[Reserved]
Civil Misc. Writ Petition No. 23713 of 2009
Bansu Petitioner
Vs.
Board of Revenue and others Plaintiff-Respondents
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Hon’ble Pankaj Mithal, J
I have heard Sri Arun Kumar holding brief of Sri R.S. Misra
learned counsel for the petitioner, learned Standing counsel for
respondents no. 1 to 5 and Sri K.P.S. Yadav learned counsel for
respondent no. 6. I have also perused the pleadings exchanged by the
parties.
Whether the suit in question under Section 229-B of the U.P.Z.A.
and L R Act (herein after referred to as the ‘Act’) is barred by
Section 49 of the Consolidation of Holdings Act, 1953 (in short
Consolidation Act) is the short question which arises for
determination in the present writ petition.
The land in dispute khata no. 90 gata no. 2 area 3-131 and 256
area 0-304 situate in village Mukhali, Tappa Pawai, Pargana Mahul,
Tehsil Phoolpur, District Azamgarh was the property of one Shiv
Nandan who died on 12.1.1973 leaving behind two sons Bansu
(petitioner) and Hari Lal who also expired on 8.7.1974 leaving his
widow Smt. Beli (respondent no. 6). Smt. Beli instituted suit no. 54 of
1979 under Section 229-B of the Act for declaring her that she is also the
co-owner of the aforesaid land alongwith petitioner Bansu and is in joint
possession thereof. Her allegation was that after the death of Shiv
Nandan the land devolved equally upon his two sons and on the death of
2
one of them Hari Lal his share exclusively devolved upon her but
petitioner Bansu illegally got his name recorded against the entire land
of which she acquired knowledge on 12.3.1979 and therefore the suit.
The suit was opposed by petitioner Bansu on the ground inter alia that
suit is barred by section 49 of the Act. He contended that during the
consolidation operations in proceedings registered as Case No. 804
under Section 12 of the said Act an order was passed on 2.2.1976 in his
favour and the land was exclusively recorded in his name on 12.9.1977.
Respondent no. 6 had not raised any objection before the consolidation
authorities, therefore she is not entitle to maintain the present suit.
The suit was decreed by the Sub-Divisional Officer on 31.8.1982
after holding it to be maintainable and not barred by Section 49 of the
Consolidation Act. The appeal of the petitioner was dismissed by the
Commissioner on 27.5.1996 and the Second Appeal by the Board of
Revenue vide order dated 13.1.2009. Thus all the said 3 orders of the
Courts below have been assailed by him in the present writ petition.
Section 49 of the Consolidation Act clearly provides that all suits
relating to:
(i) declaration and adjudication of rights of tenure holders in
respect of the land under consolidation; or
(ii) adjudication of any right arising out of consolidation
proceedings and in regard to which proceedings which
could or ought to have been taken under the Act; and
(iii) in respect to rights in such land or with respect to
matters for which a proceeding could or ought to have
3been taken under the Act;
shall be cognizable by the consolidation authorities and the jurisdiction
of civil or revenue court stands expressly barred.
In Gorakhnath Dubey Vs. Hari Narain Singh AIR 1973 SC 2451
their Lordships of the Supreme Court observed that the object of Section
49 of the Consolidation Act is to remove from the jurisdiction of the
civil or revenue courts all disputes which could be decided by the
competent authority under the Consolidation Act during the
consolidation operation. This is to place all disputes relating to land
covered by the consolidation operation before one particular forum ie.,
the consolidation authorities so as to avoid conflicting decisions of
parallel courts and consequently to save clash of interest between two
courts.
There is no dispute between the parties that the land in dispute was
under the consolidation operation where petitioner had raised a dispute
claiming exclusive rights in the disputed land which was registered as
case no. 304. The claim was allowed by the Assistant Consolidation
Officer vide order dated 2.2.1976 and it was given effect to by carrying
out ‘amal daramad’ on 12.9.1977. Accordingly, annual register of record
of rights was revised. Therefore, even if, respondent no. 6 was not
arrayed as a party. Respondent no. 6 would be presumed to be having
knowledge of the same and that she was entitle to raise claim in respect
of her rights or interest in the land before the consolidation authorities,
as she herself moved an application under Section 12 of the
Consolidation Act which came to be registered as case no. 314, even
4
though she was not arrayed as party in case no. 304. However, for the
reasons best known to respondent no. 6 she failed to pursue the same and
allowed the said case to be dismissed on 6.3.1981 probably for the
reason that in the meantime she had instituted the suit for declaration.
The very fact that she preferred objections under Section 12 of the
Consolidation Act in respect to her rights and interest in the land in
dispute which were rejected on 6.3.1981 by the Assistant Consolidation
Officer, indicates that the consolidation operations were continuing till
1981. The suit was instituted in 1979 ie., during the consolidation
operations. Therefore, respondent no. 6 ought to have initiate and
perused appropriate proceedings for the establishment of her rights in the
land in dispute before the consolidation authorities alone and not before
any other court either civil or revenue. This is implicit from the plain and
unambiguous language used in Section 49 of the Consolidation Act
which provides that adjudication in respect of rights in land or in respect
of other matters for which proceedings could or ought to have been
taken under the act shall be done in accordance with the Act and no civil
or revenue court shall have any right to entertain any suit or proceeding
in respect of such matters. Certainly, respondent no. 6 as such had the
remedy of getting her rights in respect of land in dispute adjudicated by
the consolidation authorities either by applying for the recall of the order
dated 2.2.1976 passed in favour of the petitioner or to prefer an appeal
against the same or any other separate objections but instead of doing
any such thing she chose to institute the present suit. The jurisdiction of
the revenue court for entertaining such a suit during the consolidation
5
operation stood expressly barred.
Sri Yadav, learned counsel for respondent no.6 attempted to
suggest that the order of Assistant Consolidation Officer dated 2.2.1976
was obtained by the petitioner by playing fraud as respondent no. 6 was
not made party in the said proceedings deliberately and the rejection of
the objections under Section 12 of the Consolidation Act of the
respondent no. 6 for want of prosecution would not debar her from
establishing her rights under Section 229-B of the Act.
The submission has been noted only to be rejected. Respondent
no. 6 may not have been a party to the mutation proceedings initiated by
the petitioner but she was fully aware and concious of the fact that she
had a remedy under the Consolidation Act to get the record of rights
corrected. She even moved an application under Section 12 of the
Consolidation Act but failed to pursue the said same which in fact was
the proper and the right remedy availed by her. Instead she chose to
institute the suit which was expressly barred by Section 49 of the Act.
Reliance placed upon 1980 ALJ 902 SC Karbalai Begum Vs.
Mohd. Sayeed and another from the side of respondent no. 6 is of no
help to her.
In the aforesaid case, a suit for joint possession was brought by the
co-sharer on the ground of fraud in getting her name deleted from the
records in consolidation proceedings. Therefore, their Lordships of the
Supreme Court held that the suit is not barred by Section 49 of the
Consolidation Act. The situation here is different. I have perused the
entire plaint of the suit. The suit for declaration under Section 229 of the
6
Act and joint possession has been instituted simply on the averment of
wrong revenue entry during consolidation without any specific pleading
with regard to fraud on part of any one. It is accordingly not applicable
to the facts of the present case.
On the contrary, the apex Court in the case of Sita Ram Vs.
Chhata Bhondey and others 1990 RD 439 held that the claim of interest
in the land under consideration falls within the ambit of Section 5(2) of
the Consolidation Act and has to be adjudicated by the consolidation
authorities only ousting the jurisdiction of other Courts expressly by
Section 49 of the Consolidation Act.
In view of the above, in my considered opinion the suit as
instituted by respondent no. 6 was not maintainable and was clearly
barred by Section 49 of the Consolidation Act. The courts below
manifestly erred in law in holding otherwise basically for the reason that
respondent no. 6 was not a party to case no. 304 and her on case no. 314
was not decided on merits both of which were not material for deciding
the controversy. The impugned orders dated 31.8.1992, 27.5.2006 and
13.1.2009 passed by the authorities below are quashed and a writ in the
nature of certiorari is directed to be issued accordingly.
Petition stands allowed.
No orders as to costs.
Dt. 2.4.2010
SKS