JUDGMENT Ashok Bhushan, J.
1. Heard Sri Apruva Hajela, learned Counsel for the petitioner.
2. By means of present writ petition, the petitioner has prayed for quashing the order dated 10.2.2005, passed by the Sub Divisional Officer, deciding issue No. 2 in suit No. 20 of 2003-04 against the petitioner and the order dated 28.8.2006, by which revision filed against the said order was dismissed by the revisional Court as well as the order dated 11.1.2008 by which the review application has been rejected by the revisional Court.
3. The brief facts necessary for deciding this writ petition are that a suit being suit No. 20 of 2003-04 was filed by the respondent No. 4 under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act claiming declaration that he be treated as co-tenure holder of plot No. 635 area 1.133 hectares (old No. 728 area 2.45 acres) and his name be also recorded as Bhumidhar in revenue record. The plaintiff's case was that plot No. 635 was purchased by plaintiff Saru son of Matadin alongwith Amar Singh son of Dhanu (petitioner) from one Dambha son of Hari Kishun through registered sale deed dated 17.3.1969 in pursuance of which both plaintiff and defendant came into possession. The plaintiff further pleaded that the names of both the parties were mutated but the defendant Amar Singh got the name of plaintiff deleted by practising fraud upon the plaintiff. The plaintiff's case further was that defendant No. 1 Amar Singh was looking after the cases and the plaintiff, who is Gaderiya lived in forest looking after his goats, Plaintiff further pleaded that he could not know about the fraud played by the defendants nor he could know about the consolidation proceedings. The defendant filed written statement denying the case of the plaintiff. He denied that the land was purchased through sale deed. He further stated that his name was continuing before consolidation proceedings. The plea was taken that the suit is barred by Section 49 of the UP. Consolidation of Holdings Act, 1953. The trial Court framed several issues and one of the issues was as to whether the suit was barred under Section 49 of the UP. Consolidation of Holdings Act, 1953. The trial Court decided the issue in favour of the plaintiff and held that the suit was not barred. The trial Court held that the land in suit was purchased by both, the plaintiff and defendants and no proceedings were taken in the consolidation hence, the suit was not barred. The revision filed by the defendant was also dismissed. The revisional Court found that the suit land was purchased both by the plaintiff and defendant and defendant by playing fraud got the name of the plaintiff removed from the revenue records in such case, the bar of Section 49 would not apply. The review application was also rejected.
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 Ors. reported in 1990 R.D. 439 and in the case of Zafar Khan and Ors. v. Board of Revenue, U.P. and Ors. reported in 1984 R.D. 328 and the judgment of this Court in the cases of Ram Sanehi Lal v. Board of Revenue reported in 1974 R.D. 241, Asha Ram Singh v. Board of Revenue, U.P. reported in 1992 Revenue Judgments Page 354, Smt. Hasiniya Begum v. Smt. Phool Bi and Ors. reported in 1982 Revenue Judgments page 271, Dina Nath Verma and Ors. v. Gokaran and Ors. 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.
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 UP. 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 have been taken under the Act.
The bar contained in Section 49 contemplates 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 under U.P. Consolidation of Holdings Act, 1953.
7. 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) deals 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. 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 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.
8. The judgment 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 U.P. Consolidation of Holdings Act, 1953. The Apex Court in the case of Zafar Khan (supra) also laaid 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.
9. 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 practising 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:
4. 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 Ors. 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 of fraud, it can in view of the aforesaid decision be presumed that this point was not pressed before the Board of Revenue.
10. The Apex Court in the case of Karbalai Begum v. Mohammad Sayeed reported in 1980 A.L.J. 902 had an occasion to consider the bar of Section 49 and the issue raised was whether deletion of the name from the joint Khewat in the consolidation proceedings on the ground of fraud in co-sharer's possession will bar apply. In the case before the Apex Court, the cousins of appellant Karbalai Begum were looking after the agricultural land. Karbalai Begum being widow of brother of the defendant respondents was in joint possession and became co-Bhumidhar after abolition of Zamindari. Her name was however, deleted in the consolidation proceedings. Entire property was mutated in the name of the respondents. A suit was filed by the appellant for joint possession. The suit was dismissed by the trial court. First appeal was allowed and the matter came to the High Court. The District Judge had recorded a finding that a fraud was played to drop out the appellant's name from the revenue records. The High Court took the view that there was no evidence of filing any objection under Section 9 of the UP. Consolidation of Holdings Act, 1953 by the appellant hence, the suit was barred by Section 49. The Apex Court in the facts of the said case took the view that the suit filed by the appellant Karbalai Begum was not barred by Section 49. Paragraphs 10, 11 and 13 of the judgment is being quoted herein below:
10. This was also a finding of fact, which was binding in second appeal. The High Court seems toi have relied on the fact that there was no evidence to prove that the plaintiff was prevented from filing a petition under Section 9 of the U.P. Consolidation of Holdings Act, 1953 or that the defendants assured the plaintiff that her name shall be entered in the record during the consolidation proceeding also, the High Court committed an error of record because the clear evidence of P.W., Karbalai Begum, is to the effect that she was not at all informed about the consolidation proceedings and was assured by the defendants that they would take proper care of her share in any proceedings that may be instituted. This was accepted by the District Judge and should not have been interfered with by the High Court in second appeal.
11. The High Court proceeded on the basis that there was nothing to show that any fraud was practised upon the consolidation authorities so as to make the order a nullity. Here the High Court completely misunderstood the case made out by the plaintiff. It was never the case of the plaintiff that any fraud was committed on the consolidation authorities. What she had stated in her plaint and in her evidence was that the defendant had practised a fraud on her by giving her an assurance that her share would be properly looked after by them and on this distinct understanding she had left the entire management of the properties to the defendants who also used to manage them. The trial court did not fully appreciate this part of the case made out by the plaintiff and the District Judge in clear terms accepted the same. In these circumstances, therefore, the finding of the High Court regarding fraud having been committed in the consolidation proceedings was not legally sound.
13. In view of the clear decision of this Court, referred to above, the High Court erred in law in holding that the present suit was barred by Section 49 of the U.P. Consolidation of Holdings Act.
11. This Court in the case of Smt. Sudama v. Hansraj reported in 1981 B.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.
12. 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 of Karbalai Begum and Smt. Sudama (supra) fully supports the view taken by the courts below that suit is not barred under Section 49 of the U.P. Consolidation of Holdings Act, 1953.
13. 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 of Section 49 will 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 by Section 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 under Article 226 of the Constitution of India.
The writ petition is dismissed summarily.