Allahabad High Court
Ram Khelawan vs Commissioner Faizabad Division And ... on 13 November, 2025
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:72885
A.F.R.
Reserved on:25.8.2025
Delivered on: 13.11.2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
WRIT - C No. - 1002907 of 1997
Ram Khelawan
..Petitioner(s)
Versus
Commissioner Faizabad Division and others
..Respondent(s)
Counsel for Petitioner(s)
:
R.s.pande, Ankit Pande
Counsel for Respondent(s)
:
C.S.C., N.k. Seth, R.k.srivastava, Sudeep Seth
Court No. - 4
HON'BLE IRSHAD ALI, J.
1. Heard Sri R.S. Pande, learned Senior Advocate assisted by Sri Virendra Bhatt, learned counsel for the petitioner and learned Standing Counsel for the State-respondent.
2. By means of the present writ petition, the petitioner has prayed for issuance of a writ in the nature of Certiorari quashing the judgment and order dated 26.7.1995 passed by opposite party no.1 contained in Annexure.6 and judgment and order dated 19.6.1997 passed by opposite party no.2 contained in Annexure No.11.
3. Facts in brief are that the petitioners father Buddhu was granted a patta on 10.06.1947 by Raja Ayodhya Estate in respect of Plot No. 231/90, area 5 bigha. His name was duly recorded in the revenue records. After Buddhus death in 1976, the petitioner being his sole heir was mutated in the revenue records and is in peaceful possession of the land.
4. Respondent Nos. 3 & 4 filed a suit under Section 229-B U.P.Z.A. & L.R. Act claiming co-bhumidhari rights, alleging that Buddhu had acquired the land in a representative capacity as Karta of the joint Hindu family.
5. The Assistant Collector dismissed the suit on 21.02.1986 holding that the claim was barred by Section 49 of U.P. Consolidation of Holdings Act, as no objection was filed during consolidation. The land was acquired by Buddhu individually, not from joint family funds.
6. Thereafter, the Commissioner, Faizabad Division, Faizabad allowed the appeal on 26.07.1995, setting aside trial court judgment, holding that Section 49 not applicable.
7. Second Appeal filed before the Board of Revenue, U.P. was dismissed on 19.06.1997, affirming Commissioners order.
8. Submission of learned counsel for the petitioner is that meanwhile, opposite parties nos. 3 & 4 fraudulently procured a forged compromise before the Naib Tehsildar in 1991 to get their names entered in revenue records. This was set aside upon petitioners application, and their subsequent appeals and revisions were dismissed.
9. Submission of learned counsel for the petitioner is that bar of Section 49 has been ignored since no objection was raised during consolidation, the suit under Section 229-B is barred.
10. It is further submitted that the land was acquired by Buddhu personally. No evidence has been produced by opposite parties to prove joint family acquisition.
11. Learned counsel for the petitioner further submitted that the respondents never objected during Buddhus lifetime or at the time of mutation after his death. Their reliance on a forged compromise shows malafides.
12. It is submitted that the impugned orders are arbitrary and non speaking. The Commissioner and Board of Revenue reversed a well-reasoned trial court judgment without discussing findings or considering documentary evidence such as the patta, mutation entries, and revenue records.
13. Submission of learned counsel for the petitioner is that the impugned orders are arbitrary, violative of Section 49 U.P. Consolidation of Holdings Act and offend Article 14 of the Constitution of India.
14. In support of the submission advanced, learned counsel for the petitioner placed reliance upon the judgments, which are as under :-
(i) Narender Singh and others v. Jai Bhgwan and others reported in JT 2004 (10) SC 345.
(ii) Sita Ram v. Chhota Bhondey and others reported in 1990 RD SC 439.
(iii) Ram Briksha and another v. Deputy Director of Consolidation and others reported in 2017(6) ADJ 356.
(iv) Raghubar Dayal and another v. D.D.C./ Addl. D.M., Sitapur reported in 2017 (134) RD 7.
(v) Sriram and others v. Deputy Director of Consolidation and others reported in 2016 (133) RD 785.
15. On the other hand, learned Standing Counsel submitted that the petitioner has got his name mutated in the revenue record by committing fraud and deceit and the answering opposite parties have not been rightly granted declaration as co-bhumdars along with the petitioner in respect of the said plot of land.
16. Learned Standing Counsel next submitted that the judgment and order dated 21.2.1986 passed by the Assistant Collector, Faizabad is wholly erroneous and has rightly been set aside by the Court of Commissioner, Faizabad Division, Faizabad and the Board of Revenue has upheld the judgment and order of the Commissioner.
17. Learned Standing Counsel next submitted that the bar of Section 49 of the U.P. Consolidation of Holdings Act is not attracted on the basis of concurrent finding of fact that the land in question was a joint family property and the answering opposite parties have sought a declaration as Co-bhumidar.
18. Learned Standing Counsel lastly submitted that the judgment and orders passed by the Board of Revenue as well as the Court of Commissioner, Faizabad Division, Faizabad are in accordance with law and have suitably dealt with dispute.
16. In support of his submission, learned Standing Counsel placed reliance upon a judgment in the case of Ram Nath Vs. Additional Commissioner Judicial Lucknow & others dated 30.3.2022, passed in Writ-C No.5781 of 2016.
17. To resolve the controversy involved in the present writ petition, operative portion of the judgments relied upon by learned counsel for the petitioner is extracted hereinbelow:
(i) Narender Singh (supra) :-
"6. Assailing the reasoning of the First Appellate Court and the High Court, it is argued that the plea of co-ownership in respect of the land in suit could not have been raised in proceedings under the Act of 1953 as there was no cause of action or occasion for the same. In the Consolidation proceedings an inter-se dispute between the father and the sons never arose. It was not a subject matter which fell within the exclusive jurisdiction of the consolidation authorities under the Act of 1953.
7. Learned counsel appearing for the respondent-plaintiff supported the judgment of the First Appellate Court and the High Court. It is submitted that the legal question raised on behalf of the appellant has been rightly answered against them on the decision of this Court inSita Ram vs. Chhota Bhondey.
8. It is not in dispute that the suit lands were recorded exclusively in the name of the deceased defendant who was the father. The sons, even after becoming major and fully aware of the execution of the agreement of sale, did not make any attempt to get their names jointly recorded in the Revenue papers by appropriate proceedings underSection 49of the Act of 1953. The present appellants have been brought on record of the suit only as legal representatives after death of the original defendant. Section 49 of the 1953 Act bars jurisdiction of Civil Court to adjudicate upon dispute of rights and title relating to lands included in Consolidation Proceedings. The jurisdiction to decide dispute of rights and title of the lands in Consolidation Proceedings has been conferred by the Act exclusively on the authorities under the said Act.
9. Section 49of the Act of 1953 reads thus :-
"49. 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 by the lying in an area, for which a notification has been issued [under sub-section (2) orSection 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 that Assistant Collector from initiating proceedings undersection 122-Bof 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.[Emphasis supplied]
10. The learned counsel for the respondents is right in his reply that the lands being exclusively recorded in the name of the father, the sons who claim joint ownership in the lands could and ought to have approached the authorities under the Act for getting them jointly recorded in the Revenue Papers. Such proceedings for recording them as joint owners having not been initiated under the Act of 1953, the High Court was right in invoking bar against such plea in the suit in accordance withSection 49of the Act. We find that the contention advanced and accepted by the High Court gets full support from the following observations of this Court in the case ofSri Ram(supra) :-
"In the instant case respondent 1 was claiming an interest in the land lying in the area covered by notification issued underSection 4(2)on the basis that he is the son of Chhota, brother of Nanha and that the lands were recorded in the name of Nanha in a representative capacity on behalf of himself and his other brothers. This claim which fell within the ambit ofSection 5(2)had to be adjudicated by the consolidation authorities. Since it was a matter falling within the scope of adjudicatory functions assigned to the consolidation authorities under the Act the jurisdiction of the civil court to entertain the suit in respect of the said matter was expressly barred bySection 49of the Act and the suit of the appellant was rightly dismissed on that ground."
11. The argument that revenue entry in the name of father should have been treated as in representative capacity for sons is misleading. Whether the father was Karta and Manager of the family and as such could be recorded in representative capacity for all co-owners in the family was also a question of title which fell within exclusive jurisdiction of the authorities under the Act.
12. Apart from the bar undersection 49of the Act of 1953, there is no equity in favour of defendant and his Legal Representatives. The jurisdiction exercised underSpecific Relief Actis both legal and equitable. The father entered into an agreement of sale when the sons were major. In his oral evidence, plaintiff states that one of the sons took part in the negotiations of sale. In this appeal, learned counsel appearing submits that the sons were not parties to the suit in trial court and the statement of plaintiff against them cannot be accepted without availability of any opportunity to lead evidence in rebuttal.
13. It is difficult to believe that the sons had no knowledge of the execution of the sale agreement by their father. Even after institution of suit, no attempt was made by the sons to approach the authorities under the Act of 1953 for getting get their names recorded on the lands as joint owners. In such circumstances, they cannot be heard to say that the father was not competent to execute the agreement of sale and it is not binding on them."
(ii) Sita Ram (supra) :-
"From a perusal ofSection 49it is evident that declara- tion and adjudication of rights of tenure-holders in respect of land lying in an area for which a notification has been issued underSection 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 provi- sions 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 inSection 49is wide and comprehensive. Declaration and adjudication of rights of tenure-holders in respect of land lying in the area covered by the notification underSection 4(2)of the Act 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, 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."
(iii) Ram Briksha (supra) :-
"23. The bar provided for underSection 49of U.P. Consolidation of Holdings Act, 1953 has been subject matter of interpretation before the Apex Court time and again and in the case ofKarbalai Begum vs. Mohd. Sayeed and anotherAIR 1981 SC 77, a suit by a co-sharer to challenge deletion of her name in joint Khewat in consolidation proceeding on the ground of fraud of other co-sharers in possession has been held to be not barred underSection 49of the Act and suit has been held to be maintainable where dishonest cousins, looking after the lands of their brother's widow casted covetous eyes on their sister-in-law's share with deplorable design seeking to deprive her of her legal share.
24. Apex Court in the case of Sita Ram vs. Chotta Bhonde AIR 1991 SC 249 elaborately consideredSection 49of the Act 1953 and therein has held that the bar underSection 49does not come into play in context of consolidation proceedings itself, rather after the amendment in question has been introduced declaration and adjudication of rights of tenure holders in respect of land lying in area wherein notification has been issued undersection 4(2)and adjudication of any other rights arising out of consolidation proceedings in regard to which proceedings could or ought to have been undertaken under the Act has to be done in accordance with the provisions of the Act only and the jurisdiction of the Civil Courts or Revenue Courts to entertain any suit or proceedings with respect to the rights in such land or with respect to any other land in which proceedings could or ought to have been taken under the Act have been taken away. The claim set up by Respondent no.1 on the basis that he is the son of Chota, brother of Nanhu and that the lands were recorded in the name of Nanhu in representative capacity on behalf of himself and his other brothers fell within the ambit ofSection 5(2)had to be adjudicated by consolidation authorities, since it was matter falling within the scope of adjudicatory functions assigned to consolidation authorities under the Act, the jurisdiction of Civil Court to entertain the suit in respect of said matter was expressly barred bySection 49of the Act.
25. The language used inSection 49is wide and comprehensive. Declaration and adjudication of rights of tenure holders in respect of land lying in the area covered by notification underSection 4(2)of the Act and 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 Act and would cover interpretation of questions as to title in respect of the said lands.
Apex Court in the case of Narendra Singh and others vs. Jai Bhagwan AIR 2005 SC 582, followed the dictum of Sita Ram (supra) while upholding the bar underSection 49of U.P.C.H. Act by mentioning that land being exclusively recorded in the name of the father, the sons who claim joint ownership in the lands could and ought to have approached the authorities under the Act of 1953 for getting them jointly recorded in revenue papers. Such proceedings for recording them as joint owners having not been initiated under the 1953 Act, the High Court was right in invoking such a plea in the suit in accordance withSection 49of the Act. The argument that revenue entry in the name of father should have been treated as in representative capacity for sons is misleading whether the father was Karta and Manager of family and as such could be recorded in representative capacity for all co-owners in the family was also a question of title which fell within exclusive jurisdiction of authorities under the Act.
26. The object primarily appears to be allotting a compact area to the tenure holders in place of their scattered plots and this much is also reflected that with the passage of time, the area of operation of the aforementioned Act in question has been enhanced by providing that all such issues that can be answered after notification has been issued underSection 4(2)in reference of adjudication of rights arising out of consolidation proceedings be dealt with at one forum and declaration and adjudication of rights of tenure holders in respect of land lying in the area covered by notification underSection 4(2)of the Act and for adjudication of any other right arising out of consolidation proceedings.
27. A Division Bench of our Court, in the case ofAmar Singh vs. State of U.P.2008 (104) RD 421, while consider the issue as to whether suit filed was barred underSection 49of the Act, held as follows:-
"The bar contained inSection 49contemplates bar of entertainment of suit by a civil or revenue court in respect of following:
(a) the declaration and adjudication of rights of tenure holders,
(b) adjudication of any other rights arising out of consolidation proceedings, and
(c) adjudication of any right in regard to which a proceeding could or ought to have been taken underU.P. Consolidation of Holdings Act, 1953.
In view of the above, it is clear that any adjudication done with regard to land lying in the area in which a notification underSection 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 underU.P. Consolidation of Holdings Act, 1953. The provision contains the principles of res-judicata as well as principles of constructive res-judicata.
This Court in the case of Smt. Sudama v. Hansraj reported in 1981 R.D. 116 has again reiterated the same view. The case of the appellant before the High Court was that defendant abused their position in getting their name recorded as sole tenure holder by practising fraud on the plaintiff by misrepresentation before the consolidation authorities. The court took the view that suit under Section 229-B for declaration of the title was not barred. Following was observed by the Court:
"The revenue court while dealing with the suit for declaration can, on coming to the finding that the entries made by the consolidation authorities were procured by fraud and were wrong, declare the plaintiff's right as tenure holder and direct that the entries be corrected accordingly."
Coming to the facts of the present case, the plaintiff's case was that the plot in dispute was purchased through registered sale deed dated 17.3.1969 both by the plaintiff and defendant (writ petitioner), who was co-sharer. The case of the plaintiff further was that it was the defendant petitioner who was looking after the cases in the court and the plaintiff was living in forest being Gaderiya looking after his goats, was duped by the defendant in removing his name from the revenue record. The plaintiff has also claimed that after the sale deeds, both the parties came in possession. A co-sharer who claim to be in possession of the property and his name being not recorded in consolidation proceeding is not debarred from bringing a suit under Section 229-B for correcting the entries and recording his name also if allegation is that his name was removed by practising fraud on him. The judgment of the Apex Court in the case ofKarbalai Begum and Smt. Sudama(supra) fully supports the view taken by the courts below that suit is not barred underSection 49of the U.P. Consolidation of Holdings Act, 1953.
There is one more aspect of the matter, which cannot be lost sight of. The plaintiff had come with the case that both plaintiff and defendant purchased the property from a third person by a common sale deed. The defendant vaguely denied the purchase of the property through sale deed but has not come up with any case in the written statement as to what was the source of his title. The decision of the trial court that since no case was filed in the consolidation court, the bar will not apply was not sufficient to overrule the objection but the revisional court has considered the matter in detail and has recorded positive finding that the name of the plaintiff was deleted by practising fraud on the defendant hence, the bar ofSection 49will not apply. The suit is still pending adjudication before the court below where final decision has to be taken after looking into the evidence and materials which have come on the record. At the very out set, without even permitting the plaintiff to lead evidence and to prove his case, throwing out the suit on the ground that the suit is barred bySection 49, is neither just nor legal. In view of the foregoing discussions, I do not find it a fit case for interference in writ jurisdiction envisaged underArticle 226of the Constitution of India."
28. Section 49of 1953 Act under the scheme of things provided for contemplates bar of entertainment of suit by a Civil Court/Revenue Court in respect of right of tenure holder, however exception has been carved out based on judicial pronouncement that when the name of a co-tenure holder could not be recorded by practising fraud, the entries in consolidation proceeding can be challenged and bar ofSection 49would not at all come into place since fraud vitiates even the most solemn proceeding.
29. Once we have proceeded to examine the parameters of the provisions ofSection 49of the U.P. Consolidation of Holdings Act, 1953, the larger issue i.e. engaging our attention is as to whether an incumbent, who otherwise has interest in property, looses his right in the property in question and stands ousted from the property merely because he has not at all participated in the proceedings in question.
In respect of right in land, the provisions ofU.P. Zamindari Abolition and Land Reforms Act, 1950are self sufficient and the provisions ofU.P. Consolidation of Holdings Act, 1953as already quoted above had only limited role to play in respect to consolidation of agriculture holdings to facilitate better quality of agriculture activities, whereas U.P. Act No.1 of 1951 deals with all aspects including the acquisition of interest of intermediaries and its consequences, vesting of land for Gaon Sabha and its superintendence, management of control of land etc by the Land Management Committee and its tenural rights, classes of tenure, transfers, dissolution, division/ extension of rights, rent, ejectment, conferment of rights etc.U.P. Consolidation of Holdings Actat no point of time has ever proceeded to deal with expansion of rights or with conferment of rights rather under the scheme of things provided underU.P. Consolidation of Holdings Act, the existing rights over the land under consolidation operation are only to be recognized under the provisions ofU.P. Consolidation of Holdings Actand nothing beyond the same.The U.P. Consolidation of Holdings Actdoes not deal with grant of authority to grant substantive rights to a tenure holder rather it is only empowered to recognize the existing rights of tenure holder and in the said direction a full-fledged mechanism has been provided for.
30. Landed property be it individually, jointly, or based on co-sharer confers rights over the property in question and the said rights in question can be defeated or be taken away only in accordance with law.
31. Apex Court in the case ofN. Padmamma vs. S. Ramakrishna ReddyAIR 2008 SC 2834 held that a right of property is a human right and also a constitutional right and the same cannot be taken away except in accordance with law.Article 300-Aof the Constitution protects such a right and as far asU.P. Consolidation of Holdings Act, 1953is concerned, the purpose of the aforementioned Act is not at all to divest an incumbent of such right keeping in view the provisions ofArticle 300-Aof the Constitution of India as its paramount object is to see that agricultural activity is to be carried out in one area and in case at the point of time of constituting one compact are, in respect of one compact area in case anyone has to raise any issue, he can come forward.
32. Apex Court, in the case ofRajiv Sarin vs. State of U.K.2011 (8) SCC 708 while considering the provisions of U.P.Z.A.L.R. Act alongwith K.U.Z.A.L.R. Act (Kumaun and Uttarakhand Zamindari Abolition and Land Reforms Act 1960) took the view where appellants' father had acquired in the year 1945 propriety right in an estate which comprised of large tracts of forest spanning in and around and where by Gazette notification dated 21.12.1977 under Section 4-A of K.U.Z.A.L.R. Act as amended by U.P. Act No.15 of 1978, the rights, title and interest of hissedar in respect of forest land situated in the specified areas ceased w.e.f. 01.01.1978 and the same were vested in the State Government, qua the said forest land stand taken by the State that the right, title or interest of a hissedar could be acquired without payment of compensation cannot be accepted as every hissedar whose rights, title or interest are acquired underSection 4, shall be entitled to receive and paid compensation. Said right has been recognised on the unveils ofArticle 300-Aof the Constitution, that ensures that persons should not be deprived of property save by authority of law. The scrutiny of subject matter ofU.P.C.H. Actclearly reflects that at no point of time endeavour under the said Act has been to deprive a person of his property rather said legislation was directly linked with agrarian reforms, an enactment under Schedule VII List II Entry 18 of "land".
33. Concious of this situation, mention has been made that right in the property in question is not at all lost under the provisions ofU.P. Consolidation of Holdings Act, 1953, rather the forum to regain the property in question is lost being barred by operation of law.
Once a right in property cannot be taken away except in accordance with law asArticle 300-Aof the Constitution protects such right, in such a situation and in this background, the larger issue is that, would in such a situation accepting for the purposes of case that the rights are there even then there is loss of forum ?
At this juncture, the two Judgements of the Apex Court are being looked into.
34. Apex Court in the case ofAmar Nath vs. Kewla Devi and another2014 AIR SCW 3110 has clearly ruled in reference of bar being placed underSection 49of U.P. Consolidation of Holdings Act, 1953 that where plaintiff claimed himself to be belonging to a common ancestor as defendant and then order was passed against him by playing fraud and his right to be accorded as co-bhoomidhar in revenue records cannot stand extinguished merely because he withdrew objection, the Apex Court took the view that orders of consolidation officer suffers of legal malice as there is accepted withdrawal of plaintiff's objection without examining evidence produced as to ownership of land and bar underSection 49has been held to be not attracted. Relevant extract of the said judgement reads as follows:-
"We do not think it necessary to remit the matter back to the High Court for fresh consideration. We feel it is sufficient to set aside the impugned judgment and uphold the well-reasoned judgment of the first appellate court where it was held that the very fact that the trial court held that it was proved that Amar Nath was s/o Vaij Nath based on the evidence on record, then automatically the court should have given half the portion of the disputed land to the appellant along with defendant no.1, Kewla Devi. Instead, the trial court as well as the Consolidation Officer have passed judgments that are bad in law as they have failed to see that the right of the appellant cannot simply be extinguished because of the defendants' plea that he has entered into a compromise. The defendants have taken undue advantage of the appellant's illiteracy and the Consolidation Officer has abdicated his role by allowing the objection of the appellant to be withdrawn and by not examining whether or not the appellant was indeed the S/o Vaij Nath who was the S/o Gaya. The order of the Consolidation Officer is thus bad in law and it has resulted in a grave miscarriage of justice. We think it fit to restore the judgment and decree passed by the first appellate court wherein the court declared that the appellant, Amar Nath is S/o Vaij Nath who was son of Gaya thereby holding that the order passed by the Consolidation Officer is void and illegal and the trial court was wrong in not quashing the order of the Consolidation Officer and that nowhere in the revenue record was his name recorded and fraud was committed against him as defendant no.1, Kewla Devi has got her name recorded in each and every revenue record. The judgment of the first appellate court is legal and valid as it is fair and keeping with the principles of justice. The trial court in its answer to issue nos. 1 and 10 has rightly held that Amar Nath is S/o Vaij Nath who was undisputedly the son of Gaya and if that fact was proved, then we see no reason why it was not directed for the appellant's name to be recorded in the revenue records. The right of the appellant over the suit schedule property cannot be extinguished simply because objection was withdrawn, over which there is a cloud of doubt anyway and also, the appellant has pleaded that he had no idea about the order of the Consolidation Officer in the first place. We find it highly likely that fraud was committed on him by the defendants as well as the Consolidation Officer by not recording his name in the revenue records as the defendants have taken undue advantage of his illiteracy so that the whole property goes to the defendants.
10. Answer to point no.2:
The question whether the original suit of the appellant was barred under Section 49 of the UP Consolidation of Land Holdings Act and Section 331 of the UP Zamindari Abolition and Land Reforms Act, we answer in the negative. The suit was not barred under the aforesaid provisions as the UP Zamindari Abolition and Land Reforms Act has no jurisdiction to deal with the subject matter. On the issue of Section 49 of the UP Consolidation of Land Holdings Act, we hold that the present case is not barred under this section as it is a suit for possession of the suit schedule property based on title, which is not within the jurisdiction of the authorities under the aforesaid Act.In the case ofSuba Singh v. Mahendra Singh & Ors., it was observed by this Court thatSection 49does not bar jurisdiction of civil courts in matters of title to the land stating that -
"9. ...The result is that the plea of bar of the civil courts' jurisdiction to investigate and adjudicate upon the title to the land or the sonship of the plaintiff has no substance...."
Therefore, since the present case too involves a question of ''sonship' of the plaintiff who is the appellant herein, there is no bar to the jurisdiction of civil courts underSection 49of the aforesaid Act, in deciding the question of the appellant's right to the land he has inherited from his father.
11. Answer to point nos.3 & 4:
The order of the Consolidation Officer dated14.2.1970 was obtained on the basis of fraud by the defendants. We feel that the Consolidation Officer has also committed fraud on the appellant, by accepting withdrawal of his objection and not going into the issue of whether he is the s/o Vaij Nath or not, and therefore whether he is the rightful heir, with a right in half-share of the disputed property. The Consolidation Officer has not discharged his duties properly and keeping with law has not given details of the objection or why the objection was not pressed by the appellant in his order. He has permitted a gross miscarriage of justice to continue by recording of the name of defendant no.1 as the only rightful heir to the land in dispute. In the case of S. Partap Singh v. State of Punjab, Ayyangar J. in his portion of the judgment at para 6 has quoted Lord Denning (in the case Lazarus Estates Ltd. v. Beasley 1956 1 All ER 341 at p.345) stating:
"No judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud."
35. Apex Court in the case ofN. Padmamma and others vs. S. Ramakrishna Reddy and others2015 (1) SCC 417 has taken the view that in property law right of one party cannot be defeated. Relevant extract of the said judgments is as follows:-
"It is fairly well settled principle of law that the possession of a co-heir is in law treated as possession of all the co-heirs. If one co-heir has come in possession of the properties, it is presumed to be on the basis of a joint title. A co-heir in possession cannot render its possession adverse to other co-heirs not in possession, merely by any secret hostile animus on his own part, in derogation of the title of his other co-heirs. Ouster of the other co-heirs must be evidenced by hostile title coupled by exclusive possession and enjoyment of one of them to the knowledge of the other. See Corea v. Appuhamy 1912 AC 230(PC).
Reference may also be made to the decision of this Court inP. Lakshmi Reddy v. L. Lakshmi ReddyAIR 1957 SC 314 where this Court has succinctly summed up the legal position as under:
"But it is well-settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The coheir in possession cannot render his possession adverse to the other co-heir, not in possession. merely by any secret hostile animus on his own part in derogation of the other co-heir's title. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster."
36. 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 ofSection 49of 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 andSection 49of 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 ofU.P. Consolidation of Holdings Actwherein 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.
The provisions ofSection 49of U.P. Consolidation of Holdings Act, 1953 in such backdrop would not at all be attracted and the suit in question would not at all be prima facie barred where suit in question is filed for possession of the suit property based on property interest. The reference is answered as follows Issue No.I
37. Whether use of words "could or ought to have been taken" in latter part ofSection 49of the Act, compulsorily forces the co-sharers, who are living jointly, peacefully and have no grievance against their father/brother/co-sharer, whose name is recorded in representative capacity, or they were willing to live jointly, due to situation of their family, i.e. (father and minor son), (mother and minor son), (brother and minor brother) and (some co-sharer was student and had gone abroad for study and fully depends upon other co-sharers) etc., to file an objection underSection 9of the Act for separation of his share?
A. Because of the words "could or ought to have been taken" in latter part ofSection 49of the Act, same does not compulsorily forces the co-sharers, who are living jointly, peacefully and have no grievance against their father/brother/co-sharer whose name is recorded in representative capacity or they were willing to live jointly due to situation of their family and who have not filed an objection underSection 49of the Act for separation of their share inasmuch as under the provisions ofU.P. Consolidation of Holdings Act, 1953, it is the statutory obligation cast upon the authorities and the incumbent, who has been holding the property in question in the representative capacity to get the records corrected and in case in designed manner the obligation in question has not been discharged by Consolidation Authorities as well as by the incumbent holding the property in the representative capacity, then in such a situationSection 49of the Act would not at all be attracted and such situation would be covered under the contingency of planned fraud to drop the name of other co-sharers from the revenue records.
Issue No.II
38. Whether by operation of law, the parties can be thrown into litigation against their will/need and by not raising claim to land or partition and separation of the chak their right to property can be taken away in spite of protection available underArticle 19 (1) (f)and nowArticle 300-Aof the Constitution?
A. The answer is that a party cannot be thrown in litigation against their will/need and by not raising claim to land of partition and separation of chak, their rights to property cannot be taken away under the protection provided for underArticle 19(1)(f)/Article 300-Aof the Constitution of India.
Issue No.III
39. Whether, in spite of well settled legal principle in respect of joint property, right of a co-sharer will come to an end underSection 49of the Act, on the notification underSection 52, due to not claiming partition of his share and separate chak in his name, although, there had been no ouster from joint property?
A. The rights of the co-sharers will not at all come to an end underSection 49of the Act, on the notification underSection 52due to not claiming partition of his share and separate chak in his name and till there is no ouster from the joint property his right in the property will continue to exist.
The reference is accordingly answered. The Writ Petition alongwith connected matters shall now be placed before the appropriate Bench according to roster for disposal in light of this judgement."
(iv) Raghubar Dayal (supra):-
"13. Thus, in view of the above said fact, the onus lies on the respondents to prove of existence of a joint family does not lead to the presumption that property held by any member of family is joint. The burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which form its nature and relative value, may have formed the nucleus, from which property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of joint family property. However, opposite party no.1/Deputy Director of Consolidation/Additional District Magistrate, Sitapur without any documentary evidence and contrary to material on record held that property owned by Bhoop when the respondents themselves failed to prove by any cogent evidence that is a Joint Hindu Family property as the burden rests upon them to prove that property is joint family property so the impugned order passed by opposite party no.1 is contrary to law laid down by Hon''ble the Supreme Court in the case of Rukhmabai v. Lala Laxminarayan AIR 1960 SC 335, the Court said:
"There is a presumption in Hindu Law that a family is joint. There can be a division in status among the members of a joint Hindu family by refinement of shares which is technically called "division in status", or an actual division among them by allotment of specific property to each one of them which is described as "division by metes and bounds". A member need not receive any share in the joint estate but may renounce his interest therein, his renunciation merely extinguishes his interest in the estate but does not affect the status of the remaining members vis-a-vis the family property, A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether movable or immovable, held by a member of, a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property..."
14. InAchuthan Nair v. Chinnammu Amma and others, their Lordships said:
"Under Hindu law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law."
15. In Mudi Gowda Gowdappa Sankh v. Ram Chandra Ravagowda Sankh, the Court noticed the observation of Sir John Beaumont in Appalaswami (supra) and reiterated that burden of proving that any particular property is joint family property, in the first instance, is, upon the person who claims it as coparcenary property. But, if possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of joint family is presumed to be joint family property. This is however, subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self acquisition to affirmatively make out that the property was acquired without any aid from the family estate.
16. In Baikuntha Nath Paramanik v. Sashi Bhusan Pramanik and others, this Court again held, when a joint family is found to be in possession of nucleus sufficient to make the impugned acquisitions, then a presumption arises that the acquisitions standing in the names of the person who were in the management of the family properties, are family acquisitions.
17. In Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe, the Court observed that character of any joint family property does not change with the severance of status of joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. By a unilateral act it is not open to any member of joint family to convert any joint family property into his personal property.
18. In Surendra Kumar v. Phoolchand, the Court said:
"It is no doubt true that there is no presumption that a family because it is joint possessed joint property and therefore the person alleging the property to be joint has to establish that the family was possessed of some property with the income of which the property could have been acquired. But such a presumption is a presumption of fact which can be rebutted."
19. In Appasaheb Peerappa Chandgade v. Devendra Peerappa Chandgade, the Court said:
"... there is no presumption of a joint Hindu family but on the evidence if it is established that the property was joint Hindu family property and the other properties were acquired out of that nucleus, if the initial burden is discharged by the person who claims joint Hindu family, then the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property by cogent and necessary evidence."
20. In D.S. Lakshmaiah and Anr. v. L. Balasubramanyam and another, in para 18 of the judgment the Court, after a retrospect of various earlier decisions, said:
"18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available."
21. Thus, the legal position which emerges out is that initial burden is on the person who claims that it is joint family property but after initial burden is discharged, the burden shifts to the party claiming that the property was self acquired and without the aid of joint family property/fund."
(v) Sriram (supra) :-
"5. In Appalaswami Vs. Suryanarayanamurti and Ors., AIR 1947 PC 189, it was held that Hindu law is very clear. Proof of existence of a joint family does not lead to the presumption that property held by any member of family is joint. The burden rests upon one who asserts that an item of property is joint, to establish that fact. But where it is established that the family possessed some joint property which, from its nature and relative value, may have formed the nucleus, from which property in question may have been acquired, the burden shifts to the party alleging self-acquisition, to establish affirmatively that the property was acquired without the aid of joint family property/fund.
6. Again in Srinivas Krishnarao Kango Vs. Narayan Devji Kango AIR 1954 SC 379, it was held that proof of existence of a joint family does not lead to the presumption that property held by any member of family is joint. The burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which form its nature and relative value, may have formed the nucleus, from which property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of joint family property.
7. The legal proposition which emerges therefrom is that initial burden is on the person who claims that it is joint family property but after initial burden is discharged, the burden shifts to the party claiming that the property was self acquired and without the aid of joint family property/fund.
8. In Rukhmabai Vs. Lala Laxminarayan AIR 1960 SC 335, the Court said:
"There is a presumption in Hindu Law that a family is joint. There can be a division in status among the members of a joint Hindu family by refinement of shares which is technically called "division in status", or an actual division among them by allotment of specific property to each one of them which is described as "division by metes and bounds". A member need. not receive any share in the joint estate but may renounce his interest therein, his renunciation merely extinguishes his interest in the estate but does not affect the status of the remaining members vis- a-vis the family property, A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether movable or immovable, held by a member of, a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property. to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property..." (emphasis added)
9. In Achuthan Nair v. Chinnammu Amma and Ors. AIR 1966 SC 411, their Lordships said:
"Under Hindu law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law."
10. In Mudi Gowda Gowdappa Sankh Vs. Ram Chandra Ravagowda Sankh (1969) 1 SCC 386, the Court noticed the observation of Sir John Beaumont in Appalaswami (supra) and reiterated that burden of proving that any particular property is joint family property, in the first instance, is, upon the person who claims it as coparcenary property. But, if possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of joint family is presumed to be joint family property. This is however, subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self acquisition to affirmatively make out that the property was acquired without any aid from the family estate.
11. In Baikuntha Nath Paramanik Vs. Sashi Bhusan Pramanik and Ors. (1973) 2 SCC 334, this Court again held, when a joint family is found to be in possession of nucleus sufficient to make the impugned acquisitions, then a presumption arises that the acquisitions standing in the names of the person who were in the management of the family properties, are family acquisitions.
12. In Bhagwant P. Sulakhe Vs. Digambar Gopal Sulakhe AIR 1986 SC 79, the Court observed that character of any joint family property does not change with the severance of status of joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. By a unilateral act it is not open to any member of joint family to convert any joint family property into his personal property.
13. In Surendra Kumar Vs. Phoolchand (1996) 2 SCC 491, the Court said:
"It is no doubt true that there is no presumption that a family because it is joint possessed joint property and therefore the person alleging the property to be joint has to establish that the family was possessed of some property with the income of which the property could have been acquired. But such a presumption is a presumption of fact which can be rebutted."
14. In Appasaheb Peerappa Chandgade Vs. Devendra Peerappa Chandgade (2007) 1 SCC 521, the Court said:
"... there is no presumption of a joint Hindu family but on the evidence if it is established that the property was joint Hindu family property and the other properties were acquired out of that nucleus, if the initial burden is discharged by the person who claims joint Hindu family, then the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property by cogent and necessary evidence."
15. In D.S. Lakshmaiah and Anr. Vs. L. Balasubramanyam and Anr. (2003) 10 SCC 310, in para 18 of the judgment the Court, after a retrospect of various earlier decisions, said:
"18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available." (emphasis added)
16. Following the above authorities, this Court has already taken the same view Second Appeal No. 336 of 2013 (Harey Krishna Agrawal And Others Vs. Jairaj Krishna (Dead) And Others) and others decided on 30.05.2013, Second Appeal No. 935 of 1995 (Kunj Bihari & Others Vs. Ganga Sahai Pandey & others) decided on 03.07.2013 and First Appeal No. 629 of 2005 (Amar Nath Kapoor And Others. Vs. Krishna Gopal Kapoor And Others) decided on 25.05.2016 and learned counsel for respondents could not persuade this Court to take a different view.
17. In view of above, the writ petition is partly allowed. Impugned order dated 30.11.1970 passed by Deputy Director of Consolidation so far as it relates to Khata No. 9 allotting shares to the respondents therein is hereby set aside and orders passed by Assistant Settlement Officer (Consolidation) and Consolidation Officer, so far as they relate to Khata No. 9, are hereby restored and confirmed. "
18. Learned Standing Counsel also relied upon a judgment in the case of Ram Nath (supra), operative portion of which is extracted hereinbelow:-
"12. Be that as it may, Section 49 of the UP CH Act cannot operate in vacuum and is applied in given fact situation. It is a mixed question of law and fact which has to be considered on case to case basis. The applicability of Section 49 of the UP CH Act was considered by this Court in the case of Mohd. Siddiq Khan and others Vs. Board of Revenue U.P. 2021 (151) RD page 5 wherein relying upon a Division Bench decision of this Court in the case of Ram Briksh and another Vs. Deputy Director of Consolidation and 3 others, 2017 (6) ADJ 356 (DB) wherein the issue was referred to a larger Bench and the questions referred for consideration and opinion of the Division Bench reads as under:-
"(i) Whether use of words "could or ought to have been taken" in latter part of Section 49 of the Act, compulsorily forces the co-sharers, who are living jointly, peacefully and have no grievance against their father/brother/co-sharer, whose name is recorded in representative capacity, or they were willing to live jointly, due to situation of their family, i.e. (father and minor son), (mother and minor son), (brother and minor brother) and (some co-sharer was student and had gone abroad for study and fully depends upon other co-sharers) etc., to file an objection under Section 9 of the Act for separation of his share?
(ii) Whether by operation of law, the parties can be thrown into litigation against their will/need and by not raising claim to land or partition and separation of the chak their right to property can be taken away in spite of protection available under Article 19 (1) (f) and now Article 300-A of the Constitution?
(iii) Whether, in spite of well settled legal principle in respect of joint property, right of a co-sharer will come to an end under Section 49 of the Act, on the notification under Section 52, due to not claiming partition of his share and separate chak in his name, although, there had been no ouster from joint property?"
Thereafter, meticulously, considering the various provisions of the U.P.C.H. Act, U.P.Z.A. & L.R. Act as well as the decisions of the Apex Court as well as of this Court on the issue regarding the applicability of Section 49 of the U.P.C.H. Act, the reference was answered in the following words:-
Issue No. I Whether use of words "could or ought to have been taken" in latter part of Section 49 of the Act, compulsorily forces the co-sharers, who are living jointly, peacefully and have no grievance against their father/brother/co-sharer, whose name is recorded in representative capacity, or they were willing to live jointly, due to situation of their family, i.e. (father and minor son), (mother and minor son), (brother and minor brother) and (some co-sharer was student and had gone abroad for study and fully depends upon other co-sharers) etc., to file an objection under Section 9 of the Act for separation of his share?
A. Because of the words "could or ought to have been taken" in latter part of Section 49 of the Act, same does not compulsorily forces the co-sharers, who are living jointly, peacefully and have no grievance against their father/brother/co-sharer whose name is recorded in representative capacity or they were willing to live jointly due to situation of their family and who have not filed an objection under Section 49 of the Act for separation of their share inasmuch as under the provisions of U.P. Consolidation of Holdings Act, 1953, it is the statutory obligation cast upon the authorities and the incumbent, who has been holding the property in question in the representative capacity to get the records corrected and in case in designed manner the obligation in question has not been discharged by Consolidation Authorities as well as by the incumbent holding the property in the representative capacity, then in such a situation Section 49 of the Act would not at all be attracted and such situation would be covered under the contingency of planned fraud to drop the name of other co-sharers from the revenue records.
Issue No. II Whether by operation of law, the parties can be thrown into litigation against their will/need and by not raising claim to land or partition and separation of the chak their right to property can be taken away in spite of protection available under Article 19 (1) (f) and now Article 300-A of the Constitution?
A. The answer is that a party cannot be thrown in litigation against their will/need and by not raising claim to land of partition and separation of chak, their rights to property cannot be taken away under the protection provided for under Article 19(1)(f)/ Article 300-A of the Constitution of India.
Issue No.III Whether, in spite of well settled legal principle in respect of joint property, right of a co-sharer will come to an end under Section 49 of the Act, on the notification under Section 52, due to not claiming partition of his share and separate chak in his name, although, there had been no ouster from joint property?
A. The rights of the co-sharers will not at all come to an end under Section 49 of the Act, on the notification under Section 52 due to not claiming partition of his share and separate chak in his name and till there is no ouster from the joint property his right in the property will continue to exist.""
19. Having heard the rival submissions of learned counsel for the parties, I perused the material available on record as well as law reports cited by learned counsel for the parties.
20. Perusal of the material, it shows that the respondent Nos. 3 & 4 filed a suit under Section 229-B U.P.Z.A. & L.R. Act claiming co-bhumidhari rights, alleging that Buddhu had acquired the land in a representative capacity as Karta of the joint Hindu family. The Assistant Collector dismissed the suit on 21.02.1986 holding that the claim was barred by Section 49 of U.P. Consolidation of Holdings Act, as no objection was filed during consolidation. The land was acquired by Buddhu individually, not from joint family funds. The Commissioner, Faizabad Division, Faizabad allowed the appeal on 26.07.1995, setting aside trial court judgment, holding that Section 49 not applicable. Second Appeal filed before the Board of Revenue, U.P. was dismissed on 19.06.1997, affirming the order of the Commissioner.
21. The respondent Nos.3 and 4 fraudulently procured a forged compromise before the Naib Tehsildar in 1991 to get their names entered in revenue records. This was set aside upon petitioners application, and their subsequent appeals and revisions were dismissed. The bar of Section 49 has been ignored since no objection was raised during consolidation, the suit under Section 229-B is barred.
22. The land was acquired by Buddhu personally. No evidence has been produced by opposite parties to prove joint family acquisition. The respondents never objected during Buddhus lifetime or at the time of mutation after his death. Their reliance on a forged compromise shows malafides.
23. The Commissioner and Board of Revenue reversed a well-reasoned trial court judgment without discussing findings or considering documentary evidence such as the lease, mutation entries, and revenue records. In view of the above, the impugned orders are arbitrary, violative of Section 49 U.P. Consolidation of Holdings Act and offend Article 14 of the Constitution of India.
24. The plea of co-ownership in respect of the land in suit could not have been raised in proceedings under the Act of 1953 as there was no cause of action or occasion for the same. In the Consolidation proceedings an inter-se dispute between the father and the sons never arose. It was not a subject matter which fell within the exclusive jurisdiction of the consolidation authorities under the U.P. Consolidation of Holdings Act, 1953.
25. Section 49 of the 1953 Act bars jurisdiction of civil court to adjudicate upon dispute of rights and title relating to lands included in consolidation proceedings. The jurisdiction to decide dispute of rights and title of the lands in consolidation proceedings has been conferred by the Act exclusively on the authorities under the said Act. For ready reference, Section 49 of the Act of 1953 reads thus :-
"49. 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 by the lying in an area, for which a notification has been issued [under sub-section (2) orSection 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 that Assistant Collector from initiating proceedings undersection 122-Bof 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. [Emphasis supplied]
26. On bare perusal of the aforesaid provision, it is evident that such proceedings for recording them as joint owners having not been initiated under the Act of 1953, bars invoking in the suit in accordance with Section 49 of the Act.
27. The father was Karta and Manager of the family and as such could be recorded in representative capacity for all co-owners in the family was also a question of title which fell within exclusive jurisdiction of the authorities under the Act. Apart from the bar under Section 49 of the Act of 1953, there is no equity in favour of respondent and his legal representatives. The jurisdiction exercised under Specific Relief Act is both legal and equitable.
28. From a bare perusal of Section 49, it is evident that 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) or Section 4], 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 this Act had to be done in accordance with the provisions of this Act only and the jurisdiction of the civil court or revenue court to entertain any suit or proceeding with respect to the rights in such land or with respect to any other land in which proceedings could or ought to have been taken under the Act have been taken away. 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 area covered by the notification under Section 4(2) of the Act 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.
29. The bar provided for under Section 49 of U.P. Consolidation of Holdings Act, 1953 has been subject matter of interpretation before the Apex Court time and again and in the case of Karbalai Begum vs. Mohd. Sayeed and another AIR 1981 SC 77, a suit by a co-sharer to challenge deletion of her name in joint Khewat in consolidation proceeding on the ground of fraud of other co-sharers in possession has been held to be not barred under Section 49 of the Act and suit has been held to be maintainable where dishonest cousins, looking after the lands of their brother's widow casted covetous eyes on their sister-in-law's share with deplorable design seeking to deprive her of her legal share.
30. In view of the above, there is no hesitation to hold that the bar contained under Section 49 contemplates bar of entertainment of suit by civil or revenue court in respect of the following :-
(a) the declaration and adjudication of rights of tenure holders,
(b) adjudication of any other rights arising out of consolidation proceedings, and
(c) adjudication of any right in regard to which a proceeding could or ought to have been taken under U.P. Consolidation of Holdings Act, 1953.
31. 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.
32. The judgments relied upon by the learned counsel for the petitioner are fully applicable to the facts and circumstances of the present case. The judgment relied upon by the learned Standing Counsel for the State-respondent in the case of Ram Nath (Supra) is distinguishable and is not attracted to the present facts and circumstances of the case.
33. On overall consideration of the material on record, as also looking to the facts and circumstances of the case and the judgments relied upon by both the parties, I am of the considered opinion that the impugned orders are wholly illegal and are liable to be quashed.
34. Accordingly, the writ petition succeeds and is allowed. Impugned orders dated 26.7.1995 and 19.6.1997 are hereby quashed.
35. No order as to costs.
(Irshad Ali,J.) November 13, 2025 GK Sinha