JUDGMENT : Devendra Kumar Upadhyaya, J. Heard Shri Ambika Prasad Mishra, learned counsel for the petitioners, Shri Upendra Singh, learned Standing Counsel representing the State-respondents and Shri Rakesh Mishra, learned counsel representing the private respondents. 2. These proceedings under Article 226 of the Constitution of India have been instituted challenging the orders passed by the consolidation courts in the proceedings initially drawn under section 9A(2) of U.P. Consolidation of Holdings Act (hereinafter referred to as ''the Act') whereby co-tenancy rights in the land in question have been granted to the respondents along with the petitioners. 3. For the purposes of appreciating the issues and controversies involved in this matter, the following pedigree will be relevant to be mentioned: Okkfgn vyh@okftn 'kkg cspbZ 'kkg HkXxw 'kkg banjh'k Qjhn 'kjhQ ;quql vyh gehn 'kCchj Tkfcj Edlwn lkfcj Ekgewn ybZd vyh vgen oyh eksgEen rkt eksŒ eqfLye [kyhy Tyhy Tkxhj lQhd 'kkgukt ckuks ¼L=h] 4. So far as the aforesaid pedigree is concerned, there is no dispute between the parties. It is also not in dispute that the undisputed original recorded tenure holder of the land in question was one Wazid Shah, who had two sons, namely, (i) Bechai Shah and (ii) Bhaggu Shah. The petitioners are the successors in interest of Bechai Shah, whereas the private respondents in this petition are the successors in interest of other son of Wazid Shah, namely, Bhaggu Shah. Khatauni pertaining to the year 1956 F is on record where the land in question is recorded in the name of Bechai and Bhaggu. The khatauni pertaining to 1359 F is also on record and there too Bechai and Bhaggu are found recorded jointly, however, there is an amaldaramad of some Sanad, namely, Sanad No.14 and Sanad No.42. Amaldaramad based on the grant of the said Sanad is mentioned in Khatauni 1359 F wherein it is clearly recorded that the rent paid by Bechai will be half and similarly in respect of Sanad No.42, the amaldaramad available in khatauni pertaining to 1359 F, it is recorded that the rent payable will be half. It is found recorded that half of the rent i.e. 3 Rupees 4 aanas of the total rent of 6 Rupees 8 aanas will be payable. It is found recorded that half of the rent i.e. 3 Rupees 4 aanas of the total rent of 6 Rupees 8 aanas will be payable. The khatauni pertaining to 1360 F is also on record as annexure RA-3 annexed with the rejoinder affidavit filed by the petitioners wherein on both the khatas, name of Bechai is exclusively recorded. 5. On commencement of the second round of consolidation proceedings in the village concerned in which the land in question is situated, the names of the successors of Bechai Shah were found recorded in the basic year khatauni and accordingly an objection under section 9A(2) of the Act was filed by Bhaggu claiming co-tenancy rights. 6. The Consolidation Officer decided the matter accordingly and he granted co-tenancy rights to Bhaggu vide his judgment and order dated 22.12.2003. The petitioners preferred an appeal challenging the said order of the Consolidation Officer dated 22.12.2003 under section 11(2) of the Act before the Settlement Officer, Consolidation, who also reiterated the findings recorded by the Consolidation Officer, granting co-tenancy rights to Bhaggu Shah and accordingly dismissed the appeal preferred by the petitioners vide his order dated 29.08.2008. 7. Challenging the aforesaid orders dated 22.12.2003 and 29.08.2008, a revision petition under section 48 of the Act was preferred by the petitioners, which too, has been dismissed by the Deputy Director of Consolidation vide his order dated 04.02.2014. 8. It is the aforesaid three orders dated 22.12.2003, 29.08.2008 and 04.02.2014 passed respectively by the Consolidation Officer, Settlement Officer, Consolidation and Deputy Director of Consolidation which are under challenge herein. 9. Learned counsel for the petitioners while vehemently impeaching the findings recorded by all the courts below has forcefully submitted that in fact the findings recorded by the courts below are erroneous inasmuch as the effect of grant of Sanad in favour of Bechai Shah by the then Tehsildar has wrongly been ignored and that the Consolidation Officer by not relying on the said Sanads and the entry in the record of rights based on the said Sanads has erred in law. He has also stated that the land in question comprised in two khatas and that in khataunis pertaining to the year 1356-F and 1359-F, one of the khata is found recorded exclusively in the name of Bechai and the courts below have completely ignored this aspect of the matter. He has also stated that the land in question comprised in two khatas and that in khataunis pertaining to the year 1356-F and 1359-F, one of the khata is found recorded exclusively in the name of Bechai and the courts below have completely ignored this aspect of the matter. He has also argued before the Court that in respect of the entire property in question, Sanad was granted in favour of Bechai Shah under the provisions of United Provinces Agricultural Tenants (Acquisition of Privileges) Act, 1949 (hereinafter referred to as ''the Act, 1949') by the Tehsildar and in those proceedings Bhaggu, by making a statement, had clearly relinquished his share in the land in question but the aforesaid aspect of the matter has not been considered by the Consolidation Officer while deciding the objections filed by Bhaggu and thus the findings based on such misinterpretation of the evidence available on record by all the courts below is not sustainable. 10. Learned counsel for the petitioners has further submitted that in fact the claim put forth by Bhaggu by filing the objections under section 9A(2) of the Act was clearly barred by section 49 of the Act and none of the courts below have considered this aspect of the matter which vitiates the orders passed. In support of his submission, learned counsel for the petitioners has submitted that the right from 1360 F khatauni, name of Bechai Shah and his successors in interest have been found recorded in the record of right in respect of the land in question and despite the fact that the first round of consolidation operations took place in the village concerned in the year 1958, no objections were filed by Bhaggu under U.P. Consolidation of Holdings Act during the first round of consolidation claiming co-tenancy rights and as such since no rights were claimed by Bhaggu in the first round of the consolidation operations, his claim raised by him by filing the objections under section 9A(2) of the Act in the second round of consolidation proceedings was clearly barred by operation of section 49 of the Act. 11. 11. Shri Rakesh Mishra, learned counsel representing the private respondents, on the other hand, has opposed the prayers made in this petition and has made a submission that in the facts and circumstances of the case the orders passed by the courts below cannot be permitted to be interfered with for the reason that the matter is already concluded by concurrent findings of fact recorded by all the three courts below. He has further submitted that so far as reliance being placed by the learned counsel for the petitioners on Sanads said to have been issued under the Act, 1949, it may only be stated that the order on the basis of which, Sanad is said to have been issued, is based on some alleged statement made by Bhaggu before the Tehsildar in the proceedings drawn under the Act, 1949, however, the said statement does not bear his signature and accordingly no benefit of any proceeding drawn under the Act, 1949 can be claimed by the petitioners. 12. Shri Mishra, learned counsel representing the private respondents has further argued that so far as the alleged bar of section 49 of the Act on the objections filed by Bhaggu under section 9A(2) of the Act in the second round of consolidation proceedings is concerned, in the peculiar facts and circumstances of the case, the said bar will have no application in view of the law laid down by a Division Bench of this Court in Writ-B No.52717 of 2013, Ram Briksha and another vs. Deputy Director of Consolidation and others in its judgment dated 16.05.2017. 13. Having heard the learned counsel appearing for the respective parties and having perused the records available on this writ petition, in my opinion, there are two issues, which need consideration in this case. 13. Having heard the learned counsel appearing for the respective parties and having perused the records available on this writ petition, in my opinion, there are two issues, which need consideration in this case. Firstly, as to whether on the basis of Sanad said to have been granted in favaour of Bechai Shah under the Act, 1949 will be of any implication, as a result of which Bhaggu Shah would be ousted from the property in question and secondly, as to whether objections filed by Bechai Shah under section 9A(2) of the Act in the second round of consolidation operations would be barred by section 49 of the Act for the reason that in the first round of consolidation operations which are said to have been commenced in the year 1958, Bhaggu Shah did not raise any objection or did not claim any co-tenancy rights in the land in question. 14. So far as the first issue regarding the impact and effect of the alleged Sanad granted in favour of Bechai Shah under the provisions of the Act, 1949 is concerned, it may be noticed that in the khatauni pertaining to 1356-F, name of Bechai and Bhaggu, both sons of Wazid Shah, are recorded in khata no.118, whereas khata no.119 is recorded in exclusive name of Bechai. In khatauni pertaining to 1359-F, the land again is found recorded in two khatas, namely, khata no.113 and khata no.114. Khata no.113 is found recorded in the names of both sons of Wazid Shah, namely, Bechai Shah and Bhaggu Shah whereas khata no.114 has been recorded in the name of Bechai Shah, son of Wazid Shah. On this khatauni pertaining to 1359-F in the remarks column an amaldaramd of two sanads, namely, Sanad No.14 and Sanad No.42 is found recorded, however, while making amaldaramad based on the said Sanads allegedly granted in favour of Bechai, it is also recorded that in respect of both the Sanads, the rent payable by Bechai Shah will be half of the total rent payable in respect of the land comprising in both the khatas. So far as the land records prepared on the basis of cUnkscLr lks;e (third settlement) is concerned, it is not in dispute that the same was recorded in the name of common ancestors of both, Bechai Shah and Bhaggu, namely, Wazid Shah. So far as the land records prepared on the basis of cUnkscLr lks;e (third settlement) is concerned, it is not in dispute that the same was recorded in the name of common ancestors of both, Bechai Shah and Bhaggu, namely, Wazid Shah. It is also not in dispute that Bechai Shaha and Bhaggu, both are sons of Wazid Shah. 15. The question at this juncture for consideration is as to what is the effect of the Sanad said to have been granted in favour of Bechai, amaldaramad of which is found recorded in the khatauni pertaining to 1359F. 16. The Consolidation Officer in his judgment, which is under challenge herein, dated 22.12.2003 has recorded a clear finding that the original Sanad was not filed before him. The Consolidation Officer has thus recorded a finding that since the entire land was recorded in cUnkscLr lks;e in the name of Wazid Shah and as such on the basis of some patta how the name of only one son, namely, Bechai was got recorded is not clear. He has also returned a finding that the original Sanad was not filed by Bechai Shah and that Sanad No.14 and Sanad No.42 are found recorded in the khatauni pertaining to 1359 F wherein the said Sanads have been granted only in respect of the half share of the land in question in the name of Bechai. The Consolidation Officer has also made a mention of some application said to have been filed by Bechai before the court of Tehsildar earlier and the Consolidation Officer after perusal of the said application has given a finding that a prayer was made by Bechai Shah that name of Bhaggu be expunged and the Sanad be issued exclusively in his favour. 17. The Consolidation Officer has also perused the copy of the statement of Bhaggu said to have been made by him in the proceedings drawn before the Tehsildar for grant of Sanad wherein it was said to have been stated that the name of Bhaggu was recorded forgedly. In the order passed by the Consolidation Officer, a clear finding has been recorded in respect of this document that Bechai has not signed this document and that there is an indicatication that the Tehsildar's signature is also not legible. In the order passed by the Consolidation Officer, a clear finding has been recorded in respect of this document that Bechai has not signed this document and that there is an indicatication that the Tehsildar's signature is also not legible. The Consolidation Officer has thus found contradictions in the documents filed before him and has clearly held that by grant of the said Sanads, the name of Bhaggu could not have been expunged. 18. The aforesaid finding recorded by the Consolidation Officer has been reiterated by the appellate court as well as by the revisional court. 19. There is a very important aspect of the matter which will determine as to whether the finding recorded by the Consolidation Officer in respect of the Sanads said to have been granted in favour of Bechai Shah is correct or not. 20. For the purposes of abolishing the zamindari system in the State of Uttar Pradesh, the State Legislature enacted U.P. Zamindari Abolition and Land Reforms Act, 1951(hereinafter referred as ''U.P.Z.A & L.R. Act') which came into force w.e.f. 24.01.1951. As a consequence of promulgation of U.P.Z.A. & L.R. Act, the intermediaries were abolished and various classes of tenants in terms of the provisions of U.P. Tenancy Act, 1939 were conferred certain other rights like Bhumidhars or Sirdars or Asamis by operation of the provisions of U.P. Z.A & L.R. Act. For the purposes of saving of certain rights and conferring certain privileges upon the actual tillers of the soil i.e. the tenants, passage of U.P.Z.A. & L.R. Act preceded the enactment known as the Act, 1949 which was enacted with a view to facilitate abolition of zamindari system and provide for reduction of rent and protection from ejectment and for the matters connected therewith. 21. As per the scheme of the Act, 1949, certain classes of tenants were entitled to acquire certain privileges under the said Act. Section 3 of 1949 Act provides that a tenant on deposition of 10 times the annual rent payable, in lump sum, shall be entitled to a declaration that he has become entitled to certain privileges provided by or under the said Act. Section 3-B permitted acquisition of privileges by unrecorded co-tenants as well. Section 6 provides grant of declaration for certain privileges. Section 3-B permitted acquisition of privileges by unrecorded co-tenants as well. Section 6 provides grant of declaration for certain privileges. The declaration or Sanad was to be made under section 6 on an application to be submitted by the tenant concerned to the Assistant Collector and if on examination of such an application, the Assistant Collector found such a tenant to be eligible for grant of declaration making the tenant entitled for the privileges, such declaration could be granted. The provisions contained in section 7 of the Act, 1949 provides for the privileges consequent upon the grant of declaration under section 6, according to which if the declaration to a tenant is granted under section 6, such a tenant would not be liable for ejectment in execution of any decree or order for ejectment or of any decree for payment of arrears of rent irrespective of any provision contained in U.P. Tenancy Act, 1959. Sub section (b) of section 7 provides that all the tenants holding land jointly shall be entitled to pay on account of such installment which shall be equal to 1/2 of the amount payable, as the case may be, either by the person applying for grant of declaration or by the tenants jointly. Thus the effect of grant of declaration under section 6 of the Act, 1949 was that the after or on grant of such a declaration the tenant was made immune from being ejected in execution of any decree or order for ejectment or of any decree for payment of arrears of rent. The purpose of the Act, 1949, thus, was to save the tenants from being ejected who otherwise would be conferred certain rights on promulgation of U.P.Z.A. & L.R. Act. The provisions of the Act, 1949 are thus to be construed and understood in the context in which the said enactment by the State Legislature was passed. 22. From a perusal of sub section 2 of section 18 of U.P.Z.A & L.R.Act provides that every person belonging to the class mentioned in section 3 or sub section 2 of section 3A of the Act, 1949 who had been granted a declaration under section 6 of the said Act, shall be deemed to be Bhumidhar of the holding or of the share in respect of which the declaration has been made and continues in force. Accordingly, the effect of grant of Sanad or declaration under section 6 of the Act, 1949 was that on abolition of Zamindari by way of issuance of notification under section 4 of U.P.Z.A. & L.R. Act, such person would become Bhumidhar by operation of sub section (2) of section 18 of the U.P.Z.A. & L.R. Act. 23. However, having mentioned the object of and the manner in which the Act, 1949 operates, what now needs to be determined is as to whether a co-tenant can be excluded from the land in proceedings drawn under section 6 of the Act, 1949 or not. Section 7-A of the Act, 1949 is relevant to be noticed in this regard which provides that no person by virtue of any declaration under section 6 shall be entitled to any larger share in the holding than to which he may be otherwise entitled and further that notwithstanding the declaration, interest of any other tenant in the holding shall continue to be unaffected. Thus, from a conjoint reading of sections 3, 3-A, 6, 7, 7-A and 8 of the Act, 1949 what emerges is that if a co-sharer seeks a declaration under section 6 though he is not recorded in the record of rights, such a declaration can be made and Sanad in terms of section 6 of the Act, 1949 can be issued in the name of the co-sharer or the co-tenant as well. However, the entire scheme of the Act, 1949 does not reveal that in the proceedings for grant of Sanad the name of a recorded tenure holder can be expunged or he can be ousted from the land in respect of which such declaration is being sought by one of the co-sharers. 24. Having regard to the aforesaid legal position, this Court finds itself in agreement with the finding recorded by the Consolidation Officer that in the proceedings drawn under section 6 of the Act, there is no provision which could have been pressed into service for expunging the name of Bhaggu and exclusively granting Sanad in the sole name of Bechai Shah. Having regard to the aforesaid legal position, this Court finds itself in agreement with the finding recorded by the Consolidation Officer that in the proceedings drawn under section 6 of the Act, there is no provision which could have been pressed into service for expunging the name of Bhaggu and exclusively granting Sanad in the sole name of Bechai Shah. The Consolidation Officer has not only taken into consideration the provisions contained in the Act, 1949 but has also recorded a finding that in absence of original Sanad having been filed by Bechai Shah and also having regard to the amaldaramad available in the khatauni pertaining to 1359 F based on the said Sanads where Bechai Shah has been held liable to make payment only half of the rent payable, the claim of Bhaggu Shah can not been defeated. The conclusion drawn by the Consolidation Officer cannot be thus doubted. In fact, even if issuance of declaration or Sanad under section 6 of the Act, 1949 is not doubted, the impact would be that the said Sanad was granted in favour of Bechai Shah only in respect of half share of land comprised in both khatas as is apparent from amaldaramad available in 1359 F khatauni in respect of Sanad Nos.14 and 42, both. 25. For the reasons aforesaid, I am not convinced with the submissions made by the learned counsel for the petitioners that the courts belows have committed any error in clearly and lawfully drawing inference based on the Sanads issued under section 6 of the Act, 1949 that land in question exclusively belonged to Bechai Shah. 26. The discussions made above clearly thus establishe that right from the records prepared in cankscLr lks;e till 1359 F, names of both i.e. predecessor in interest of the petitioners, namely, Bechai Shah and predecessors in interest of respondents, namely, Bhaggu are found recorded. 27. I do not, thus, find any illegality in respect of the said finding recorded by the courts below. 28. Now coming to the second issue, which needs determination, regarding bar of section 49 to the objections filed by Bhaggu under section 9-A(2) of the Act, it may be noticed that in the first round of consolidation operations which commenced in the year 1958 no objection or claim was put forth by Bhaggu in respect of half share of the land in question. It appears that on account of the fact that the objections were not raised by Bhaggu in the first round of consolidation operations, the final records were prepared and accordingly names of either Bechai Shah or his successors in interest were recorded exclusively in the subsequent revenue records as well. 29. It is also not in dispute that Bhaggu filed the objections under section 9-A(2) of the Act when second round of consolidation operation commenced in the village. What is, however, noticeable is that this plea of bar under section 49 of the Act on the objection filed by Bhaggu under section 9-A(2) was never raised by the petitioners before the courts below. However, since bar if found to be operative in the instant case on the objections filed by the Bhaggu, goes to the root of the matter and jurisdiction of the consolidation courts to entertain such objections, issue is being determined by this Court. Section 49 of the Act is extracted herein below: "[49. Bar to civil Courts jurisdiction.- Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of right of tenure-holder 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 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 :] [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]." 30. Section 49 of the Act commences with a non-obstante clause according to which, even if there is anything contained in any other law for the time being in force, no civil or revenue court shall entertain any suit or proceeding with respect to rights in a land or with respect to any other matters for which a proceeding could or ought to have been taken under the Act. Thus, section 49 creates absolute bar on civil or revenue courts for entertaining any proceeding in respect of declaration of rights or in respect of any other matter related to such land for which the person concerned ought to have or could have taken proceedings at the time when village was brought under consolidation operation by issuance of notification under section 4 of the Act. 31. The operation of bar contemplated under section 49 has been the subject matter in issue before this Court as well as before Hon'ble Supreme Court in various judgments. One of the prominent cases decided on this issue by Hon'ble Supreme Court is the case of Karbalai Begum vs. Mohd. Sayeed and another, (1981) AIR SC 77] wherein it has been held that a suit by a co-sharer challenging the deletion of his name in joint khewat in consolidation proceedings on the ground of fraud of other co-sharers, was not barred under section 49 of the Act and the suit for such a declaration filed subsequently was held to be maintainable where dishonest cousins looking after the land of their brother's widow had a bad eye on her share with a design. The finality to disputes by operation of section 49 of the Act has a purpose. U.P. Consolidation of Holdings Act has been enacted as a legislative measure for land reforms, the basic purpose whereof is to consolidate otherwise scattered small holdings of the peasantry so as to make them more enonomically viable and more productive. Incidentally before exercise of consolidating the small holdings at a single place as far as possible is undertaken under the provisions of the said Act, the Act provides for record operation wherein it is not only that the revenue records are corrected but during the course of the such exercise if certain objections regarding right, title and share etc. in a holding is raised, the Act provides a complete statutory mechanism for resolution/disposal of such disputes as well. in a holding is raised, the Act provides a complete statutory mechanism for resolution/disposal of such disputes as well. Though the disposal of disputes in relation to title, share and right etc. in the holdings is incidental to the main object of consolidating the small holdings under the Act, yet the statutory mechamism provided in the Act for resolution of disputes relating to share, right and title is a significant one where consolidation courts are fully empowered to settle such disputes once and for all. Accordingly the provisions of section 49 have been enacted by the State Legislature consciously with a view to put finality to the disputes in relation to agricultural holdings, however, there may be a situation where such a bar would not operate. 32. I cannot lose sight of the provisions contained in Article 300A of the Constitution of India which clearly states that no person shall be deprived of his property save by authority of law. Right to property is not a fundamental right, though it earlier was under our Constitution, however, it is still a valuable right in terms of the provisions contained in Article 300A of the Constitution of India. Deprivation of any person of his property without authority of law is clearly prohibited by Article 300A of the Constitution of India and accordingly if any tenure holder is to be deprived of his right, such deprivation should be based on an authority of law. In a hypothetical situation where a person's name got expunged wrongly without any order passed by any competent court of law and he for some reason fails to raise objections by taking recourse to the provisions contained in section 9-A(2) of the Act when the consolidation operations are going on, it cannot be said that merely because he did not raise any objection he should be deprived of his land holding, otherwise such a deprivation of property would be without any authority of law and would thus clearly be hit by Article 300A of the Constitution of India. 33. Even otherwise what is relevant to be noticed is that the legal presumption about the revenue entry is rebuttable. In respect of khatauni entries i.e. entries in the record of right, there is a legal presumption that one who is recorded has a right in the land in question, however, such legal presumption is not absolute; rather it is rebuttalble. Even otherwise what is relevant to be noticed is that the legal presumption about the revenue entry is rebuttable. In respect of khatauni entries i.e. entries in the record of right, there is a legal presumption that one who is recorded has a right in the land in question, however, such legal presumption is not absolute; rather it is rebuttalble. Accordingly, merely because name of a person is recorded in khatauni or record of right, that in itselt does not become sanctum sanctorum for assertion of right by such person for the reason that as observed above, the legal presumption about the correctness of revenue records is always rebuttalble. 34. The bar under section 49 of the U.P. Consolidation of Holdings Act would work in full force in case a person raises objection under section9-A(2) of the Act, contests the matter before the Consolidation courts and looses his claim. In such a situation on the start of second round of consolidation operations such a person would not be entitled to raise the objection in respect of his claim for the reason that the orders passed or adjudication made on the objection filed by a person in the first round of consolidation operations would operate as res judicata as enshrined under section 11 of the Code Civil Procedure. However, the situation regarding application of bar under section 49 of the Act would be different in case objection is not raised by a person during consolidation operations and subsequently he files objections in the second round of consolidation proceedings asserting his rights based on the evidence in his favour. 35. The Division Bench of this Court in the case of Ram Briksha and another (supra) has taken note of various judgements of this Court as also those of Hon'ble Supreme Court and has held that there are certain exceptions to bar of section 49 which are based on judicial pronouncements and one of the exception is that such a bar would not operate, if a person is found to be recorded by practising fraud inasmuch as in such an eventuality, entries recorded in consolidation proceedings can be challenged and bar of section 49 would not at all come in place for the reason that fraud vitiates the most solemn proceeding. The Division Bench in the said case has further observed that merely because a person fails to raise the claim during the consolidation operation, he will not loose his right on the property which is otherwise is available to him. The purpose of enacment of the Act is not that a person will loose his right under the said Act, rather it is to provide a forum to regain the property in question, if it has been lost. The Division Bench judgment in the case of Ram Briksha and another (supra) has referred to a judgment rendered by Hon'ble Apex Court in the case of Amar Nath vs. Kewla Devi and another, (2014) AIRSCW 3110 wherein it has been held that the bar being placed under section 49 of the Act where plaintiff claimed himself to be belonging to a common ancestor as the defendant and then order was passed against him by playing fraud then his right to be recorded as co-bhumidhar in revenue records cannot stand extinguished merely because he withdrew some objection, Hon'ble Apex Court in this case took the view that in such a situation the orders of the courts would be termed to be suffering from legal malice. Emphasis by the Court) 36. The Division Bench in the case of Ram Briksha and another (supra) has further held that rights of parties cannot be permitted to be defeated merely because they had not at all participated in the consolidation proceedings and further as to whether bar of section 49 would operate will be a question of fact that can be answered on the basis of evidence adduced and to the said bar in question exceptions have to be carved out where suit or proceedings would not be barred and section 49 would not come into play. If from the series of documents and circumstances it is reflected that planned fraud has been made to delete the plaintiffs name from the revenue records, bar would not operate, it being a care of legal malice. If from the series of documents and circumstances it is reflected that planned fraud has been made to delete the plaintiffs name from the revenue records, bar would not operate, it being a care of legal malice. The relevant extract of the said judgment is quoted herein under: "On these parameters, the issues that have been raised before us are being considered and in our considered opinion rights of the parties in a holding cannot be permitted to be defeated merely because they have not at all participated in consolidation proceedings and as to whether the bar of Section 49 of U.P. Consolidation of Holdings Act, 1953 would be attracted or not would essentially be a question of fact that can be answered on the basis of evidence adduced and to the said bar in question exceptions have to be carved out wherein suit in question would be not barred and Section 49 of U.P. Consolidation of Holdings Act, 1953 would not come into play where from the series of documents and circumstances it is reflected that planned fraud has been made to delete the plaintiffs name from the revenue records. From the record of the consolidations, it is clearly reflected that neither the incumbent, who has proceeded to get his name recorded nor consolidation authorities have proceeded to discharge their duties faithfully in consonance with the provisions of U.P. Consolidation of Holdings Act wherein the consolidation authorities are empowered to ascertain the share of each owner if there be more owners than one and in case such an exercise has not been undertaken, then it would be a case of legal malice and it cannot be ipso facto presumed that there has been ouster from the property in question and in such a situation an incumbent, who claims his right in the property in question has got every right to regain his property based on title for the reason that the right has been sought to be defeated based on fraud and manipulation. " 37. According to the aforesaid law laid by the Division Bench of this Court in the case of Ram Briksha and another (supra), it is thus clear that bar of section 49 would not operate where from the documents and circumstances it is reflected that the name of recorded tenure holder has been removed by playing fraud. " 37. According to the aforesaid law laid by the Division Bench of this Court in the case of Ram Briksha and another (supra), it is thus clear that bar of section 49 would not operate where from the documents and circumstances it is reflected that the name of recorded tenure holder has been removed by playing fraud. Accordingly, if it is found that the name of recorded tenure holder or co-sharer has been expunged from the revenue records by playing planned fraud, it would be a case of legal malice and in such a situation the person whose name has been expunged will have right to claim the property in question based on title for the reason that such a right has been established to be defeated on manipulation. 38. Accordingly, in terms of the law laid down by the Division Bench of this Court in the case of Ram Briksha and another (supra) if the facts of the present case are analyzed what is found is that there is no denial, rather admission of the fact that in cankscLr lks;e names of common ancestors of both, Bechai Shah and Bhaggu Shah, namely Wazid Shah was recorded. There is also no denial that in the khatauni pertaining to 1356 F both co-sharers, namely, Bechai Shah and Bhaggu Shah were recorded. Similar is the position in respect of the khatauni pertaining to 1359F as well. The effect of the declaration of Sanad allegedly granted in favour of Bechai Shah in view of the Act, 1949 has already been discussed above. In such a situation even if Bhaggu Shah could not raise his claim in the first round of consolidation proceedings, the same would not operate as bar against him claiming his right as co-sharer in the property in question by taking recourse to the provisions contained in section 9-A(2) of the Act. 39. In view of the discussions made above, the submissions made by the learned counsel for the petitioner on the basis of bar under section 49 of the Act, also deserves rejection which is hereby rejected not only for the reason that the said issue was never raised by the petitioner before the courts below but also for the reasons that are given herein above. 40. In view of above, the writ petition fails, which is hereby dismissed. 41. There will be no order as to costs.