposed by him. 16. Answer to substantial question of law No.3:- Learned counsel for the appellant argued that the lower appellate court has erred in law in not reading the memorandum of partition filed in evidence on behalf of the defendants. I have gone through the evidence on record, the courts below have rejected the memorandum of partition on the ground that the same was not registered. The plaintiff failed to show to this Court that memorandum of partition filed by the defendants in evidence was required to be registered in the State of Uttar Pradesh or in the Sate of Uttarakhand. It is settled principle of law that a simple memorandum of partition between the co-owners of the immovable property is not required to be registered under section 17 of the Registration Act, 1908. The State amendments of Uttar Pradesh (applicable in Uttarakhand) also does not require it. Therefore, courts below have erred in law in not reading memorandum of partition filed on behalf of the defendants is proved on record. 17. Substantial question of law No.3 stands accordingly answered in favour of plaintiff (respondent No.1). 18. The State amendments of Uttar Pradesh (applicable in Uttarakhand) also does not require it. Therefore, courts below have erred in law in not reading memorandum of partition filed on behalf of the defendants is proved on record. 17. Substantial question of law No.3 stands accordingly answered in favour of plaintiff (respondent No.1). 18. For the reasons as discussed above, in view of the answer given to substantial question of law No.1, this appeal deserves to be allowed and impugned judgment and decree passed by the 1st Appellate Court, and one passed by the trial court are liable to be set aside, as the suit filed by the plaintiff was barred under Section 49 of Uttar Pradesh Consolidation and Holdings Act, 1953. Accordingly, the appeal is allowed. Impugned judgment and decree dated 20th of September, 1999, passed by the trial court [Civil Judge (Junior Division) Khatima] in Suit No. 168 of 1989, and judgment and decree dated 05.09.2000, passed by Additional District Judge, Udham Singh Nagar, in Civil Appeal No. 78 of 1999, are hereby set aside. However, costs easy.