JUDGMENT : ALOK MATHUR, J. 1. Heard Shri Karunakar Srivastava, learned counsel for the petitioner as well as Shri Upendra Singh and Shri Dev Prakash Mishra, learned Additional Chief Standing Counsel and Shri Yogesh Kumar Awasthi and Dr. Krishna Singh, learned Standing Counsel for respondents no. 1 to 3 and Shri Pankaj Gupta, learned counsel for the respondent no.4. 2. By means of present writ petition, the petitioner who claims himself to be a Mutwalli of Alal Khair Qabristan Committee, Saray Jargar Pargana, Tehsil and District Gonda, has preferred the present writ petition assailing the order dated 23.04.2025, passed by the Additional Commissioner, Administration- II, Devi Patan Mandal, Gonda in revision against the order of Sub Divisional Magistrate, Sadar, Gonda, wherein the suit of the petitioner for declaration was rejected. 3. It has been submitted by learned counsel for the petitioner that the petitioner is a Mutwalli of Alal Khair Qabristan being the President of the Committee at Gata No. 316 total area 0.41 decimal (current Gata No. 151) situated at Village Saray Jargar Pargana, Tehsil and District Gonda was recorded as a Graveyard in the revenue records from 1356 to 1359 Fasli. It is stated that subsequently due to certain error 0.39 decimal came to be recorded as 'Talab' and in the aforesaid circumstances an application for correction under Section 33/39 of the U.P. Revenue Code was filed before the Sub Divisional Magistrate in 2010. These facts have been mentioned by the petitioner himself int he plaint filed before the Sub Divisional Magistrate, wherein it has been stated that in Gata No. 151 total area 0.39 decimal was recorded as 'pond', while 0.02 decimal was recorded as a 'Qabristan' and some land was shown as a public land and consequently an application for correction was made. Though the order has not been annexed but it seems that the petitioner could not succeed in the proceedings instituted under Section 33 of the Land Revenue Act. 4. It is in the aforesaid circumstances, the petitioner had filed the aforesaid suit for a declaratory decree to be issued with regard to the disputed land, which according tot he petitioner should be declared as a 'Qabristan' and necessary directions should be issued for deleting it as a 'Talab' and recording it as a 'Qabristan'. 4. It is in the aforesaid circumstances, the petitioner had filed the aforesaid suit for a declaratory decree to be issued with regard to the disputed land, which according tot he petitioner should be declared as a 'Qabristan' and necessary directions should be issued for deleting it as a 'Talab' and recording it as a 'Qabristan'. The Sub Divisional Magistrate, by means of order dated 25.02.2010 rejected the suit after recording the fact that during the consolidation proceedings 0.39 decimal of the said land has been recorded as a 'Talab'. While in the suit proceedings the petitioner has categorically stated that this land is not a 'Talab' but a 'Qabristan' is existing at the same and accordingly in the aforesaid proceedings where the consolidation operations have concluded and the land has been recorded as a 'Talab' and the suit proceedings were hit by the provision of Section 49 of the Consolidation of Holdings Act and accordingly the suit would not be maintainable and hence it was dismissed on 25.02.2010. 5. The petitioner had filed a revision against the said order and the revisional authority also upheld the order of the trial court dated 25.02.2010 by means of order dated 23.04.2025 and in the present writ proceedings order dated 23.4.2025 as well as 25.2.2010 have been challenged. 6. It has been submitted by learned counsel for the petitioner that the 'Qabristan' is existing at Gata No. 151 area of 0.41 decimal and a portion of said land has wrongly been recorded as a 'Talab' and therefore there was no infirmity in the suit proceedings instituted by him and both the Authorities have failed to exercise their jurisdiction vested in them and consequently prayed for allowing the writ petition and setting aside of both the impugned orders. 7. The petition has been vehemently opposed by the learned Standing Counsels. They have firstly submitted that the suit proceedings were defective in as much as they were instituted by the petitioner in his personal capacity i.e. Mohd. Junaid describing himself as a Mutwalli of Alal Khair Qabristan Committee. They have stated that from the cause title of the suit proceedings it would be abundantly clear that the rights are sought by the petitioner personally and the suit proceedings were not instituted at the behest of the Alal Khaair Qabristan Committee. 8. Junaid describing himself as a Mutwalli of Alal Khair Qabristan Committee. They have stated that from the cause title of the suit proceedings it would be abundantly clear that the rights are sought by the petitioner personally and the suit proceedings were not instituted at the behest of the Alal Khaair Qabristan Committee. 8. It was submitted that there was serious defect in the suit itself and should have been dismissed by the trial court at the very outset after recording the aforesaid. In support of submissions they relied upon the judgment of this Court in the case of Saraswati Vidya Mandir, Rewatipur, Ghazipur through its Manager Smt. Ram Rakhi Devi Vs. State of U.P. and others [ (2002)3 UPLBEC 2777 ]. 9. It was further submitted that the suit proceedings were hit by provision of Section 49 of U.P. Consolidation of Holdings Act. It was canvassed that the dispute in the present case pertains to Gata No. 151 which as per the revenue record 0.39 decimal has been entered as a 'Talab' while only 0.02 decimal is recorded as a 'Qasbristan' and in view of the aforesaid circumstances, during the suit proceedings decree of declaration was sought by the petitioner on the entire land of Gata No.151 measuring 0.41 decimal. 10. It was submitted that once the consolidation operations were concluded then a suit with regard to the same land was not maintainable as per provision of Section 49 of Consolidation of Holdings Act, 1953 It was stated that it has been clearly stated in Section 49 of the Consolidation of Holdings Act that with regard to the matters, for which the proceedings could or ought to have been taken under Consolidation of Holdings Act would be a bar for filing a decree of declaration of the suit and hence they supported the findings recorded by the trial court and the revisional court and prayed for dismissal of the writ petition. 11. I have heard learned counsel for the parties and perused the record. The facts in suit are not in dispute in the present case, in as much as the petitioner had claimed declaration for entire property of Gata No. 151 to be recorded in the name of the plaintiff, which is Mohd. Junaid Mutawalli Alal Khaair Qabristan Committee. Undoubtedly the plaint was instituted by Mohd. The facts in suit are not in dispute in the present case, in as much as the petitioner had claimed declaration for entire property of Gata No. 151 to be recorded in the name of the plaintiff, which is Mohd. Junaid Mutawalli Alal Khaair Qabristan Committee. Undoubtedly the plaint was instituted by Mohd. Junaid, who has described himself as a Mutawalli of Alal Khair Qabristan Committee. In case the rights as prayed for in the suit proceedings were being sought on behalf of the Qabristan Committee then the cause title would have been described as the Alal Khair Qabristan Committee though its Mutawalli. 12. Accordingly, I find a serious defects in the cause title and even in the prayer made by the petitioner for a declaration of the rights to be vested in the plaintiff could not have been granted in favour of the individual (petitioner). I find that this aspect of the matter has been duly considered by this Court in the case of Saraswati Vidya Mandir, Rewatipur, Ghazipur through its Manager Smt. Ram Rakhi Devi Vs. State of U.P. and others [ (2002)3 UPLBEC 2777 ] and the relevant portion is quoted herein below:- ".......... The Committee of Management is a statutory authority under the Act and the Regulations and it is legally entitled to take action in matters relating to the affairs of the administration of the College. The Committee of Management has not filed these petitions. There is no material on record to show that the Committee of Management adopted any resolution authorizing the Manager to file these petitions The petitions as framed are not maintainable because the VV Inter College, Shamli cannot be an aggrieved person to challenge the impugned orders. The aggrieved party, if any, could be the Committee of Management of the Society itself. In Writ Petition No. 10663 of 1975, decided on 1st March, 1976, I took a similar view. Another learned Single Judge of this Court dismissed Writ Petition No 580 of 1970 on 7th January, 1974, precisely on this very ground. The view taken by me and the other learned Single Judge is fully supported by a Full Bench decision of this Court in Indian Sugar Mills Association through its President Hari Raj Swarup v. Secretary to Government, AIR 1951 All 1 . The view taken by me and the other learned Single Judge is fully supported by a Full Bench decision of this Court in Indian Sugar Mills Association through its President Hari Raj Swarup v. Secretary to Government, AIR 1951 All 1 . During the course of hearing amendment applications were filed seeking relief for the amendment of the writ petitions for adding Committee of Management as petitioner. The applications have been rejected by me by a separate order." 13. With regard tot he second ground raised by the petitioner of Section 49 of Consolidation of Holdings Act it is necessary to quote for ready reference the provision of Section 49 of the Consolidation of Holdings Act, 1953 :- "Bar to Civil Court jurisdiction. - Notwithstanding anything contained in any other law Courts for the time being in force, the declaration and adjudication of rights of tenure-holder in respect of land, lying in an area, for which a 133notification has been issued 134under 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 : 135 Provided that nothing in this section shall preclude the Assistant Collector from initiating proceedings under Section 122-B of the U. P. Zamindari Abolition and Land Reforms Act, 1950(U.P. Act No. 1 of 1951) in respect of any land, possession over which has been delivered or deemed to be delivered to a Gram Sabha under or in accordance with the provisions of this Act." 14. From the plaint preferred by the petitioner it is clear that the petitioner had moved an application under Section 33/39 of the Land Revenue Act for correction of the revenue records, in as much as the portion of disputed land i.e. 0.39 decimal was recorded as a 'Talab'. Had the application of the petitioner been allowed then it would have not been any necessarily of filing a suit proceedings but it seems that the application was rejected which necessitated filing of the suit proceedings. Had the application of the petitioner been allowed then it would have not been any necessarily of filing a suit proceedings but it seems that the application was rejected which necessitated filing of the suit proceedings. Again I find that the said is the subject matter of the consolidation proceedings and it is during the consolidation proceedings that 0.39 decimal of land was recorded as 'Talab'. 15. It is in the aforesaid circumstances the question before this Court is as to whether the suit proceedings are hit by the bar of Section 49 of the Consolidation of Holdings Act, 1953. This aspect of the matter has been considered in detail by this Court in the case of Amar Singh v. State of U.P. and others [2008 (26) LCD 1051] where the judgment of the Supreme Court in the case of Sita Ram v. Chhota Bhondey and others , reported in 1990 RD 439 has been considered and the following have been observed:- "4. Learned counsel for the petitioner challenging the impugned orders, contends that the bar of Section 49 of the UP. Consolidation of Holdings Act, 1953 is fully attracted in the facts of the present case as the plaintiff has not taken any proceedings in consolidation proceedings. The reliance has been placed on the judgments of the Supreme Court in the case of Sita Ram v. Chhota Bhondey and others , reported in 1990 RD 439 and in the case of Zafar Khan and others v. Board of Revenue. UP. and others, reported in 1984 RD 328 and the judgment of this Court in the case of Ram Sanehi Lal v. Board of Revenue. U.P., reported in 1974 RD 241 , Asha Ram Singh v. Board of Revenue. UP, reported in 1992 Revenue Judgments Page 354, Smt. Hasiniya Begum v. Smt. Phool Bi and others, reported in 1982 Revenue Judgments page 271, Dina Nath Verma Land others v. Gokaran and others. reported in 2003 (5) ALR 411. 5. Learned counsel for the petitioner further contends that both the Courts below have committed error in overruling the objection of the petitioner that suit is barred by Section 49 of the U.P. Consolidation of Holdings Act, 1953. 6. I have considered the submissions made by learned Counsel for the petitioner and have perused the record. 7. 5. Learned counsel for the petitioner further contends that both the Courts below have committed error in overruling the objection of the petitioner that suit is barred by Section 49 of the U.P. Consolidation of Holdings Act, 1953. 6. I have considered the submissions made by learned Counsel for the petitioner and have perused the record. 7. The only issue which has arisen in the present writ petition is as to whether suit filed by the respondent No.4 was barred by Section 49 of the U.P. Consolidation of Holdings Act, 1953. The trial Court decided only issue No. 2 which was with regard to bar under Section 49 of the Act. The suit is still pending for final decision by the trial Court. Section 49 of the U.P. Consolidation of Holdings Act, 1953 is as follows: "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 proceeding could or ought to have been taken under the Act, shall be done in accordance with the provisions of the 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 nave been taken under the Act." 9. In view of the above, it is clear that any adjudication done with regard to land lying in the area in which a notification under Section 4(2) of the U.P. Consolidation of Holdings Act, 1953 has been issued operates a bar of reagitating in any other revenue or civil Court. Second limb of section also creates a bar with regard to adjudication of any other right regarding which proceedings could or ought to have been taken under U P. Consolidation of Holdings Act, 1953. The provision contains the principles of res-judicata as well as principles of constructive res-judicata. The judgment of the Apex Court relied on by learned counsel for the petitioner in the case of Sita Ram (supra) dea's with the scope and ambit of Section 49 of the Act. The provision contains the principles of res-judicata as well as principles of constructive res-judicata. The judgment of the Apex Court relied on by learned counsel for the petitioner in the case of Sita Ram (supra) dea's with the scope and ambit of Section 49 of the Act. It is useful to note the facts of the case of Sita Ram. In consolidation proceedings an objection was filed by respondent Chhota Bhondey son of Chhota claiming share in Khata Nos.72 and 73. The Khatas were recorded in the name of one Nanha alone. The objection was opposed claiming that Khata No.73 was acquired by Nanha in his individual capacity. The Consolidation Officer allowed the objection of the respondent and gave him half share. The appeal filed before the Settlement Officer, Consolidation was allowed. The respondents went in the revision. The revision was allowed. The matter came to the High Court by means of writ petition, which was dismissed. The appellant thereafter filed a civil suit for declaration that the order of the Deputy Director of Consolidation was without jurisdiction. In the suit objection of bar under Section 49 was raised which was answered by the trial Court in favour of the defendant. The said decree was affirmed in appeal and also in the second appeal by the High Court. Against the aforesaid judgment, the appeal was filed in the Apex Court. The Apex Court laid down following: "From a perusal of Section 49 it is evident that 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(2) and 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 the Act, had to be done in accordance with the provision of the Act only and the jurisdiction of the civil or revenue Courts to entertain any suit or proceeding with respect to rights in such land or with respect to any other matter for which a proceeding could or ought to have been taken under the Act, has been taken away. The language used in Section 49 is wide and comprehensive. The language used in Section 49 is wide and comprehensive. Declaration and adjudication of rights of tenure-holders in respect of land lying in the arca covered by the notification under Section 4(2) of the Act and adjudication of any other right arising out of the consolidation proceedings and in regard to which a proceeding could or ought to have been taken under the Act, would cover adjudication of questions as to title in respect of the said lands. This view also finds support from the other provisions of the Act and the amendments that have been introduced therein. 10. The judgement of this court relied on by the petitioner in Ram Sanehi Lal Hasiniya Begum, Asha Ram and Dina Nath verma (supra) lay down the same proposition regarding bar of Section 49 of the UP. Consolidation of Holdings Act 1953: The Apex Court in the case of Zafar khan (supra) also laid down the same principle. In the said case following was observed by the Apex Court "The question is, once the allotment under 1953 Act became final would a suit lie before the civil or revenue Court with respect to rights in land or with respect to any other matter for which a proceeding could or ought to have been taken under the 1953 Act? When the village in which the plots in dispute are situated was put into consolidation was not made clear to us. But the statutory authorities and the High Court while dismissing the appeal of the appellants had noticed that the village was put into consolidation several years before the suit from which the present appeal arises was filed and village was denotified in the year 1958. Once the village was denotified, the allotment made under the 1953 Act became final. The final allotment cannot be questioned by the suit before civil or revenue Court in view of the bar enacted in Section 49. 11. There can not be any dispute to the above proposition laid down by the Apex Court and this Court, however there are authorities of this Court as well as Apex Court carving out an exception to the above proposition. 11. There can not be any dispute to the above proposition laid down by the Apex Court and this Court, however there are authorities of this Court as well as Apex Court carving out an exception to the above proposition. The exception carved out is to the effect that when the name of a co-tenure holder could not be recorded by practicing fraud, the entries in consolidation can be challenged and bar of Section 49 could not come into play since the fraud vitiates even the most solemn proceedings. The judgment of this Court relied on by learned Counsel for the petitioner in the case of Ram Sanehi Lal (supra) also noted the submissions made in the said case that bar of Section 49 could not be applicable if the name was added as a result of fraud in consolidation proceedings. The Court noted the proposition but rejected the same taking the view that the said argument was not pressed before the Board of Revenue. It is relevant to quote paragraph 4 of the judgment, which is to the following effect: It was then urged for the petitioner that the name of respondent No.4 having been added in consolidation proceedings as a result of fraud, the bar of Section 49 could not be applied inasmuch as fraud would vitiate even the most solemn act. In regard to this point, suffice it to say that it does not appear to have pressed before Board of Revenue; there is no mention in regard to this point in the order of Board of Revenue. In Debi Singh v. Deputy Director of Consolidation and others relying upon a decision of the Supreme Court in Tika Ram and sons v. Workmen (3) it was held that if a judgment is silent about a certain point would be legitimate to infer that it had not been argued before the Court. If certain objection, which should have been raised at an earlier stage, had not been raised, it should not be allowed to be raised in a writ petition in the extra-ordinary powers of the High Court. Since the order of the Board of Revenue is silent on the question o' fraud, it can in view of the aforesaid decision be presumed that this point was not pressed before the Board of Revenue." 16. Since the order of the Board of Revenue is silent on the question o' fraud, it can in view of the aforesaid decision be presumed that this point was not pressed before the Board of Revenue." 16. Considering the aforesaid judgment, it is clear that according to Section 49 of Consolidation of Holdings Act, 1953, a suit cannot be filed with regard to an area for which a notification has been issued under Section 4 of Act 1953 or adjudication of any other rights arising out of consolidation proceedings and in regard to which proceedings could or ought to have been taken under the said Act. 17. Undoubtedly the portion of the said land has been recorded as a 'Talab' during the consolidation proceedings and in case the petitioner have any objection the same could have been raised during the consolidation proceedings. Apart from the above, I find that the petitioner has instituted proceedings under Section 33/39 of Land Revenue Act for correction of the revenue records, where he could not succeeded. 18. We even considered as to whether the case of the petitioner can be covered by any of the exceptions of Section 49 of the Consolidation of Holdings Act, 1953, which has been considered by the court in the case of Amar Singh (supra). I find that there is no cogent material stating that the entries have been fraudulently made, in as much as, against the said entry the petitioner had already taken recourse to proceedings under Section 33/39 of the Land Revenue Act and there is no dispute that in a portion of the said land the name of the Qabristan still find mention. 19. Accordingly, in the light of above, I find that firstly the suit proceedings were not maintainable at the behest of the petitioner in an individual capacity. Apart from which, I find that bar of Section 49 of Consolidation of Holdings Act clearly apply to the facts and dispute raise in the plaint preferred by the petitioner and accordingly I do not find any merit in the challenge of the impugned orders and hence the petition stands dismissed. However, I observe that in case any order has been passed in proceedings under Section 33/39 of Land Revenue Act, which were adverse, the petitioner then he has a liberty to assail the said order in an appropriate proceedings in accordance with law. However, I observe that in case any order has been passed in proceedings under Section 33/39 of Land Revenue Act, which were adverse, the petitioner then he has a liberty to assail the said order in an appropriate proceedings in accordance with law. Heard on application for impleadment 1. An application for impleadment has been filed by the petitioner praying that the Committee of Waqf Qabristan Pathanwala, Waqf No.173 Gonda, through its Mutwalli Mohammad Juned Khan son of late Salamatullah Khan urf Baba, Resident of Village - Saray Jargar Pargana Tehsil and District Gonda, be impleaded as a opposite party no.2. 2. It has been stated that inadvertently the Committee of Waqf Qabristan Pathanwala could not be impleaded as a petitioner and accordingly, the aforesaid prayer was made. 3. Learned Standing Counsel on the other hand opposed the application for impleadment. He has submitted that in the present writ petition the orders which have been assailed, have been passed by the Sub Divisional Magistrate, Gonda in a suit instituted by the petitioner, where the proposed Committee of Qabristan is not a party and even in the revisional proceedings the Committee of Qabristan was not a party and therefore, such a party cannot be impleaded for the first time in the writ petition and submits that with regard to the proposed petitioner no averments have been made in the writ petition and accordingly such an application cannot be allowed. 4. It is in the aforesaid circumstances, this Court is of the view that there is no averment adding in the writ petition with regard to the Committee of Management being the owner of the disputed land or also that no prayer has been made with regard to the proposed petitioner and even otherwise the entire suit proceedings and the revisional proceedings were contested by the petitioner in his individual capacity and therefore, I do not find any ground or the reason to implead the Committee as a party in the writ petition. 5. For the aforesaid reasons, the application for impleadment is rejected.